R v Lowe [2015] ACTSC 116

Crimes Act 1900 (ACT) s 21

Crimes (Sentencing Administration) Act 2005 (ACT) ss 107(1), 108, 108(2)(a), 110

R v Billington [2014] ACTSC 350

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (2000) (DSM-5)

**1. The offender, Delilah Lowe, who was born in August 1992, pleaded guilty to and is to be sentenced for the offences of aggravated robbery and intentional wounding. The offence of aggravated robbery is one contrary to s 310(b) Criminal Code 2002 (ACT) and carries a maximum penalty of 25 years imprisonment. The offence of intentional wounding, which is one contrary to s 21 Crimes Act 1900 (ACT), carries a maximum penalty of five years imprisonment.

2. At the time of the offences, which occurred on 27 October 2014, the offender was on three good behaviour orders which had been imposed by the Magistrates Court of the ACT. Two of those orders were imposed on 22 April 2014, each being for an offence of taking a prohibited thing into a correctional centre; the thing in each case being a small quantity of drugs. At the time when the aggravated robbery and the intentional wounding were committed, each good behaviour order had been in force for six months.

3. The offender was also on a good behaviour order imposed by the Magistrates Court on 26 June 2014. That order was for the offence of failing to display P-plates. As with the other two, it was a 12 month good behaviour order. At the time of the offences for which I am to sentence her, it had been in force for four months.**

**4. The facts of the two matters for which I am to sentence the offender were these. At about 8.30 am on Monday 27 October 2014 the complainant, Mr Steven Morey, was working as a taxi driver. He picked up the offender from a taxi rank in Woden. She asked him to take her to Red Hill and gave him some directions. The taxi arrived at a laneway between Cygnet Crescent and Beagle Street in Red Hill. At that point the driver was asked to stop the taxi in a car park off the laneway. The offender handed the driver her mobile telephone and asked him to wait while she got some money to pay his fare. She then left him and walked towards a block of units.

5. About five minutes later she returned. When she returned she opened the front passenger door and sat on the front seat. She gave the driver her key card so that she could pay the fare. He then handed back her mobile phone. He started to perform the transaction with her key card. At that point the offender produced a barbecue fork with two silver prongs, each being about 15 centimetres in length. She pointed it at the driver and asked him to give her "the bag", meaning his money bag. Then she stabbed him twice on his left arm. The prongs punctured his skin and caused bleeding.

6. She got out of the taxi but remained standing at the door. Then she leant inside and tried to stab the driver in the abdomen and twice more in the left forearm and elbow region. Her act caused no puncture marks to the abdomen but it did cause some more puncture wounds to his arm. She repeatedly screamed out for him to give her "the bag". He understood her to be talking about the money bag. He picked it up and managed to get his money out of it without her noticing. Then he threw it to her. She was still standing outside the taxi.

7. The offender then picked up the bag and became very angry when she realised that there was no money in it. The driver, at that stage, did a U-turn and drove out of the car park and away from her. He pressed the taxi's distress button and drove to a hospital where he obtained medical attention. While he was there he gave a statement to police with a description of the offender and details of the offences.

8. Shortly after 10 am that day police went to an address in Red Hill and knocked on the door. Nobody answered but police could see that there were drops of blood on the ground leading to the rear window of the residence. Shortly after that the offender came to the door and said to the police, "Are you guys here about the taxi driver?" The offender was asked to produce identification. She produced a New South Wales driving licence in her name. She was then arrested and cautioned. She made admissions. She told police that the weapon she had used was in a bin in the residence. She allowed police to enter and seize the barbecue fork from the bin.

9. The offender has been in custody since that day and has served 190 days.

10. There was a victim impact statement in evidence. I have read that and considered it. It is hardly surprising that the offences had a considerable impact on the taxi driver. At the time the incident must have been, I infer, extremely frightening for him.

11. The offences are both objectively serious. They are made worse by the fact that they occurred while the offender was on conditional liberty. I find that at the time the victim was in a vulnerable position. In addition, I find he suffered injuries in the course of the robbery.

12. The offender pleaded guilty at the first available opportunity, the Crown concedes, and I propose to deduct 25 per cent from the sentences I would otherwise impose by reason of the pleas of guilty.**

**13. The offender has had a troubled background. At the time of these offences she was 22. She has three siblings. Her parents separated when she was four. Her mother moved from Sydney to Canberra at about that time and raised her children here. The offender left school in year 10. After that, and for a number of years, she had an impressive work history. But unfortunately, when she was about 13 she began using drugs. By the time she had got to about the age of 18, her drug use was getting out of control.

14. There was some controversy before me about the precise age at which the offender began using methamphetamines, but having read carefully all of the documents containing histories, I consider that the most comprehensive one before me is a psychiatric report from forensic psychiatrist, Dr Kasinathan.

15. According to the history given to that doctor the offender said that she started at the age of 13, in an experimental fashion, to use drugs with friends and that she used both cannabis and amphetamines. The cannabis use escalated then from the ages of 18 to 20, to the use of three grams daily. She told him that she drank alcohol to the tune of about 90 grams for two days a week and that from the age of 18, she was using up to three points of ice daily, sometimes intravenously.

16. I acknowledge that the offender did not verify the history given to any of the record takers. In fact, the offender did not give evidence. Dr Kasinathan's report shows, I think, that he spent a great deal more time taking a history than did other history takers whose reports are in evidence. His point of view was, of course, that of a forensic psychiatrist, where he was looking for evidence of psychosis and its relationship to the use of drugs.

17. To the extent to which there is any disagreement between the histories in the various reports I prefer and accept the history contained in his report. I find that the offender began using cannabis and amphetamines at about the age of 13 and that her use of both escalated once she turned 18, so that by the time of these offences, some several years later, she had a significant drug addiction.

18. I have referred to her troubled past, dealing particularly with her drug use. She has recently revealed that when she was six and older she was sexually assaulted by her mother's then partner. It appears that her sister has also complained of having been sexually assaulted by him. I was told that the police are now investigating both complaints.

19. The offender's mother gave evidence before me. She is, I think, an impressive woman, with an impressive work history. She told me, and I accept, that when the offender was about 12, she went to live with her father and that the offender's father has been a poor influence on his daughter. The offender's mother, I am satisfied, will give her daughter whatever help with her rehabilitation she can once she is out of custody. But obviously her help can only be given if her daughter is prepared to cooperate with her. As to that, there must at the moment be some caution, because of the drug addiction.

20. Dr Kasinathan, in his report, noted that the offender had recently been examined by Dr Barker, another consultant psychiatrist. Dr Barker came to the view that the offender had a psychotic illness due to auditory hallucinations and paranoid delusions in the months following the offences. Dr Barker diagnosed schizophrenia and prescribed medication, which she continues to take to this day.

21. Dr Kasinathan agreed that she has a mental illness and in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (2000) (DSM-5) he diagnosed her as having schizophrenia and an amphetamine use disorder. He could see a causal connection between the sexual assaults by her mother's former partner leading to disruption in her emerging personality, leading to her coping with that by taking up drug use and its consequential significant psychotic illness. However, the offences themselves, he said, had not realistically been connected to her drug use and her motivation in carrying out the offences had been to get money for drugs.

22. He said that she had had a good response to the medication so far and he advised strongly that she continue to use it and undergo psychiatric reviews and clinical management, both while in custody and when she is back in the community.

23. She has a significant matter on her criminal history, namely an aggravated robbery. That was at the age of 14. It seems that she spent some time in Quamby for that. Her record shows that until relatively recently, at least until the offences for which she was placed on the good behaviour orders, she did not engage in further criminal conduct.

24. I find, given her still relatively young age and the treatment she has had and will have, that she has reasonable prospects of rehabilitation. She has skills from her years in the workforce, so she has reasonable prospects of returning to some form of work, particularly, I find, if she has assistance from her mother.

25. Her early plea of guilty to each offence is impressive, and suggestive of contrition. There are statements of contrition also in the psychiatric report and the Pre-Sentence Report. I find that she has genuine remorse. I take her plea as being evidence of remorse and a desire to assist the course of justice.

26. In custody she has completed the SMART Recovery program. She has been assessed for a Directions program and she has started a Directions program to prevent relapse.

27. Counsel for the offender conceded that there is no alternative to a period of full time custody.

28. I consider her relative youth and her mental illness and her remorse and early plea and reasonable prospects of rehabilitation ought be reflected in a less significant penalty than might otherwise have been the case. The Crown referred me to the Chief Justice's sentence imposed in R v Billington [2014] ACTSC 350, and I have found her Honour's judgment of great assistance.

29. The circumstances of aggravated robberies do, of course, vary greatly from case to case. In Billington, involving two robberies, there was no actual injury to either of the victims. In each of the robberies in Billington the offender went armed with a far more dangerous weapon than a barbecue fork. In each case the planning was greater. He took a weapon - namely a knife - and took steps to disguise the way he looked, so that he could not be recognised.

30. The planning here, in my assessment, was unusual by the choice of the weapon which was, I find, less dangerous than those in Billington. Here, nothing of value was ultimately obtained by the offender, whereas in Billington there was a sum of money obtained in each of the robberies. Here the offender handed over her personal card, and, as it turned out had the driver take her to a spot which was very close to where she lived. I do note however, as the Crown put to me, that Billington was a number of years younger than this offender and had no prior criminal history. Billington was sentenced to two years and eight months for each offence, with a non-parole period of 18 months.

31. In both Billington and in this case, however, it should be noted that the offenders were, when spoken to by the police, extremely cooperative. As I have noted, the first thing the offender said to the police when they went to see her was, "Are you guys here about the taxi driver?" That suggests to me, and I am satisfied of this, that the offender assisted the police with their enquiries from the very beginning.**

32. I have been asked to deal with the breaches of the good behaviour orders. I am satisfied that I have jurisdiction to do that under s 107(1) Crimes (Sentencing Administration) Act 2005 (ACT). I am satisfied that the offences for which I am to sentence her did put her in breach of those good behaviour orders. I am satisfied the orders were not subject to s 110 Crimes (Sentencing Administration) Act 2005 (ACT). The options open to me are in s 108. These are wider than would otherwise have been the case. One option I may take under s 108(2)(a) is to take no action on the breaches. That is the course which I propose to take here. I am satisfied that the punishment for the breaches will be adequately reflected in the punishment which I impose for the two main offences. I take into account that the two earlier orders had been in force for six months, and the later one for four months, at the time when these offences occurred.

**33. In respect of the wounding offence, you are convicted and sentenced to a term of imprisonment of nine months to date from 27 October 2014 to 26 July 2015. But for the plea of guilty I would have imposed an additional three months. I do not propose to impose a parole period because I propose to impose a parole period for the other offence, which is the more serious one, and having only one non-parole period will, I consider, lead to simplicity.

34. As to the aggravated robbery, you are convicted. I impose a sentence of three years after deducting one year for the plea of guilty. That sentence is to commence on the 27 November 2014 and to expire on the 26 November 2017. You are to be released to parole on the 26 April 2016, that is, after you have served a total of 18 months' fulltime imprisonment for both matters. You will then be on parole for 19 months. That period, which is slightly longer than half of the total sentence, reflects what I see is the special need to deal with the drug addiction and the additional assistance you will need with your rehabilitation.**

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Walmsley.