CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated burglary - assault occasioning actual bodily harm - subjective circumstances - aggravating features of the offence - prospects of rehabilitation - risk of recidivism - specific deterrence - sentence partially suspended

Crimes Act 1900 (ACT), s 24

Crimes (Sentencing) Act 2005 (ACT), Pt 4.4

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146

R v Campbell [2010] ACTCA 20

Legal Aid ACT (Defendant)

1. The offender has pleaded guilty to one count of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for that offence is 20 years imprisonment or $300,000 or both. An additional offence of assault occasioning actual bodily harm has been included in a schedule which is to be taken into account pursuant to Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT). The maximum penalty for an offence against s 24 of the Crimes Act 1900 (ACT) would be five years imprisonment.

2. The offender pleaded not guilty and was committed to this Court for trial by the ACT Magistrates Court on 10 October 2016. The offender's trial was scheduled for

18 September 2017. She pleaded guilty to one count of aggravated burglary on 22 June 2017. The plea of guilty was therefore not at an early stage but does have substantial utilitarian value.

3. The facts are set out in an agreed statement of facts. They may be summarised as follows.

4. The offender and a Mr David Mundy had a relationship of three years duration which ended upon their separation in mid-February 2016. There were two children of that relationship. Following their separation they continued to have shared access to the children.

5. Prior to his relationship with the offender, Mr Mundy was in a relationship for eight years up until 2011 with Ms Sarah Catt. Mr Mundy and Ms Catt had two children together: CM, who was in 2016 aged nine years, and JM, who was in 2016 aged four years.

6. The offender and Ms Catt had an amicable relationship for the benefit of their children.

7. Ms Ruby Schrattenholz is the offender's sister.

8. On 12 April 2016 the offender and her sister Ruby, who I will refer to as the

co-offender, began drinking alcohol at a friend's house. She communicated with Ms Catt by text message asking if she could spare a cigarette. Ms Catt was at that point staying at Mr Mundy's house with her two children while Mr Mundy was staying at his parents house.

9. The offender and co-offender arrived at Mr Mundy's house. Ms Catt's children, CM and JM were asleep in the lounge room. The three adults went out the front door to have a cigarette.

10. At some point thereafter, the offender and co-offender became aggressive towards Ms Catt. Ms Catt attempted to call Mr Mundy. The co-offender threatened Ms Catt, saying that her sister would "smash her" and threw her drink over her. The co-offender said to the offender "just go and flog her, just fucking flog this slut". The offender threw her drink over Ms Catt. Ms Catt ran into the house and locked the door. The

co-offender and offender tried to kick the front door in. Ms Catt ran to the back laundry door and locked it. The co-offender and offender started banging on the lounge room windows and Ms Catt told them to go away. Ms Catt repeatedly attempted to talk to

Mr Mundy on the phone but was unable to. About 10 minutes later Ms Catt heard the laundry door being unlocked and the offender and co-offender laughing. The offender and co-offender entered the house yelling to Ms Catt. The offender was holding a plate which she picked up from outside the back door. She punched Ms Catt in the head. Ms Catt grabbed her hair and attempt to pull the offender away. Ms Catt's children, who witnessed the assault, began crying and screaming "stop hitting Mum!" The

co-offender moved towards the children, prevented them from moving and yelled "shut the fuck up", and told them to go to the other room. The offender continued to punch Ms Catt in front of the children who continued to scream and cry. The offender picked up the plate and attempted to hit Ms Catt over the head with it although Ms Catt managed to avoid being hit. Ms Catt was crying and asked the offender not to do this in front of her children. The co-offender verbally encouraged the offender to assault

11. The offender and Ms Catt wrestled for a short time and the offender cornered Ms Catt in the lounge. The co-offender grabbed Ms Catt's right ankle and dragged her to the ground. The offender yelled to the co-offender "get my keys before I kick this slut." The co-offender and offender went towards the door but the offender ran back and kicked Ms Catt in the face before leaving.

12. Police arrived following a call from the neighbours and found the offender and

co-offender highly intoxicated. They were subsequently arrested at the house of a friend. Ms Catt suffered a large lump on the left side of her forehead.

13. The offender, who was born in Canberra, is one of three children born to her parents' marriage. Her father died when she was 10 years old. The absence of a father figure has negatively impacted upon her mental health. She continues to have the benefit of support from her mother's sisters and the extended family.

14. She reported that all but one of her past relationships have become abusive. Child and Youth Protection Services became involved with the care of her two children following these offences. Her mother currently has temporary parental responsibility for the children. The relationship which produced the children was a positive one and she continues to have the support of her former partner Mr Mundy.

15. From August 2016, she and her children lived with her mother. She found living with her mother to be stressful. The father of her children has offered her accommodation upon her release from custody until she is able to secure her own.

16. She left school after completing Year 10. She has obtained unspecified qualifications in business administration and community services. Her last employment ended when she was pregnant with her second child in 2015. She intends to obtain employment upon release from custody. Her main social network consists of family members and her mother's friends.

17. An assessment of her alcohol use using the Alcohol Use Disorder Identification Test indicated that she consumed alcohol to a risky or hazardous level.

18. Her illicit drug of choice is methamphetamine. She had abstained from the substance from the age of 21 years but recommenced using it sometime prior to Christmas 2016. Prior to her sentencing, she had obtained a place in a residential rehabilitation program run by Odyssey House in Victoria, but lost her position when she was unable to secure bail. Her stated intention is to seek rehabilitation at a non-residential program.

19. She has an eye condition requiring surgery to prevent blindness but has postponed that treatment. She is currently prescribed anti-depressant medication.

20. She laid blame with the victim for provoking the assault and indicated that had she not been intoxicated the assault would not have happened. She has since "made peace" with the victim. She is assessed by the author of the pre-sentence report as being at a medium risk of re-offending because of her substance abuse, mental health issues, unemployment and antisocial values and attitudes.

21. While suitable for a community service order she has previously not complied with such an order and hence is assessed by the author of the pre-sentence report as having a limited capacity to complete another order.

22. The offender tendered a certificate of attendance which indicates she completed Module One: Understanding Stress, Anxiety and Depression of the Pathway from Prison program run by Toora Women Inc.

23. She tendered a letter from Ms Abigail Thomas, the offender's maternal aunt. The offender stayed with Ms Thomas in Victoria from January 2017 and is reported during that period to have taken steps to organise a rehabilitation program, family counselling, and to see a mental health nurse. The letter reports positively upon her attention to her children and the change observed in her attitude.

24. The offender also tendered a letter from Ms Cynthia Lindsay, the offender's grandmother. The letter states that she has a very close relationship and that her grandmother is convinced that the offender is determined to turn her life around. It reports positively on her commitment to her children.

25. The offender also tendered a letter that she wrote to the Court. It reports that the children are suffering from separation anxiety. She states that she loves Mr Mundy's children, JM and CM. She records that Ms Catt "bullied me for years when I took on their two children and started a relationship with David". She says she is regretful that the situation escalated in the way that it did. She records that being in jail has made her realise "how cruel the world can be." She seeks to have the chance to be out in the community and back with her children and states that she wishes to be a good role model and mother to her children.

26. She also tendered a letter from Directions stating that she had accessed the service at the Alexander Maconochie Centre on 15 August 2017 and that her first counselling session was booked for 23 August 2017.

27. A letter from her mother, Ms Melanie Barnes, which was relied upon for the previous unsuccessful bail application, was also tendered. Ms Barnes gave oral evidence to the effect that the offender is now determined to get her life back on track and that in those circumstances, she was a person who would demonstrate extreme determination towards that goal.

28. Also tendered was evidence of the enrolment into the Odyssey House program, relied upon for the previous unsuccessful bail application.

29. The offender has a limited criminal history. The only offence of violence was a Children's Court matter in relation to which no conviction was recorded. She was convicted of a series of driving offences in 2013. Because the offender has a limited criminal history as an adult, she can be afforded some leniency. It is notable that she has no previous convictions for burglary or relevant history of violence.

30. The offender's bail was revoked following her failure to give instructions to her solicitors and a warrant issued for her arrest. She was arrested in Victoria on 8 June 2017 and extradited to the Australian Capital Territory. She has been in custody since that time, a period of two months and 11 days.

31. The burglary is an aggravated burglary because it was in company. Rather than theft, the mental element associated with trespassing was the intention to do harm to Ms Catt. So far as the assault is concerned, it is clear that the offender was the person principally responsible, even though in doing so she was encouraged by her sister, the co-offender.

32. It is an aggravating feature of the burglary that the victim's children were present during the course of the incident and were old enough to be aware of what was going on. They were clearly distressed by what occurred. It must be emphasised that trauma such as this has the potential to have long-term impacts upon children and the fact that the offender was aware of the presence of the children increases the objective gravity of the offence.

33. However as the victim did know the offender and was aware of her presence, it was therefore not a case where the objective gravity is increased by the terror associated with an unknown assailant entering a house at night.

34. While the burglary was not long planned it was certainly not a spur of the moment incident. Attempts to get into the house continued for some time. There was clearly the opportunity for the offender and her sister to contemplate whether to proceed to enter the house as trespassers and it clearly took some effort for them to be able to do so. The fact that they were voluntarily intoxicated and hence their decision making process impaired is not a mitigating factor.

35. Because of the persistence in seeking entry into the premises, the intention to do harm to Ms Catt and the known presence of children within the house, I consider that this is in the mid-range of objective seriousness for this category of offence.

36. The offender appears to have reasonable prospects of rehabilitation because of her motivation to look after and provide a role model for her children and her desire to address her illicit drug use. The evidence is not so compelling as to make it clear that she will be able to do this. It is uncertain the extent to which she will be able to follow through with this good intent. She clearly has the support of her immediate and extended family. She is fortunate in that respect. However unless a person is really motivated to get their life back on track, a supportive family will not be able to assist them.

37. So far as the scheduled offence is concerned, I will take that into account in determining the appropriate sentence on the aggravated burglary charge. I have regard to what the Court of Appeal said in R v Campbell [2010] ACTCA 20 at [46]- [50] and will follow the principle there set out as to how the offences should be taken into account. The entire point is to impose a longer sentence or alter the nature of a sentence from that which would be imposed if the principal sentence stood alone: see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [18] and [42]. The existence of the scheduled offence means that more emphasis may be placed upon issues of specific deterrence in relation to the charged offence and there may be a greater emphasis on adequate punishment and denunciation of serious offences where there are other offences for which no punishment will be imposed.

38. Having regard to the maximum penalty for this offence and the objective gravity of the offending conduct, I consider that no penalty other than a custodial sentence is appropriate. The appropriate starting point is a custodial sentence of 20 months which will be reduced to 16 months by reason of the plea of guilty.

39. Having regard to the personal circumstances of the offender, including her two young children, I consider that the appropriate manner in which the sentence should be served is by way of a partially suspended sentence rather than wholly by full-time detention or by an Intensive Corrections Order.

1. this has been the first period that the offender has spent in custody;

2. the fact that impact of that period upon the offender has been significant; and

3. the impact of her ongoing incarceration on her children and hence upon her,

I consider that a relatively short period of full-time detention is appropriate. However that will mean that there is the prospect that further offending will return the offender into custody if she fails to comply with the Good Behaviour Order which she will be required to enter into. The sentence will be backdated so as to take into account the period in custody since 8 June 2017.

1. The offender is convicted of the offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT).

2. The offender is sentenced to imprisonment for a period of 16 months commencing on 8 June 2017 and ending on 7 October 2018.

3. The sentence is suspended after serving three months of imprisonment from 8 June 2017 to 7 September 2017 upon the offender giving an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years which includes the following conditions:

(a) A probation condition for two years or such shorter period as considered appropriate by the Director-General;

(b) That the offender undertake medical treatment and supervision as directed by the Director-General;

(c) That the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer; and

(d) That the offender attend educational, vocational, psychological, psychiatric or other programs or counselling as directed by the

Director-General.

1. I note that in imposing the above sentence, I have taken into account the scheduled offence of assault occasioning actual bodily harm.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop.