Cajina v The Queen
[2009] ACTCA 2
•24 February 2009
JAIRO SAUL CAJINA v THE QUEEN [2009] ACTCA 2 (24 February 2009)
APPEAL – sentencing – sentencing principles – assessment of criminality involved in whole incident – proportionality and consistency – appeal upheld.
Drugs of Dependence Act 1989 (ACT)
Hoare v The Queen (1989) 167 CLR 348
Veen v The Queen [No. 2] (1988) 164 CLR 465
Markarian v The Queen (2005) 228 CLR 357
R v Oliver (1982) 7 A Crim R 174
R v Taouk (1993) 65 A Crim R 387
Mill v The Queen (1988) 166 CLR 59
AB v The Queen (1999) 198 CLR 111
Pearce v R (1998) 194 CLR 610
‘No. 30: Sentencing trends for making a threat to kill in the higher courts of Victoria, 2001‑02 to 2005‑06’. Sentencing Snapshot, Victorian Sentencing Advisory Council, Victoria, August 2007
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 31 - 2007
No. SCC 28 of 2006
Judges: Gray P, Penfold and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date: 24 February 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 31 - 2007
) No. SCC 28 of 2006
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JAIRO SAUL CAJINA
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Gray P, Penfold and Marshall JJ
Date: 24 February 2009
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The sentences imposed by Crispin J on 29 August 2007 be set aside and the following sentences be imposed:
First set of offences – 21 January 2005
Attempted theft – 21 months imprisonment to commence on 28 May 2006 and end on 27 February 2008; assault – four months imprisonment consecutive on sentence for attempted theft, to commence after 20 months has been served, to start on 27 January 2008 and to end 27 May 2008. That is a total of two years imprisonment on the first set of offences.
Second set of offences – 22 January 2005 to be served wholly consecutive upon sentences imposed for the first set of offences.
First assault – six months imprisonment to commence on 28 May 2008 and end on 27 November 2008; second assault – 12 months imprisonment to commence after three months of the sentence for first assault has been served, ie from 28 August 2008 to 27 August 2009; threat to kill – 18 months imprisonment to commence six months after the 12 month sentence for the second assault has commenced, ie from 28 February 2009 to 27 August 2010. That is a total of two years and three months imprisonment in respect of the second set of offences, giving a total sentence of four years and three months imprisonment.
A non-parole period of two years and six months is set. That period is to start on 28 May 2006 and to end on 27 November 2008.
IN THE SUPREME COURT OF THE ) No. ACTCA 31 - 2007
) No. SCC 28 of 2006
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JAIRO SAUL CAJINA
Appellant
AND:THE QUEEN
Respondent
Judges: Gray P, Penfold and Marshall JJ
Date: 24 February 2009
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Jairo Saul Cajina (the appellant) appeals from a sentence imposed by Crispin J on 29 August 2007. This appeal was limited to the grounds that the sentence imposed was manifestly excessive and that the learned sentencing judge did not properly apply the totality principle.
Background
Mr Cajina has a significant history of offending. The two occasions that Crispin J was called upon to sentence were committed against an extensive criminal history including possession of a knife and previous assaults. The appellant had also been convicted for breach of a recognisance and a breach of a periodic detention order. He had consequently served various fairly short sentences either by remand or by way of actual sentence.
His most serious offending, that of burglary and intent to steal, occurred in 2002 when Crispin J sentenced him to four years imprisonment which was suspended upon Mr Cajina entering into a recognisance to be of good behaviour for four years. He failed to comply with the conditions of that recognisance and, on 27 February 2003, he was resentenced again to the same term of four years imprisonment but he was ordered to remain in prison for a further eight months before being released on 27 October 2003 upon a new recognisance to be of good behaviour for two and a half years.
He was on that recognisance when the offences were committed that are under consideration in this appeal.
The offences under appeal
There were two sets of offences before the sentencing judge.
The first set of offences took place on 21 January 2005. These offences were the subject of early pleas of guilty in the Magistrates Court. The sentencing remarks set out the circumstances of those offences:
The offence of attempted theft was committed on 21 January 2005 when the offender entered the Accident and Emergency Department of Canberra Hospital and attempted to steal a desk top computer, monitor and keyboard, and at that time Ms Hawthorn, a registered nurse, was working in that department and asked him what he was doing. He told her that he was taking the computer and when she told him that he could not do so he dropped it and pushed her away. The offence of a common assault … is constituted by that act.
The other set of offences charged against Mr Cajina took place on 22 January 2005, the day after the first set of offences. The offences, which involved an argument with Mr Cajina’s de facto partner, took place in the car park at the Calwell shops. The actual incident was the subject of a plea of guilty in the Magistrates Court as to the assault on his de facto partner but there was a dispute concerning the facts of that offence. In respect of the other charged offences, a guilty plea was entered to the charge of assault on a bystander but there was a dispute as to those facts. A not guilty plea was entered on a charge of threat to kill another bystander. The magistrate did not accept the appellant’s evidence either on the not guilty plea or as to the facts that he disputed. He made certain factual findings and committed Mr Cajina to the Supreme Court for sentence in respect of each of these charges. The actual findings upon which Mr Cajina was sentenced for these offences are taken from the sentencing judge’s remarks on sentence:
[After referring to the first set of offences]
The other three offences all occurred on 22 January 2005, that is the day after the offences to which I have already referred. It seems clear from the transcript of the proceedings in the Magistrates Court that the offence of common assault … was committed upon Ms Carberry when he grabbed her in a headlock and inflicted a number of punches to her head, and then subsequently tried to drag her to her feet.
The offence upon Mr Mason, that is the common assault … occurred immediately afterwards. He had entered the service station near where the assault upon Ms Carberry apparently occurred, and after he had paid for his petrol and got back into his car he saw the offender come over to his vehicle and confront him. The offender said words to the effect of “What are you looking at? Get out of the car, I’m going to stab you” and proceeded to produce a knife which Mr Mason described as about 15 centimetres long. The offender then kicked the car on the left side and attempted to open the door, then proceeded to threaten Mr Mason again.
The offence of threatening to kill Ms Ashenden occurred after her attention was drawn to the fracas by the amount of noise and particularly by the yelling and screaming. She was told to call the police because a man had a knife. Ms Ashenden, who has defective eyesight, was with her husband at the time trying to put groceries in the car. When she attempted to comply with this request the offender said to her “Put away the fucking phone or I’ll kill you”. He was at that time only about 1 metre away from her and was screaming irrationally. He had his hands down near his pockets. He repeated the words “Tell that fucking bitch to put the phone away”. She raised her hands. She did not at that stage actually see a knife, but was afraid for herself, her children and her husband.
The sentencing proceedings
Mr Cajina was committed to the Supreme Court for sentence on 7 February 2006. For a reason not explained to this court, the matter did not, in fact, come on for sentence before Crispin J until March 2007. A treatment order under the Drugs of Dependence Act 1989 (ACT) had been made for Mr Cajina to undergo a community based rehabilitation project. His Honour recorded convictions for the offences and Mr Cajina was released on bail and the sentencing proceeding adjourned for some three months to 22 June 2007. At the time, Crispin J warned him of the consequences of failure to engage in the rehabilitation program and the seriousness with which Crispin J regarded his offending behaviour.
On 9 May 2007, Mr Cajina was charged with further offences and remanded in custody and on 29 August 2007, Crispin J imposed the sentence which is the subject of this appeal.
The sentences imposed
In respect of the charge of attempted theft committed on 21 January 2005, a sentence of three years imprisonment was imposed backdated to 25 June 2006 to take into account 459 days in custody. The parties agree that, in fact, that calculation is wrong and the appropriate date should have been 28 May 2006. His Honour indicated that, but for the plea of guilty, he would have imposed three years and six months imprisonment for the attempted theft.
On the charge of assault upon Ms Hawthorn committed on the same occasion, a sentence of six months imprisonment was imposed, three months of which was to be served concurrently with the first sentence. His Honour expressly took the view that notwithstanding the plea of guilty, “I would have imposed the same penalty taking the view that they were the one transaction and any discount for either offence was a discount for both”. With great respect to his Honour, that reasoning is not sound and it effectively reduces the discount that his Honour thought he could properly give.
In respect of the charge of assault on Ms Carberry, Mr Cajina’s de facto partner, committed on 22 January 2006, a sentence of six months imprisonment was imposed consecutive upon the first two sentences. His Honour indicated that but for the plea of guilty, he would have imposed eight months imprisonment.
On the charge of assault on Mr Mason on the same occasion, a sentence of 12 months imprisonment was imposed with nine months to be served concurrently with the earlier sentences. His Honour indicated that but for the plea of guilty, he would have imposed 14 months imprisonment.
On the charge of threatening to kill Mrs Ashenden on the same occasion, a sentence of four years imprisonment was imposed with 18 months of that sentence to be served concurrently with the other sentences imposed. Mr Cajina had pleaded not guilty to this offence and his Honour properly took the view that no reduction to the sentence should be made as a consequence.
No action was taken under the recognisance that Mr Cajina had given to the court on 27 October 2003 but the fact that these offences took place during the currency of that bond was a circumstance of aggravation concerning the commission of the offences. In these circumstances, the Director of Public Prosecutions (DPP) properly took the view that no further action would be taken in respect of that recognisance.
The total sentence imposed was imprisonment for six years and six months to commence on 25 June 2006. His Honour set a non-parole period of four years to commence on 25 June 2006 and to end on 24 June 2010.
The appellant’s submission
On Mr Cajina’s behalf, it was not submitted that the sentencing judge had given insufficient weight to his personal circumstances or prospects of rehabilitation. However, it was put that the punishment in respect of two of the offences, that of the attempted theft and that of the threat to kill, “individually, and in their totality, were simply too great given the objective seriousness of the offending that was involved”. This submission relies upon a basic principle of sentencing law that “a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances” (see Hoare v The Queen (1989) 167 CLR 348 at 354 citing Veen v The Queen [No. 2] (1988) 164 CLR 465 at 472, 485-486, 490-491, 496).
An earlier part of those submissions on Mr Cajina’s behalf suggest, in effect, that the sentencing judge, having given Mr Cajina an opportunity to address the offending behaviour, judged him more harshly because he failed. That submission must be rejected. There is no reference to any such consideration and an overall reading of his Honour’s remarks gives no such impression.
Some emphasis was placed on the sentencing judge’s comment in respect of the charge of threat to kill that “it is a very frightening thing for any woman to be confronted by a man armed with a large knife threatening to kill her”. His Honour had earlier referred to the fact that Mrs Ashenden had not actually seen a knife. However, it was clearly open to the sentencing judge to find that at the time of the threat to kill, Mr Cajina was, in fact, armed with the knife even if Mrs Ashenden had not seen it. Indeed, as his Honour had noted, she was told to call the police because a man had a knife. The remark by his Honour should be read in that context.
What has more force is the submission that the sentence imposed for the offence of threat to kill is disproportionate to the other sentences imposed for the associated conduct arising out of the incident. The assault on Ms Carberry, involving as it does an incident of domestic violence, is rightly to be regarded as serious and meriting the punishment imposed. The same can be said for the unjustifiable assault on Mr Mason, an innocent bystander who was merely present and was confronted by Mr Cajina during the course of Mr Cajina’s assault on Ms Carberry. In assessing the incident overall, however, it is difficult to see how the punishment for the offence charged of threatening to kill Mrs Ashenden is properly proportionate to the criminality reflected by the penalties imposed for the two other offences.
The submissions of the Director of Public Prosecutions
It is true, as the DPP points out, that the offences of assault have, as their maximum penalty, two years imprisonment, and the offence of threat to kill, 10 years imprisonment. It may be accepted that in the case of the offence of threat to kill the statutory maximum penalty manifests the legislative policy concerning the seriousness of the offence. That does not detract from the important principle that the punishment to be inflicted must be proportionate to the gravity of the crime.
In the DPP’s written submissions, he makes the point that the “first initial consideration is the statutory maximum” for the offence and that the courts are “bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory limit”. He cites in support Markarian v The Queen (2005) 228 CLR 357 (Markarian) at 372 per Gleeson CJ, Gummow, Hayne and Callinan JJ.
In fact, the passage quoted in his written submissions is not from that case but is from R v Oliver (1982) 7 A Crim R 174 at 177 (per Street CJ with whom Begg and Slattery JJ agreed). In R v Oliver, after the passage that the DPP cites, Street CJ goes on to draw attention to the “second initial consideration” as being “the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration”. In the present case, the DPP’s initial written submission did not provide any material to assist this court in ascertaining that general pattern.
The actual passage from Markarian to which the DPP was apparently referring, says:
[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin [Stockdale and Devlin, Sentencing (1987), paras 1.16-1.18) observe that:
A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].
[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
To take that approach, as we think the DPP might have been suggesting, does not deny the necessity to ensure proportionality with the objective seriousness of the offence. In Markarian at 389, McHugh J made the point that:
[83] Finally, in Veen [No 2][(1988) 164 CLR 465 at 472], as I have indicated, this Court affirmed that the ultimate control on the judicial sentencing discretion is the requirement that the sentence be proportionate to the gravity of the offence committed. In pursuit of other sentencing purposes, a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime. Both proportionality and consistency commonly operate as final checks on a sentence proposed by a judge. They guard against hidden errors in the process, the kind later identified on appeal as manifest excess or leniency in accordance with the principles in House v The King [(1936) 55 CLR 499 at 505 (referred to in the joint judgment at [25]).
Other sentences
At the hearing of this matter, the DPP was not able to provide any sentence for the offence of threat to kill in this jurisdiction. Some additional material was provided by Mr Archer, who appeared as counsel for Mr Cajina. That material did involve a case in this jurisdiction. However, it seems rare for this offence to be considered in isolation and generally there are associated offences. In his supplementary written submissions, the DPP referred to some Victorian cases but they would seem to provide little guidance. For his part, Mr Archer referred to Victorian decisions as well as decisions in the Northern Territory. There was one Victorian decision referred to where the court imposed a sentence of four years imprisonment for the offence of threat to kill. That was, however, associated with two counts of murder for which life imprisonment was imposed as well as a count of unlawful imprisonment. Tables of cases to which this court was referred are attached as appendices A, B and C. In addition, our attention was drawn to a publication by the Victorian Sentencing Advisory Council, ‘No. 30: Sentencing trends for making a threat to kill in the higher courts of Victoria, 2001-02 to 2005‑06’ (Sentencing Snapshot, August 2007).
The number and range of offences for which people with a principal offence of making a threat to kill were sentenced helps explain why imprisonment sentence lengths were longer for the total effective sentence than for the principal sentence. The median total effective imprisonment length was one year, ten months and fifteen days, while the median principal imprisonment length was one year, four months and fifteen days.
Total effective imprisonment lengths ranged from twenty-two days with no non-parole period to six years with a non-parole period of four years and six months. The most common sentence of imprisonment was one year with a non-parole period of less than one year.
Overall, an assessment of all these matters put to the court seems to indicate that a sentence of four years imprisonment, as was imposed in this case, is almost double what might be expected even allowing for the greater criminality involved in the offences that are often associated with the offence of threat to kill.
This is a case where the overall criminality, as well as the criminality constituting each of the offences that arise from the incident, must be assessed. If, as seems to be accepted by the appellant and the DPP, the assault upon Mr Cajina’s de facto wife merited six months imprisonment, and the assault upon one of the bystanders involving the production of a large knife and threat to stab merited 12 months imprisonment, there is a need to consider how, in the circumstances of this case, a single threat to kill another bystander should be viewed.
On any view there is an overlap of circumstances in the overall assessment of the incident which gives rise to the offences. We do not think that such a heavy penalty as was imposed in this case for the offence of threat to kill can be objectively justified when regard is had to the penalties imposed in respect of the other two associated offences that were part of the continuing incident and, on a view of the incident considered as a whole, that part of the sentence was manifestly excessive.
The offences of attempted theft and assault
The sentence of three years and three months imprisonment imposed for the incident the day before, involving the theft and assault, also appears greater than the objective circumstances concerning that incident would seem to merit. The sentencing judge described the offence as “brazen” and said that no substantially mitigating factors had been identified. There was no evaluation of the seriousness of the offence as one of attempt rather than the commission of the substantive offence. Factors to be weighed are such as those referred to by Badgery-Parker J in R v Taouk (1993) 65 A Crim R 387 at 390 where he commented in respect of a charge of attempt to commit a substantive offence:
After a sentencing judge has established the facts of the offence, his prime task is to evaluate the objective seriousness of the offence. In making such an evaluation, where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider, first, that the charge is of attempt only and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances that the attempt, if not interrupted, would have succeeded. If on the facts it appears that the attempt was unlikely to succeed or indeed, that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. However it must also always be necessary for the sentencing judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration. It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence than a naïve and ill-prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naïve and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. It cannot necessarily be postulated, however, that a naïve and ill-prepared, even incompetent, attempt to commit a serious offence must necessarily attract a lesser sentence than would be incurred by a serious and all but effective attempt to commit an offence of less gravity. There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all of the circumstances.
The offence in this case was not a sophisticated enterprise which was inherently likely to succeed. Rather the reverse; as it turned out, it was naïve and ill-prepared and, in fact, one might think, doomed to fail.
Bearing these matters in mind, it is difficult to see that the sentence for the attempted theft, even with the reduction for the plea of guilty, should have merited three years imprisonment. To make the punishment for the assault on the person who sought to stop him partly consecutive results in a sentence which, for the criminality involved, is not justified.
Concurrent and consecutive sentences
It may be noted that his Honour gave significant periods of concurrency between the later sentences and the sentences arising out of this first incident. However, it is apparent from what we have said that his Honour erred in his overall assessment of the criminality involved in both the instances of offending. The concurrency given by his Honour was plainly a way of giving effect to the totality principle (see Mill v The Queen (1988) 166 CLR 59).
In AB v The Queen (1999) 198 CLR 111 at 157-158 [121] and [122], Hayne J observed:
[121] If an offender is sentenced for a number of offences it is necessary to examine both the particular sentences imposed for each offence and the overall effective sentence reached as a result of orders for cumulation or concurrence. It is in both the individual sentences and the overall sentence that the considerations relevant to sentencing must find their reflection.
[122] Considering only the individual sentences or confining attention to the overall effective sentence will distort the inquiry. Subject to the qualification that may be required where an offender pleads guilty to what is often called a representative count, the offender is to be punished for each particular offence that has been proved or admitted and only for those offences [See, eg, R v De Simoni (1981) 147 CLR 383]. And, subject to the consideration of questions of totality, a just sentence must be imposed for each of those offences [See, eg, Mill v The Queen (1988) 166 CLR 59]. Totality may lead to the moderation of the overall sentence and may require some tailoring of the individual sentence to achieve a proper result. But that is not to deny the importance of imposing a just sentence in respect of each offence.
There can be little doubt that his Honour was seeking to apply such an approach but it is apparent that the sentences imposed, at least in respect of the offences of theft and threat to kill, are greater than their objective seriousness would merit having regard to all of the circumstances surrounding them.
We would uphold the appeal and set aside the penalties imposed.
The appropriate sentence
In the circumstances, an appropriate penalty for the attempted theft would have been a sentence of 24 months and, giving credit for the guilty plea, that should be reduced to 21 months. The separate penalty for the assault on Ms Hawthorn should have merited six months imprisonment but the plea should reduce that to four months imprisonment. The additional period of punishment for this separate offence, but one that had contributed to the seriousness of the attempted theft offence, can be met by making it consecutive after 20 months of the sentence for the attempted theft had been served. It could also have been met by increasing the penalty for the attempted theft and making the penalty for the assault wholly concurrent, but that clearly is a matter of choice by a sentencing judge. In any event, that results in a total sentence for the offences of attempted theft and assault arising out of the first incident of two years imprisonment.
There is no reason why the penalties imposed by the sentencing judge in respect of the offences committed on the next day, and which comprise the second set of offences, should not stand. That means that the penalties for the two offences of assault, namely six months and 12 months imprisonment, should be reimposed. In that circumstance, a proportionate and consistent penalty for the offence of threat to kill should be in the order of 18 months imprisonment. This was an incident where each of the offences contained factors to be taken into account with respect to the others; that calls for some degree of concurrency (see Pearce v R (1998) 194 CLR 610) for the penalties imposed in respect of these offences. However, there is little, if anything, to link the two separate incidents of offending other than their proximity in time and, on this approach, there is no need to impose partial concurrency with the first set of offences unless the totality of the sentence which might be imposed requires that course to be taken.
In these circumstances, the sentences for the second set of offences can be made wholly consecutive upon the sentences imposed for the first set of offences. In respect of the second set of offences, the sentence of six months for the assault should be wholly consecutive and the sentence of 12 months for the second assault should commence after three months of the sentence for the first assault has been served. A sentence of 18 months for the offence of threat to kill would be appropriate and should commence six months after the sentence of 12 months for the second assault commences. The total sentence for the second incident should, therefore, amount to two years and three months imprisonment and be wholly consecutive upon the two years imprisonment imposed in respect of the first incident.
That is a total sentence of four years and three months imprisonment to commence on 28 May 2006.
There was no suggestion that the sentencing judge was in error in setting a non-parole period of about 60% of the total sentence. In these circumstances, a non-parole period of two years and six months should be set, to start on 28 May 2006 and to end on 27 November 2008.
The subsequent offences
It may be noted that Mr Cajina committed further offences of theft and assault on 9 May 2007. These were the offences that resulted in him being remanded in custody before being dealt with in respect of the offences which have been the subject of the proceedings in this court. He pleaded guilty to these offences and, on 19 August 2008, he was sentenced to six months imprisonment for the theft and 12 months imprisonment for the assault. The sentences were made concurrent and are to commence at the conclusion of the sentences now the subject of this appeal. The non-parole period was expressed as being extended by six months. As the original non-parole period has been reduced as a result of this appeal, it now must be reset to end on 27 May 2009.
Conclusions
The appeal is upheld.
The sentences imposed by Crispin J on 29 August 2007 are set aside and the following sentences imposed:
First set of offences – 21 January 2005
Attempted theft – 21 months imprisonment to commence on 28 May 2006 and end on 27 February 2008; assault – four months imprisonment consecutive with sentence for attempted theft, to commence after 20 months has been served, to start on 27 January 2008 and to end 27 May 2008. That is a total of two years imprisonment on the first set of offences.
Second set of offences – 22 January 2005 to be served wholly consecutive upon sentences imposed for the first set of offences.
First assault – six months imprisonment to commence on 28 May 2008 and end on 27 November 2008; second assault – 12 months imprisonment to commence after three months of the sentence for first assault has been served, ie from 27 August 2008 to 26 August 2009; threat to kill – 18 months imprisonment to commence six months after the 12 month sentence for the second assault has commenced, ie from 27 February 2009 to 26 August 2010. That is a total of two years and three months imprisonment on the second set of offences, giving a total sentence of four years and three months imprisonment.
A non-parole period of two years and six months is set. That period is to start on 28 May 2006 and to end on 27 November 2008.
On 19 August 2008, Mr Cajina was sentenced to six months imprisonment for theft and 12 months imprisonment for assault to be served concurrently with each other but to be consecutive upon the sentences the subject of this appeal. The sentences imposed on 19 August 2008 will now end on 26 August 2011. The non-parole period will therefore now end on 27 May 2009.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 24 February 2009
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Legal Aid Office (ACT)
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: Director of Public Prosecutions (ACT)
Date of hearing: 12 November 2008
Date of judgment: 24 February 2009
APPENDIX A
ACT SUPREME COURT CASES
PROVIDED BY DPP
| CASE | CLASS | SENTENCE | FACTS | COMMENTS |
| The Queen v BURKE SCC No 142 of 2006 | Sexual offences including threats to kill | In respect of the count of sexual assault in the third degree, noting that this again was the threat and the touching but no penetration. Sentence of 6 years. | Threat to kill child and family during sexual assault. Aggravating factor of sexual assault in third degree. | Counts cumulative representative of individual criminality. |
| The Queen v GHOBRIAL SCC No 78 of 2002 | Threat to kill public official and assault | Sentenced to time served | Exceptional extenuating circumstances; otherwise very serious offence | |
| The Queen v IN [2001] ACTSC 102 2 November 2001 | Violence; Domestic context | Unlawfully detaining his wife – 6 years. AOABH – 3 years (concurrent) NPP – 18 months | “I’m going to take you all out to the bush, tie you to a tree and you can sit and watch us all die and think about [the Principal]”. He also told her that “You will wake up in the morning and know what it’s like to lose your family”. Later in the conversation he added “I was going to leave you [her eldest daughter], but she’s coming too”. | Threats an aggravating feature rather than separately charged offence. Accepted remorse; impulsive; occurred at time of high stress; rehabilitation prospects. |
APPENDIX B
VICTORIAN SUPREME COURT CASES
PROVIDED BY DPP and the APPELLANT
| CASE | CLASS | SENTENCE | FACTS | COMMENTS |
| R v ROUT [2008] VSCA 87 | Robbery/Kidnapping | Sentence appealed 3 ½ years, NPP 15 months. Held inadequate but dismissed. Appropriate sentence would have been: Kidnapping: 3 years False imprisonment: 18 months Threat to kill: 9 months Robbery: 2 years 3 months Theft: 9 months Effective head sentence 4 years 6 months | Victim sleeping in van. Van invaded by three men including Appellant. Assaulted taken to ATM where threat to kill made to make him withdraw money. Offenders left after $500 withdrawn. Threat “You’ve had your chances, but now it’s about your life, make no shit”. | Considered offender had a real prospect of rehabilitation; young offender. |
| R v COCHRANE [2008] VSCA 60 | Offences of threat to kill and firearm offences Parole breach | Count 1: Carrying an unregistered firearm while a prohibited person – 18 months (15 year max). Breach of parole, Attempted robbery at milk bar – 2 years. | Attempted robbery of milk bar; carrying knife; fled when recognised. | Long history of violence. Potential for rehabilitation. Attempt robbery at low end of seriousness reflected by sentence compared to maximum. |
| R v BF [2007] VSCA 217 | Sexual offences Threat to kill | Count 1: Threats to kill (representative count) – 5 years (2 years cumulative) Resentenced | Premeditated assaults by uncle on 14 year old niece. Described as “terrifying attack”. | Appellant on parole for rape and assault at time of offences. Plea of guilty. Threat to kill not outside range. Rape count excessive as factors account for on threat to kill. |
| R v PENNELL R v RANKIN [2007] VSCA 225 | Burglary/False imprisonment | Pennell – Rankin – Resentenced on basis of youth and lack of prior violent offences to: | Victim dragged from bed, taken to a remote location and assaulted, tortured with electric shocks and threats to kill, slash throat. | Youth Few prior offences Serious prospects of rehabilitation. |
| Pennell – Count 2: False imprisonment – 1 year Count 3: Intentionally causing serious injury – 6 years Rankin – | ||||
| R v SAHARI [2007] VSCA 235 | Burglary | Count 1: Threat to kill – 2 years Count 2: Aggravated burglary – 2 years Count 3: Common assault – 3 months Count 4: Reckless conduct – 5 years Count 5: Damage property – 1 year Count 6 – Attempt aggravated burglary – 3 years Count 7 – Prohibited person possessing firearm – 3 years Head sentence 8 years NPP 5 years | Went to victim’s home, threatened victim over telephone, threatened in person, fired gun into victim’s home. | Sentences within range. Appeal dismissed. |
| R v JED [2007] VSC 348 | Rape (2) Intentionally causing serious injury Threat to kill Indecent assault Assault | Count 1: Rape – 7 years (2) Count 2: Intentionally causing serious injury – 7 years Count 3: Threat to kill – 18 months Count 4: Indecent assault – 2 years Count 5: Assault – 1 month Partial cumulation of some offences Total sentence 13 years imprisonment NPP 8 years | Violent serious rape and injury. Victim not known to offender. | High risk of recidivism, relative youth. |
| DPP v CHILENKO [2006] VSC 247 | Recklessly causing serious injury Threat to kill | Count 1: Recklessly causing serious injury – 2 years 6 months Count 2: Threat to kill – 1 month concurrent NPP 1 year | Threats by telephone. University student knifed a fellow student because of suspicion about theft. | Seriousness required custodial sentence. |
| R v WATSON [2006] VSC 375 | Intentionally cause serious injury False imprisonment Threat to kill Criminal damage to property Common assault | Count 1: Intentionally cause serious injury – 5 years Count 2: False imprisonment – 18 months Count 3: Threat to kill – 18 months Count 4: Criminal damage to property – 3 months Count 5: Common assault – 1 month Total sentence 6 years 6 months NPP 4 years | Violence arising from relationship with 17 year old female. | Intoxication, substance abuse, numerous prior convictions. |
| R v WILSON [2004] VSC 468 | Threat to kill Using telecommunications service to menace | Count 1: Threat to kill – 6 months (already served) Count 2: Using telecommunications service to menace – conviction and community based order | Severe and chronic mental illness. Numerous prior convictions. | |
| R v SPINA [2003] VSC 296 | Murder (2) Unlawful imprisonment Threat to kill | Count 1: Murder (2) - Life Count 2: Unlawful imprisonment – 4 years Count 3: Threat to kill – 4 years concurrently NPP 25 years | Lack of remorse. |
| R v ELLIOTT and COMFORT [2003]VSC 292 | Reckless causing serious injury Armed robbery Thefts (in all, 10 offences including threat to kill a police officer) | ELLIOTT – Threat to kill – 3 years with 12 months concurrent. Total sentence 11 years to existing sentences. NPP 7 years |
APPENDIX C
NORTHERN TERRITORY SUPREME COURT
THREAT TO KILL
SUMMARY OF CASES
PROVIDED BY THE APPELLANT
R v David Timothy Brown (sentence) SC 20812768 (26 September 2008) (Angel J)
- Transcript of proceedings – sentence imposed in the Supreme Court of the Northern Territory, Alice Springs
Offences
- Unlawfully caused serious harm
- Made a threat to kill
- Aggravated unlawful assault
Sentence
- Three years imprisonment
- 18 months imprisonment
- 18 months imprisonment
- All three of those sentences, which really comprise one incident, to be served concurrently
R v Baxter Moketarintja (sentence) SC 20733154 (10 September 2008) (Angel J)
- Transcript of proceedings – sentence imposed in the Supreme Court of the Northern Territory, Alice Springs
Offences
- Aggravated unlawful entry of a dwelling house at night, whilst armed with an offensive weapon, with the intention of committing an assault
- With intent to cause fear, threatened to kill, which threat was of such a nature as to cause fear to any person of reasonable firmness and courage
- Unlawful assault and threatened with an offensive weapon
Sentence
- Partly suspended sentence of imprisonment
- Unlawful entry – 4 years
- Threat to kill – 2 years
- Assault – 3 months
Considerations
- Prior convictions for aggravated assault against victim (in a 10 year relationship)
- Other assault convictions
R v Gary Aaron Albert (sentence) SCC 20721405 (19 August 2008) (Mildren J)
- Transcript of proceedings – sentence imposed in the Supreme Court of the Northern Territory, Darwin
Offences
- Nine counts of aggravated assault and one count of making a threat to kill
Sentence
- Three years for threat to kill, but numerous other sentences totalling eight years (most concurrent)
Considerations
- Extensive prior convictions. No work history. Alcoholism and drug use. Guilty pleas.
R v Steven James Sabino (sentence) SCC 20402375 (3 June 2005) (Riley J)
- Transcript of proceedings – sentence imposed in the Supreme Court of the Northern Territory, Darwin
Offences
- Unlawful entry with intent to steal, armed with an offensive weapon
- Threat to kill
Sentence
- Reinstatement of suspended sentence
- New head sentence of imprisonment for three years and six months (threat to kill – 10 months)
Considerations
- Numerous prior convictions (over 60)
- Precious range of responses to offending including release without conviction, diversion, good behaviour bonds, supervised release, short periods of juvenile detention, longer periods of juvenile detention and finally, imprisonment
- Breaching of orders – including breach of suspended sentence
- Guilty plea, no remorse
- Juvenile at time of offences
- High risk of re-offending
- Completion of rehabilitation courses
- Drug use
- General and personal deterrence
R v Graham Brenton Melville (sentence) SCC 20419219 (15 February 2005) (Southwood J)
- Transcript of proceedings – sentence imposed in the Supreme Court of the Northern Territory, Darwin
Offences
- Unlawful assault (2 counts)
- Threat to kill
- Deprivation of liberty
Sentence
- Assaults – 4 and 6 months imprisonment
- Threat to kill – 1 month imprisonment
- Effective sentence of 13 months
Considerations
- Unemployed. Drug use. Three children with victim. Lengthy criminal history. Lack of remorse. Bleak prospects for rehabilitation, high risk of re-offending.
- Personal and general deterrence. Guilty plea.
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