R v Serena [2019] ACTSC 231

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated robbery - carjacking - use of an offensive weapon - plea of guilty - Knife - whether or not offender is suitable for an Intensive Corrections Order (ICO) - assessed as not suitable - whether or not ICO should be imposed - unusual circumstances - ICO imposed

Crimes (Sentencing) Act 2002 (ACT) ss 6, 7, 10, 33

Health Care Complaints Commission v Dr CRF [2016] NSWATOD 120

1. On 8 February 2019, the offender pleaded guilty in the Magistrates Court to one charge of aggravated robbery. This is an offence contrary to s 310(b) of the Criminal Code 2002 (ACT). The maximum penalty is 25 years' imprisonment, a fine of $400,000, or both.

2. The facts of the offence are often referred to as a 'carjacking'. The offender approached the victim who was seated in the driver's seat of her vehicle. Armed with a knife, the offender demanded the victim's mobile phone and told her to leave the vehicle. The victim did not hand over her phone but ran to a nearby service station. The offender then drove away in the motor car.

3. The offender was arrested the next day. She has spent 49 days in custody.

4. At the first hearing before me, on 8 May 2019, the offender asked me to refer her for an Intensive Corrections Order (ICO). The referral was not opposed by the Crown. I informed the offender that it would be necessary for her to fully cooperate in the assessment if she was not to be imprisoned on a full time basis.

5. In light of this comment I should note at this point, that whilst on bail, the offender breached her bail conditions and was arrested on two separate occasions. Both occasions related to the offenders use of illicit substances, one of which prompted fresh charges being laid against her in the Magistrates Court.

6. The victim would have been terrified. She was threatened with a large knife which at one stage was only 30 cm from her face. I have no doubt this experience will affect the victim for a very long time.

7. My initial impression was confirmed by the Victim Impact Statement (Exhibit B). The victim states:

These last few months have been some of the toughest times I've ever had to deal with. I had no idea that my life would have been flipped upside down and I would learn how to cope with new trauma that I could never imagine anyone having to deal with. I have been forced to take on many obstacles to just start to live my life normally again. However, these obstacles are still trying to attack me every day. This is something that won't go away and I know I will have to deal with this for the rest of my life.

...

As a result of this incident, I've developed new habits that no one should have to develop. I'm petrified to be out at night alone, especially un-lit areas. At night, I'm always looking around, making sure no one is following me, to make sure no one is going to hurt me. As soon as I get into the car, I lock my doors, scared someone is going to get in and take away something I worked very hard to get, keep and maintain.

...

More than anything, I just want to forget this ever happened. I am not able too. I can't forget being scared and alone. I won't ever forget, I won't ever be not scared and that is the harsh truth I am faced to deal with every single day of the rest of my life.

8. As with nearly all crimes, and especially where the sinister effects of methamphetamines have been involved, there is another side to the story. The tragedy that attaches to this offender describes the utter waste of a decent, productive and valuable member of society. One can only hope that the offender will one day return to being a valuable member of the community.

9. The offender was born in 1980. Because her father was enrolled in the Royal Australian Air Force her younger years were transient as her parents were posted to different parts of Australia. Nevertheless she had a supportive upbringing although generally felt under pressure to succeed.

10. The offender left school after completing Year 12 with a Tertiary Entrance Rank of 94.6. She began to suffer mood swings when she was 16 years of age and soon developed an eating disorder. She continued to suffer from depression and mood disturbance in her twenties. Nevertheless she was able to complete the degrees that are necessary to become a doctor. She was an intern at Nepean Hospital in 2007 and 2008. In 2009 she trained in the emergency department at St Vincent's Hospital in Sydney. She also worked in the intensive care unit at Wagga Wagga Base Hospital.

11. The offender eventually consulted a psychiatrist and was diagnosed with bipolar affective disorder. She was placed on antidepressant medication. She could not cope with the stress of work in emergency and critical care medicine so, in July 2011, she quit the training program and began to work as a locum.

12. The offender continued to consult psychiatrists and has been admitted on a number of occasions to psychiatric units. In 2015 she was diagnosed with treatment refractory depression. She was admitted to a private clinic for almost 3 months. In 2014 the offender self-reported her problems to the Australian Health Practitioner Regulation Agency and she was suspended. She was deregistered in 2016. She was severely affected by this action and she relapsed into drug use.

13. I note that in the disciplinary proceedings Counsel for the respondent (the offender) conceded the correctness of all the complaints made against her and did not oppose the cancelling of her registration (Health Care Complaints Commission v Dr CRF [2016] NSWATOD 120). I regard the concessions as a recognition of the inevitable rather than any statement of inconsistency with any history provided by the offender.

14. I can make no prediction about the possibility of the offender returning to medical practice. I do however note that the orders made in the New South Wales Civil and Administrative Tribunal do not preclude an application for reinstatement provided it was not made for a period of two years. The offender will of course have to demonstrate her suitability to be registered again and any such registration will no doubt be accompanied by numerous conditions and supervision.

15. In 2017 the offender separated from her husband and began living with her parents.

16. The offender began drinking alcohol when she was 15 years of age. She drank in a binge fashion once or twice a week. She started to use cannabis and then MDMA and ecstasy when she was in her early twenties. She combined MDMA with other amphetamines and then in 2005, started to use cocaine.

17. In 2008, under the stress of her internship, the offender was using ecstasy and cocaine. The following year she smoked methylamphetamine (ice) and consumed other drugs at the same time. She was soon spending up to $400 a day and smoking about half a gram of ice or cocaine on a daily basis.

18. In 2011 the offender's drug use became even more pervasive although there were periods of abstinence. She continued to have admissions to private hospitals but always seemed to return to drug use. She was also drinking to excess.

19. At the time of the offence the offender was using ice, working as a prostitute for three days a week and was feeling "hopeless and worthless".

20. Since the offences the offender has been treated in the mental health unit at Canberra Hospital and has been under psychiatric care. In his report dated 1 May 2019 Dr Furst, a forensic psychiatrist, diagnosed the offender as suffering from bipolar affective disorder, type II, a substance use disorder, borderline personality traits and anorexia nervosa. He described her substance dependence as severe and felt that "her addiction to drugs is likely to be maintained by her unstable mood disorder, underlying anxiety and low self-esteem, with a pattern of using cocaine and later methyl amphetamine to boost her mood when depressed and to block out negative feelings".

21. Emphasising the tragedy of this history, Dr Furst continued:

Additionally, Dr Serena has endured the trauma of reportedly being sexually assaulted on multiple occasions by drug dealers and strangers, working in brothels for short periods to support her addiction, domestic violence victimisation from AB, the breakdown of her marriage, suspension from practice in March 2014 and her deregistration as medical practitioner in September 2016 the latter two events being particularly distressing and devastating for Dr Serena. Those traumas and losses have also maintained her addiction to methyl amphetamines, alcohol and benzodiazepines.

Dr Serena has persistent mental illness in the form of bipolar affective disorder associated with psychosocial impairment and complicated/maintained by the effects of her addiction and her underlying borderline personality traits. Her bipolar affective disorder and vulnerability to depression has also maintained her addiction to drugs, especially methyl amphetamine.

Dr Serena has no prior offences, is female, is not young and is intelligent, meaning her risk of reoffending based on actuarial factors alone is significantly lower than the average violent offender coming before the courts. However, her risk of reoffending over the longer term likely correlates more closely with her addiction, especially her dependence on methyl amphetamines, as her offending was drug-related.

23. Dr Furst says that her best chances of rehabilitation will come with treatment in a drug and alcohol rehabilitation facility. He outlines a number of options based both on her serving a custodial sentence and also being allowed to continue to live in the community.

24. Sentencing requires consideration of the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 33 is relevant as is s 10. The latter section says a person should not be sent to prison except as a last resort.

25. The assessment, dated, 23 August 2019, perhaps unsurprisingly says that the offender is not suitable for an Intensive Correction Order. This is not because she has deliberately gone out of her way to be uncooperative but rather because she has succumbed on frequent occasions to the overpowering influence of her mental health disorders. There have been four admissions to a mental health unit during the assessment period. Her use of drugs has obviously not assisted and there is no doubt that there is a connection. As stated in the report:

Based on the complex needs of Ms Serena in relation to mental health issues and ongoing drug use that further contribute to a significant decline in her mental health, it is the belief of this Officer that Ms Serena does not have the capacity to comply with the stringent conditions to which she would be subject under an Intensive Correction Order at this time.

26. The report goes on to highlight that the offender's accommodation is not stable and this will impact upon her capacity to comply with an ICO. As noted in the report, it is possible to make an ICO order notwithstanding the result of the assessment. The assessment however is carried out by professionals who recognise the practicalities, and realities, of persons who are the subjects of ICO orders.

27. How then can I meet the demands of compassion within the requirements of proper sentencing principles? If I give her a wholly suspended sentence, or a deferred sentence, I have no doubt she will come back before the court with further breaches and crimes to be dealt with.

28. I would only ignore the advice of an assessment in the most unusual circumstances. I think this is such a case. In my view the only real chance this offender has of rehabilitation will arise from a structured supervision in the community under the auspices of ACT Corrective Services which has the experience and associations which will be necessary to direct the offender to appropriate courses, programs and treatment opportunities. I also note that the concerns about accommodation have now been met by the support of the offender's parents and sister to ensure a stable place of accommodation and environment.

29. The nature of the offence makes imprisonment an almost certain result. But the offender has no criminal record, she has expressed remorse, she has followed recommended treatment and she has the capacity to return to a productive life. She must be given every chance of rehabilitation. Sentencing is not an exercise in punishment. It is rather a path to doing justice and recognising the demands of the community, the necessity for deterrence but also taking into account the subjective features of each offender.

30. I think the appropriate term of imprisonment is 24 months which will be reduced to 18 months reflecting the offender's plea of guilty. The starting date will be backdated to 9 July 2019, taking in account the 49 days in custody already served.

(a) For the offence of aggravated robbery (CC2018/14739), the offender is sentenced to 18 months' imprisonment commencing on 9 July 2019 and ending on 8 January 2021.

(b) The sentence of imprisonment is to be served by way of an Intensive Corrections Order for a period of 18 months provided that during this period the offender resides with her parents at 9 Kenyon Circuit, Monash, and complies with all conditions set by the Director-General of ACT Corrective Services.

(c) In addition to the conditions to be imposed by the Director-General of ACT Corrective Services a further condition is imposed that the offender is to be subject to a curfew between the hours of 7:00pm to 6:00am every evening.

(d) The curfew is suspended for such periods as will reasonably allow the offender to attend meetings of Alcoholics Anonymous and Narcotics Anonymous.

I certify that the preceding thirty one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.