R v King [2017] ACTSC 252

[2017] ACTSC 252

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated burglary - plea of guilty - lower range of offences of this nature - obtain property by deception - plea of guilty - extensive criminal history - subjective features - Aboriginal woman - childhood characterised by neglect and abuse - drug addiction problems - extended family and community support - caring for child - expressed remorse - reasonable prosects of rehabilitation - assistance to authorities - sentences of imprisonment imposed - balance suspended - Good Behaviour Order imposed

SCC 47 of 2017; SCC 48 of 2017; SCC 133 of 2017

1. Maria King, you appear before me today for sentence with respect to two offences. On 9 February 2016, you committed an offence of aggravated burglary. The circumstance of aggravation, with respect to that charge, is that you were in company of another person at the time that that offence was committed. On 22 May 2017, you pleaded guilty to this charge and that was entered shortly before the date when the trial relating to that charge was due to commence. The maximum penalty for that offence is 20 years imprisonment, a fine of $300,000 or both.

2. A comprehensive Statement of Facts has been tendered and, as I understand it, those facts are agreed. I will not now recite the facts. I will note that your involvement in this offence was limited to entering into the bedroom of the complainant and struggling with the complainant in order to obtain her handbag from her, during the course of which you pulled the complainant off her bed. I note that this was all in the context of an argument over some drug dealing in which you and your co-accused felt that you had not been provided with what you had paid for. Again, as I understand from what has been put to me, it is said that the complainant was your drug dealer, that you had purchased drugs from her and that you were dissatisfied with the quality of the drugs that had been purchased.

3. When one looks at the circumstances of this offence it is in the lower range of offences of this nature, even taking into account the fact that the offence occurred at the complainant's home and in the presence of children.

4. I take into account your plea of guilty with respect to that matter, albeit that it was a late plea, and I will reduce, by approximately 10 per cent, the sentence that I would otherwise have imposed with respect to that matter in order to reflect your plea. I also take into account the fact that you gave evidence at your coaccused's trial on behalf of the Crown with respect to this matter.

5. The second offence for which I must sentence you today is an offence of obtaining property by deception. That offence occurred on 18 December 2016. That offence involves seven fraudulent transactions conducted by yourself using another person's credit card. It appears that that credit card was stolen, although there is no suggestion that you, in any way, were involved in the theft of that credit card. Those seven transactions totalled a sum of $407.47.

6. I note that there was an early plea of guilty with respect to that matter and I will reduce, by approximately 25 per cent, the sentence that I would otherwise have imposed in order to reflect your plea of guilty with respect to that matter.

7. You have an extensive criminal history which sadly disentitles you to any leniency with respect to this matter, although if one can find any positive in that criminal history it is that before these offences there was no offending after 2011.

8. A Pre-Sentence Report was prepared for the sentence hearing. I note that you are 34 years old. You successfully completed a Good Behaviour Order in 2011 and as I have already noted, there was no further offending then until these matters before me today.

9. You are an Aboriginal woman who was removed from the care of her parents and placed in the care of somebody, as I understand it, from the extended group to whom you may have been related by marriage. It appears that that was not a particularly successful placement. You reported that your childhood was characterised by neglect and abuse. Your mother died when you were very young. You ran away from your grandparents when you were about 12 years old. Your first child was born in 1997, when you were 15 years old. You had a second relationship then which produced another child in 1999. That relationship was a fairly lengthy relationship but you then had a relationship with the co-accused which commenced in 2015 in which you experienced violence.

10. After that relationship broke down, at the time of these offences, you subsequently formed a new relationship in 2016. Again, that was only a short term relationship but another child from that relationship was born on 8 June 2017. I note that you have received some help from your older daughter in relation to caring for this child but the care for the child has largely fallen to you. It is to your credit that the reports which have been put before me today suggest that you have been coping very well in that regard.

11. You have limited family support here in the Australian Capital Territory (ACT) but you have much more significant support in Queensland. I note that you propose to relocate to Queensland, as soon as that is feasible, and that is a proposal which I would support.

12. You left school at the end of year 6 or at the beginning of year 7. It is not entirely clear. I note that in your letter to me you said that you left in year 7 but the Pre-Sentence Report says that you left part way through year 6. Nothing much turns on that. You have had very little employment since that time and you have mainly been on Centrelink benefits.

13. It is clear that you have longstanding drug addiction problems, which, over the years, you have struggled to address. You have, again, commenced attempting to address those drug addiction issues in the recent past and I accept that you are making a genuine attempt at the present time to avoid the use of illicit drugs and to be a good mother for your child.

14. The author of the Pre-Sentence Report assesses you at medium to high risk of reoffending but, of course, that could be significantly reduced by addressing your drug addiction issues and also, I may say, the associates with whom you have associated in recent times.

15. I note that you have settled well into the care of your latest child and that you have engaged appropriately with Child and Youth Protection Services, including attending Karinya Outreach Program on a regular basis and it is said that you are doing well in that regard.

16. You have extended family and community support, as I have said, particularly in Queensland. Your father lives there and I have material before me from Gail Forrest and her family which speaks of their continuing support for you and their willingness to provide you with support when you move to Queensland.

17. I note that you have expressed remorse for the commission of these offences. I am satisfied that if you address your drug abuse issues and also you accept the assistance that is provided to you, that has been offered to you, and also you avoid associating with co-offenders who are involved in the use of drugs or in other criminal activity, that your prospects for rehabilitation are reasonable, but, of course, that is going to involve a fair amount of work by you. In one sense you have a very profound choice in front of you. You can have drugs and crime or you can have your family and you will be judged by the choice that you make in that regard.

18. I note that you spent 172 days in custody which I will take into account. I am satisfied that these offences call for a term of imprisonment but not one which requires any further period of full time imprisonment to be served at this point.

19. With respect to the offence of aggravated burglary (CC16/02067), you will be convicted. I would have imposed a sentence of 20 months imprisonment but for your plea of guilty and your assistance to the authorities by way of giving evidence at the trial of your co-accused. I will reduce that sentence by two months, in order to reflect your plea of guilty and a further three months, in order to reflect your assistance to the authorities. You will be sentenced to 15 months imprisonment commencing on 22 February 2017, to take into account your pre-sentence custody, and expiring on 21 May 2018, of which period the period commencing 22 February 2017 and expiring yesterday, 13 August 2017, is to be served by way of full time imprisonment and the balance will be suspended.

20. With respect to the offence of obtaining property by deception (CC2017/02976), I consider that to be towards the lower end of the range of offences of that nature. You will be convicted and sentenced to four months imprisonment, which I have reduced from six months in order to reflect your plea of guilty. That sentence will commence on 22 March 2018 and expire on 21 July 2018. That sentence will be fully suspended.

21. There will be a Good Behaviour Order for a period of 18 months from today.

(a) There will be a condition that you are to accept the supervision of the Director-General for a period of 12 months from today, or such lesser period as deemed appropriate by your supervising officer.

(b) Secondly, you are to undertake such programs or counselling as directed by the Chief Executive, particularly relating to drug abuse.

22. There will be two conditions and as I said, you will be obliged to comply with directions that are given to you by the Director-General for that period of 12 months or such lesser period as is deemed appropriate. That will include attending counselling, as directed, but it may also include undertaking other programs or engaging in other activities as directed by Corrective Services.

23. That period of supervision may be transferred. I am not saying that it will be but you would need to make an application to Corrective Services to transfer that supervision to Queensland and I would support any application to transfer that supervision to Queensland.

24. Now, the aggregate sentence, that is the total sentence, was one of 17 months imprisonment, which, as I have said, I have suspended with a Good Behaviour Order for a period of 18 months but there is only 12 months of supervision with respect to that.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.