Bloxsome v The Queen

[2020] ACTCA 52

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Bloxsome v The Queen

Citation:

[2020] ACTCA 52

Hearing Date:

On the papers

DecisionDate:

13 November 2020

Before:

Murrell CJ, Loukas-Karlsson J and Berman AJ

Decision:

Appeal allowed. The appellant is resentenced to seven years and 10 months’ imprisonment, with a nonparole period of four years and nine months.

Catchwords:

APPEAL – SENTENCE – Re-sentence – Intentional wounding – Unlawful confinement – Aggravated robbery – Take motor vehicle without consent – Aggravated burglary – Damage property – Where some convictions were quashed on appeal – Whether sentence manifestly excessive – Whether sentence for aggravated robbery and take motor vehicle should be concurrent – Impact of COVID-19 on the appellant

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 74(1)

Cases Cited:

Barrett v The Queen [2016] ACTCA 38

Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Delaney v R; R v Delaney [2013] NSWCCA 150
Featherstone v The Queen; Bloxsome v Queen [2020] ACTCA 33
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Baker [2020] ACTSC 186
R v Bennett; R v Simonds [2020] ACTSC 221
R v Bloxsome [2019] ACTSC 217
R v Finau (No 2) [2020] ACTSC 193
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Kemppainen; R v Rose [2020] ACTSC 69
R v Merrin [2007] NSWCCA 255; 174 A Crim R 100
R v Nicholas; R v Palmer [2019] ACTCA 36

Tully v The Queen [2016] ACTCA 11

Parties:

Rodney Bloxsome (Appellant)

The Queen (Respondent)

Representation:

Counsel

M Jones (Appellant)

S Drumgold SC (Respondent)

Solicitors

Boxall Legal (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

ACTCA 21 of 2019

Decisions under appeal: 

Court/Tribunal:             Supreme Court of the ACT

Before:  Mossop J

Date of Decision:          1 April 2019

Case Title:  R v Featherstone; R v Bloxsome (No 2)

Citation: [2019] ACTSC 90

Court/Tribunal:             Supreme Court of the ACT

Before:  Mossop J

Date of Decision:          15 August 2019

Case Title:  R v Bloxsome

Citation: [2019] ACTSC 217

THE COURT:

Introduction

1. In 2019, the appellant was sentenced by Mossop J (the sentencing judge) for eight offences: R v Bloxsome [2019] ACTSC 217 (Bloxsome).  A jury had found the appellant guilty of five counts and he had pleaded guilty to the remaining three.

1. Two of the counts of which the appellant was found guilty were allegations of sexual intercourse without consent. Those convictions were overturned on 3 July 2020: Featherstone v The Queen; Bloxsome v Queen [2020] ACTCA 33 (Featherstone and Bloxsome).  With the agreement of the parties, the appellant’s challenges to sentence were considered separately.

1. This judgment deals with the consequences of the quashing of two convictions, discrete challenges to the sentences imposed by the sentencing judge, and the impact on sentencing of the COVID-19 pandemic.

1. The jury found the appellant guilty on the following counts:

(a)Count 4: intentional wounding of Justin Diaz.

(b)Count 5: unlawful confinement of MX (together with the co-offender Featherstone).

(c)Count 8: sexual intercourse with MX without consent.

(d)Count 10: sexual intercourse with MX without consent.

(e)Count 11: aggravated robbery (together with the co-offender Featherstone and NQ).

1. The appellant pleaded guilty to three further counts:

(f)Count 13: take motor vehicle without consent (the same vehicle the subject of the offence in Count 11).

(g)Count 14: aggravated burglary.

(h)Count 15: damage property.

1. The sentencing judge imposed a total of 11 years and 11 months’ imprisonment (from 28 June 2018 to 27 July 2029), with a nonparole period of six years and 11 months’ imprisonment (from 28 June 2018 to 27 May 2025). The individual sentences are set out below.

Count	Charge	Sentence
Count 4	Intentional wounding	20 months’ imprisonment (from 27 June 2018 to 27 February 2020)
Count 5	Unlawful confinement	42 months’ imprisonment (from 28 August 2018 to 27 February 2022)
Count 8	Sexual intercourse without consent	48 months’ imprisonment (from 28 August 2019 to 27 August 2023)
Count 10	Sexual intercourse without consent	52 months’ imprisonment (from 28 October 2020 to 27 February 2025)
Count 11	Aggravated robbery	60 months’ imprisonment (from 28 August 2022 to 27 August 2027)
Count 13	Take motor vehicle without consent	22 months’ imprisonment (from 28 March 2026 to 27 January 2028)
Count 14	Aggravated burglary	32 months’ imprisonment (from 28 September 2026 to 27 May 2029)
Count 15	Damage property	8 months’ imprisonment (from 28 November 2028 to 27 July 2029)

1. There are four challenges to those sentences. 

(a)First, the appellant said that the sentence imposed for Count 11 is manifestly excessive.

(b)Second, he challenged the partial accumulation of the sentences for Counts 11 and 13, as each offence concerned the same property.

(c)Third, he submitted that the overall sentence required reconsideration.

(d)Finally, he submitted that the impact of the COVID-19 pandemic should be considered.

1. The subjective material considered by the sentencing judge revealed that the appellant’s upbringing was marred by physical abuse, violence, a culture of drug and alcohol abuse, his mother’s mental illness, and undeniable tragedy. The principles to be found in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are easily and significantly enlivened. The appellant’s moral culpability is less than that of an offender whose formative years have not been marred.

Subjective circumstances

Pre-sentence report

1. The appellant is 49 years old. He identifies as a culturally disconnected Aboriginal man. He is the second of five children. He did not know his father, having met him only about three times. His mother remarried when he was young.

1. The appellant was exposed to physical and emotional trauma and subjected to physical violence by his stepfather. Due to the domestic violence, he left the family home when he was approximately 13 years old. He became itinerant, living on the streets, a home for boys, and in juvenile detention facilities.

1. The appellant left school just after the commencement of Year 7. Later, he completed a Certificate II in Business and a Certificate II in Construction. Prior to being remanded in custody, he was employed continuously for four years doing ground maintenance.  He was also homeless. He gambled approximately $100 per fortnight and had difficulty meeting his financial obligations.

1. The appellant’s mother suffered from depression and alcohol abuse. He saw her deceased body after she had committed suicide by setting herself alight. As a result of a motor vehicle accident in 2010, the appellant’s brother died. These tragic events had a significant psychological impact on the appellant.

1. The appellant reported a history of depression (including self-harm and suicide attempts), post-traumatic stress disorder (PTSD), and anxiety. ACT Health found no evidence of current psychosis or major mental illness.

1. The appellant has a long history of polysubstance abuse, commencing in his early teens. He became intoxicated daily and used a combination of illicit substances to the point of blackout or drug-induced psychosis.

1. He has undertaken a residential rehabilitation program and claimed to have remained abstinent from illicit substances for approximately three years. However, approximately 12 months prior to the current offences, stressors caused him to relapse into daily self-medication with alcohol, cannabis and methylamphetamine. In custody, he has been on a methadone maintenance program.

Criminal history

1. The appellant’s criminal history is summarised in the following table.

Jurisdiction	Offence	Year
ACT	Driving offences	2018
ACT	Assault occasioning actual bodily harm	2012
NSW	Driving offences	2011
NSW	Assault occasioning actual bodily harm, assault (x 2)	2011
ACT	Possession offences	2007
ACT	Driving offences	2004
NSW	Fail to appear, damage property	2005
NSW	Driving offences	2005
NSW	Offences of resist arrest, damage property, driving offences, possess prohibited drug	2000–2003
ACT	Damage property	1999
NSW	Illegal use motor vehicle	1995
NSW	Enter building with intent, malicious damage	1995
NSW	Driving offences	1995
VIC	Receiving, theft motor vehicle (x 2)	1994
NSW	Various offences	1983–1993

1. The appellant noted that the 2012 ACT conviction for assault occasioning actual bodily harm related to an offence that was committed in 2009.

1. This Court received uncontested affidavit evidence concerning the appellant’s prowess in creating Aboriginal artwork, some of which is for sale.

Is the sentence for Count 11 manifestly excessive?

Sentencing proceedings

1. The sentencing judge described the events surrounding Count 11 as follows (Bloxsome at [25]–[26]).

On Tuesday, 27 February 2018, MX offered to assist Mr Featherstone and Mr Bloxsome to steal a car. Her evidence was that this was done because Mr Featherstone and Mr Bloxsome asserted that she “owed them” a car and she formed the view that cooperation with them was the best way out of her situation. The attempts to steal a car involved cruising inner north suburbs of Canberra looking for vehicles to steal …

Two attempts were made by MX to hotwire cars but with no success. Initially, Mr Dimitrov was driving the black Commodore but then Mr Bloxsome drove. There was a brief period during which the group was at the house in Lyneham. The group then travelled in the black Commodore to an area outside Ainslie Football Club. At about 3:29 pm the closed‑circuit television (CCTV) shows three elderly people leaving the Ainslie Football Club and walking to their car. The black Commodore can be seen driving along the road in the distance. Mr Bloxsome was driving. Mr Dimitrov was in the front passenger seat. Mr Featherstone, NQ and MX were in the back seat. There was discussion about obtaining a vehicle. Mr Bloxsome identified the vehicle knowing that one or other of the elderly people had possession of the vehicle. The discussion in the vehicle was sufficient to give rise to a verbal agreement or non-verbal understanding that the taking of the vehicle would involve a robbery. NQ and MX approached the group of elderly people and NQ threatened them with a knife. Mr Featherstone ran up to the elderly people brandishing the pistol. At the request of one of the persons being robbed, Mr Featherstone threw her handbag out of the vehicle. These events give rise to the offence of aggravated robbery (CC2018/3371) and the offence of taking a motor vehicle without consent (SCCAN23/2019).

1. His Honour assessed the objective gravity of that offence and the associated offence of stealing a motor vehicle in the following way (at [36]–[37]):

The aggravated robbery involved threatening elderly people with a knife and a gun in order to steal from them a vehicle of significant value. There was a degree of planning involved, but the extent of that planning involved the targeting of people who would be particularly vulnerable to such a crime.  In my view, the offending is above the mid range of objective seriousness for the offence.

The charge of taking a motor vehicle without consent (SCCAN23/2019) is very closely associated with the aggravated robbery. Care must be taken that the offender is not punished twice for the same conduct. For that reason I would assess this offence as being in the mid range of objective seriousness.

1. As to the roles played by the various people involved in the offence, including the appellant, his Honour said (at [30]):

In assessing the objective seriousness of each of the offences committed by Mr Bloxsome except those involving sexual intercourse without consent, it is relevant to take into account the fact that Mr Featherstone was the leader of the enterprise and Mr Bloxsome, while also a leader of the group, performed a lesser role than Mr Featherstone.  He had come to help Mr Featherstone at the Narrabundah house at Mr Featherstone’s request.  While he was older than Mr Featherstone and clearly an adult leader within the group, it was Mr Featherstone’s plans which were implemented and with which Mr Bloxsome assisted.

1. At [51], his Honour stated that he “considered Mr Bloxsome’s role to be somewhat lesser than [that of] Mr Featherstone”.

Submissions

1. We are not persuaded that the sentence of five years’ imprisonment for the aggravated robbery the subject of Count 11 was manifestly excessive.

1. The two bases for the appellant’s argument appear at [20] and [21] of his summary of argument on resentence:

His Honour imposed the sentence of 60 months on [C]ount 11 taking into account that it was committed as part of a course of criminal activity which included two sexual assaults. It is submitted that had the appellant not been sentenced for the two sexual assault offences, the sentence imposed in respect of the aggravated robbery would have been less than the sentence of five years.

Sentencing statistics indicate that of the 163 offenders sentenced by the Supreme Court to imprisonment for the offence of aggravated robbery, 13.5% were sentenced to terms of five years or more.

1. In partial response, the Crown appeared to raise the principles of parity. However, the principle of parity only works to enable an offender to argue that they have a justifiable sense of grievance when their sentence is compared to that imposed on a co-offender: Lowe v The Queen [1984] HCA 46; 154 CLR 606. It is not a principle upon which the Crown may rely: Delaney v R; R v Delaney [2013] NSWCCA 150 at [69].

1. As to the appellant’s first point, there is no basis to think that the sentence for Count 11 would have been less had he not been sentenced for the two sexual assault offences.

1. In Pearce v The Queen [1998] HCA 57; 194 CLR 610 (Pearce) at [45], McHugh, Hayne and Callinan JJ said:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

(emphasis added)

1. It is impermissible to increase a sentence imposed on one offence to encompass the criminality of other offences before the Court. In R v Merrin [2007] NSWCCA 255; 174 A Crim R 100 at [37], the Court said:

There is no justification for imposing a sentence for one offence that is increased to encompass the criminality of all offending. Such an approach, apparently adopted by the judge, runs contrary to sentencing practice that has been followed since Pearce and for nearly a decade.

1. However, there is nothing in the sentencing judge’s remarks to justify a view that he proceeded contrary to principle.

1. The fact that the aggravated robbery was one of a number committed in “a methamphetamine-fuelled crime spree” (as the sentencing judge described it in Bloxsome at [6]) remained a matter that was taken into account in deciding issues of concurrency and accumulation.

1. As to the second point made by the appellant, the sentencing statistics do show that, of the 163 offenders sentenced by the Supreme Court to imprisonment for the offence of aggravated robbery, 13.5 per cent were sentenced to terms of five years or more; the appellant received a sentence that was longer than that imposed on 86.5 per cent of offenders. Of itself, that circumstance is of no moment. Many, perhaps most, of that 86.5 per cent would have been sentenced after pleading guilty and received appropriate discounts on their sentences.

1. Despite the appellant’s background and upbringing, there are many features of the offence which suggest the appropriateness of a sentence longer than that imposed on 86.5 per cent of offenders sentenced for aggravated robbery.

(a)Although there was only one offence of robbery, three people were threatened with weapons.

(b)Each was “elderly” (Bloxsome at [26]) and thus relatively vulnerable.

(c)They were targeted because of their vulnerability (Bloxsome at [51]).

(d)Both circumstances of aggravation, namely being in company and being armed with an offensive weapon, were present.

(e)Both offenders were armed, one with a knife and the other with a pistol that was in working order.

(f)The appellant identified the vehicle that was to be taken, knowing that one or other of the elderly people had possession of the vehicle (Bloxsome at [26]).

(g)The offence was planned after two attempts to hotwire cars had failed.

(h)Although the appellant did not himself approach the three elderly victims and he played a lesser role than Mr Featherstone, he was very much an active participant, fulfilling the role of getaway driver.

(i)The appellant did not plead guilty.

1. The appellant did not identify comparable cases that demonstrated a range of sentences that was appropriate for offences of the type in question.

1. Although the guideline sentencing range of four to five years’ imprisonment postulated in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) is of limited utility in this jurisdiction, Henry is useful in determining the objective seriousness of aggravated robbery offences: see R v Nicholas; R v Palmer [2019] ACTCA 36 and R v Baker [2020] ACTSC 186. When compared to the “typical” armed robbery identified in Henry, the appellant did not have little or no criminal history, the offenders were armed with both a knife and working pistol, there were three people threatened, and the offender did not plead guilty.

1. In Barrett v The Queen [2016] ACTCA 38 at [40], the Court examined the ACT Sentencing Database in relation to sentences imposed for aggravated robbery offences and noted that most such sentences were generally between 30 months and four years’ imprisonment. Given the matters referred to in [32] above, the sentence of five years’ imprisonment was not excessive.

Partial accumulation of the sentences for Counts 11 and 13

1. On the other hand, we are satisfied that the sentencing judge erred in failing to make the sentences for Counts 11 and 13 totally concurrent.

1. In dealing with the appellant’s appeal against conviction, in Featherstone and Bloxsome at [90], we examined the elements of each of Counts 11 and 13:

[E]ach of the two offences has an element that is not included in the other offence.  Count 13 requires proof that the thing stolen was a motor vehicle but Count 11 does not.  On the other hand, Count 11 requires proof of force or a threat of force, proof that the appellant was in company or had an offensive weapon with him, proof that the appropriation was dishonest, and proof that there was an intention to permanently deprive.  Count 13 does not require proof of any of these elements.

1. The only element that was present in Count 11 but not present in Count 13 was the identity of the property taken, Count 11 being limited to motor vehicles.  That additional aspect of the appellant’s criminality does not justify any accumulation of sentence.

1. In Pearce at [40], McHugh, Hayne and Callinan JJ said:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.  No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

1. The accident of legislative history which led to offences of aggravated robbery and taking motor vehicle without consent coexisting is that a person who took a motor vehicle without consent of the owner purely for the purpose of “joyriding” could not be guilty of stealing that motor vehicle because they lacked an intention to permanently deprive.

1. In this case, the Crown took the somewhat unusual course of charging the offence targeting joyriding other than as a backup offence to the charge of aggravated robbery. 

1. The circumstance that the property that was taken was a car added nothing to the objective gravity of the offender’s overall conduct. Matters such as the value of the property taken, whether it had sentimental value, and whether it was recovered were all relevant to the sentence imposed for aggravated robbery. 

Restructure of the overall sentence

1. We have quashed two convictions and decided that the sentence for Count 13 should be concurrent with that for Count 11. Consequently, the overall sentence must be reconsidered.

1. We have the power to amend the starting dates of the remaining counts: see s 74(1) of the Crimes (Sentencing) Act 2005 (ACT).

1. However, although the matter is not without doubt, a ground of appeal may be required to allow the Court to set a new nonparole period: see Tully v The Queen [2016] ACTCA 11. On 17 July 2020, the appellant sought leave to add an appropriate ground of appeal out of time. The respondent consented to leave being granted. We will grant leave.

1. We accept the helpful submissions at [40] of the appellant’s summary of argument on resentence:

(a)the length of the sentences for Counts 4, 5, 14, and 15 will remain as imposed by the sentencing judge;

(b)the commencement dates for Counts 4 and 5 will remain;

(c)the sentence for Count 11 will commence on the date that that the sentence on Count 8 would have commenced (the conviction having been quashed);

(d)the sentence for Count 13 will commence on the same date as that for Count 11;

(e)the sentence for Count 14 will commence four years after the commencement of the sentence on Count 11 (the level of accumulation allowed by the sentencing judge); and

(f)were it not for COVID-19 considerations, the sentence for Count 15 would commence two years and three months after the commencement of the sentence for Count 14 (the level of accumulation allowed by the sentencing judge).

1. The sentencing judge decided that the appellant should serve a longer period under supervision than might otherwise be the case: Bloxsome at [49]. We agree, and we adopt a roughly similar proportion of nonparole period to head sentence.

The impact of COVID-19

1. As mentioned, our judgment dealing with challenges to the appellant’s conviction (Featherstone and Bloxsome) was delivered on 3 July 2020. Thereafter, written submissions concerning sentence were received. However, no submissions were made about the impact of COVID-19 on the sentences. Accordingly, on 19 August 2020, the parties were invited to make submissions on this issue.  The Crown submissions were received promptly, but the appellant’s submissions were not received until 30 September 2020.  In that time, there was a change in the situation regarding the COVID-19 pandemic and associated restrictions.

1. It is impossible to accurately predict how the pandemic will affect the conditions of the appellant’s future custody. However, the consequences which would follow the introduction of COVID-19 into a prison make it highly likely that prisons will be among the last places where COVID-19 restrictions are lifted.

1. That said, the risk that anyone in prison will be exposed to COVID-19 has diminished recently as the number of community transmissions in Australia has decreased.

1. The submissions filed on the appellant’s behalf refer to Australian Government Department of Health advice that among the categories of people more likely to be at higher risk of serious illness if they contract COVID-19 are “Aboriginal and Torres Strait Islander people aged 50 years and older with one or more chronic medical conditions”.  The appellant is an Aboriginal man who is 51 years of age. He suffers from anxiety, depression, PTSD, chronic back pain, high levels of cholesterol and triglycerides, and he had a hepatitis B infection in the past. He has been a heavy drinker, drug user, and smoker. We accept that these factors place him at greater risk of adverse effects from an infection.

1. Sometimes, account has been taken of the circumstance that a prisoner will be unable to receive personal visits whilst these are banned during the pandemic: see R v Kemppainen; R v Rose [2020] ACTSC 69 at [63], R v Bennett; R v Simonds [2020] ACTSC 221 at [89], R v Finau (No 2) [2020] ACTSC 193 at [33] and [49]. However, this circumstance is not of great moment to the appellant. Before the pandemic struck, ignoring legal visits, he did not receive many visitors at all, having only three contact visits in August 2019 and a non-contact visit on 14 August 2020.

1. The appellant’s submissions were limited to suggesting that the only relevant issues were the risk to the appellant’s health should COVID-19 reach inside the prison and the increased anxiety that that would engender in the appellant.

1. We consider there should be some reduction in the appellant’s sentence to reflect the impact of COVID-19 upon his custodial circumstances. However, the reduction should be a relatively modest reduction of three months to both the head sentence and the nonparole period.  Consequently, the sentence for Count 15, the last sentence to be served in time, will commence three months earlier than would otherwise have been the case and the nonparole period will be reduced by three months.

Orders

1. The appellant has leave to appeal against the nonparole period.

1. The appeal is allowed.

1. The sentences imposed by the sentencing judge are set aside.

1. The appellant is resentenced as follows:

(a)Count 4: intentional wounding (CC2018/5383)—20 months’ imprisonment, from 28 June 2018 to 27 February 2020.

(b)Count 5: unlawful confinement (XO2018/31433)—42 months’ imprisonment, from 28 August 2018 to 27 February 2022.

(c)Count 11: aggravated robbery (CC2018/3371)—60 months’ imprisonment, from 28 August 2019 to 27 August 2024.

(d)Count 13: take motor vehicle without consent (SCCAN23/2019)—22 months’ imprisonment, from 28 August 2019 to 27 June 2021.

(e)Count 14: aggravated burglary (XO2018/31436)—32 months’ imprisonment, from 28 August 2023 to 27 April 2026.

(f)Count 15: damage property (XO2018/31437)—eight months’ imprisonment, from 28 August 2025 to 27 April 2026.

1. The overall sentence is seven years and ten months’ imprisonment, from 28 June 2018 to 27 April 2026.

1. We set a nonparole period of four years and nine months’ imprisonment, from 28 June 2018 to 27 March 2023.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Loukas-Karlsson and Acting Justice Berman.

Associate:

Date: