Sullivan v Roberts & Ors [2007] ACTSC 22 (15 March 2007)

Last Updated: 7 May 2008

SANDRA LOUISE SULLIVAN v MELISSA JANE ROBERTS & ORS

[2007] ACTSC 22 (15 MARCH 2007)

REASONS FOR EX TEMPORE JUDGMENT

Protection Orders Act 2001 (ACT), s 40

APPEAL AGAINST SENTENCE IMPOSED IN THE ACT MAGISTRATES COURT

No. SCA 1 of 2007

Judge: Gray J

Supreme Court of the ACT

Date: 15 March 2007

IN THE SUPREME COURT OF THE )

) No. SCA 1 of 2007

AUSTRALIAN CAPITAL TERRITORY )

APPEAL AGAINST SENTENCE IMPOSED IN THE ACT MAGISTRATES COURT

BETWEEN: SANDRA LOUISE SULLIVAN

Appellant

AND: MELISSA JANE ROBERTS,

DENA HUA GEK TAN,

DAVID JOHN FLEMING, MICHAEL IAN YOUNG

Respondents

ORDER

Judge: Gray J

Date: 2007

Place: Canberra

THE COURT ORDERED THAT:

1. The appeal be upheld in relation to the quashing of the conviction and sentence in relation to the matter of contravention of the protection order that was the subject of the Magistrates Court matter CC2006/10846, otherwise the appeal be dismissed.

1. On 14 December 2006, Sandra Louise Sullivan (aka Hamilton) (the appellant) was sentenced in the ACT Magistrates Court in respect of three charges of contravening a protection order, one charge of damaging property and a charge of refusing to leave premises. She was sentenced to six months imprisonment in total and, on the charge of refusing to leave premises, fined $200.00 and court costs.

2. An appeal was instituted by the appellant in respect of the sentence and the ground given for that appeal was "severity". The appellant apparently prepared her notice of appeal herself and was unrepresented before me on the hearing of this appeal. The appellant is 42 years of age and has a long history of offending. She has substance abuse and mental health issues.

3. A number of her previous offences arise out of her domestic relationship with her partner. On 10 March 2005, her partner obtained a domestic violence order under s 40 of the then Protection Orders Act 2001 (ACT) which prevented her from being on the premises at which her partner lived or contacting him. On 8 March 2006, she was sentenced by the magistrate who sentenced her in respect of the matters before me with charges arising from contravention of that protection order. In respect of those charges she was sentenced in all to six months imprisonment which was to commence on 10 January 2006. She was released from that imprisonment on 9 July 2006.

4. The first of the charges (in relation to this appeal) before the magistrate took place on 6 October 2006 where the appellant used a shovel to break the kitchen window of her partner's premises in an effort to gain entry to those premises. On 9 and 10 October 2006, she refused to leave the home of her daughter despite numerous requests to do so. The police removed her from those premises. On 9 October 2006, her partner also obtained an interim domestic violence order in similar terms to that obtained on 10 March 2005. On 30 October 2006, she was found on her partner's premises and on 4 December 2006, she was also on those premises.

5. The incident on 4 December 2006 gave rise to two charges, Magistrates Court matters CC2006/10845 and CC2006/10846. The statement of facts in relation to that incident would only appear to relate to one offence. In my view, it is appropriate that the last of these charges be struck out, a course with which Mr Thomas, who appeared for the Director of Public Prosecutions, agreed.

6. On the appeal before me, the appellant sought to canvass a number of the matters that had already been put to the magistrate. They included the issues that she had with her former partner and her children, particularly issues concerning her 21 year old disabled son who is in full-time care at Marymead and has been since 1998. The gravamen of her complaint is that she was given no chance by the magistrate and that she should have been given a community service order.

7. During the course of the hearing, the appellant's brother asked if he could address the court on his sister's behalf. He said that he was prepared to offer support to the appellant and hoped to assist her. I appreciate his coming forward and I was prepared to consider what he had to say and noted his offer to help his sister by allowing her to reside with his family and offering her a job.

8. The difficulty, it seems to me, in giving effect to this offer is that I cannot say that the magistrate was wrong in the course he took in his disposition of this matter. There were essential matters that the magistrate was obliged to consider in the course of the sentencing process. The appellant's offending history and the assessments made by the Probation and Parole Office and ACT Health all demonstrated that, at the time that the magistrate imposed his sentence, there were no real prospects of the appellant's rehabilitation in this case that could be served by way of recognisance with or without community service orders.

9. Of particular significance is the assessment in the Pre Sentence Report that:

Ms Hamilton's ability to understand her situation was not clear at the time of writing this report. Her level of drug abuse appears likely to continue to impact negatively on her mental health and intellectual functioning and further erode any level of family support she has in the community. She presents as having no motivation currently to address this issue with any degree of rigour or structure, such as by completing a residential rehabilitation program. Her lack of insight or responsibility in relation to her drug and relationship issues and their legal ramifications continue to place her at high risk of reoffending and a poor prospect for community based sentencing options.

In light of that assessment, it was properly open to the magistrate to impose the sentence of imprisonment that he did and to not make any adjustment to provide for its service by way of possible community based options.

10. I would encourage the appellant's brother to provide the support that he had offered in the hearing before me upon the appellant's release after she has served her sentence, but I do not think that his offer can affect the proper disposition of this appeal.

11. For these reasons, I ordered that the appeal be dismissed save for upholding that aspect relating to the conviction and sentence for the charge of contravention of the protection order, the subject of the Magistrates Court matter CC2006/10846.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 4 April 2007

Counsel for the appellant: Self represented

Counsel for the respondent: Mr M Thomas

Solicitor for the defendant: ACT Director of Public Prosecutions

Date of hearing: 15 March 2007

Date of judgment: 15 March 2007