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[2021] ACTSC 200
Supreme Court of the ACT
2021-04-06
Refshauge 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: R v Dowling (No 2)
Citation: [2021] ACTSC 200
Hearing Date(s): 19 March 2021 26 March 2021
Decision Date: 6 April 2021
Before: Refshauge AJ 1. Akira Dowling be convicted of obtaining property by Decision: deception on 8 March 2020 and be sentenced to six months imprisonment, to commence on 5 August 2020.
Akira Dowling be convicted of attempting to escape arrest on 8 March 2020 and be sentenced to three months imprisonment, to commence on 5 December 2020.
Akira Dowling be convicted of the first offence of unlawful possession of stolen property on 8 March 2020 and be sentenced to three months imprisonment, to commence on 5 January 2021.
Akira Dowling be convicted of the second offence of unlawful possession of stolen property on 8 March 2020 and be sentenced to three months imprisonment, to commence on 5 February 2021.
Akira Dowling be convicted of the third offence of unlawful possession of stolen property on 8 March 2020 and be sentenced to three months imprisonment, to commence on 5 March 2021.
Akira Dowling be convicted of the fourth offence of unlawful possession of stolen property on 8 March 2020 and be sentenced to three months imprisonment, to commence on 5 April 2021.
Akira Dowling be convicted of burglary on 13 April 2020 and be sentenced to 10 months imprisonment, to commence on 5 July 2021.
Akira Dowling be convicted of theft on 13 April 2020 and be sentenced to four months imprisonment, to commence on 5 July 2021.
Akira Dowling be convicted of obtaining property by deception on 13 April 2020 and be sentenced to seven months imprisonment, to commence on 5 December 2021. 10. Akira Dowling be convicted of dishonestly driving a motor vehicle without the owner's consent on 13 April 2020 and be sentenced to nine months imprisonment, to commence on 5 January 2022.
Akira Dowling be convicted of driving a motor vehicle while unlicensed on 15 April 2020, and, as the sentence, be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from 6 April 2021.
Akira Dowling be convicted of failing to stop when signalled by police on 15 April 2020 and be sentenced to six months imprisonment, to commence on 5 January 2022.
Akira Dowling be convicted of aggravated dangerous driving on 15 April 2020 and be sentenced to 10 months imprisonment, to commence on 5 April 2022.
Akira Dowling be convicted of using a motor vehicle with number plates issued for another vehicle on 20 April 2020, and, as the sentence, be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from 6 April 2022.
Akira Dowling be convicted of driving whilst unlicensed as a repeat offender on the 20 April 2020, and, as the sentence, be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months commencing on 6 October 2022.
Akira Dowling be convicted of dishonestly driving a motor vehicle without the owner's consent on 20 April 2020 and be sentenced to 10 months imprisonment, to commence on 5 August 2022.
Akira Dowling be convicted of failing to stop when signalled by police on 20 April 2020 and be sentenced to eight months imprisonment, to commence on 5 November 2022.
Akira Dowling be convicted of being involved in a collision and failing to give the required particulars on 20 April 2020, and, as the sentence, be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from 6 October 2021. 19. Akira Dowling be convicted of aggravated dangerous driving on 20 April 2020 and be sentenced to 10 months imprisonment, to commence on 5 February 2023.
Akira Dowling be convicted of driving a motor vehicle while having a prescribed drug in her oral fluid on 20 April 2020, and, as the sentence, be required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three months from 6 April 2024.
Akira Dowling be convicted of minor theft on 3 November 2020 and be sentenced to four months imprisonment, to commence on 5 September 2023.
Akira Dowling be convicted of obtaining the property of $180.83 by deception on 3 November 2020 and sentenced to six months imprisonment, to commence on 5 September 2023.
Akira Dowling be convicted of obtaining the property of $52.49 by deception on 3 November 2020 and be sentenced to six months imprisonment, to commence on 5 November 2023.
Akira Dowling be convicted of failing to appear in accordance with her bail undertaking on 2 October 2020 and be sentenced to two months imprisonment, to commence on 5 April 2024.
The Good Behaviour Orders made on 10 October 2019 be cancelled.
Akira Dowling’s conviction for the offence of theft on 17 June 2018 be confirmed and she be re-sentenced to six months imprisonment to commence on 5 February 2024.
Akira Dowling’s conviction for the offence of burglary on 17 June 2018 be confirmed and she be re-sentenced to six months imprisonment to commence on 5 February 2024.
A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) in respect of Akira Dowling for two years and six months, from today, 6 April 2021, to 5 October 2023, for the offence of burglary, which is the primary offence.
That Order be extended to the other offences for which Akira Dowling has been convicted today, 6 April 2021, all being associated offences.
The convictions and sentences for the primary offence and associated offences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of that Order.
The total sentence of four years be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 6 April 2021, until 4 August 2024.
Akira Dowling be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 6 October 2023 until 4 August 2024 with a probation condition that she accept supervision by the Commissioner of ACT Corrective Services or his delegate from 6 October 2023 until 4 August 2024, or such lesser period as the person supervising her considers appropriate, and that she obey all reasonable directions of the person supervising her.
For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a) Akira Dowling be required to comply with the core conditions of Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order;
(b) Akira Dowling be required to complete the residential drug rehabilitation program provided by the Karralika Therapeutic Community and to travel directly from the Court to the Karralika Therapeutic Community, to arrive by 1:00 pm today, 6 April 2021, and admit herself to that program, remain in the program until it is completed and obey all the rules of the facility and the program and any directions the person in charge of the facility;
(c) Akira Dowling be directed not to leave the Karralika Therapeutic Community facility before she complete the program without the approval of the Court, or in accordance with the rules of the program, and if she is discharged or leaves the facility or the program, that she present yourself to ACT Corrective Services by 4:00 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed;
(d) Akira Dowling be directed to undergo any program of treatment or counselling, urinalysis, case management, or other program as may be required by any member of the Treatment Order Team, or by order of the Court from time to time; and
(e) Akira Dowling be directed to comply with any direction of the Court from time to time about attendance at the Court, in person or by electronic means.
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – attempting to escape arrest – unlawful possession of stolen property – burglary – theft – dishonestly driving a motor vehicle without the owner’s consent – driving a motor vehicle while unlicenced – failing to stop when signalled by police – aggravated dangerous driving – using a motor vehicle with number plates issued for another vehicle – being involved in a collision and failing to give particulars – driving a motor vehicle with a prescribed drug in her oral fluid – minor theft – failing to appear in accordance with a bail undertaking – Good Behaviour Order – Rehabilitation – Drug and Alcohol Treatment Order
Legislation Cited: Bail Act 1992 (ACT) ss 22(1)(b)(i), 49(1) Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 110 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33(1)(za), 46K, 63(2), 80W, 80Y, 80ZJ Crimes Act 1900 (ACT) s 160 Criminal Code 2002 (ACT) ss 44, 236, 308, 311, 318(2), 321, 324 Magistrates Court Act 1930 (ACT) s 90B Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20(1) Road Transport (Driver Licensing) Act 1999 (ACT) ss 31(2), 31(6) Road Transport (General) Act 1999 (ACT) ss 63, 69 Road Transport (Road Rules) Regulation 2017 (ACT) reg 287 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5AB, 5C, 7(1), 7A(1) Supreme Court Act 1933 (ACT) pt 8
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-595 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Dickson v Johnston & Ors [2013] ACTSC 94 Jovanovic v The Queen (1999) 92 FCR 580 at 582 Kelly v Ashby [2015] ACTSC 346 Law v Ilievski [2016] ACTSC 291 Lawson v Gault [2002] FCAFC 191; 125 FCR 1 Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Crawford (No 1) [2020] ACTSC 245 R v Eichmann [2019] ACTSC 212 R v Elphick [2021] ACTSC 9 R v Foster [2021] ACTSC 229 R v Hodge [2019] ACTSC 15 R v John [2017] ACTSC 144 R v Massey (No 1) [2020] ACTSC 256 R v Mathews [2020] ACTSC 364 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Roux (No 2) [2015] ACTSC 361 Saga v Reid [2010] ACTSC 59 Townsend v Witteveen [2020] ACTSC 306 Weininger v The Queen [2003] HCA 14; 212 CLR 629
Parties: The Queen (Crown) Akira Dowling (Offender)
Representation: Counsel C Muthurajah (19 March 2021); N Deakes (26 March 2021); M Dyason (6 April 2021) (Crown) J Cooper (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender)
File Number(s): SCC 176 of 2020 SCC 177 of 2020 SCC 7 of 2021 SCC 8 of 2021
REFSHAUGE AJ
Introduction
People who have a dependency on illicit drugs generally have a network of associates, who can be said to be part of a ‘scene’, which is likely to reinforce their drug use. Such use is, of course, often very directly associated with criminal offending.
For those who wish to seek reform and learn to manage their dependency, there are many issues to be addressed. Honesty is fundamental. Honesty can be a great challenge, even to those who are not using illicit drugs.
Breaking out of the web of associates comprising an individual's ‘scene’ is also important. That can be very challenging, too, especially if the person who uses drugs has no, or no longer has any, associates who are not part of their ‘scene’ and are prosocial. This, however, can be an important part of rehabilitation.
These issues can cause attempts at rehabilitation to fail, but, as I have explained in Saga v Reid [2010] ACTSC 59 at [89], a failure does not prevent a Court from encouraging further attempts, so long as there is a rational basis for doing so.
Akira Dowling now appears before me for sentence on her plea of guilty to 24 offences committed in 2020 between March and April, on a date in October and on a date in November. I set out the actual offences below. On conviction, these offences will also constitute a breach of a Good Behaviour Order, made for two other offences, to which Ms Dowling was subject.
In the sentencing proceedings, the Crown tendered without objection its Sentencing Tender Bundle. As well as the formal committal and transfer documents, the Bundle contained the Agreed Statement of Facts, two police Statements of Facts, Ms Dowling's Criminal History and a Pre-Sentence Report dated 7 July 2020. In addition, it contained reports, being Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46K of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act): there was a Forensic Mental Health Drug and Alcohol Sentencing List (DASL) Assessment Report from Canberra Health Services dated 27 August 2020, three Suitability Assessments prepared by the Alcohol and Drug Service of Canberra Health Services, dated 23 September 2020, 30 September 2020 and 4 February 2021 respectively, and three Suitability Assessments prepared by ACT Corrective Services, dated 24 September 2020, 29 September 2020 and 2 February 2021 respectively. Documents related to the Good Behaviour Order were also included. No challenge was made to the contents of any of those documents.
Ms Dowling wrote me a letter dated 18 March 2021, which was tendered without objection and the contents of which were not challenged. Ms Dowling also gave oral evidence. She was cross-examined, but that did not controvert her evidence-in-chief.
From this evidence, I make the following findings.
The Facts
Between March and April 2020, Ms Dowling managed to engage in a large number of dishonesty offences of varying seriousness. Between 11:00 pm on 7 March 2020 and 7:10 am on 8 March 2020, a locked vehicle was stolen. It contained a wallet of the vehicle’s owner, in which there were a number of the owner’s personal items, including his New South Wales driver licence, a university identity card, a MyWay card, a Working with Vulnerable People Permit and a Commonwealth bank card.
There was insufficient evidence of whether Ms Dowling took the vehicle from the premises. She did, however, use the bank card shortly afterwards at several retail outlets in Dickson. She purchased some tobacco worth $54.50 at Coles Express at 7:10 am, an iced coffee at Woolworths for $2.60 at 9:00 am and some cigarettes at the Caltex Service Station for $44.95 at 9:09 am. She was shown purchasing the cigarettes on the CCTV footage from the Caltex Service Station. These were the facts which amounted to the offence of obtaining property by deception which was, in effect, a rolled-up count, as the three offences when Ms Dowling used the bank card constituted a course of conduct.
Later that day, police viewed the CCTV footage and identified Ms Dowling as the user of the bank card at the Caltex Service Station. They attended the Woolworths store in Dickson, where they saw Ms Dowling and approached her, advising her that she was under arrest. As they were speaking to her, Ms Dowling suddenly turned away and ran to a nearby bicycle. She put both hands on the handlebars and her right foot on a pedal, in an attempt to mount the bicycle, before police managed to take hold of her and place handcuffs on her. This constituted the offence of attempting to escape from arrest.
Police then searched a large handbag that she had been carrying and located the wallet belonging to the owner of the stolen car, a small coin purse with some personal cards including a driver licence and a house key belonging to a woman, a wallet with unidentified contents that had been in a car stolen earlier that morning, an Oroton handbag, Bose noise cancelling headphones, a notebook and Gorman sunglasses which did not belong to her. These events were the basis for four offences of unlawful possession of stolen property.
On 13 April 2020, Ms Dowling walked through the suburb of Watson, ACT, attempting to open car doors. She then entered a locked house in Watson. There was no evidence of how she entered nor of any damage caused by her on entry or, indeed, while inside. She did, however, take the keys of a Holden Astra motor vehicle which was parked and locked in the driveway. She then used the stolen keys to open the car door and drove the car away. It contained the wallet of the owner of the car, in which the owner kept various identification and bank cards.
Ms Dowling drove the car to the Caltex Service Station in Hume, ACT. The evidence did not expressly show how far she then drove the vehicle, but, very shortly afterwards she was seen on CCTV footage at the Hume Service Station, she was seen at Woolworths in Conder, ACT, and must have driven there. The evidence shows that, during these events, she was accompanied by an unknown male. It is not known whether Ms Dowling or the unknown male drove the car to Conder, or who drove there, or whether they drove another car.
The Proceedings.
As can be expected from the chronology of the facts, the charges laid against Ms Dowling were not all laid at the same time.
Ms Dowling was first arrested on 8 March 2020 and appeared the next day in the ACT Magistrates Court charged with four of the offences alleged to have been committed on 8 March 2020. She was granted bail and the proceedings were adjourned from time to time. She remained on bail.
On 7 April 2020, when she appeared in Court, two further offences from 8 March 2020 were laid.
Ms Dowling was then arrested on 20 April 2020, as noted above (at [26]), and she appeared in the Magistrates Court. At that time, she was charged with the offences committed on 15 and 20 April 2020. She was remanded in custody until 4 May 2020.
On 4 May 2020, she entered pleas of guilty to many of the offences and on 15 June 2020 a Pre-Sentence Report was ordered in relation to those offences. On 4 May 2020, Ms Dowling pleaded not guilty to the other 11 offences, but then pleaded guilty to them on 15 June 2020, when the offences of 13 April 2020 were also preferred, and to which she entered pleas of guilty on 13 July 2020. She remained in custody during that period.
On 5 August 2020, on her plea of guilty, she was committed to this Court for sentence and the non-indictable offences were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to this Court, to be dealt with under pt 8 of the Supreme Court Act 1933 (ACT). Those pleas entered before 13 July 2020 were entered prior the Prosecution's Brief of Evidence being provided to her.
Ms Dowling appeared in this Court on 14 August 2020. Suitability Assessments were then ordered for submission to the Court and the Treatment Order Team by 25 September 2020.
On 17 September 2020, Ms Dowling was granted bail to attend Lesley's Place Drug and Alcohol Residential and Outreach Service, conducted by Toora Women Incorporated. She left there soon after arriving and failed to appear in Court on 2 October 2020, the date to which proceedings had been adjourned. I issued a warrant under s 49(2) of the Bail Act 1992 (ACT).
Ms Dowling was later arrested on 5 January 2021 and appeared in this Court, when I set a sentencing date and gave directions in preparation for her sentencing, including for the offence of failing to appear on 2 October 2020 as required by her bail undertaking.
The Offences
Ms Dowling has been charged with 24 offences, but many are of the same crime, thus, there are, I think, 14 separate crimes. It is, however, important to identify each offence and to set out the maximum penalties. This is important for, as the High Court has said in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31], careful attention must be paid to the maximum penalties, first, because they are legislated, secondly, because they invite attention to a comparison between the case for sentence and the worst possible case and, thirdly, because they provide a yardstick taken with all the other relevant factors to be taken into account on sentencing. Further, without express reference to the maximum penalty, the sentence imposed may, as sometimes happens, inadvertently exceed that maximum: see, for example, Jovanovic v The Queen (1999) 92 FCR 580 at 582; [7].
As well as the maximum penalty, the Courts have identified particular factors that are relevant to the seriousness of an offence, whether aggravating or mitigating the particular offence. Some are of more general application, such as premeditation, planning or organisation, which usually renders an offence more serious. Repeat offending is also a matter that renders offending in any case more serious.
Escaping from arrest is an offence contrary to s 160 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of five years imprisonment, or a fine of $16,000, or both. Ms Dowling attempted to escape arrest. Under s 44 of the Criminal Code 2002 (ACT), an attempt to commit an offence is to commit the offence and to be liable for the same punishment as for the offence. It is a serious offence but by no means the most serious Ms Dowling faces. It is serious because of the risk it poses to the criminal justice system that offenders will either not face the consequences of their offending or, if after sentence, will avoid sentence once imposed.
The reason for such escape may be relevant. Mostly, it is simply to evade arrest or continued incarceration, but there may be some reasons that mitigate the offence. In the case of escaping from prison, or similar, matters of premeditation or planning would likely exacerbate the offence. Any violence committed or damage caused in the course of the escape, unless separately charged, would also aggravate the offence. The efforts taken to escape and their sophistication may also aggravate the seriousness of the offence.
Here, Ms Dowling's attempt to flee was relatively unsophisticated and she did not get very far. It was a relatively unremarkable and not a very serious version of the offence.
Section 236 of the Criminal Code prohibits obtaining property by deception and provides a maximum penalty of 10 years imprisonment, or a fine of $160,000, or both.
This offence is most frequently committed following the theft of a credit card, as is the case here, where the credit card is then used to purchase goods or services. The ability to commit such offences has been enhanced by the capacity now merely to tap the credit card on an electronic terminal, without the retailer or service provider needing to match the name on the card, or even the gender, with the user. This, perhaps, makes the offence more serious so far as sentencing is concerned. It is, of course, a version of dishonest appropriation of property, like theft. The main aggravating feature of such offences is the amount involved: see Law v Ilievski [2016] ACTSC 291 at [130], R v Elphick [2021] ACTSC 9 at [116].
Subjective Circumstances.
Ms Dowling is a 27-year-old Wiradjuri woman who seeks to redress the ‘little connection with [her] indigenous roots’.
She was born in Tumut, New South Wales, the eldest of six girls and a boy born of her parents. Her home life was extremely difficult. There was usually no food for the family and she, as the eldest, had to beg for food from neighbours.
Her father used illicit drugs and had mental health issues. He was extremely violent towards his wife, sometimes bashing her beyond recognition. Ms Dowling would look after the other children while the violence between her parents was occurring. Further, her father bashed her mother so badly that, on one occasion, he thought he had killed her and hanged himself. Ms Dowling, six years old at the time, found him hanging. Her mother appears to have been imprisoned some time after that.
The children were sent to foster homes, but, cruelly, Ms Dowling was separated from the others, even though she had looked after them all their lives. She was placed in multiple homes and suffered sexual abuse throughout her time in the foster care system, for which she has received compensation.
She currently has no real relationship with her mother or her siblings, but has a good relationship with a woman living in Casino, New South Wales, whom she calls her ‘foster mother’ and who has supported her for a long time, even while Ms Dowling has lived in Canberra.
Ms Dowling left school after completing Year 8. She has had no further structured education since then and gained no qualifications. She left Tumut for Canberra for a visit when she was 16 years old and has stayed here ever since, though she has often been homeless.
Ms Dowling has had a severely disadvantaged childhood. This, properly, is relevant to sentence as it may mitigate the sentence and the effect of her childhood disadvantage does not diminish over time: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-595; [41]-[44]. While these offences are not offences of violence, they do show a failure of Ms Dowling's upbringing to give her an innate understanding of boundaries and of living in the community and they are unsurprising given the experience she has suffered.
Ms Dowling has had no employment in the community, although she appears to have had some work while in custody in the Alexander Maconochie Centre.
She has four children and is currently pregnant with her fifth child. Her children are living with her foster mother, but she hopes to be re-united with them. She has regular telephone contact with her children and sees them when possible.
Ms Dowling has a long history of substance use. She began drinking alcohol when she was 12 years old, but gradually ceased use by age 16 as her drug use became more sustained. She smoked cannabis from about 13 years old and was using daily until she was 15 years old, when she found that she was prone to experiencing paranoia from its use.
Sentencing Practice
The offences for which Ms Dowling has been charged are ones which are committed in a wide variety of circumstances. Further, there are 24 offences. They are difficult, then, to compare with other offenders. Nevertheless, the court is required under s 33(1)(za) of the Sentencing Act to have regard to current sentencing practice.
Not at all inappropriately, neither counsel for the Crown nor counsel for Ms Dowling, in their thoughtful and helpful submissions, both written and oral, proffered comparable cases.
For offences of burglary, the ACT Sentencing Database shows that approximately 96 percent of sentences recorded were of imprisonment. Just over 72 percent of offenders were given sentences of full-time custody. Of those, 21 percent were of between 7 and 12 months and 35 percent were of 13 to 18 months duration. Two sentences were of 4 years and 6 months and, of the longest, one of 4 years and 10 months and the other of 5 years and 10 months.
Regrettably, many of the sentencing remarks for those sentences, which would provide a better understanding of the statistics, are unavailable. Nevertheless, for reasons set out in R v Mathews [2020] ACTSC 364 at [44]-[45], such statistics can be used, but with caution. See also R v Elphick at [154], where Murrell CJ pointed out (omitting irrelevant offences):
The limitations of sentencing statistics are well-known. However, for what they are worth, sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment: (a) … (b) the offence of burglary usually results in a sentence of between 12 months and three years and six months imprisonment; (c) the offence of taking a motor vehicle without consent usually results in a sentence of six to 12 months imprisonment; (d) the offence of obtaining property by deception usually results in a sentence of six to 12 months imprisonment; (e) the offence of theft usually results in a sentence of six to 18 months imprisonment; (f) … (g) the offence of minor theft usually results in a sentence of six months imprisonment; and (h) the offence of drive while disqualified usually results in a sentence of six months imprisonment.
Conditional Liberty and Good Behaviour Orders.
On 10 January 2019, Ms Dowling was sentenced in the ACT Magistrates Court to 12 months imprisonment for offences of theft and burglary.
On 17 June 2018, she had entered a carpark in the basement of an apartment building in Dickson by tailgating a car driven into the units. She had no permission to do so. She was observed doing so by two witnesses who contacted police.
Once inside, she stole from the dashboard of a parked vehicle a Public Service identification pass belonging to a resident. She then accessed a storge unit.
Police arrived and approached the unit in which she was located and she shut the door in an attempt to avoid detection. Police noticed a number of other doors of such storage units also open.
Ms Dowling was ultimately located by Police and arrested. She was convicted on 10 January 2019 and sentenced to 12 months imprisonment for burglary and theft, to be suspended after six months and one day with a Good Behaviour Order, which included a probation condition.
She breached that Good Behaviour Order and, on 10 October 2019, she was re-sentenced in the ACT Magistrates Court to six months imprisonment, suspended forthwith with a Good Behaviour Order containing a rehabilitation condition.
The offences committed on 8 March 2020 breached that Good Behaviour Order, which expired on 9 April 2020. She had, however, nearly completed the period of the Good Behaviour Order, having completed five of the six months.
In addition, Ms Dowling was, as noted above (at [38]), granted bail on 17 September 2020 to attend Lesley's Place. Thus, when she committed the offences on 3 November 2020 she was on bail.
Both being subject to a Good Behaviour Order and being on bail are forms of conditional liberty. The granting of such liberty shows that the court entrusts the offender to be in the community. Of course, as the name suggests, a Good Behaviour Order is based on the requirement that, as a condition of the court’s trust, the offender will not commit further offences and will comply with the other conditions of the Order.
While bail is a promise to attend court for sentence, or other disposition, a criterion for refusing bail, set out in s 22(1)(b)(i) of the Bail Act, is the likelihood of the bailee committing further offences. The committing of further offences while on bail or subject to a Good Behaviour Order is a matter of aggravation of the commission of those offences, which are committed and which generally requires a more severe sentence.
In the case of a Good Behaviour Order made when a sentence of imprisonment is suspended, further offences being committed requires the court to consider what action to take under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). That section provides that if the Good Behaviour Order must be cancelled then the suspended sentence imposed, or the offender must be re-sentenced.
Consideration
Section 7 of the Sentencing Act sets out the purposes of sentence as the legislature prescribes them. A sentencing Court must have regard to them.
The nature of the dishonesty offences committed by Ms Dowling requires punishment, particularly because of their effect on the victims and the community, and the driving offences also require an element of general deterrence. The sentence should protect the community, which means that a severe response is required as it is important to show to the whole community that the criminal behaviour has been denounced.
Ms Dowling has a significant criminal record. Nevertheless, she does struggle with the effects of her childhood disadvantage and this shows in her behaviour.
While past behaviour generally is the best guide to future behaviour, that is not always correct if there are different circumstances and situations. Thus, Ms Dowling's current pregnancy and her desire to reunite with her children can provide significant motivation. I cannot tell with certainty that she can commit to this. I have been wrong before, but I consider it worth making an attempt and the current circumstances do provide a basis for this, if they prove correct; see Saga v Reid at [89].
Thus, while specific deterrence is important, so is rehabilitation and the Bugmy principles require appropriate moderation of the severity of sentence.
Her conduct is entirely unacceptable, however, and the sentence must denounce her behaviour, as I have indicated. Importantly, especially as no reparation order is to be made, the harm suffered by the victims of her crimes must see the sentence as recognising the harm done to them. I shall approach the sentence in this way.
Ms Dowling has pleaded guilty to the offences. In relation to some charges, this was at a very early stage and in others a little later, but still early, and none required delivery of the Prosecution Brief of Evidence, which does require effort on behalf of the Prosecution and application of resources. Accordingly, I propose to give her a significant discount for her plea of guilty to each charge.
Ms Dowling has served periods of Pre-Sentence Custody and I propose to take them into account in accordance with s 63(2) of the Sentencing Act.
There are, of course, multiple offences for which sentence is to be imposed. As required, I have crafted a sentence for each offence and carefully considered the length of each to ensure that they are just and adequate, but also to ensure that Ms Dowling is not punished twice.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is especially recognised in relation to offences of theft and burglary, but also in offences such as the offences of aggravated dangerous driving where the circumstances of the aggravation have been separately charged and must be subject of separate sentences.
Sentence
His Honour then spoke directly to the offender:
Ms Dowling, please stand.
I convict you of obtaining property by deception on 8 March 2020, and I sentence you to six months imprisonment to commence on 5 August 2020. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of attempting to escape arrest on 8 March 2020, and I sentence you to three months imprisonment to commence on 5 December 2020, that is to be cumulative as to one month on the sentence for the offence of obtaining property by deception. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of the first offence of unlawful possession of stolen property on 8 March 2020, and I sentence you to three months imprisonment to commence on 5 January 2021, that is to be cumulative as to one month on the sentence for the offence of attempting to escape arrest. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of the second offence of unlawful possession of stolen property on 8 March 2020, and I sentence you to three months imprisonment to commence on 5 February 2021, that is to be cumulative as to one month on the sentence for the first offence of unlawful possession of stolen property. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of the third offence of unlawful possession of stolen property on 8 March 2020, and I sentence you to three months imprisonment to commence on 5 March 2021, that is to be cumulative as to one month on the sentence for the second offence of unlawful possession of stolen property. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of the fourth offence of unlawful possession of stolen property on 8 March 2020, and I sentence you to three months imprisonment to commence on 5 April 2021, that is to be cumulative as to one month on the sentence for the third offence of unlawful possession of stolen property. Had you not pleaded guilty, I would have sentenced you to four months imprisonment.
I convict you of the offence of burglary on 13 April 2020, and I sentence you to 10 months imprisonment to commence on 5 July 2021, that is to be wholly cumulative on the sentence for the fourth offence of unlawful possession of stolen property. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
I convict you of the offence of theft on 13 April 2020, and I sentence you to four months imprisonment to commence on 5 July 2021, that is to be wholly concurrent with the sentence for the offence of burglary. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
I convict you of the offence of obtaining property by deception on 13 April 2020, and I sentence you to seven months imprisonment to commence on 5 December 2021, that is to be cumulative as to two months on the sentence for the offence of burglary. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
Drug and Alcohol Treatment Order
His Honour then spoke directly to the offender again:
Ms Dowling, please stand again.
I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) in respect of you for two years and six months, from today, 6 April 2021, to 5 October 2023, for the offence of burglary, which is the primary offence.
I extend that Order to the other offences for which you have been convicted today, all being associated offences.
The convictions and sentences for the primary offence and the associated offences are hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of that Order.
The total sentence of four years is suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 6 April 2021, until 4 August 2024.
You are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) with a probation condition to accept supervision by the Commissioner of ACT Corrective Services, or his delegate, from 6 October 2023 until 4 August 2024, or such lesser period as the person supervising you considers appropriate, and obey all the reasonable directions of the person supervising you.
For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a) I require you to comply with the core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Order;
(b) I require you to complete the residential drug rehabilitation program provided by the Karralika Therapeutic Community and I direct you to travel directly from the Court to the Karralika Therapeutic Community, to arrive by 1:00 pm today, 6 April 2021, and admit yourself to that program, remain in the program until it is completed and obey all the rules of the facility and the program and any directions the person in charge of the facility;
(c) I direct you not to leave the Karralika Therapeutic Community facility before you complete the program without the approval of the Court, or in accordance with the rules of the program, and if you are discharged or leave the facility or the program, that you present yourself to ACT Corrective Services by 4:00 pm on the next business day with a view to having the Drug and Alcohol Treatment Order reviewed;
(d) I direct you to undergo any program of treatment or counselling, urinalysis, case management, or other program as may be required by any member of the Treatment Order Team, or by order of the Court from time to time; and
(e) I direct you to comply with any direction of the Court from time to time about attendance at the Court, in person or by electronic means.
I direct you to attend Court on 9 April 2021 at 12:30 pm by electronic means.
Ms Dowling, that is a lot of words and it encompasses a whole lot of material, much of which you know about because it is about you and what you have done, but also you have been around the courts long enough to know a lot of what I have said.
In effect, I have said that the offences you have committed are worth four years in jail. I am not going to send you to jail for four years if you really take this opportunity to reform and rehabilitate yourself. You have not got a good track record and I am going out on a limb to trust you on this one because I hope you understand that you have got to grow out of this kind of behaviour if you want to be a mother, if you want to have a valuable life in the community and if you want to treat yourself and the rest of the community respectfully.
If that is your wish, then Karralika is a good place to start and this Court will support you. It will be a win for you, for the Court and for the community if you manage to succeed in this way.
If you leave, then you will have to come back and face the consequences. If you leave, then make sure you do come back because, if you do not come back, there is no other option than jail.
[The offender responded: Yes.]
If you do come back, I do not say that there is always another option, but we can certainly consider it, which the court has done in the past, and there have been other options available from time to time. It depends on the circumstances, which I cannot predict. The likelihood is that, given your history and considering that, in a sense, this is your second go at rehabilitation under this Court, it is unlikely that we will have another option, but if you do not come back, then there is really no alternative but to impose the balance of the four year term of imprisonment, send you to jail and part you from your child who, hopefully, will be born by then.
If you leave while you are still pregnant, then the risks for you and your child are enormous and that would be evidence of someone who really is not taking motherhood seriously in those circumstances.
[The offender responded: Yes.]
If things get difficult, come and tell the Court. I am not omnipotent but I am pretty powerful in many ways because I am a judge. I cannot solve everything, but we can certainly try and see what can be resolved, what can be altered, what can be fixed and what can help you through this difficult life because that is what the Treatment Order Team and Karralika want to do; help you learn how to put this dependency behind you, manage your ongoing dependency, to be a good mother and a good member of the community, participate in it in a respectful and sensible manner, and to develop your own talents and be productive in the community.
Associate:
Date: 15 October 2021
******************************** Amendment 1. In the last sentence of paragraph [38], omit the phrase “s 80ZJ of the 22 October 2021 Sentencing Act” and replace with “s 49(2) of the Bail Act 1992 (ACT)”. 2. In the second sentence of paragraph [78], omit “Bail Act 1992 (ACT)” and replace with “Bail Act”. 3. Add a new paragraph [155] as follows: “I convict you of obtaining the property of $180.83 by deception on 3 November 2020, and I sentence you to six months imprisonment to commence on 5 September 2023, that is to be cumulative as to two months on the sentence for the offence of minor theft. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment”. 4. Increase the paragraph numbers of the paragraphs following the new paragraph [155]. 5. In the decision section, add a new item 22 as follows: “Akira Dowling be convicted of obtaining the property of $180.83 by deception on 3 November 2020 and sentenced to six months imprisonment, to commence on 5 September 2023.” 6. Increase the numbers in the decision section following the new item 22. 7. In the certification section, omit “one-hundred and ninety-seven [197]” and replace with “one-hundred and ninety-eight [198]”.
The text of this judgment has been amended in accordance with this corrigendum.
R
Dowling
(1999) 92 FCR 580
Ms Dowling then used the stolen bank card found in the car at Woolworths, in Conder, to purchase a mobile phone valued at $99 and, a few minutes later, at another pay register, two packets of cigarettes for $99.
In a telephone call, made later while she was a detainee in custody at the Alexander Maconochie Centre, Ms Dowling admitted to committing the burglary and to stealing the motor vehicle.
These events of 13 April 2020 were the facts that constituted the charges of burglary and theft. The theft encompassed the car keys, the motor vehicle and the car owner's wallet.
On 15 April 2020, Ms Dowling drove the stolen Holden Astra motor vehicle in Downer, ACT. It appears that, at the time, she was not the holder of a current driver licence, having been convicted in 2013 for driving whilst never licensed. She was seen by police. She stopped at the traffic lights at the intersection of Phillip Avenue and Windeyer Street, Downer, and police spoke to her, telling her to pull over. In the brief conversation with police through the car window, she admitted, in an arrogant way, that she should not be driving the car.
Instead of waiting, however, Ms Dowling accelerated through the red traffic lights and along Phillip Avenue in a westerly direction. Police followed and activated their vehicle’s emergency lights and siren. They checked her speed along Phillip Avenue as not less than 120 kilometres per hour. She continued to speed and turned left onto the Federal Highway, losing control of the vehicle and mounting the concrete island in the centre of the road, but narrowly missing the light rail tracks.
She continued to speed down the highway. Police followed with the vehicle’s siren and lights activated. Ms Dowling then sped through the red lights at the intersection of the Federal and Barton Highways and Northbourne Avenue, when the police discontinued the chase.
At this time, there were well over 20 people out walking and riding bikes on the roads along which Ms Dowling sped. A number of vehicles had to take evasive action to avoid colliding with the car Ms Dowling was driving. The potential for a serious collision and a fatality was extremely high.
These were the facts that constituted the charges of dishonestly driving a motor vehicle without the owner's consent, driving whilst unlicensed, failing to stop when signalled by police and aggravated dangerous driving, where the circumstances of aggravation involved Ms Dowling failing to stop the car, driving in excess of 30 percent over the speed limit and driving in a way that put the safety of vulnerable road users at risk.
On 20 April 2020, Ms Dowling was again associated with the Holden Astra motor vehicle, this time in Belconnen. She was walking towards the car in Belconnen when she was noticed by police. At this stage, the vehicle bore different registration plates, issued to a different vehicle. Police ran after Ms Dowling and instructed her to stop, but, instead, she attempted to get into the driver's seat of the vehicle. Police continued to direct her to stop and get out. She closed the door on police, but police attempted to open it. She reversed away and then, suddenly, accelerated forward, narrowly missing one or more of the police officer's feet (the evidence was not precisely clear) and drove away.
Ms Dowling then drove along Belconnen Way, Bruce, at speeds assessed by police as approximately 140 kilometres an hour, where the speed limit on that road was 80 kilometres per hour. She was weaving between the lanes of traffic, which was moderate at the time. Police activated the emergency lights and siren of their vehicle, which signalled her to stop, but, instead of doing so, she drove through the intersection of Gungahlin Drive and Belconnen Way against the red light.
Ms Dowling continued to drive the Holden Astra motor vehicle at high speeds and dangerously, including through another red light at the intersection of Macarthur Avenue and Wattle Street, O’Connor. In doing so, the vehicle which she was driving collided with another vehicle which had been driving lawfully through the intersection. The collision caused significant damage to both vehicles. The vehicle Ms Dowling was driving swerved from the impact and collided with a fence, which stopped its progress at about 40 metres from the original collision site.
Ms Dowling then ran across Northbourne Avenue towards Dooring Street, Dickson, and hid from police in the area of some apartments and then in an abandoned house on that street. Police later arrested her there. Police tested Ms Dowling and she was found to have a prescribed drug in her oral fluid at the time.
These were the circumstances which formed the basis for the offences of using a motor vehicle with number plates issued for another vehicle, driving whilst unlicensed, dishonestly driving a motor vehicle without the owner's consent, failing to stop when signalled by police and aggravated dangerous driving. The matters of aggravation were that Ms Dowling failed to stop for police, drove with a prescribed drug in her oral fluid and drove at speeds that exceeded the speed limit by more than 30 percent. She was also charged with being involved in a collision and leaving without providing particulars and with driving with a prescribed drug in her oral fluid.
After her arrest, she appeared in Court and was granted bail. She was later remanded in custody, but, in this Court, in the circumstances referred to below (at [71]), she was granted bail. On 2 October 2020, however, she failed to attend Court and was charged with failing to appear in accordance with a bail undertaking.
Shortly after midnight on 3 November 2020, Ms Dowling walked into the driveway of a private residence in Stirling, ACT, where a Toyota HiAce motor vehicle was parked. She walked up to the vehicle, opened the front passenger door, got in and sat in the front passenger seat. She remained there for about 1 hour and 45 minutes, searching the vehicle, after which she got out of the vehicle and left. She took a Westpac Mastercard, $120 in Australian currency and a set of keys which included the garage door remote control. Her actions were recorded on the CCTV installed at the residence.
Later that morning, she used the stolen Mastercard to make an online booking in her own name at a hotel in Woden, for which she paid $180.83. She then was driven, as a passenger, in a Ford Focus motor vehicle to the Caltex Service Station in Weston, where she used the stolen Mastercard to purchase some items for a total of $52.49. Her purchasing there was recorded on the CCTV of the Service Station. These actions amounted to an offence of minor theft and two offences of obtaining property by deception.
In this case, the amounts misappropriated by Ms Dowling were small, less than $100 in all but one case and only $2.60 in one case, of misuse of the credit card. It has, however, to be remembered that the larger the amount, the more likely that the misuse of the credit card that this offence constituted will be subject to scrutiny or detection. Otherwise, the offences were a common version of the offence.
In the case of the offences on 8 March 2020 and on 13 April 2020 also, multiple uses of the stolen credit cards on each day were all encompassed in the one charge. This is known as a ‘rolled up’ charge, or count, or plea. I discussed such charges and the appropriate approach to their sentencing in the R v John [2017] ACTSC 144 at [106]- [107]. Briefly, it requires the sentencing Court to treat the offences as one offence, reflecting the single maximum penalty, but noting the greater criminality to be encompassed by the offence. It does not necessarily require the Court to impose the sum of the sentences that would have been imposed, had the offences been charged separately, and will have a bearing on issues of cumulation and concurrency.
Unlawful possession of stolen property is an offence against s 324 of the Criminal Code and renders Ms Dowling liable to six months imprisonment, or a fine of $8,000, or both. It is, thus, neither an indictable offence nor a particularly serious offence.
The Courts, however, must not treat it as a trivial offence, for it is a version of the crime of receiving, that is a recipient of the proceeds of theft or similar offences, which, of course, encourages the latter offences to be committed and provides a lucrative destination for the outcome of such offences: see R v Roux (No 2) [2015] ACTSC 361 at [79]. Nevertheless, it has been said that it is not the same as stealing: see Townsend v Witteveen [2020] ACTSC 306 at [28]. A significant issue for the seriousness of the offence will be the value of the property possessed and the sophistication of any enterprise in which the offender has engaged.
Here, there is generally no indication in the offences of who was the actual thief. Indeed, Ms Dowling may have stolen the items, but there was no clear evidence to support that and it is important that such suspicions, if a Court holds them, do not affect the sentence. Unfortunately, there was no indication of the value of the property of any of the items possessed, though it is obvious that there were some that would have been of more than small value. Some were items, such as driver licences, that would cause personal inconvenience as, indeed, would the misappropriation of credit cards, which also provide an easy opportunity for the misuse and misappropriation of property, as I have noted above (at [45]). Indeed, in one case there had been precisely that issue, resulting in the earlier charges of obtaining property by deception, though no evidence of the misuse of any of the other credit cards. It is important not to sentence for an offence not committed, though the potential of such an offence will reflect in the seriousness of the offence.
Ms Dowling has also been charged with burglary and theft on 13 April 2020. Burglary is an offence prohibited by s 311 of the Criminal Code, which provides for a maximum penalty of 14 years imprisonment, or a fine of $224,000, or both. It is, therefore, a very serious offence though, of course, not the most serious in the criminal calendar. It is the most serious charge that Ms Dowling is facing.
Theft is an offence contrary to s 308 of Criminal Code, attracting a maximum penalty of 10 years imprisonment, or a fine of $160,000, or both. A summary version of the offence is minor theft, which is proscribed by s 321 of the Criminal Code and is punishable by a maximum penalty of six months imprisonment, or a fine of $8,000, or both. Minor theft is the offence to charge for cases where the property is valued at no more than $2,000, although for that amount it is a concurrent offence with the offence of theft: Lawson v Gault [2002] FCAFC 191; 125 FCR 1 at 7-8; [21]-[23]. Where an offence is charged as theft, but could amount to a minor theft, the courts should ensure that there has not been abuse in the choice of charges: Dickson v Johnston & Ors [2013] ACTSC 94 at [17].
These offences can, as with many offences, be committed in a wide variety of circumstances and in a wide variety of ways. The courts have, however, identified relevant factors to be considered.
In the case of burglary, I have set these relevant factors out in R v Foster [2021] ACTSC 229 at [35]. I do not need to repeat those factors, but will apply them here.
In this case, the burglary was committed at a residence, which is a more serious version of the offence. Ms Dowling appears to have entered the residence, stolen keys and left, all fairly quickly. There was no evidence of damage caused on entry or while she was in the premises. More seriously, the offence was committed while it was very likely that the residents would be there. However, the evidence did not show, or even hint at, that.
The burglary was, on the evidence, clearly intended to provide Ms Dowling access to the motor vehicle in order for her to steal it, which she did. She had been attempting to steal other cars in the suburb before she stole this one. That seems to be the purpose for the burglary. That did not amount to much, but some, premeditation, although fairly unsophisticated planning or organisation. I had no Victim Impact Statements from the residents, but can accept some feeling of loss and violation, although nothing specific.
As to the theft, the principal issue is the value of the property. In this case, the property that was taken were the car keys, but also the wallet, the contents of the stolen vehicle, as well as the vehicle itself. No value was given, though inconvenience would be suffered by the owners and the vehicle would be of some significant value. There would also be potential for the misuse of some of the stolen items.
In the case of the minor theft, the relevant property was the wallet taken on 3 November 2020 after Ms Dowling had thoroughly searched the car.
Section 318(2) of the Criminal Code prohibits dishonestly driving a motor vehicle without the owner's consent and provides for a maximum penalty of five years imprisonment, or a fine of $80,000, or both. I have set out why this offence is as serious as it is in R v Roux (No 2) at [78].
I have also set out in R v Foster (at [51]) the relevant factors for the offence of dishonestly driving a motor vehicle without the owner’s consent. In brief, they are the duration of the driving, the value of the vehicle (rarely given in evidence), whether there was any damage caused to the vehicle, the purpose for which it was used (especially whether it was used in the commission of another offence) and whether it was returned to the owner. It may be mentioned also that it is relevant if there was specific inconvenience suffered by the owner: R v Massey (No 1) [2020] ACTSC 256 at [54]- [59].
Often there is no evidence of these matters and, of course, without that, the court cannot find such factors: see R v Olbrich [1999] HCA 54; 199 CLR 270 at 281; [27].
In this case, it was unclear how far Ms Dowling had driven the Holden Astra sedan. She certainly drove it from Watson to Hume and most likely then to Conder. It seems likely that she did not abandon it there, though she had, at the time, no stable accommodation to suggest a further destination. She was seen, however, in the Holden Astra sedan two days later in Downer. While she did not use it to commit any non-driving offences then, she did drive it in a seriously criminal way on that day.
She was seen again, walking towards the sedan in Belconnen five days later. The number plates had been changed. She was challenged by police but drove away. Again, no offences other than some very serious driving and associated offences were committed by her with the sedan then and there was no evidence of her committing any other offences while using it.
At the time, Ms Dowling was unlicensed. The evidence was not clear, but her criminal record suggests that she has never been licenced. Driving without a licence is contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty of a fine of $3,200. If, however, the offender is a repeat offender, the maximum penalty is six months imprisonment, or a fine of $8,000, or both. It also attracts an automatic licence suspension of three years, or any longer period ordered by the Court.
Section 31(6) of that Act defines a repeat offender as someone who has been convicted of such an offence within five years of the instant offence. Since Ms Dowling has been charged with two such offences, one committed on 15 April 2020 and the other on 20 April 2020, I will convict her for the first offence and she will then be a repeat offender for the sentencing for the second offence.
While the penalties are not as severe as for other offences for which Ms Dowling has pleaded guilty, it is a serious offence as it undermines the required regime for protection of the public from the inherently potentially dangerous activity of driving a motor vehicle. The duration of the driving was quite significant, over at least a week in the first case, though of about two hours in the second case. Ms Dowling seems never to have held a driver licence. This appears to be an aggravating factor. As Ms Dowling had been convicted previously, though last time outside the five year period to be considered a repeat offender for the first offence, her driving without a licence would seem to be contumacious: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 306-308; [33]-[38].
Section 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) prohibits failing to stop when signalled by a police officer to do so and provides for a maximum penalty of 12 months imprisonment, or a fine of $16,000, or both. A conviction for the offence attracts an automatic licence disqualification of three months, or such longer period as a court may order under s 63 of the Road Transport (General) Act 1999 (ACT).
Similarly to the last mentioned offence, that Act provides for an increased penalty for a repeat offender, namely three years imprisonment, or a fine of $48,000, or both. Similarly, a conviction also provides for an automatic licence suspension of 12 months, or such longer period as ordered by the Court.
Again, since Ms Dowling will be convicted today for two such offences; for the one later than the other, she will, for the record, be a repeat offender: s 5AB of the Road Transport (Safety and Traffic Management) Act.
The offence is as serious as it is because, again, it is an important part of the regime for management of driving in our community and ensuring its safety. It also amounts to an important investigative tool for police, more widely, to assist in limiting suspects or offenders being able to evade arrest or hiding from the police: R v Hodge [2019] ACTSC 15 at [18]. As is clear from the provision for an increased penalty for repeat offenders, the repeated failure to comply is an aggravating factor: R v Eichmann [2019] ACTSC 212 at [26].
Often drivers who fail to stop then drive in a dangerous way, as Ms Dowling did. Aggravated dangerous driving is an offence against ss 7(1) and 7A(1) of the Road Transport (Safety and Traffic Management) Act, which renders Ms Dowling liable for a maximum penalty of two years imprisonment, or a fine of $32,000, or both. Section 63 of the Road Transport (General) Act also provides for an automatic licence disqualification of three months, or such further period as a court may order. It is perhaps surprising that the penalty is not more severe given the risk that other road users, including pedestrians, face from such driving of what is, of course, potentially a lethal object, a motor vehicle.
The legislation specifies particular matters which aggravate what would, nevertheless, be dangerous driving: s 7A of the Road Transport (Safety and Traffic Management) Act. Among those matters, Ms Dowling's driving exhibited driving at more than 30 percent in excess of the speed limit, failing to stop when signalled by police to do so, in one case driving in a way that put vulnerable road users at risk and, in the other case, driving with a prescribed drug in her oral fluid.
Some other factors which aggravate such an offence include whether, as here, there has been a police chase which can increase the risk to other road users (Kelly v Ashby [2015] ACTSC 346 at [84]), or if there was erratic driving (Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at 101; [90]), which is not so relevant here, although there was a collision in one case which aggravates the offence.
A driver involved in a crash who does not give particulars to another driver involved in the crash commits an offence prohibited by s 287 of the Road Transport (Road Rules) Regulation 2017 (ACT) which provides for a maximum penalty of a fine of $3,000. Clearly, there is an element of dishonesty or deception in this offence.
Driving with a prescribed drug in oral fluid is made an offence by s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and specifies that the maximum penalty is a fine of $1,600 and an automatic suspension of the offender's driver licence for three years, but which may be reduced by the court, but not to less than six months. The seriousness of driving with a drug in oral fluid, and the consequent likelihood of impaired driving, is the way in which this offence puts other road users at risk, whether drivers, passengers or pedestrians.
A number of the offences discussed above include an automatic licence disqualification. By s 69 of the Road Transport (General) Act, such disqualifications are cumulative unless the court otherwise orders.
Ms Dowling’s final offence is failing to appear after giving a bail undertaking. This is an offence proscribed by s 49(1) of the Bail Act, for which the maximum penalty is two years imprisonment, or a fine of $32,000, or both. This offence is regarded seriously for it is an important part of the integrity of the criminal justice system: see R v Foster (at [56]).
In this case, there was an explanation. Ms Dowling said that, once she was granted bail, she was, quite reasonably, given a phone. Unfortunately, this led to her seeing people ‘in the [drug] scene and it just triggered [her]’. She had been admitted to Lesley's Place and felt that arrangements there did not have ‘enough structure’. It led to connections with former associates who had drugs and she expressed that she was ‘very disappointed’ with herself for her failure to comply.
By that time, she was using methamphetamine daily and became dependent on that drug until she was about 17 or 18 years old, when she moved onto heroin. She did not completely discontinue the use of methamphetamine, however, and continued using from time to time until she was about 26 years old.
She continued using heroin daily until she was remanded in custody for the current offences. She had, at the time of committing these offences, a severe dependency on drugs and says that this caused her offending.
She has been on opiate maintenance therapy, namely Buvidal, but ceased its use when proposing to go to Lesley's Place and has not resumed since.
She has had some limited past experience in residential drug rehabilitation, but not for very long periods.
Her physical health is satisfactory, though she is in need of some dental work, as is often the case of people with low income and those who use addictive drugs.
Ms Dowling has a history of depression and anxiety, but has had no extended treatment. She was treated by a psychologist for a time as a child. She has experienced post-natal depression and in 2018 presented with post-natal depression with psychotic symptoms, which were relieved with medication.
When last in custody, before being granted bail, she did take the initiative to make contact with Toora Women Incorporated and arrange admission to Lesley's Place, though she made an unauthorised departure soon after admission, as noted above (at [38]) in the circumstances there described. She has now made contact with Karralika Therapeutic Community (Karralika) as suggested by the Alcohol and Drug Service of Canberra Health Service. She acknowledges her failure on the last occasion when she left Lesley's Place and indicates that she wishes to resume residential rehabilitation.
While she is homeless, it seems she will remain in Karralika for some substantial period and can apply for emergency housing during that time to provide her with accommodation in Canberra. She has given no indication of seeking to leave Canberra.
Ms Dowling has an unimpressive and long criminal history. [Redacted for legal reasons].
As an adult, she has 31 offences recorded against her, some of which are very worrying in the current context. Thus, she has on her record one conviction for aggravated burglary, she has committed five offences of minor theft and three of theft. She has been before the Courts for breaching a bail undertaking on 13 occasions. She has two recorded offences of escaping custody. While her traffic record is shorter, she has continually driven while unlicensed, recording two such offences. She has four offences of unlawful possession of stolen property recorded against her. She has committed some offences for possessing illegal drugs and one for possession.
The record does engender pessimism, though factors to encourage rehabilitation may be her desire to reunite with her children and connect with her heritage. Time will tell.
It is important, of course, as pointed out in Cotter v Corvisy at 312; [63], that an offender's antecedents cannot be used to punish the offender twice and this will affect the sentence to be imposed. Nevertheless, prior offending is properly taken into account on sentence and will often result in a heavier sentence than offenders without such a record: Weininger v The Queen [2003] HCA 14; 212 CLR 629 at 640; [30].
Thus, I must cancel Ms Dowling's Good Behaviour Order and impose the suspended sentence or re-sentence her. It is, of course, important that Ms Dowling is not punished twice for any of the offences imposed on her.
I have then reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is both adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and hope for Ms Dowling to take an effective part in the community and in her family and realise her aims when she is released.
This may result in what is seen by some as leniency in the making of some sentences, especially making them concurrent, but, while the total criminality of Ms Dowling is an important factor, her growing awareness of the need for rehabilitation is also important, as is the circumstances of her early childhood disadvantage. Thus, it requires a sentence proportionate to the culpability for the crimes, the effect on the community, but also her subjective circumstances and the value to the community of her reform. It is also important not to give the impression that an offender can commit multiple offences with impunity.
Regrettably, I did not have Victim Impact Statements but, nevertheless, I can understand, to some extent, the damage done in the commission of many of the offences, although any specific or special damage or harm is not necessarily within the knowledge of the Court.
I am satisfied that no other sentence than a sentence of imprisonment is appropriate and just for the offences that Ms Dowling has committed: s 10 of the Sentencing Act.
I convict you of the offence of dishonestly driving a motor vehicle without the owner's consent on 13 April 2020, and I sentence you to nine months imprisonment to commence on 5 January 2022, that is to be cumulative as to three months on the sentence for the offence of obtaining property by deception on 13 April 2020. Had you not pleaded guilty, I would have sentenced you to 12 months imprisonment.
I convict you of the offence of driving a motor vehicle while unlicensed on 15 April 2020, and, as the sentence, I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from 6 April 2021.
I convict you of the offence of failing to stop when signalled by police on 15 April 2020, and I sentence you to six months imprisonment to commence on 5 January 2022, that is to be concurrent with the offence of dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of the offence of aggravated dangerous driving on 15 April 2020, and I sentence you to 10 months imprisonment to commence on 5 April 2022, that is to be cumulative as to four months on the sentence for failing to stop when signalled by police. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
I convict you of the offence of using a motor vehicle with number plates issued for another vehicle on 20 April 2020, and, as the sentence, I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from 6 April 2022.
I convict you of the offence of driving whilst unlicensed as a repeat offender on the 20 April 2020, and, as the sentence, I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months commencing on 6 October 2022.
I convict you of the offence of dishonestly driving a motor vehicle without the owner's consent on 20 April 2020, and I sentence you to 10 months imprisonment to commence on 5 August 2022, that is to be cumulative as to four months on the sentence for aggravated dangerous driving. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
I convict you of the offence of failing to stop when signalled by police on 20 April 2020, and I sentence you to eight months imprisonment to commence on 5 November 2022, that is to be cumulative as to one month on the sentence for the offence of dishonestly driving a motor vehicle without the owner's consent. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of the offence of being involved in a collision and failing to give the required particulars on 20 April 2020, and, as the sentence, I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from 6 October 2021.
I convict you of the offence of aggravated dangerous driving on 20 April 2020, and I sentence you to 10 months imprisonment to commence on 5 February 2023, that is to be cumulative as to five months on the sentence for the offence for failing to stop when signalled by police. Had you not pleaded guilty, I would have sentenced you to 13 months imprisonment.
I convict you of the offence of driving a motor vehicle while having a prescribed drug in your oral fluid on 20 April 2020, and, as the sentence, I require you to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three months from 6 April 2024.
I convict you of the offence of minor theft on 3 November 2020, and I sentence you to four months imprisonment to commence on 5 September 2023, that is to be cumulative as to one month on the sentence for the offence of aggravated dangerous driving. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of obtaining the property of $180.83 by deception on 3 November 2020, and I sentence you to six months imprisonment to commence on 5 September 2023, that is to be cumulative as to two months on the sentence for the offence of minor theft. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of obtaining the property of $52.49 by deception on 3 November 2020, and I sentence you to six months imprisonment to commence on 5 November 2023, that is to be cumulative as to two months on the sentence for the earlier offence of obtaining property by deception. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
I convict you of the offence of failing to appear in accordance with your bail undertaking on 2 October 2020, I sentence you to two months imprisonment to commence on 5 April 2024, that is to be cumulative as to one month on the sentence for obtaining property by deception. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I cancel the Good Behaviour Orders made on 10 October 2019.
I confirm the conviction for the offence of theft on 17 June 2018 and I re-sentence you to six months imprisonment to commence on 5 February 2024.
I confirm the conviction for the offence of burglary on 17 June 2018 and I re-sentence you to six months imprisonment to commence on 5 February 2024 and end on 4 August 2024.
Ms Dowling, you may be seated.
Ms Dowling has been sentenced to imprisonment for serious crimes, including burglary. The total sentence is four years. I note that she is not currently subject to any other sentencing order within the meaning of s 12A of the Sentencing Act. I am also satisfied that, despite having difficulties, Ms Dowling is likely to be a resident in the ACT for the next two years and six months.
I am satisfied that the Drug and Alcohol Treatment Order (the Treatment Order) under s 12A of the Sentencing Act, which she has sought and which has been proposed, has been explained to her and that she has had an opportunity to ask questions about it and have them answered. I am satisfied that she has given informed consent to the making of such an Order.
I am satisfied, further, that Ms Dowling is dependent on illicit drugs, especially heroin, and that her dependence substantially contributed to her commission of the current offences.
Accordingly, I am satisfied that she is eligible to be the subject of a Treatment Order.
I have carefully read the Suitability Assessments, referred to above (at [6]), which have been carefully and expertly prepared. I have carefully considered the recommendations that they have made. I have considered the case plan prepared for Ms Dowling, which includes residential drug rehabilitation at Karralika, and accept that it is appropriate and likely to assist her to achieve the rehabilitation she seeks.
I note that the recommendations made in the Suitability Assessments are divided and that the more recent ones of ACT Corrective Services are that she is not suitable for a Treatment Order. That is primarily because of her poor prior compliance with court orders. I have noted some of that above.
The earlier recommendation by ACT Corrective Services in the Suitability Assessment dated 24 September 2020, however, was that she was suitable, despite that history of non-compliance. I consider that all that has changed since that recommendation was made is that she has breached her bail and left Lesley's Place, thus turning away from the rehabilitation opportunity that she was offered. This, of course, reinforces the assessment of her response to Court orders and suggests that, despite her assertion of a wish for rehabilitation, she has not, in fact, made a commitment to reform and comply with Court orders that are directed to assist her rehabilitation. That is a very reasonable position.
On the other hand, ACT Alcohol and Drug Services recommend that she is suitable. It is urged that ‘with the right structure and supports’ this time, it is likely to make non-compliance with a Treatment Order less of an issue.
There is also a reasonable probability that she will wish to address her pregnancy and the opportunity to re-unite with her children.
It is also notable, in part, that she will not have access to a phone in order to connect with past associates, nor access to drugs at Karralika, where there are significant restrictions, which makes access by her seem less likely than elsewhere.
It is naïve to think that there is no risk and that Ms Dowling’s past behaviour will not be repeated in the future, but, on balance, I am prepared to make a Treatment Order, nevertheless.
Ms Dowling says that she is seeking rehabilitation. She recognises that she must take steps to reform or the opportunity to do so, and to achieve the benefits to her, particularly with her family but also to the community, will be severely compromised.
I have not identified any indicators of unsuitability for a Treatment Order, as set out in table 46K of the Sentencing Act.
Accordingly, I am satisfied that Ms Dowling is suitable for a Treatment Order and I will make one.
Finally, I note that, although the sentence of imprisonment I have imposed on her commences prior to today and, thus, I have to suspend the total sentence today for the balance of the term if the Treatment Order is to be made, this means that part of the sentence has already been served in custody. However, I am satisfied for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111] that this does not preclude the making of a Treatment Order.
If the issues that you want to raise are sensitive, then let your lawyer know. Unfortunately, Mr Cooper, who has provided great assistance to you very expertly, will not be your lawyer once you are in the Drug and Alcohol Sentencing List. It will be Legal Aid, but they are expert and competent lawyers who can assist you. Make contact with them and say, ‘I have got a problem I need to raise with the Judge.’ Raise it with your caseworkers first, but, if you cannot get a result or you just want to raise it with me, you can raise it when you come into Court every week initially for some months.
If you want to do so confidentially, speak to your lawyer and get your lawyer to ask for a closed court. If there are problems at Karralika, raise them with me. You can do it confidentially and we can try and resolve it.
This is a massive opportunity for you. If you do not take it, I cannot say there are no other opportunities in the future, but really it is just going to be a rehash of the life you have had and that cannot possibly be a life that you want to live. Homelessness, not with your kids, escaping from the police, being stupid, not doing anything that you want to do but what other people want you to do and what you need to do for sustenance in life.
There is another way. You can put a terrible disadvantage that you have had behind you and show that you are bigger than that and you can achieve what you want to achieve in life.
[The offender responded: Yes.] I certify that the preceding one-hundred and ninety-eight [198] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.