R v LT [2017] ACTSC 343

Sentenced to two years and three months' imprisonment, to be fully suspended upon the offender entering into a good behaviour order for the duration of the sentence.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - violent offences - recklessly inflict grievous bodily harm - complicity and common purpose - co-offenders - parity in sentencing - offender's substance abuse - offender experienced significant trauma leading up to offence - offender is sole carer for dependants - offender not suitable for intensive corrections order - suspended sentence with community service condition

Crimes (Sentencing) Act 2005 (ACT) ss 12, 33, 35, 91

R v Amosa [2015] ACTSC 34

R v EL [2016] ACTSC 241

R v Sharma [2016] ACTSC 180

R v Smith [2016] ACTSC 330

1. On 13 June 2017, the offender pleaded guilty to aiding and abetting the offence of recklessly inflicting grievous bodily harm committed by the co-offender, contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act) and s 45 of the Criminal Code 2002 (ACT) (complicity and common purpose).

2. The maximum penalty for an offence against s 20 of the Crimes Act is 13 years' imprisonment.

3. The offender was committed for trial on the more serious charge of aiding and abetting the offences of intentionally inflicting grievous bodily harm and attempted aggravated robbery. On 13 June 2017, the date when the trial was scheduled to commence, she entered a plea of guilty to the current charge.

4. Having regard to the timing of the plea and its limited utilitarian value, the offender should receive a discount of a little over 10 per cent under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

5. On 8 July 2016, the victim responded to an Internet dating advertisement placed by the offender and began exchanging emails with her. They discussed using drugs together. At the offender's suggestion, they began communicating by text message. At that stage, the co-offender was in custody. He was not involved in placing the advertisement or the subsequent communication between the offender and the victim.

6. By arrangement, at about 8.30 pm on 9 July 2016, the victim met the offender at a carpark in Fyshwick. After speaking for about five minutes, the victim gave the offender some drugs. They agreed to speak after the offender had finished work.

7. When the offender failed to contact the victim, he sent a number of hostile text messages to her.

8. On 19 July 2016, the offender informed the victim that she had broken up with her boyfriend and wanted to "hang out" with him and "get high". He agreed to meet her the following night after he finished work. On 20 July 2016, text messages were exchanged concerning drugs and payment for drugs. The victim and the offender agreed to meet at the Fyshwick carpark at about 6.00 pm.

9. By that stage, the co-offender had been released from custody and was in a relationship with the offender.

10. The offender anticipated that the victim would supply drugs at the meeting. They communicated about her paying for drugs. The victim was not interested in supplying drugs to the offender. He was more interested in "hooking up".

11. As arranged, the victim and the offender each drove to the carpark. The offender was accompanied by the co-offender. This is the first point at which the evidence indicates that he was involved in the enterprise.

12. After the two cars had parked, the victim exited his car, walked towards the offender's car and approached the driver side window. As he did so, the co-offender approached him. The co-offender removed a heavy metal pole from his jumper sleeve, raised it and struck the victim about three times on the head and body. The victim feared for his life. While the co-offender was striking the victim, the offender called out, "[h]urry up, hurry up". Through her counsel, the offender conceded that she was aware that force was to be used and that the co-offender intended to use a metal pole.

13. The victim removed a can of pepper spray from his jumper pocket, sprayed the co-offender and ran towards his car. The co-offender followed and smashed the front passenger window of the victim's car.

14. The victim drove a short distance and then stopped his car in order to turn and note the numberplate on the offender's vehicle. He saw the co-offender enter the vehicle. The victim telephoned triple zero and reported the incident. At that stage, he was in great pain and was bleeding from the head.

15. The victim drove home. His housemate drove him to the Canberra Hospital, where he was triaged as a category three patient (a patient with a potentially life-threatening condition or one who could experience an adverse event if not treated within 30 minutes). He was diagnosed as having a depressed fracture of the left parietal skull, scalp lacerations and other soft tissue injuries. Depressed skull fractures can result in damage to the underlying structures of the brain. Fortunately, in this case, the fracture was small. Subsequent investigations have yielded normal results and there is no clinical evidence of brain injury. The victim's lacerations were sutured.

16. A victim impact statement was read to the Court. The Court acknowledges that the victim suffered very significant injury and experiences substantial ongoing disabilities.

17. From a psychological perspective, he was very shocked by the incident. Over the ensuing days, he experienced flashbacks about being struck with a metal pole. There was interference with his sleep.

18. In the medium term, he continues to experience anxiety. Understandably, he avoids going to strange or dark places, is anxious about meeting new people and finds it difficult to trust people. While there was no expert evidence on this matter, I infer that the victim's psychological problems may continue for some time and, to some extent, may permanently affect the victim. The incident was shocking and frightening, and it would be expected that anyone in the victim's position would experience ongoing psychological consequences.

19. As has been observed in a number of cases, the objective seriousness of a particular s 20 offence is to be assessed by reference to its two components: the conduct of the offender (and the associated degree of recklessness) and the nature of the grievous bodily harm to the victim: R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34; R v Smith [2016] ACTSC 330; R v EL [2016] ACTSC 241.

20. The injury suffered by the victim was serious, but it was not the worst type of grievous bodily harm, bearing in mind that for any injury to amount to grievous bodily harm it must be a really serious injury. That is in no way to diminish the fact that the victim suffered a very serious injury.

21. Unlike many offences of this type which are committed on the spur of the moment, this offence was planned; at least from the time that the offender and the co-offender travelled to the rendezvous point. It was committed in company, a weapon was involved, and the victim was struck several times. There is no evidence and no concession that the offender was aware that the victim would be struck more than once. However, the offender admitted through her counsel that she was aware that there was a weapon and that it was to be used.

22. It would appear that the motive of both offenders for committing the offence was to obtain drugs from the victim without paying for them. At the time, both offenders were heavy drug users

23. While the offender was not the immediate assailant, her involvement in the offence was integral. The offence depended upon the relationship that she had established with the victim. Her conduct was objectively serious.

24. The offender was 24 years old at the time of the offence. She is now 25 years old. She had no significant criminal history.

25. While on bail for the offence, the offender was subject to supervision conditions. In October 2016, breach action was initiated for failing to report. In January 2017, breach action was initiated for a positive drug test (methylamphetamine) returned in late-2016. However, since late-2016, the offender has performed well under bail supervision.

26. The offender is the youngest of four children. She had a supportive upbringing. She maintains a close relationship with her parents and two of her three siblings. Her parents continue to provide her with very significant support.

27. At the time of the offence, the offender was in a relationship with the co-offender. The couple lived in a de facto relationship for about four years before separating in October 2016. The relationship was marred by significant domestic violence. The offender's father gave evidence that the initial high hopes of a positive relationship between the offender and the co-offender were gradually undermined as violence escalated through the period that they were together. While she was in the violent relationship, the offender was psychologically detached from her parents and they were unable to influence the escalating situation.

28. In 2012, the offender gave birth to a stillborn child. That was a very significant trauma in her life, particularly given her age at the time.

29. The offender and the co-offender have a three-year-old son and a daughter who was born in April 2017. In 2015, their son was removed from the offender's care as a result of domestic violence in the home that the offender shared with the co-offender. He is now in the care of his maternal grandparents. The offender is motivated to obtain fulltime care of her son. She maintains strong ongoing contact with him, staying overnight with her parents and son two nights a week.

30. The offender's daughter resides with the offender and the offender is her sole carer. Child and Youth Protection Services supervise and support the offender, as do the offender's parents. The child has had a number of illnesses and the past six months have been a particularly difficult time for the offender, although no doubt also rewarding.

31. The offender left school in Year 9. Thereafter, she worked consistently in sales and cashier positions until her first child was born. Currently, she receives a Centrelink parenting payment. She has debts. According to her father, she has accepted her financial responsibilities and appears to be managing her finances well.

32. From 15 to 20 years of age, the offender used cannabis on a daily basis. When she was 22 years of age, she moved out of the family home to set up a home with the co-offender. At that stage, she was introduced to methylamphetamine by the co-offender and thereafter, she used the substance intermittently. After her son was removed from her care in 2015, her use of methylamphetamine increased. She continued to use drugs heavily until late-2016.

33. Four drug tests undertaken in 2017 support the statements of the offender and the observations of her father that she has not abused substances this year. She has agreed to maintain engagement with CADAS and has indicated that she is very motivated to remain abstinent.

34. In the three or four-year period leading up to the commission of the offence, the offender experienced several significant traumas. First, there was the stillbirth of her first child in 2012. Second, there was the ongoing domestic violence experienced at the hands of the co-offender. Finally, there was the associated removal of her son in 2015.

35. The dissolution of her relationship with the co-offender and the birth of her daughter have motivated the offender to make positive changes and have contributed to her changed approach to substance abuse. Nevertheless, she requires further support in relation to substance abuse, grief and trauma issues and to assist her to gain insight into her offending behaviour.

36. It would appear that the offender has an underlying problem of lack of selfconfidence and is, as her father described, easily led. It is not difficult to see that the co-offender would have exerted a significant influence over her in the period leading up to the offence, particularly because he was engaging in domestic violence towards her.

37. At one stage, the offender denied knowledge of the fact that the co-offender intended to assault the victim and demonstrated limited insight into her own offending behaviour, blaming the co-offender for the offence. However, recently she has demonstrated a more mature attitude and more insight into her conduct.

38. Considerations of parity are important. There is some distinction in the objective seriousness of the offending conduct of the two offenders. The co-offender was the direct perpetrator of the violence and he struck the victim three times. But although her role was different, the offence committed by the offender was also objectively serious

39. There is a greater distinction between the subjective circumstances of the offenders. These include the considerable age difference, the nature of the relationship between the two (in which the co-offender was not only the older, but also the controlling partner and engaged in domestic violence) and the serious traumas experienced by the offender in the period leading up to the offences. The co-offender was on conditional liberty and had only just been released from custody at the time that he committed the offence. That consideration does not apply to the offender.

40. Another important distinction is the fact that pursuant to s 33 of the Sentencing Act, the Court can take into account the effect of imprisonment on dependants. The offender is the sole carer for the couple's six-month-old daughter and is also significantly involved in the life of their son.

41. Most of these differences in subjective circumstances are best accounted for in the manner in which the sentence is served, rather than its length.

42. The sentencing purposes that are relevant for both offenders are adequate punishment, accountability, denunciation, recognition of harm to the victim and rehabilitation.

44. I indicated that the appropriate sentence was two years and six months' imprisonment, reduced by 10 per cent for the plea of guilty, resulting in a sentence of two years and three months' imprisonment.

45. I provided my reasons and referred the offender for an Intensive Corrections Order (ICO) assessment. I also noted that the offender did not automatically qualify for an ICO because the indicated sentence exceeded two years' imprisonment.

46. The ICO assessment report assessed the offender as not suitable for an ICO. The report observed that the offender was motivated to meet the obligations of an ICO. However, the report also observed that compliance may prove difficult as the offender's "priority is to focus on developing a stable environment for her daughter" and the offender may be unable to attend all appointments as directed by Corrective Services.

47. I am concerned that Corrective Services have not devised a program that might be suitable for a person in the position of the offender, who is motivated and has made good progress towards rehabilitation, but whose primary focus is caring for her child.

48. In the sentencing scheme, an ICO is one step removed from full-time imprisonment and, given the objective seriousness of the offence, in most circumstances, I would consider an ICO the most lenient sentence that could reasonably be imposed.

49. However, if I impose an ICO I may be setting the offender up for failure, particularly having regard to the length of the sentence and the fact that supervision (and with it, the capacity for flexibility) would be relinquished by the Court to Corrective Services. I am not confident that that outcome would be in the offender's best interests. Nor would it be in the best interests of the community, which has a strong interest in promoting rehabilitation, including the rehabilitation of those who may experience failures along the way.

50. Consequently, I am persuaded to take the unusual course of directing that the sentence be served by way of a suspended sentence order. The most appropriate course would be referral to a Drug Court program. However, that option is not currently available.

51. In order to meet the sentencing objectives of punishment and accountability, I intend to impose a community service condition. It is quite short but I do not wish to set the offender up for failure in relation to meeting her community service obligations.

52. The offender is sentenced to two years and three months' imprisonment. Pursuant to s 12 of the Sentencing Act, I make a suspended sentence order suspending the whole of the sentence of imprisonment. I make a good behaviour order for the period of two years and three months during which the sentence is suspended. The good behaviour order is to include the following conditions:

(a) the offender is to report to Corrective Services by 4.00 pm today;

(b) the offender is to submit to the supervision of Corrective Services for as long as the Services consider appropriate but for at least 12 months;

(c) the offender is to undertake any treatment and programs that may be recommended by the Services including treatments or programs focused on:

• (i) drug abuse;
• (ii) grief and trauma;
• (iii) attitudes towards offending; and
• (iv) anger management.

(d) a community service condition requiring the offender to perform community service for 50 hours, which, pursuant to s 91 of the Sentencing Act, is to be performed within 12 months.

53. Ms LT, you must understand that you need to do everything that you are required to do because any breach of the suspended sentence, for example not showing up at appointments or not doing the community service, will be brought back to Court. The Court then has to cancel the good behaviour order and re-sentence you. The baseline for re-sentencing is to serve the sentence of two years and three months' imprisonment.

54. It is up to you to try to negotiate what you can actually achieve with Corrective Services, noting that you do not really have any power in that negotiation. If they want to, Corrective Services will just tell you what to do and you have to accept it and do it. Otherwise, you will be back here on a breach and you could be re-sentenced to full-time imprisonment. Try to keep that at the front of your mind.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.