[2017] ACTSC 186

1. The conviction of Hayley Maree John for aggravated burglary at Macquarie on 25 July 2015 be confirmed.
2. Hayley Maree John be sentenced to two years imprisonment to commence on 11 July 2017.
3. The conviction of Hayley Maree John for damaging property on 25 July 2015, being nine motor vehicles, be confirmed.
4. Hayley Maree John be sentenced to 12 months imprisonment to commence on 11 July 2017.
5. The conviction of Hayley Maree John for theft from nine motor vehicles on 25 July 2015 be confirmed.
6. Hayley Maree John be sentenced to 15 months imprisonment to commence on 11 July 2018.
7. The conviction of Hayley Maree John for theft from six motor vehicles at Nicholls on 25 July 2015 be confirmed.
8. Hayley Maree John be sentenced to 12 months imprisonment to commence on 11 February 2019.
9. The conviction of Hayley Maree John for burglary at Chisholm on 25 July 2015 be confirmed.
10. Hayley Maree John be sentenced to 20 months imprisonment to commence on 11 February 2019.
11. The conviction of Hayley Maree John for theft from a residence at Chisholm on 25 July 2015 be confirmed.
12. Hayley Maree John be sentenced to 18 months imprisonment to commence on 11 June 2019.
13. The sentence is to be suspended on 10 April 2018.
14. Hayley Maree John be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from 11 April 2018 with the following conditions:
    • (a) a probation condition that she be under the supervision of the Director-General or her delegate for a period of two years or such lesser period as the person supervising her considers appropriate and that she obey all reasonable directions of the person supervising her;
    • (b) a community service condition that she perform 80 hours of community service work by 10 April 2019, that being within 12 months from the date of her release; and
    • (c) a condition that she undertake such treatment or counselling as may be directed for mental health and drug addiction issues by the person supervising her.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated burglary - damaging property - theft - burglary - assessed as unsuitable for an Intensive Corrections Order - consideration of subjective circumstances - general deterrence - sentenced to a period of imprisonment - sentence to be suspended after nine months

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 63, 65, 78(6)

R v John [2017] ACTSC 144

R v Ngerengere (No 3) [2016] ACTSC 299

R v Wyper (No 2) [2017] ACTSC 103

1. On 25 July 2015, the accused, Hayley Maree John, committed offences of aggravated burglary, the circumstance of aggravation being that she was in company, nine offences of damaging property, but all charged in one rolled-up count, nine offences of theft of property from motor vehicles, also charged in one rolled-up count, an offence of burglary of residential premises, and an offence of theft from those premises.

2. Ms John has pleaded guilty to these offences and now appears to be sentenced for them.

3. I have set out the facts of the offences, Ms John's personal circumstances, including her participation in restorative justice, an explanation of rolled-up counts, and the principles for sentencing, as well as some consideration of sentencing practice in my remarks on 4 May 2017: R v John [2017] ACTSC 144.

4. On that occasion, I explained in R v John at [117] that the seriousness of the offences meant that no other sentence but imprisonment was appropriate. That did not mandate, however, how the sentence of imprisonment was to be served, as the Crimes (Sentencing) Act 2005 (ACT) provides various ways in which that may be done. Thus, I adjourned the sentencing to permit Ms John to be assessed for service of the period of imprisonment by an Intensive Correction Order. See R v John at [120]-[121]. I indicated that I considered a term of imprisonment of three years and five months would be appropriate in the circumstances.

5. I have described the sentencing option of an Intensive Correction Order in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]- [27]. In R v Wyper (No 2) [2017] ACTSC 103 at [5]- [6], I summarised the effect of such a sentence as follows:

1. An Intensive Correction Order is clearly more lenient than the serving of a sentence of imprisonment in full-time custody but it is, nevertheless, a sentence of imprisonment to be served in the community, though under such intensive conditions that the courts have made it clear that it remains both a punitive sentence and one with such features as are likely to achieve the purpose of general deterrence.
2. In addition, it serves purposes such as rehabilitation, re-integration into the community, or the opportunity to permit an offender to continue with the pro-social circumstances under which he or she lives in the community so as to reduce the risk of recidivism.

6. The series of serious dishonesty offences for which Ms John must be sentenced are a serious attack on the peace and good order of the community and not only lead to people being concerned for their safety and the security for their possessions, but thefts do mean that people lose items that often they have worked hard to obtain and may include the loss of items to which they have a sentimental attachment. It can cause inconvenience and time to replace them or to seek insurance indemnity. It also affects other members of the community through the increase in insurance premiums.

7. There are, however, various purposes of punishment in the Crimes (Sentencing) Act. Punishment and general deterrence, which are appropriate for these multiple, serious offences of dishonesty, are not the only matters to which I am to have regard. Ms John's personal circumstances and the reason why she committed the offences are also relevant to the appropriate sentence. For this reason, I ordered an assessment for an Intensive Correction Order.

8. I have now received a detailed and comprehensive Assessment Report for Ms John. It is based on five interviews with Ms John, an interview with her mother, a home visit, contact with various government agencies and rehabilitation providers, as well as the results of various tests and assessments administered to Ms John.

9. Ms John was generally compliant with the assessment, but in a sign that was repeated elsewhere, she missed a total of seven scheduled appointments, for various reasons. Whether valid or not, they did suggest a lack of priority given by Ms John to the assessment process. I do note, however, that, in each case, Ms John, her mother or her partner made contact with ACT Corrective Services to re-schedule the appointments and that is to some extent to her credit. She did not, however, remain in contact with the Service, officers of which made four telephone calls in which no contact could be made.

10. Worryingly, Ms John was subject to three drug tests on 12 May 2017, 29 June 2017 and 4 July 2017. They all showed a positive result for illicit drugs, two having been confirmed by laboratory tests showing the drugs as amphetamines and methylamphetamines.

11. The Report noted that Ms John remains in a supportive and positive relationship with her partner which started quite early this year.

12. The report of her education and employment history is consistent with what I set out in R v John at [53] and [56]-[57] and confirms that she remains employed as a casual office worker for the automotive business to which I referred. The work, however, is currently limited.

13. Ms John's continuing use of drugs is the most concerning issue as it seems that her drug use was a significant contributor to her criminality. The causes of her commencing to use illicit drugs are set out in R v John at [59]-[63] and these circumstances do demand a careful response, but Ms John has had opportunities to address both these issues, and her drug use and her attempts have been sporadic and unfocussed.

Telephone contact with Directions Health Service on 22 June 2017 confirmed that Ms John attended three 1:1 counselling sessions on 22 February 2017, 15 March 2017 and 29 March 2017. She has had no face to face contact with their Service since that date. Ms John failed to attend two sessions on 11 May 2017 and 9 June 2017 with further non contact telephone calls place to Ms John on 13 and 21 April 2017. They advised Ms John also attended one Smart Recovery Session on 26 April 2017.

Telephone contact with staff at the Canberra Hypnotherapy Clinic confirm that Ms John has attended their Service on two occasions (17 June 2017 and 1 July 2017) for 1:1 therapy which focuses on changing her behaviours and processes in relation to life and illicit substance use. Ms John has further sessions scheduled.

15. Ms John is said to have minimised her offending behaviour, though I accept she did go along with her co-offender, Michael Paul Forrest, because she thought that he was taking her to Queensland to see her children.

16. Ms John is assessed as at a medium-high risk of re-offending, generally because of her lack of stable employment, unaddressed drug use, mental health concerns, attitudes and associates.

17. She has a history of non-compliance with community based orders including various breaches of bail.

Ms John is a 27 year old woman with both a criminal history and history of non compliance with community based orders. Her offending behaviour appears to be inextricably linked to her problematic substance abuse and anti-social acquaintances. With the commission of the current offences she has demonstrated her disregard for her legal obligations as well as the safety of the wider community.

Whilst she verbally stated she has accepted responsibility for the current offences, her previous non compliance with community based orders and lack of engagement in interventions appears to show her limited understanding or concern for the severity of the situation and possible consequences of her actions.

It will require commitment from her to engage in targeted interventions (mental health, drug use, employment, companions, leisure/recreation and attitudes) to address her medium-high risk of reoffending.

19. The Report assesses Ms John as not suitable for an Intensive Correction Order because of her unaddressed illicit substance abuse and limited engagement with appropriate interventions as well as her limited engagement with appointments during the assessment period.

20. Notwithstanding that the assessment finds Ms John unsuitable, I still can under s 78(6) of the Crimes (Sentencing) Act direct that a term of imprisonment be served by an Intensive Correction Order.

21. Ms John undertook a Restorative Justice process which I described in R v John at [96]-[99]. One of the outcomes was a commitment "to engage in supports and services for issues associated with offending including for drug addiction". I described her commitment at that stage as "rather patchy", though I noted that she had renewed her commitment.

22. I have a further report from the Restorative Justice Unit which confirms the Intensive Correction Order Assessment Report as to her lack of continuing engagement with Directions Health Service, noting that as at 9 June 2017 "her engagement with the service ceased". She also failed to attend an assessment with Toora Women Inc for that agency's drug program.

23. The Restorative Justice Unit was also aware of her recent engagement with hypnotherapy but was not able to confirm that, though, as noted above (at [14]), that has been confirmed.

24. Her contact with the Restorative Justice Unit since May 2017 has been "sporadic".

25. This is in many ways a tragic case, for Ms John had, prior to her use of illicit drugs, a good, worthwhile job in which her work was valued and for which she was commended.

26. Many of the causes of her depression and drug use were matters beyond her control such as serious domestic violence, the loss of her children, who were taken by her father with whom she has a problematic relationship, and a bizarre experience which I described in R v John at [64]. These reasonably evoke sympathy but that cannot displace the need for a proper sentencing response.

27. I also had references from people who know her and attested to the fundamentally good qualities she has, but which have largely been eclipsed by this distressing and criminal period of her life.

28. The problem she confronts, however, is that she does not appear committed to her rehabilitation.

29. Her relatively short but regrettably growing criminal record, her prior good character, and the limited but available support for her would justify a more rehabilitative approach if the Court could be satisfied that Ms John was committed to, and able to engage in, appropriate rehabilitation.

30. She does not, however, seem ready to be committed to it at this stage. She articulates commitment, commences rehabilitation but soon that commitment leaches away and she disconnects.

31. As Court hearings approach, she revives her commitment, though not always with the same provider, but I am now in a position where I must be sceptical about the genuineness of any statements of intent to engage.

32. This is recorded in both the Intensive Correction Order Assessment Report and the Report from the Restorative Justice Unit. Further, there are no reports, much less positive reports, from any provider of rehabilitation services.

33. Thus, the capacity of the Court to justify a rehabilitative approach is limited, which means that particular purposes of sentencing, being punishment and general deterrence, seem to me now to predominate.

34. I made this clear to her when adjourning for the purpose of the Intensive Correction Order Assessment. I said in R v John:

1. Ms John, what I have said, in essence, is that these were serious offences. Ordinarily, people who commit aggravated burglary go to prison and that is viewed as an appropriate punishment. In your case, and this was a really rough patch in your life and was caused by things not entirely within your control, but nevertheless, like the rest of us in the community, you have to take the bad with the good and deal with it as best you can.
2. Your referees say that you have the capacity and the strength of character to be able to put this behind you. You are showing that to some extent, but the Crown is not entirely wrong; there is more yet to be done, and in particular you really need to be able to stop using methylamphetamines. That is now going to become much more significant because I am offering you, in effect, a sentence of imprisonment to be served in the community so that you do not have to go to gaol. But that will be under supervision, intensive supervision, and you have heard some of the suggestions that Ms Bradbury made about the way in which that is done.

1. But you need to really think carefully about whether what you tell me about what you want to do is what you really want to do and then put the effort into it. That means being careful about ensuring that you keep appointments and you attend at the programs that you commit to. I am not requiring any particular commitment. That will come with the Intensive Correction Order. But at the moment I suggest you sign up for the Toora program so that if you get a head start on that, you are so much better off and the risk of breaching the Intensive Correction Order, if I make it, is then much less.

35. In my view, her engagement, as evidenced to me at this stage, does not justify me overriding the recommendation that she is not suitable for an Intensive Correction Order.

36. In those circumstances, the only option available is a sentence of imprisonment with at least some part served in immediate full-time custody. The number and seriousness of the offences without significant proof of rehabilitation and at least a lack of use of drugs does not justify a wholly suspended sentence. To her credit, Ms John has committed no further offences other than, of course, the use of illegal drugs which is an offence she appears now to have committed a number of times.

37. Ms John has committed multiple offences for which I must sentence her. As a result, I must carefully consider the length of each of the sentences to be imposed, which must be appropriate for the offending and the offender, and I must ensure that, where there are overlapping common elements between any of the offences, Ms John is not punished twice. That is significant here, for the burglary and aggravated burglary offences have some common elements with the theft offences and this must be taken into account.

38. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. This is also significant here, again, for the burglary offence and some of the theft and damaging property offences were part of the same course of criminal conduct which calls for a measure of concurrency.

39. I have then reviewed the length of the term of imprisonment at which I have finally arrived to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, that the total sentence is not a crushing one and that it leaves open the realistic prospect of reform and hope for the achievement of Ms John's goals. This has required me, in this case, to adjust the cumulation or concurrency of individual sentences.

40. Ordinarily, I would be required to set a non parole period, as the sentence appropriate to these offences exceeds 12 months imprisonment (s 65 of the Crimes (Sentencing) Act). In this case, however, I am satisfied that there are still reasonable hopes for Ms John to deliver on her stated commitment to rehabilitation and that a period of imprisonment will hopefully bring home to her the need for her not only to commit initially to such change but to ensure that the commitment endures.

41. In my judgement, that justifies an earlier release than a normal non parole period would provide and I propose to suspend the sentence after a period of nine months. The Good Behaviour Order that must then be made will require her to participate in appropriate rehabilitation.

42. I also consider that, in part as recognition of the relatively short period of imprisonment and so as an additional penalty but also as part of her re-integration into the community, she should perform some community service work. That will also be required as a condition of the Good Behaviour Order.

43. I note that Ms John spent two days in custody after her arrest and I consider that this should be taken into account by backdating the sentence in accordance with s 63 of the Crimes (Sentencing) Act.

1. I confirm the conviction for aggravated burglary at Macquarie on 25 July 2015.
2. I sentence you to two years imprisonment to commence on 11 July 2017. Had you not pleaded guilty, I would have sentenced you to two years and six months imprisonment.
3. I confirm the conviction for damaging property on 25 July 2015, being nine motor vehicles.
4. I sentence you to 12 months imprisonment to commence on 11 July 2017, that is to be wholly concurrent on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
5. I confirm the conviction for theft from nine motor vehicles on 25 July 2015.
6. I sentence you to 15 months imprisonment to commence on 11 July 2018, that is, to be cumulative as to three months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 18 months imprisonment.
7. I confirm the conviction for theft from six motor vehicles at Nicholls on 25 July 2015.
8. I sentence you to 12 months imprisonment to commence on 11 February 2019, that is to be cumulative as to four months on the sentence for theft from nine motor vehicles. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
9. I confirm the conviction burglary at Chisholm on 25 July 2015.
10. I sentence you to 20 months imprisonment to commence on 11 February 2019, that is to be cumulative as to eight months on the sentence for theft from six motor vehicles. Had you not pleaded guilty, I would have sentenced you to two years imprisonment.
11. I confirm the conviction for theft from a residence at Chisholm on 25 July 2015.
12. I sentence you to 18 months imprisonment to commence on 11 June 2019, that is to be cumulative as to two months on the sentence for burglary on 25 July 2015. Had you not pleaded guilty, I would have sentenced you to 22 months imprisonment.
13. That is a total sentence of three years and five months imprisonment.
14. I suspend that sentence on 10 April 2018.
15. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from 11 April 2018 with the following conditions:
    • (a) a probation condition that you be under the supervision of the

Director-General or her delegate for a period of two years or such lesser period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you;

• (b) a community service condition that you perform 80 hours of community service work by 10 April 2019, that being within 12 months from the date of your release; and
  • (c) a condition that you undertake such treatment or counselling as may be directed for mental health and drug addiction issues by the person supervising her.

45. Ms John, I am not going to lecture you. You know that you have done the wrong thing and you know that you have not delivered to me what would enable me to give you a less severe sentence. I am, therefore, sentencing you, in effect, to nine months imprisonment until April next year. That will give you an opportunity, I hope, to sort out your priorities. It may give you an opportunity to participate in the Solaris Drug Program in the Alexander Maconochie Centre to address your drug addiction in that context. In April you will then be released back into the community, but under supervision. It will be similar to an Intensive Corrections Order, but probably not as intense.

46. There are three things that you need to do. One is comply with any directions of your probation officer, and if you do not, you can be brought back to Court. It will not be me. I have retired and I will not be allowed to continue dealing with this matter. So someone else will have to deal with that - and that can require you to be further sentenced to imprisonment if you breach that condition.

47. Secondly, community service work. That is a punishment, but it is also an opportunity for you to get back on your feet and I hope you use it positively. It is 80 hours, which is not a huge amount of time for you to do within 12 months.

48. Then, finally, you are to do any programs that are necessary for your mental health, your depression and any other challenges you have, including your drug addiction, if you have not come on top of that by your release - but certainly, further relapse is appropriate at that time.

49. If you do not do your community service work, if you do not do those programs that you are directed do, then again, you can be brought back to Court and be re-sentenced, including being sent back to prison.

50. I am sorry that it has come to this, but this is where it is and you now have an opportunity to do the best that you can within that period of time. I hope that you will be able to make good use of that time and that you will come out in April next year ready to face the world and show that the fundamental good qualities that your referees suggested that you really have, and that your prior employment showed, will be available to you. Obviously not in those circumstances, but I hope you will be able to re-integrate yourself in the community and hopefully reconnect with your children.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.