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[2023] ACTSC 311
Supreme Court of the ACT
2023-11-01
Berman AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v John Citation: [2023] ACTSC 311 Hearing Date: 1 November 2023 Decision Date: 1 November 2023 Before: Berman AJ Decision: See [27] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – joint commission – subjective circumstances – genuine remorse – rehabilitation – previously suspended sentences Legislation Cited: Crimes Act 1900 (ACT), s 24 Criminal Code 2002 (ACT), s 45A Crimes (Sentencing) Act 2005 (ACT), s 13 Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 86 Parties: Director of Public Prosecutions Hayley Maree John (Offender) Representation: Counsel C O’Connell (DPP) S Robinson (Offender) Solicitors ACT Director of Public Prosecution Fortify Legal (Offender) File Number: SCC 24 of 2022 BERMAN AJ: Introduction
This case, like many others that come before the courts, concerns an offence of violence committed after some money which had been borrowed was not repaid.
Sometime in the middle of 2022, the victim in this matter borrowed some money from Matthew John. Some of that was repaid but as of 5 July 2022, about $400 was outstanding. Leading up to that date, there were some attempts by Mr John to call the victim. Those calls were ignored.
On the evening of 5 July 2022, JJ called the victim to see what she was doing and organised to go over to her place. This was not an unusual event. Not long after that, JJ and the present offender arrived at the victim's home. Although the victim was not expecting the offender to be there, she was not concerned because it was not unusual. There was some conversation, after which the offender said that she had left something in the car and walked out of the house.
Whilst outside, the offender met Matthew John, the man who had lent the money, and two others who had arrived in another car. The offender’s role was to facilitate the entry into the premises of those three people. They went back into the victim's house, after which Mr John began yelling at the victim in a very aggressive manner. He eventually punched her with a closed fist to her face. After that, Sara Winters began punching the victim in her face as well, while Mr John continued to punch her. JJ remained seated on the bed. At one stage, the victim saw that he was armed with a gun.
The assault continued for more than five minutes. It is important to note a number of things: (i) firstly, the offender had no idea that a gun would be present at the scene; (ii) secondly, that she herself was not involved in any act of violence upon the victim; and (iii) thirdly, her understanding of what was to occur in the home that evening was that there would be some threats. It was not within her contemplation that an assault, certainly not one of the ferocity that eventuated, would take place.
Eventually, the group left but not before one of them lent towards the victim with a serrated knife in her hand and said, “We'll be back, and I'm putting this to you if you don't have our money”.
Not surprisingly, given the length of time over which the offence took place, the victim was injured. She had a significant laceration above her left eyebrow, her teeth were misaligned, and she had bruising and swelling as well.
As a result of the events I have just described, the offender pleaded guilty to an offence of assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT). It is important to note that her liability for the conduct of others comes about because of s 45A of the Criminal Code 2002 (ACT). She did not agree with anyone that that offence would take place, but nevertheless, was reckless as to whether an offence of assault occasioning actual bodily harm would be committed by others. This, of course, affects her moral culpability. At the risk of undue repetition, she did not intend, when she participated as she did and performed the role that she was given, that the victim would suffer the significant injuries that she later suffered.
The offender pleaded guilty to this matter at a fairly late stage of proceedings, about four days before the trial was due to start. Mr Robinson, who appears for Ms John today, suggests that she is thus entitled to a discount of 10% to reflect the utilitarian value of that plea of guilty. I accept that submission and so the sentence I impose upon her will be about 10% less than it would otherwise have been.
Subjective features
The offender had a far from ideal upbringing. It has resulted in her being diagnosed with Post Traumatic Stress Disorder (PTSD). One can well understand how that has come about given the early life of the offender. Her parents separated when she was a baby. She has an older brother, the man who lent the money to the victim of this matter in the first place. She was raised by her mother and her stepfather.
She was exposed to domestic violence between her mother and stepfather as she grew up and at one stage, when she was about 10 years of age, she was sexually assaulted by one of her stepfather’s friends. At school she was bullied and when she tried to fight back, she was expelled. She left school in year nine. She worked as a barista in a café when she was 15 years of age for about 12 months before she became pregnant to her boyfriend at the age of 16. She has not really worked since then.
She has a daughter who is now 15 years of age and living with her father in Queensland. That relationship ended and she formed a new relationship with JJ, the man who was armed with the weapon. As well as witnessing domestic violence between her mother and stepfather, she was the direct victim of domestic violence when she has been in relationships with her partners.
She has had problems with drugs for many years. She was introduced to ecstasy when she was 13 years of age, smoked cannabis when she was 15 and from the age of about 22, she began using stimulants; speed, ice and the like. She was using drugs in an increasing amount up until the day she was arrested. As well as suffering from PTSD, she also suffers from anxiety and depression and has attempted suicide on four occasions.
A psychological report prepared for today’s sentencing proceedings notes something which affects the moral culpability of the offender for what she did. The psychologist says this: Given the level of disturbance in functioning, thinking and attention from the drug use, in my opinion, she would not have had the capacity to make rational decisions and judgments. Besides the obvious effects with the methamphetamine to which she was addicted, there is a background of post traumatic stress and persistent depression.
The psychologist goes on: This background has likely found Ms John in her vulnerability to become involved in several dysfunctional relationships with men who are drug users and supplying her with drugs to maintain her addiction. These men appear to have involved her in criminal activity and given her drug use and co-dependency, she was likely not able to make to decline being involved in the offending behaviour.
Although there seems to be some typographical error in that report, it is clear that the psychologist is saying something which leads me to conclude that Ms John’s moral culpability for her participation in the offence I have described is reduced because of her upbringing and experiences of life.
Criminal history
The offender has a number of prior matters on her criminal history including aggravated burglary, damaging property, being accessory to theft and burglary, theft and driving offences as well. At the time of the offence I described, she was on a number of suspended sentences as well as a Good Behaviour Order for driving with a prescribed drug present. I have to resentence her for those matters. Remorse
Ms John has expressed her remorse for her participation in the events of that evening. She told the psychologist that she felt bad and also expressed her remorse in her letter to me which was tendered during today’s sentencing proceedings. I accept that she is remorseful. I accept that she is not only sorry for the position that she finds herself in, but also sorry for the impact of her behaviour on the victim of her offence.
Time in custody
Rehabilitation
Whilst in custody, Ms John has taken advantage of the opportunities open to her in order to progress her rehabilitation. Tendered before me were a number of certificates of achievement and records of attendance at courses. She engaged well with the alcohol and other drugs program whilst in custody. She was released from custody on bail fairly recently and continues to be supported in the community.
As well as entering the residential rehabilitation program I mentioned already, she is shortly to commence on an eight-week intensive support program to assist her abstaining from alcohol and other drugs. Her attempts at rehabilitation seem to be very genuine. She has done all that could be expected of her both in custody and upon her release.
Objective gravity
Parity
Consideration
It is important that any sentence imposed upon Ms John reflects the objective gravity of what she did and also reflects the need for her to be assisted in her rehabilitation efforts. She must be punished for her role in the nasty offence committed on the victim, but she must also be assisted in putting her criminal life behind her.
It is also important that she is appropriately punished for the offences which resulted in suspended sentences of imprisonment being imposed on her. That is especially the case where she has failed to take advantage of the leniency offered to her.
In my view, those objectives are best achieved in the following manner.
Orders
I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman. Associate: Date:
DPP
John [2023] ACTSC 311