Thost-Hedge v Marshall
[2015] ACTSC 232
•31 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Thost-Hedge v Marshall |
Citation: | [2015] ACTSC 232 |
Hearing Date(s): | 15 May 2015; 31 July 2015 |
DecisionDate: | 31 July 2015 |
Before: | Walmsley AJ |
Decision: | The appeal is allowed, see [20]. The sentence of the Magistrates Court is set aside and a new sentence imposed, see [43]. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Appeal principles – sentencing options other than full-time imprisonment – failure to state reasons for order contrary to recommendation – periodic detention - subjective circumstances CRIMINAL LAW – Particular offences – affray – sentencing – mental health – plea of guilty |
Legislation Cited: | Crimes (Sentencing) Act 2005, s 78 |
Cases Cited: | Ajetovic v Johnston; Kahric v Johnston [2011] ACTSC 201 EF v R, [2015] NSWCCA 36 Wilson v the Queen [2007] ACTCA 25 |
Parties: | Emma Thost-Hedge (Appellant) Sarah Kate Marshall (Respondent) |
Representation: | Counsel Mr J De Bruin (Appellant) Mr T Hickey (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 5 of 2015 |
WALMSLEY AJ:
Background
On 9 January 2015, the appellant was convicted and sentenced in the Magistrates Court.
For a count of affray she was convicted and sentenced to six months imprisonment of which she was ordered to serve three months full‑time, the remainder being suspended on her entering a good behaviour bond for 18 months.
On each of two counts of damage property she was convicted and ordered upon her release from custody to enter into a good behaviour order for 18 months.
There were also two counts of breach of good behaviour orders. As to them, it was directed no further action be taken.
The appellant has appealed against her sentences. Although her notice of appeal was mainly focused on the sentence for the affray, it covered all matters.
The appellant relies on the following grounds:
(i)The sentence for the affray was manifestly excessive in all the circumstances;
(ii)The same sentence had the effect of depriving her of the opportunity of engaging in ongoing counselling and other suitable programs identified in a pre‑sentence report, thus denying her any realistic rehabilitation through community-based orders;
(iii)The sentencing Magistrate did not adequately have regard to sentencing options other than full‑time custody.
Nature of the Appeal
I may only interfere in the sentencing process if satisfied that the Magistrate made an error or imposed a manifestly excessive sentence.
The learned Magistrate was made aware at the time she sentenced the appellant that the appellant had been assessed as suitable for community service and periodic detention. Section 78(6)(b) of the Crimes (Sentencing) Act 2005 (‘the Sentencing Act’) requires the court to state the reasons why it acts contrary to such a recommendation in the pre‑sentence report where, for example, an offender has qualified for periodic detention. No such reasons for not so acting were stated.
Consideration
It is clear from the transcript of the sentencing hearing that the appellant's solicitor made specific reference to the pre-sentence report's recommendation concerning periodic detention, and that he asked her Honour in his submissions to incorporate periodic detention. For example, at page 16, line 36 of the transcript he said, "What I would ultimately ask your Honour to consider is perhaps a sentence with some weekend detention suspended after a short period."
The Crown did not concede error before me, and submitted that the Magistrate had in fact addressed the matter correctly by, in effect, dealing with each submission in favour of periodic detention which had been put up by the appellant's solicitor, but then giving reasons why she did not accept each of those submissions.
It is true the Magistrate did deal with arguments in that way, which it could be said were put in favour of weekend detention or periodic detention.
But it seems to me that s 78(6)(b) is explicit. The Magistrate did not say why she rejected Mr De Bruin's submission for periodic detention when he had been eligible for it. That, in my view, was an error of law.
When the matter was before me on 15 May, I was concerned that Wilson v the Queen [2007] ACTCA 25 (‘Wilson’) had the effect that the error made by the Magistrate here could not be said to amount to a relevant error which would permit me to resentence the appellant. Thus I asked for written submissions on the issue.
In Wilson, error was not found. The sentencing judge there did not say why in imposing a period of imprisonment on the offender he did not impose a period of periodic detention although the offender qualified for it. All three members of the court found that the sentencing judge had not been in error.
Having had the benefit of helpful submissions about Wilson and other relevant cases from both the Crown and Mr De Bruin, I am satisfied that Wilson does not speak against an error being found in this case.
In Wilson, the offence was a significant one, and there was no submission made by counsel appearing on the sentencing hearing that the offender should serve any period of imprisonment by way of periodic detention. At [36] in Wilson, Gray J said of the requirement to give reasons in s 78(6)(b) it is "Subject to the court determining that the offender is otherwise eligible for the particular order."
As he and Besanko J both observed in Wilson, it was never suggested by the offender’s counsel there that periodic detention would be an appropriate way of serving the sentence.
Judges of the Supreme Court of the Australian Capital Territory have, since Wilson, found relevant error in circumstances such as those which apply here, impliedly adopting Gray J’s view in [16] above. For example, in Ajetovic v Johnston; Kahric v Johnston [2011] ACTSC 201 at [10], and in McDonald v Vandervalk and Wong (No 1) [2014] ACTSC 67 at [38], Burns J found error; in Scheele v Watson [2012] ACTSC 196, at [77], Refshauge J found error.
There is also support for the proposition that error of the relevant kind was made here in EF v R [2015] NSWCCA 36, where the sentencing judge had not considered that a term of imprisonment could be served by an intensive corrections order.
I am satisfied that an error of law was made by the Magistrate in failing to comply with s 78(6)(b) of the Sentencing Act. The appeal should be allowed, and the appellant re-sentenced. I will turn to consider the facts.
The offences
In the early morning of 4 May 2013, Joshua Yesberg was sitting in his car in the driveway in the Canberra suburb of Campbell. He had the ignition on and was preparing to leave. He received a text from somebody asking to meet him. He saw a car drive up and park near his house, and then he saw the appellant standing next to his car.
He recognised her as a friend of his ex girlfriend. He also saw someone standing in front of his car. That was the appellant. She then hit his car. He feared for his safety and put his foot on the accelerator and reversed the car out of the driveway towards the street. His car travelled across the street into someone's hedge. As it happened, when he reversed the car, he knocked over a person who was with the appellant; he was so badly injured that he later died.
After the car had stopped in the neighbour's hedge, the appellant ran to the car, struck the windscreen using a baseball bat, and screamed at him. The driver locked the car and called triple zero. His mother came out to his car, and he got out and went inside with her. The now deceased's girlfriend said something to him to the effect that he had just hit her boyfriend. Police later found a baseball bat near the scene.
The car's windscreen was damaged, as was a front spoiler, and there were some dents to the boot of the vehicle.
I have said earlier that there were two damage property offences. One of them involves the damage to the car which occurred at the time of the affray. The other involved an incident some months later when the appellant broke a kitchen window of a dwelling, something she did apparently in a moment of anger as a result of a domestic dispute.
The appellant pleaded guilty to all the offences. Her offending put her in breach of two good behaviour orders.
By reason of those good behaviour orders, the offender was on conditional liberty at the time when the affray and the property offences occurred. The Magistrate found the affray was aggravated because it was at night, near the complainant’s house, and a weapon was involved. As to the property offences, the Magistrate found the car damage offence to be close to mid-range, and the damage to the window to be low-range.
The offender’s subjective circumstances
I will say something now about subjective matters concerning the appellant. She was born in 1992, at the time of the offences she was 21. Her parents separated when she was nine. She had no contact with her father until she was 15. She told a psychiatrist she saw for this case that her father had sexually abused her, and that her complaints had not been believed.
When she was nine she moved to live in the ACT. She went at school in Canberra, but left before year 12. She had behavioural problems at school.
When she was young she was diagnosed as having ADHD, and was placed on antipsychotic drugs. She was also diagnosed as having a borderline personality disorder.
Her mother considered that she was autistic when she was young.
When she was 14, doctors took a history of her having suicidal ideation and having engaged in self harm. There was said to be a complex presentation with features of borderline personality disorder, attention deficit or hyperactivity disorder and extreme problems with mood regulation.
From the age of 15 she abused alcohol, and by the time she was 18 she was drinking without regard for the consequences.
The appellant, when young, was also diagnosed as having a pervasive development disorder.
Belconnen Mental Health had her under its care from the age of 18 onwards, and she had a good response to their treatment.
A Dr Sullivan has expressed the view that she learned aggression towards others whilst she was at school, and that the appropriate diagnosis was one of borderline personality disorder. He said that her disorder may have impaired her judgment at the time of affray, and it was important she continue having treatment from the same mental health therapist. This he considered would help her get insight and reduce the conflict and aggression in her life.
Dr Sullivan considered that if she were in full‑time custody, with her personality disorder there would be bound to be conflicts and self-harm. Thus he considered that incarceration would cause an adverse impact on her mental health.
There was also a report in evidence from the Inanna Crisis Service dated 17 March 2014 which emphasised how far the appellant had come in improving her behaviour since engaging with a mental health psychologist.
The appellant has two young children, neither of whom resides with her. She does see her children from time to time.
According to the pre‑sentence report, her alcohol consumption has greatly reduced. She is now seeing a private psychologist, and has been assessed as being at medium risk of re-offending. She was assessed as suitable for periodic detention by the authors of the pre‑sentence report.
ACT Health has expressed the view that she suffers every day from the losses in her life, and in particular from the loss of her friend who was killed at the time of the affray. She has been on antidepressants. It is said that she will need therapy for a number of years, and a mental health plan needs to be kept in place involving behavioural therapy. There is said to be a guarded prognosis.
Orders
I have taken into account the history of mental issues involving the offender. The affray is a very significant offence, and I consider that the appropriate penalty for that offence, taking into account her subjective circumstances, is to impose a sentence of three months imprisonment to be served by way of periodic detention. I impose that sentence taking into account the fact that she has served 14 days in full‑time custody. I propose that on the expiration of the three month sentence she enter into a good behaviour order for a period of 15 months.
As to the other offences, I propose to confirm the sentences imposed by the Magistrate. So the orders I make are as follows.
(a)As to the affray, the appellant is convicted. I impose a term of imprisonment of three months from 7 August 2015 to 6 November 2015, to be served by way of periodic detention. On completion of that sentence she is to enter into a good behaviour bond for 15 months. But for the plea of guilty, I would have imposed a sentence of five months imprisonment.
(b)As to the two offences of damage property, I impose the same sentence as was imposed by the Magistrate, that is, I confirm the convictions and confirm that she is to enter into a good behaviour order for 18 months in respect of each one. I agree with the Magistrate that no further action should be taken on the other matters.
I direct that the offender is to accept the supervision of the appropriate authorities to undertake treatment for her mental health and alcohol abuse problems.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgement of his Honour Acting Justice Walmsley. Associate: Date: 16 September 2015 |
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