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[2017] ACTSC 416
Supreme Court of the ACT
2017-10-31
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated burglary - assault occasioning actual bodily harm - scheduled offences - burglary committed in company - intention to do harm to person within the premises burgled - victim's children present - prospects of rehabilitation - no criminal history - no history of use of illicit drugs - no history of antisocial behaviour - offender has recently had a young child - no penalty other than imprisonment appropriate - suspended sentence and Good Behaviour Order
Crimes Act 1900 (ACT), s 24
R v Schrattenholz [2017] ACTSC 247
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 Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT). The maximum penalty for an offence against s 24 of the Crimes Act 1900 (ACT) is five years' imprisonment.
2. The offender pleaded not guilty and was committed to this Court for trial by the ACT Magistrates Court on 3 August 2016. The offender's trial was scheduled for
18 September 2017 but she pleaded guilty to one count of aggravated burglary on 29 August 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. I have also summarised them in R v Schrattenholz [2017] ACTSC 247 at [3]- [12], there with a focus on Holly Schrattenholz, who I will refer to in these reasons as the co-offender. The facts may be summarised as follows.
5. The complainant and Mr David Mundy were in a relationship for about eight years but separated in 2011. The relationship produced two children, DO, aged nine years old, and KO, aged four years old. The complainant and Mr Mundy have shared access to the children.
6. Approximately three years ago, Mr Mundy began a relationship with the co-offender, which also produced two children. The co-offender and complainant had, at the relevant time, an amicable relationship for the benefit of their children. In midFebruary 2016, the cooffender and Mr Mundy separated but continued shared access to the children.
7. On 12 April 2016, the offender and co-offender were drinking alcohol at a friend's house. The co-offender communicated with the complainant by text message asking if she could spare a cigarette. The complainant was at that point staying at Mr Mundy's house with her two children while Mr Mundy was staying at his parent's house.
8. The offender and co-offender arrived at Mr Mundy's house. The complainant's children, DO and KO were asleep in the lounge room. The three adults went out the front door to have a cigarette.
9. At some point thereafter, the offender and co-offender became verbally aggressive towards the complainant and an argument escalated. The co-offender began pacing between her car and the house, all the while attempting to call Mr Mundy.
10. The offender then threatened the complainant, saying that the co-offender would "smash" her and then threw her drink over her. The offender said to the co-offender "just go and flog her, just fucking flog this slut", and then the co-offender threw her drink over the complainant.
11. The complainant ran into the house and locked the door. The
co-offender and offender tried to kick the front door in and said "We'll go through the back door." The complainant then ran to the back laundry door and locked it. The co-offender and offender started banging on the lounge room windows and the complainant told them to go away. The complainant repeatedly attempted to contact Mr Mundy on the phone but was unable to. After a short time, the complainant could no longer hear the two offenders' outside.
12. About 10 minutes later the complainant heard the laundry door being unlocked and the offender and co-offender laughing. The offender and co-offender entered the house yelling towards the complainant. The co-offender was holding a plate which she picked up from outside the back door, and using a closed fist, punched the complainant in the head. The complainant's children, who witnessed the assault, began crying and screaming "stop hitting Mum!" The offender moved towards the children, prevented them from moving and yelled "shut the fuck up", and told them to go to the other room.
13. The co-offender continued to punch the complainant in front of the children who continued to scream and cry. The co-offender picked up the plate, which she had brought into the house, and attempted to hit the complainant over the head with it, although the complainant managed to avoid being hit. The complainant was crying and asked the co-offender not to do this in front of her children. The offender verbally encouraged the co-offender to assault the complainant.
14. The co-offender and the complainant wrestled for a short time and the co-offender cornered the complainant in the lounge. The offender grabbed the complainant's right ankle and dragged her to the ground. The co-offender yelled to the offender "get my keys before I kick this slut." The offender and co-offender went towards the door but the co-offender ran back and kicked the complainant in the face before leaving.
15. Police arrived following a call from the neighbours and found the offender and
co-offender highly intoxicated. They were subsequently arrested at their friend's residence in the early hours of 13 April 2016.
16. Due to the rapid nature of the attack, the complainant could not recall the precise number of times that she was kicked and punched by the offenders. The complainant suffered a large lump on the left side of her forehead; this is the additional offence of assault occasioning actual bodily harm (XO2016/30955) which is to be taken into account.
17. A Pre-Sentence Report was not prepared because the offender failed to attend as directed by the ACT Corrective Services officers who were responsible for preparing the report. That appears to be explained by the fact that she was not residing at the address she had previously provided and did not provide updated contact details.
18. She is 23 years old. She completed Year 12. She, in the period since leaving school, appears to have had a limited amount of employment, being employed for about a year at a doctor's surgery as a receptionist and also during the same period at the Belconnen Fruit Markets. She did a diploma in specialist makeup. She presently has a young son aged 13 weeks. The relationship with the father of her son commenced in July 2016, but has now ended. At least in part, as a consequence of domestic violence in relation to which the man was arrested and charged. There is a family violence order in place for a 12-month period, which prevents him from having contact either with the offender or her son.
19. She has modest financial circumstances, receiving parenting payments from Centrelink. She is currently living at Karinya House which is providing her with a structured environment and support with her young child. She intends to remain there until she is able to get public housing. Her mother gave evidence that she does not have a history of illicit drug or alcohol abuse and did not have behavioural problems to the extent that her sister did, nor does she have any mental health issues.
20. A letter from Karinya House discloses that she was originally in contact with that organisation, from May 2017, as an outreach client and has been a residential client since 8 August 2017. The letter states that as a residential client she has been required to abide by the Karinya House residential rules, participate in group activities, maintain a curfew and abstain from drugs and alcohol. The letter states that since moving in she has "not breached any of her residential conditions, continues to engage well with her caseworker and demonstrate exceptional parenting skills". As I indicated, it's anticipated that she will obtain public housing sometime in the foreseeable future. She doesn't have a criminal history. She has, apart from the time immediately following her arrest, not spent any time in custody in relation to the offences.
21. As I indicated in my earlier decision, 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 the complainant. So far as the assault is concerned, it is clear that the offender was not the person principally responsible, even though she appears to have initiated the escalation of the conflict and encouraged her sister. It was her sister who punched the complainant, attempted to strike her with the plate and kicked her.
22. I repeat what I said in my earlier decision as to the objective seriousness of the offence:
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.
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.
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.
Because of the persistence in seeking entry into the premises, the intention to do harm to [the complainant] 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.
23. This categorisation is appropriate to the position of the offender even though as I have noted her role in some respects was a lesser one when compared with her sister.
24. So far as the prospects of rehabilitation are concerned and the need for specific deterrence, the position of the present offender is distinct from that of her sister, in that she has no history of use of illicit drugs, no history of anti-social behaviour, no issues with her mental health and that she has recently had a young child which should improve her prospects of remaining a law-abiding citizen in the future.
25. In relation to the scheduled offence I repeat what I said at [37] about how I have dealt with it.
26. Having regard to the maximum penalty for this offence, the objective gravity of the offending conduct and the need for condemnation and deterrence of such conduct, I consider that no penalty other than a custodial sentence is appropriate. The appropriate starting point is a custodial sentence of 17 months which will be reduced to 14 and a half months by reason of the plea of guilty. This is a slightly lesser discount than her sister's as her plea was only three weeks prior to the scheduled hearing date.
27. However, taking into account those aspects of the personal circumstances which I have referred to in relation to her prospects of rehabilitation. I consider that the appropriate manner in which the sentence should be served is by way of a wholly-suspended sentence rather than by full-time detention, an Intensive Corrections Order or a partially suspended sentence. This is reflective of the fact that she played a somewhat lesser role in the offending conduct than did her sister and her subjective circumstances warrant a greater degree of leniency and indicate a lesser need for specific deterrence than in relation to her sister.
28. She will be required to enter into a Good Behaviour Order for a period of two years subject to conditions which I will identify in a moment.
I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
R
Schrattenholz [2017] ACTSC 416