Director of Public Prosecutions v Brooks (a pseudonym)
[2025] ACTSC 45
•21 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Brooks (a pseudonym) |
Citation: | [2025] ACTSC 45 |
Hearing Dates: | 24 October 2024, 13 November 2024, 20 February 2025 |
Decision Date: | 21 February 2025 |
Before: | Taylor J |
Decision: | See [126]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pilot Circle Sentencing List – Elders and Respected Persons Panel – aggravated robbery – assault occasioning actual bodily harm – serious example of an aggravated robbery – imposition of suspended sentences imposed when offender was a child – breach of good behaviour order – failure to comply with supervision – childhood disadvantage – offender assessed as institutionalised – extensive criminal history |
Legislation Cited: | Corrections Management Act 2007 (ACT), ss 155, 183 Crimes Act 1900 (ACT), ss 24, 30 Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), ss 7, 67, 72 Criminal Code 2002 (ACT), ss 308, 310, 311 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 Director of Public Prosecutions v Campbell (No 2) [2024] ACTSC 105 DPP v Chatfield [2024] ACTSC 329 Guy v Anderson [2013] ACTSC 5 Hall v the Queen; Barker v The Queen [2017] ACTCA 16 Henry v The Queen [2019] ACTCA 5 Horan v O’Brien [2021] ACTSC 323 Mill v The Queen [1988] HCA 70; 166 CLR 59 R v Apps (No 2) [2019] ACTSC 369 R v BC [2020] ACTSC 308 R v Blackburn (No 1) [2020] ACTSC 373 R v Carberry [2022] ACTSC 208 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Hawkins [2020] ACTSC 29 R v Henry [1999] NSWCCA 111; 46 NSWCR 346 R v Islam [2015] ACTSC 99 R v Kelly (No 2) [2021] ACTSC 253 R v Lau [2020] ACTSC 120 R v Lyons (No 1) [2020] ACTSC 358 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Redmond (No 2) [2022] ACTSC 295 R v Robertson [2009] ACTCA 19; 174 ACTLR 32 R v Tuifua [2021] ACTSC 298 R v Watson [2021] ACTSC 339 R v White [2023] ACTCA 35 R v Winters [2019] ACTSC 245 Saga v Reid [2010] ACTSC 59 Taylor v The Queen [2014] ACTCA 9 The Queen v Alice-May Kane [2015] ACTSC 46 The Queen v PM (No 2) [2015] ACTSC 358 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 |
Texts Cited: | Bugmy Bar Book, Early Exposure to Alcohol and Other Drug Abuse (November 2023) Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022) Bugmy Bar Book, Incarceration of a Parent or Caregiver (November 2019) Bugmy Bar Book, Interrupted School Attendance and Suspension (December 2019) |
Parties: | Director of Public Prosecutions ( Crown) Clarence Brooks (a pseudonym) ( Offender) |
Representation: | Counsel B Chifuntwe ( DPP) S Lynch ( Offender) Solicitors ACT Director of Public Prosecutions Aboriginal Legal Service ( Offender) |
Elders: | B Hodges E Roberts |
File Numbers: | SCC 57 of 2024 SCC 372 of 2024 SCC 194 of 2011 |
TAYLOR J:
Introduction
1․Clarence Brooks is a Wiradjuri and Barindji man. On 24 October 2024, Mr Brooks participated in a sentencing conversation as part of the ACT Supreme Court Pilot Circle Sentencing List.
2․In DPP v Chatfield [2024] ACTSC 329 at [1]-[14] I explained in detail the context and purpose of the Circle Sentencing List. It is unnecessary to repeat that explanation here. The capacity of the Circle Sentencing List to achieve its objectives depends upon the critical participation of Elders and Respected Persons (the Elders Panel), who sit alongside the sentencing judge during a sentencing conversation, though do not sit in “judgement” of the offender. As distinct from the circle sentencing process in place in the ACT Magistrates Court, participation in the sentencing conversation in this Court does not see the Elders Panel have any role in the determination of the sentence to be imposed. In this Court, that determination rests with the sentencing judge alone. The Elders Panel generously and patiently contributed to the sentencing conversation in this matter consistent with the objectives of the Circle Sentencing List. Their participation enhances the Courts capacity to deliver individualised justice to ensure a just and appropriate sentencing outcome.
3․The offence before the Elders Panel was an offence of aggravated robbery, the detail of which appears later in these remarks. During the course of the sentencing conversation, it became apparent that there was another offence which was outstanding. It was later identified to be an offence of assault occasioning actual bodily harm committed while Mr Brooks was on remand. The parties agreed that the appropriate way forward was to complete the sentencing conversation in the time allocated and adjourn the sentencing proceedings so that counsel for Mr Brooks could confirm instructions on the outstanding offence. Mr Brooks entered a plea of guilty to the outstanding offence and it was agreed that the information obtained in the sentencing conversation with the Elders Panel should relevantly inform a consideration of the outstanding offence. This is the approach I have taken.
4․As I explained in Chatfield and as was the case in this matter, the sentencing conversation at the heart of this process required Mr Brooks to directly engage with the Elders Panel and take responsibility for his conduct. As part of the exchange with members of the panel, Mr Brooks used his own voice to tell his story and described the challenges he considered were contributing to his ongoing engagement with the criminal justice system. Mr Brooks’ mother also participated in the sentencing conversation which assisted the Elders Panel to further understand both the challenges facing Mr Brooks and the strength he can draw from family and cultural connection.
5․Mr Brooks’ circumstances and history paint a profoundly sad picture of the predictable pathway from childhood disadvantage to juvenile offending and adult incarceration. It is beyond doubt that Mr Brooks is institutionalised which in combination with the additional challenges he experiences when he is released to the community, significantly compromise his capacity for meaningful, long-term reform.
6․As will become clear, Mr Brooks engaged in serious, violent offending in December 2023 when he was briefly in the community after serving a period of imprisonment. While on remand for that offence he assaulted another prisoner. In addition to imposing a sentence for those two offences, there are outstanding breach proceedings from 2015 that must be dealt with.
The offences
7․On 4 March 2024, Mr Brooks entered a plea of guilty in the Magistrates Court to the following charge:
(a)CC2023/12305: aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) which carries a maximum penalty of 2 500 penalty units, 25 years of imprisonment, or both.
8․Mr Brooks is also to be sentenced for the following offence to which he entered a plea of guilty on 30 October 2024:
(b)CC2024/6566: assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) which carries a maximum penalty of 5 years of imprisonment.
9․These proceedings must also include the resolution of outstanding breaches of sentencing orders made in this Court in 2014. A warrant was issued for Mr Brooks’ arrest on 24 March 2015 arising from a failure to comply with an obligation to accept supervision as part of a good behaviour order attached to a suspended sentence order. This warrant was not ever executed. Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I must deal with Mr Brooks in relation to the breach of the suspended sentence orders.
The facts
Aggravated robbery
10․On 12 December 2023 at about 3:30am, the victim left his home in a white coloured Ford Ranger vehicle.
11․At or around 3:36am, the victim arrived at Kippax Fair in the suburb of Holt. The victim parked his Ford Ranger in a nearby carpark, locked the vehicle and proceeded to walk towards the employee entrance of Woolworths supermarket.
12․While walking, the victim observed a male standing by some payphones. This male was later identified as Mr Brooks. Mr Brooks was not known to the victim.
The offending
13․Mr Brooks crossed onto Hardwick Crescent and approached the victim before asking if he could borrow his phone. The victim explained to Mr Brooks that his phone had no battery and he would not provide it to Mr Brooks.
14․Mr Brooks began to attack the victim, demanding his wallet, keys and phone while grabbing onto the victim’s clothing. Mr Brooks stated that he would stab the victim if he did not provide his belongings.
15․The victim began to walk backwards attempting to move away from Mr Brooks towards the employee entrance to Woolworths. Mr Brooks continued to hold onto the victim, pushing him as he walked across the road towards the payphones. At this time, Mr Brooks was holding a screwdriver in his right hand.
16․After crossing the street, Mr Brooks began to stab at the victim with the screwdriver, striking towards his abdomen and left forearm. Mr Brooks then dropped the screwdriver after a single strike, before raising another instrument above his head and continually striking at the victim’s neck, causing lacerations to the left side of his neck and severing his earlobe with a vertical laceration.
17․During the altercation, the victim’s ignition keys to his vehicle became exposed in his pocket. Mr Brooks reached towards the victim and took the keys before turning and running towards the vehicle. The victim gave chase to Mr Brooks however was unable to catch him before he entered the driver’s seat of the vehicle and departed the location.
18․The victim returned to the employee entrance of Woolworths and spoke with his co-worker who contacted ACT Police to report the incident.
19․At or about 3:55am, police arrived at the location and spoke with the victim who provided consent for images to be captured of his injuries.
20․Police located a screwdriver near the payphones which was subsequently seized. Police obtained closed-caption television (CCTV) footage from a camera affixed above the payphones. Police observed the footage to be of high quality and capture the entire incident.
21․At 4:39am, the victim was transported to the North Canberra Hospital by the ACT Ambulance Service to have his injuries treated.
22․At 7:16am, ACT Police were contacted by New South Wales (NSW) Police who advised that the stolen Ford Ranger had been involved in a collision. The driver of the Ford Ranger had left the location but was later transported by NSW Ambulance Service to Wagga Wagga Base Hospital.
23․A short time later, the driver of the vehicle was identified by NSW Police to be Mr Brooks. The Ford Ranger was seized by NSW Police.
24․Mr Brooks was observed by NSW Police to match the description of the offender given by the victim and captured in the CCTV footage from Kippax Fair in Holt, ACT. The clothing worn by Mr Brooks was photographed and seized by NSW Police.
25․At 9:55am, police attended the North Canberra Hospital and seized the clothing that the victim was wearing at the time of the incident.
26․At 10:25am, the victim participated in an evidence in chief interview detailing the above events to police. At no time did the victim provide consent to be assaulted. At no time did the victim consent for anyone to take or drive his vehicle.
Assault occasioning actual bodily harm
27․At approximately 4pm on 6 March 2024, the victim was preparing food in the communal kitchen area of the Sentence Unit 2 cell block in the Alexander Maconochie Centre (AMC).
28․The victim was in front of the communal sink when Mr Brooks approached him. Mr Brooks and the victim exchanged words. At this time, Mr Brooks struck the right side of the victim’s face with a closed fist. The victim fell to the floor and raised his feet towards Mr Brooks to stop another blow.
29․Another detainee intervened and stopped Mr Brooks before he was able to throw another punch. The victim was unable to identify the name of the detainee who assisted him. Mr Brooks left the area and returned to his cell. The victim then left the area and returned to his own cell.
30․The victim informed correctional officers of the incident and sought medical treatment for his injuries.
31․At approximately 2:50pm on 12 March 2024, police attended the AMC. The victim participated in a record of conversation and outlined the above events. Police observed the victim to have some swelling to his right jaw below his ear. Police photographed the victim’s injuries.
32․On 21 March 2024, police obtained CCTV footage of the incident from the AMC. The CCTV footage corroborated the victim’s version of events and captured Mr Brooks striking the victim.
33․After the incident, the victim was visited by his mother and he informed her about what had occurred.
34․On 23 March 2024, police spoke with the victim’s mother who informed them that the victim had a sore jaw and that he had been assaulted.
35․On 4 April 2024, correctional officers provided police with an incident report that detailed the incident and confirmed that the victim and Mr Brooks were the two detainees involved in the physical altercation.
36․On 10 June 2024, Mr Brooks was offered an opportunity to participate in a record of interview. Mr Brooks declined. There were several witnesses to the incident however they each declined to provide a statement to police.
37․ACT Corrective Services have not conducted any internal disciplinary action pursuant to s 183 of the Corrections Management Act 2007 (ACT). Consequently, s 155 of the Corrections Management Act does not apply.
Sentencing considerations
Nature and circumstances of the offending
38․In considering the nature and circumstances of an offence the objective seriousness of the conduct establishing it must be assessed. The maximum penalty provides a “yardstick” against which to assess the objective seriousness. It is necessary to consider where offending conduct sits on the spectrum of conduct establishing an offence. Consistent with observations in this jurisdiction as to the utility of refences to “low”, “mid” or “high” range when attempting to capture the objective seriousness of an offence, I will identify the features of the offending that inform the objective seriousness.
Aggravated robbery
39․The maximum penalty for the offence of aggravated robbery, being 25 years of imprisonment, a fine of $400,000 or both, indicates the very real seriousness of the conduct. As a yardstick the significant penalty puts the offence among the most objectively serious offences in the ACT, consistent with it being both a crime against the person and a property crime: see R v Watson [2021] ACTSC 339 at [38] citing R v Henry [1999] NSWCCA 111; 46 NSWCR 346 at 368 [99]. As the Court of Appeal observed in R v Robertson [2009] ACTCA 19; 174 ACTLR 32 at [9], aggravated robbery is “an offence of the utmost gravity”. The CCTV footage vividly depicted the gravity of the offending in this instance including the deliberate infliction of shocking violence against the unsuspecting victim.
40․The guideline judgement of the NSW Court of Appeal in R v Henry, cited with approval in this jurisdiction in Hall v the Queen; Barker v The Queen [2017] ACTCA 16 and R v Carberry [2022] ACTSC 208, outlines factors relevant to the objective seriousness of robbery offences. They are as follows:
(a)The nature of any weapon used;
(b)The degree of planning involved;
(c)Whether the offending involved violence;
(d)The vulnerability of the victim;
(e)The nature and value of the property taken;
(f)The number of co-offenders; and
(g)The effect on victims.
41․Mr Brooks used two weapons during the commission of the offence. The first was a screwdriver, used to strike toward the victim’s abdomen and forearm. A second weapon was brandished and used to strike the victim’s neck multiple times. While the type of weapon was not identified, it is evident from the injuries Mr Brooks inflicted that the weapon was sharp and capable of causing real harm. The weapon was used not just to threaten violence but to deliberately inflict it. The victim was attacked when he was alone in a relatively deserted area while he was walking to work.
42․Mr Brooks repeatedly struck at the victim’s neck, a particularly vulnerable area of the body, and caused various lacerations including vertically severing the victim’s earlobe and inflicting puncture wounds to his neck. The victim was transported to hospital for treatment of his injuries. Two photographs of the victim’s injuries were provided to the Court. The harm caused to the victim was serious.
43․While a victim impact statement was not provided, the effects of such an attack are a matter of common sense. The attack was unprovoked, unexpected, in the early hours of the morning, and occurred when the victim was alone. Undoubtedly it was a terrifying, shocking and painful experience.
44․The property taken, being car keys and a motor vehicle, had considerable value and likely represented a significant loss to the victim. As observed by Refshauge J in R v Blackburn (No 1) [2020] ACTSC 373 at [60]:
The offence was aggravated because the vehicle was ultimately damaged. Indeed, from the photographs of the collision available to me, it was almost certainly destroyed so that it would have had to be written off. There was no evidence of any specific inconvenience caused to the owner, but it is inevitable that it would have caused some, probably much, inconvenience. Also, the work of replacing it, including, if it was insured, dealing with an insurance company, would not be an inconsiderable task.
45․There is no evidence before the Court as to the level of inconvenience the theft of the motor vehicle caused to the victim or the extent to which the vehicle was damaged in the collision. Nonetheless, the offending would have inevitably inconvenienced the victim as he was deprived of access to his vehicle for an unknown period. The statement of facts demonstrated that the victim used the vehicle to get to and from work.
46․Mr Brooks acted alone. As I will come to in greater detail, the offending conduct was precipitated by Mr Brooks being stranded in Canberra, without the necessary resources to get home to Griffith. The offending was not attended to by significant planning. However, Mr Brooks had armed himself with two weapons which demonstrated a degree of contemplation. Ultimately the offending was unsophisticated and largely opportunistic.
47․The features of the offending see it properly regarded as a very serious example of this kind of offence. It is offending that warrants a substantial period of imprisonment.
Assault occasioning actual bodily harm
48․An assessment of the objective seriousness of this offence requires a consideration of the degree of violence used or the ferocity of the attack, and the consequent injury: see R v Redmond (No 2) [2022] ACTSC 295 at [7].
49․CCTV footage of the assault was played at sentence. The assault occurred in a correctional facility. The footage captured the conduct which consisted of a single strike to the side of the victim’s face using a closed fist. The head is a vulnerable area of the body: see R v Lyons (No 1) [2020] ACTSC 358 at [10]. The strike was powerful and caused the victim to fall to the ground. Further, the victim was facing away from Mr Brooks at the time of the attack. The victim suffered soreness and swelling to his jaw, below his right ear. Police observed this swelling to be visible six days after the offending. The conduct, I accept, was a spontaneous reaction and not premeditated.
Subjective circumstances
50․Two pre-sentence reports, as well as a report completed by psychologist, Ms Vanessa Edwige on 11 October 2024 and a report completed by psychologist, Ms Julie Dombrowski on 12 May 2017, comprehensively recorded the background, history and personal circumstances of Mr Brooks.
51․The first pre-sentence report, dated 28 February 2024, recorded that since Mr Brooks’ remand in December 2023, he had primarily been housed in segregation due to “his unsatisfactory behaviour”. However, on 20 February 2024, Mr Brooks was relocated to a mainstream unit after successful compliance with a reintegration plan and a demonstrated improvement in his behaviour. This report pre-dated the commission of the assault occasioning actual bodily harm offence which occurred on 6 March 2024. The second pre-sentence report dated 21 November 2024, recorded that since 29 February 2024, Mr Brooks had been subject to disciplinary action on three occasions while in custody.
52․As identified by the first pre-sentence report author and Ms Edwige, Mr Brooks presented as reluctant to meaningfully engage, though at other times was polite and compliant. Both authors noted that Mr Brooks appeared frustrated and presented as having difficulty with emotional regulation.
53․Mr Brooks was born in Canberra however was raised in Griffith, NSW, where his family continue to reside. He has several siblings who each lived with different extended family members growing up. Mr Brooks was the only child to remain living with his parents. Aside from his father being imprisoned for six months when he was three or four years old, he described a positive family environment and reported being well looked after as a child. He had and continues to have a positive and supportive relationship with his parents.
54․Ms Edwige noted that while Mr Brooks does not recall his father being incarcerated, it undoubtedly had a detrimental impact on him and his family. The Bugmy Bar Book: ‘Incarceration of a Parent or Caregiver’ explains that in this respect, “[c]hildren and young people bear the greatest burden of disadvantage, with disruption to care-giving, placement into care, contact with the Department of Communities and Justice, disruption of schooling, impoverishment, post-traumatic stress disorder and other adverse mental health outcomes, increased likelihood of Substance Use Disorders, disruptive behaviours and contact with the criminal justice system. Despite the serious adverse outcomes for children and young people, parental incarceration carries great stigma for families, and it remains an under recognised risk factor”.
55․Mr Brooks recalled having behavioural issues from an early age, explaining to Ms Edwige that he “was always smashing windows [and] punching holes in the walls”. He reported being diagnosed with attention deficit hyperactive disorder (ADHD) at the age of 10 but advised that he refused to take prescribed medication. He stated that he often refused to go to school which he attributed to feeling “shamed” and wanting to avoid the “racial fighting” which occurred there. He reported being regularly suspended from both primary and high school and that he stopped attending altogether after Year 8. He described being able to “read and write a little bit”. Ms Edwige, citing the Bugmy Bar Book: ‘Interrupted School Attendance and Suspension’, noted the negative impacts of “premature school leaving”, including that “exclusion from the supervisory context of a school can reinforce existing feelings of marginalisation, particularly in students who are already experiencing challenges at school due to other underlying issues”.
56․Mr Brooks disclosed being exposed to substance misuse as a child through his parents, older siblings, extended family members and in his community. Ms Edwige explained that this type of exposure increases “the likelihood that children will themselves develop substance abuse problems, making it more probable that they will come into contact with the criminal justice system” (Bugmy Bar Book: ‘Early Exposure to Alcohol and Other Drug Abuse’ (2023)). Mr Brooks reported to Ms Edwige that he started using cannabis at 11 years of age and consuming alcohol from 13 years of age. His use of crystal methamphetamine began when he was 20 years of age and he reported daily use when in the community. He is currently on the Buvidal Treatment Program and described it as “helpful” and “the best thing”. He reported that he has previously attended alcohol and drug counselling but has never engaged in a residential rehabilitation program.
57․Mr Brooks advised that he began engaging in criminal activity at the age of 10 with his older cousins and brother. From the age of 13, he was regularly incarcerated in juvenile detention facilities. He stated that “it was alright growing up in juvie because I knew a lot of the boys and we followed the same path”.
58․Mr Brooks advised that his girlfriend fell pregnant when he was 16 years of age. He was not present for the birth of his daughter due to being incarcerated and met her for the first time during a visitation at Silverwater Correctional Centre. He advised he has since separated from his child’s mother however they have a “good relationship”. He reported to Ms Edwige that he sees them both regularly when he is in the community however informed the pre-sentence report authors that they do have any contact.
59․Mr Brooks has spent a significant period of his life incarcerated. In Ms Edwige’s view, unsurprisingly, “extensive periods of detention during [Mr Brooks’] adolescence had a significant impact on key developmental stages in the areas of cognition, and emotional, social and moral development”. Mr Brooks has never held employment in the community. He advised that when released he always returns to live with his parents in Griffith. He reported feeling as though he is constantly under police surveillance when in the community and that “the police hassle [him] and push [him] to do something”. Ms Edwige identified that arising from her assessment of Mr Brooks and in reference to his reported behaviours, Mr Brooks is institutionalised, explaining:
The experience of incarceration may have subtle, long-term effects on some prisoners… Imprisonment imposes a rigid routine on an offender that removes the potential for individual decision-making in many aspects of daily life… In removing opportunities to exercise [these] skills, imprisonment can lead to institutionalisation, in which a prisoner becomes decreasingly able to live independently, and may lose a sense of personal responsibility. Other manifestations of institutionalisation include hypervigilance, aggression, emotional over-control, and loss of self-worth (Bugmy Bar Book: ‘Impacts of Imprisonment and Remand in Custody’ (2022)).
60․Consequently, Ms Edwige concluded that Mr Brooks “requires significant support when he is released from custody and intensive culturally responsive case management and advocacy”.
61․Mr Brooks reported a previous diagnosis of schizophrenia. The psychological report from 2017 explained that the diagnosis was made when Mr Brooks was 17 years old. The report further stated that Mr Brooks had previously been described an anti-psychotic. Mr Brooks reported this to be beneficial but he ultimately decided to cease taking the medication as he was concerned his attendance at a pharmacy would enable the police to locate him.
62․Mr Brooks advised he does not currently take any medication for his mental health, nor is he engaged in any form of psychological counselling. He advised the pre-sentence report authors that he does not experience any symptoms of schizophrenia and that he believes he no longer has this condition. Correspondence from Canberra Mental Health Services recorded that in January 2024, a risk referral was made due to his apparently “bizarre behaviour” while on remand. Mr Brooks prematurely terminated the consequent mental health review. Further, the pre-sentence report noted that in September 2024, AMC staff recorded concerns regarding Mr Brooks’ mental health. No further information has been made available to me in relation to this.
63․Ms Edwige concluded that Mr Brooks presented with a stimulant use disorder in relation to his dependency on crystal methamphetamine. She noted that he presented with “a very flat affect” and that further assessment is required to ascertain whether this arises due to his current circumstances or as a result of a depressive disorder.
Remorse, degree of responsibility for the offending and rehabilitation
64․Mr Brooks presented with complex personal circumstances that feature a history of childhood disadvantage, mental ill-health and entrenched addiction. The influence of those factors on Mr Brooks’ conduct are difficult to disentangle. They are factors which influence an assessment of Mr Brooks’ responsibility for the offending, his expressions of remorse and his prospects for rehabilitation, as well as the need to protect the community.
65․Remorse is relevant to an assessment of Mr Brooks’ likelihood of re-offending and prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41]. In relation to the assault charge, Mr Brooks accepted responsibility when discussing the offence with the pre-sentence report author, although justified his actions to some extent. Mr Brooks identified that his feelings of anger and frustration contributed to his offending behaviour. Counsel on Mr Brooks’ behalf elaborated and explained that he had recently cleaned the unit he was housed in at the AMC and instructed other detainees to maintain the level of cleanliness. Shortly thereafter, Mr Brooks formed the view that the victim was making a mess in the sink area and told him to clean it up. Mr Brooks became angered by what he perceived as “back chatting” from the victim in response to his instruction, resulting in the assault. This behaviour reflects Ms Edwige’s assessment that Mr Brooks struggles with emotional regulation as a consequence of institutionalisation and adverse childhood experiences.
66․In relation to the charge of aggravated robbery, Mr Brooks refused to discuss the offence with the pre-sentence report author. In his interview with Ms Edwige, he expressed a degree of victim empathy stating, “I feel remorseful for the victim. I shouldn’t have assaulted him”. However, Mr Brooks justified his behaviour by reference to the difficult circumstances he found himself in at the time.
67․Turning now to those circumstances. The explanation provided by Mr Brooks of the lead up to the aggravated robbery was confirmed by Mr Brooks’ mother at the sentencing conversation. She expressed her own anger and frustration at the circumstances which faced Mr Brooks and explained to the Elders Panel that Mr Brooks’ family would have arranged for his transport from Wellington if they had known he required assistance. She described worrying for Mr Brooks when she was unable to contact him when family arrived to collect him in Canberra. She told the Elders Panel that she considered Mr Brooks had been let down by the circumstances of his release from custody in NSW.
68․Mr Brooks was released from Wellington Correctional Centre on 11 December 2023 following a six-month period of full-time imprisonment. Without any arrangement for him to be transported home to Griffith, he was provided a one-way ticket to Sydney. Mr Brooks explained to the Elders Panel his sense of anger and frustration at being given no choice about travelling to Sydney; he had no reason or desire to travel to Sydney and it was the only option provided to him. A friend in Sydney then arranged transportation to Canberra with a plan made for his family to collect him from the bus stop.
69․Upon his arrival in the ACT at 11pm, he was unable to locate his family and had no means of contacting them. Mr Brooks said he “felt trapped”. He walked the streets of Canberra for hours, unsuccessfully tried to secure transport and became increasingly stressed. Mr Brooks had no money, no means of contacting his family and nowhere to sleep. It was in this context Mr Brooks decided to commit the robbery to get access to a vehicle to drive himself home to Griffith.
70․Mr Brooks was undoubtedly responsible for his choice to resort to criminal behaviour. His explanation is not mitigation; a matter made plain to him by the Elders Panel. The context of the offending demonstrated his desperation and that which was identified by Ms Edwige with respect to the effect of institutionalisation. Mr Brooks has very limited problem-solving skills and reverts to behaviour that is familiar to him and which he considers will immediately solve the problem.
71․This view is only confirmed by the fact that Mr Brooks had been out of the custodial environment for approximately 16 hours before he reoffended. The limited provision made for his release and the only option being for him to travel to a place he did not wish to go, hours away from his family home, were circumstances that set the scene for him to fail. And fail he did.
72․It was clear in the sentencing conversation that Mr Brooks viewed his offending through the prism of the circumstances that precipitated it. When discussing the offending, the anger he felt about the situation which faced him upon release was initially his focus, but after discussion with the Elders Panel Mr Brooks did express remorse. He also expressed victim empathy telling the Elders Panel:
That never should have happened to him because… yes, if I would have had money that wouldn’t have happened, you know? But that’s on my - that’s my actions, that’s me, what I done. I’m here to be judged by that and I’m happy to be judged for my actions, and I feel bad for the bloke, you know? I feel real remorseful for hitting him, assaulting him, you know. I never should – that never should have happened. I should have just asked him for the phone, can I borrow his phone or something, get a taxi or whatever, yes.
73․Likewise, Mr Brooks’ explanation for his assault on another prisoner does not excuse his conduct. It was irrational and entirely unnecessary. Like the aggravated robbery, the conduct and indeed the explanation is consistent with institutionalisation; aggression, hypervigilance and an inability to take personal responsibility.
74․An acknowledgment of the effect of long-term incarceration on Mr Brooks does not undermine the seriousness of his conduct. The context of the offending sheds light on the very real challenge that being in the community presents to Mr Brooks and those attempting to support him.
75․Mr Brooks entered pleas of guilty at an early opportunity, reflective of a willingness to accept responsibility for his conduct. I am satisfied that Mr Brooks has demonstrated some remorse in relation to both offences.
76․Mr Brooks has minimal education and has been incarcerated for a significant portion of both his juvenile and adult life. Although he is 30 years old, he has limited life experience in the community. Much of his day-to-day existence has been absent the freedom to make his own choices. In addition to the effect of institutionalisation, Ms Edwige recorded the various ways in which Mr Brooks’ deprived background inhibited his social and emotional development.
77․Mr Brooks’ early exposure to illicit substance use and his ongoing contact with the youth justice system effected his development and his access to education. That background must be given full weight in the sentencing exercise. This matter is an example of that which the High Court explained in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44]; childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”. While I am satisfied that his childhood disadvantage operates to reduce Mr Brooks’ moral culpability, it is overwhelmingly the case that it is a factor which influences an assessment of his prospects for rehabilitation and the need to protect the community, a consideration of considerable relevance in light of the aggravated robbery offence, his prospects for rehabilitation to which I will come and his criminal history.
78․In a report prepared in 2017, psychologist Ms Dombrowski concluded:
[Mr Brooks] has a long history of behavioural disturbances, conflict with authorities, and difficulties with emotional and behavioural regulation. A combination of psychiatric factors (eg: attention deficit/hyperactivity disorder, schizophrenia and/or substance-induced psychosis), neurological factors (eg: the impact of his substance use on his brain development), social factors (eg: permissive or uninvolved parenting, limited engagement in schooling, antisocial peers, substance abuse), and cultural factors (Aboriginality and social marginalisation) have variously contributed to the development of his behavioural difficulties and offending trajectory. He has been institutionalised for much of his life and requires a high level of professional support to minimise his risk of recidivism.
79․That 2017 view that Mr Brooks required a high level of support was echoed by Ms Edwige when she stated, “Mr Brooks will require ongoing support for a lengthy period of time”.
80․Mr Brooks has been either in full-time custody or subject to some form of court order for most of his life since his early teens. His capacity for reform will be significantly influenced by the level of support he has available to him. His mother reiterated the ongoing support he has from his immediate family and wider community. She expressed her concern about the limitations of residing in a regional area in terms of the availability of substantive programs to assist rehabilitation saying, “they’ve got nothing down there [in Griffith] for them at all”.
81․It is clear that Mr Brooks will require comprehensive support to transition to the community upon the completion of his sentence. Ms Edwige recorded Mr Brooks’ strong desire to rehabilitate and his willingness to engage with supports “that will enhance his wellbeing and will in my opinion have a positive impact on Mr Brooks’ ability to develop prosocial coping skills, enhance self-esteem/confidence and assist in his positive reintegration into community”. Both experts were strongly of the view that Mr Brooks required further psychological and neurological assessment to properly identify his medical and psychological needs. He is currently not medicated arising from any diagnosis despite having identified that medication for ADHD has had benefit for him in the past.
82․Ms Edwige considered it necessary for Mr Brooks to remain on the Buvidal treatment program until he is medically supervised to cease. Ms Edwige also identified the significant strength to be found in cultural connectivity and considered that Mr Brooks would benefit from building a stronger sense of cultural identity through access to his kin and cultural practices; in turn this will enhance Mr Brooks’ capacity to build emotional and psychological resilience. Mr Brooks recognised that being with family and community made him “stronger”.
83․In addition to the many challenges presented by institutionalisation, long-term incarceration has inevitably disconnected Mr Brooks from his cultural identity. A sad reality acknowledged by Mr Brooks when he responded to Uncle Benny Hodges in the sentencing conversation with “I love my family, my culture, you know but the thing is, it was taken from me at a young age, being incarcerated….to be honest, I don’t know who I am yet”.
84․Like Ms Edwige I do not consider rehabilitation to be entirely beyond Mr Brooks, but as at the time of sentencing his prospects can only be viewed as poor. Acknowledging the context of the aggravated robbery offence cannot diminish the significance of Mr Brooks engaging in serious offending conduct less than one day after his release from a correctional facility. Indeed, the context underscores the very real challenge for Mr Brooks to be in the community and experience personal challenges without recourse to criminal conduct.
85․To realise any promise for reform Mr Brooks will require substantial support that recognises the effects of institutionalisation upon him and the significance of cultural connectivity for him. The parole authorities will be able to accurately assess any progress Mr Brooks makes while in custody and determine some of the supports that he will require to transition to the community when he is eligible for release.
Criminal history
86․Mr Brooks has an extensive criminal history across the ACT and NSW, including many offences of dishonesty. Mr Brooks’ criminal history is not an aggravating feature on sentence though it limits the leniency that can be afforded to him. The pattern of conduct revealed in Mr Brooks’ criminal history demonstrates that this kind of offending is not uncharacteristic: Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465.
Time in custody
87․Mr Brooks has been in custody at the AMC since 12 December 2023.
88․On 1 August 2024, Mr Brooks was sentenced in the Magistrates Court to four months of imprisonment commencing 15 July 2024 and concluding 14 November 2024. Accordingly, Mr Brooks has spent 315 days in custody solely referable to these offences and the sentence I impose will be backdated accordingly.
Pleas of guilty
89․A plea of guilty was entered in respect to each of the charges at an early opportunity in the Magistrates Court. The timing of the pleas had significant utilitarian value. I will reduce the sentence I impose by 25 per cent in recognition of that value.
Current sentencing practise
90․Comparable cases do not operate to give effect to strict mathematical equivalence as between sentencing outcomes for the same offence. They assist to ensure consistency in the application of principles.
91․I was taken to a sample of sentencing outcomes for both offences including R v Hawkins [2020] ACTSC 29, R v Apps (No 2) [2019] ACTSC 369, R v Lau [2020] ACTSC 120, R v Tuifua [2021] ACTSC 298 and R v Winters [2019] ACTSC 245. I have had regard to the outcomes and the principles applied therein. In Lau the aggravated robbery offence was by joint commission and included a threat of violence. The offender had shown no remorse after being found guilty, was 29 years of age, had commenced using illicit substances at an early age and had a criminal history. The sentence imposed, there being no reduction for a plea of guilty, was three years and six months of imprisonment.
92․Apps (No 2) involved two offences of aggravated robbery by joint commission. In each offence the victim was violently assaulted. In the first in time offence, with a baseball bat and in the second in time offence, with a bicycle wheel and a screwdriver. The offender had an extensive criminal history, was 25 years of age and was found to have reduced moral culpability and poor prospects for rehabilitation. For the first in time aggravated robbery a sentence of 4 years and 1 month of imprisonment was imposed, reduced from 4 years and 10 months for a plea of guilty. For the second in time aggravated robbery a sentence of 4 years and 10 months of imprisonment was imposed reduced from 5 years for a plea of guilty.
93․In Winters the offender was sentenced for aggravated robbery and assault occasioning actual bodily harm. The offender in Winters robbed a supermarket with a co-offender while armed with a machete. The aggravated robbery did not involve the infliction of any actual violence. The assault occasioning actual bodily harm offence was similarly committed on another detainee while in custody at the AMC and involved the offender attacking the victim from behind and striking him in the face 15 to 20 times. Once the victim fell to the ground, the offender kicked him in the face and ribs multiple times before stomping on his head twice. The offender was 20 years of age and had experienced an extremely disadvantaged upbringing. He was subject to a good behaviour order attached to a suspended sentence order at the time of the offending. Following a reduction in sentence by virtue of his pleas of guilty, the offender in Winters was sentenced to 2 years and 6 months of imprisonment for the aggravated robbery offence (reduced from 36 months), and 15 months of imprisonment for the assault offence (reduced from 20 months), concurrent as to 3 months.
94․The offender in Hawkins was sentenced for one offence of aggravated robbery which involved the use of a knife which caused some injury. The offence was committed while the offender was on conditional liberty, in company and in the victim’s home. The offender had a substantial criminal history, an entrenched drug addiction and a childhood history of disadvantage. He was assessed as having a medium to high risk of reoffending. The sentence imposed was 37 months of imprisonment reduced from 42 months for a plea of guilty.
95․I bear in mind the observation I made in Director of Public Prosecutions v Campbell (No 2) [2024] ACTSC 105 at [109]-[111] when I considered sentencing practise in the ACT for aggravated robbery offences:
109. In R v White [2023] ACTCA 35 (White) at [52] the Court of Appeal observed:
In Barrett v The Queen [2016] ACTCA 38, the Court of Appeal noted at [40] that most sentences recorded in the ACT sentencing database for aggravated robbery following a plea of guilty were in the range of 30 months to four years’ imprisonment. In R v Lovelock [2014] ACTSC 229 at [13], Murrell CJ, when considering current sentencing practice in the ACT Supreme Court, observed that a common sentence for aggravated robbery was three years’ imprisonment. In each case, the Court was referring to the length of sentence after application of discounting for pleas of guilty.
110. Of course, sentencing outcomes do not set a precedent nor fix an upper or lower cap for an offence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. The outcomes for other offenders might assist to illustrate a range but they do not define the boundaries of the sentencing discretion. A sentence that is “just and appropriate” (Mill v The Queen [1988] HCA 70; 166 CLR 59 (Mill v The Queen) at 63 [8]) must give effect to individualised justice. The prosecution referred to several sentencing outcomes from this Court: R v Hall (No 2) [2022] ACTSC 22, R v Deng [2022] ACTSC 143, R v Carberry [2022] ACTSC 208, R v Evans; R v Reid [2020] ACTSC 169, R v Hodge [2015] ACTSC 214. Counsel for the offender referred to DPP v Sims [2024] ACTSC 49.
111. I have had regard to the circumstances of each sentencing outcome and observe generally that where the offending could be characterised as a “home invasion”, the sentences imposed were in some instances more severe than the range identified by the Court of Appeal in White (citing Barrett v The Queen [2016] ACTCA 38 and R v Lovelock [2014] ACTSC 229).
96․The Court of Appeal in R v White [2023] ACTCA 35 considered a Crown appeal alleging manifestly inadequate sentences imposed on multiple offences including three aggravated robberies. The facts of the aggravated robberies were summarised as follows at [47]-[49]:
47.The respondent committed three aggravated robberies on 6 December 2021. For the first, a sentence of 18 months’ imprisonment (reduced from 24 months for the plea of guilty) was imposed. The respondent was armed with a 20cm filleting knife. He head‑butted the victim and placed the knife against the victim’s neck. He forced the victim to hand over his phone, wallet, and clothes and threatened to kill him if he disclosed the offending.
48.For the second aggravated robbery, a sentence of 16 months and 14 days’ imprisonment (reduced from 22 months) was imposed. About an hour after the first aggravated robbery, the respondent approached this victim from behind and held the knife against his neck. He demanded the victim’s necklace and threatened to hit him if he did not hurry up.
49. For the third trial aggravated robbery, a sentence of 16 months and 14 days’ imprisonment (reduced from 22 months) was imposed. The respondent entered the victim’s backyard and demanded his cash and everything he had. The respondent lifted his knife towards the victim’s body at least three times and threatened to stab and kill him.
97․In each case the sentences imposed for aggravated robbery were determined by the Court of Appeal to be manifestly inadequate. The Court of Appeal considered the first aggravated robbery to be the more serious example of the offence. For the first aggravated robbery, the offender was re-sentenced to 31 months and 15 days of imprisonment (reduced from 36 months). For the second and third aggravated robbery, the offender was re-sentenced to 27 months of imprisonment (reduced from 36 months). The Court of Appeal accepted the primary judge’s findings that the offender was a “young man”, had demonstrated genuine remorse, had reduced moral culpability and “real chances” for rehabilitation.
98․The aggravated robbery offence in the present case is objectively more serious than some of the examples subject to the outcomes to which I have referred. Notably in this matter violence was deliberately inflicted resulting in puncture wounds to the victim’s neck and the severing of his earlobe.
Breach proceedings
99․There are some now very dated breach matters that must be resolved as part of this sentencing exercise.
100․On 9 May 2014, Mr Brooks was sentenced by Murrell CJ to a total period of imprisonment of two years and four months for the following offences, each committed on 12 January 2010:
(a)XO2013/30024: burglary, contrary to s 311 of the Criminal Code, for which a sentence of imprisonment was imposed from 25 February 2014 to 24 February 2016.
(b)CH2010/283: theft, contrary to s 308 of the Criminal Code, for which a sentence of imprisonment was imposed from 25 February 2014 to 24 November 2014.
(c)XO2014/30084: threat to kill, contrary to s 30 of the Crimes Act, for which a sentence of imprisonment was imposed from 25 August 2014 to 24 June 2016.
101․The sentences of imprisonment were suspended beginning 25 June 2014 upon Mr Brooks entering an undertaking to be of good behaviour for two years. It was a condition of the good behaviour orders that Mr Brooks accept supervision. Her Honour imposed the supervision condition on the good behaviour orders for “as long as the services deems appropriate”.
102․On 24 June 2014, supervision of the good behaviour orders was transferred to NSW Community Corrections. Breach proceedings were initiated on 20 March 2015 alleging that Mr Brooks had failed to accept supervision and a warrant was issued for Mr Brooks’ arrest by Murrell CJ on 24 March 2015.
103․Section 110(2) of the Crimes (Sentence Administration) Act provides that upon being satisfied that a suspended sentence order has been breached:
(2)The court must cancel the good behaviour order and either—
(a)impose the suspended sentence imposed for the offence; or
(b)re-sentence the offender for the offence.
104․I am satisfied based on the material before the Court, that the suspended sentence orders imposed by Murrell CJ on 9 May 2014 were breached. Mr Brooks conceded as much. Accordingly, I must determine whether to impose the suspended sentences or re-sentence Mr Brooks.
Principles
105․In this jurisdiction there is no presumption in favour of the imposition of a sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35]. It is recognised however that a failure of courts to act where there has been a clear breach of the bond by which Mr Brooks avoided being subjected to full-time imprisonment is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at [23] cited in The Queen v PM (No 2) [2015] ACTSC 358 at [19] and Saga v Reid [2010] ACTSC 59 at [99]-[101].
106․In R v Kelly (No 2) [2021] ACTSC 253 at [15] Refshauge AJ set out several factors, relevant to the question of whether the suspended sentence should be imposed or the offender re-sentenced, namely:
(a) the proportion of the Good Behaviour Order served before the breach occurred: R v Curtis (No 2) [2016] ACTSC 34 at [18];
(b) the rehabilitation achieved in the time during which the Good Behaviour Order has been served: R v Curtis (No 2) at [18];
(c) the prospects of further rehabilitation: R v Curtis (No 2) at [18];
(d) the relative seriousness of the offence, or offences, which constituted the breach of the Order, and, in particular, whether imposing the suspended sentence would be disproportionate to that seriousness: Saga v Reid and Collett at [88];
(e) whether the breaching offence, or offences, is, or are, of similar conduct: R v CA [2016] ACTSC 378 at [21];
(f) whether the breach is, or breaches are, so serious as to show a disregard of the need to be of good behaviour: R v Ogilvie at [38];
(g) whether the offender has been warned of the breaches, especially if they are not breaches constituted by further offending: R v Cuthel [2016] ACTSC 91 at [18]; R v Ogilvie at [75];
(h) the offender’s level of understanding of the obligations and the terms of the Good Behaviour Order and of the consequences of the breach: R v PM (No 2) [2015] ACTSC 358 at [20]-[22]; and
(i) the nature of judicial and community resources previously devoted to the offender: R v Bennett [2017] ACTSC 104 at [11].
Consideration regarding breach
107․At the sentence on 9 May 2014, Murrell CJ noted there had been substantial delays in finalising the matter, four years having passed since the commission of the offence. A further 11 years have now passed. Mr Brooks was 15 years old when he committed these offences, he is now 30 years old. The delay can largely be attributed to Mr Brooks’ incarceration in NSW.
108․Although Mr Brooks has clearly engaged in further offending, the breach is the failure to accept supervision. It is a less serious breach than one committed by way of reoffending: see The Queen v Alice-May Kane [2015] ACTSC 46 at [11]-[13].
109․I must have regard to the facts of the 2010 offending. They can be summarised as follows. The victim, a 64-year-old woman, was reading in bed with the lights on. At 11:50pm, Mr Brooks climbed over the victim’s balcony railing, made a hole in a screen door and broke into the premises. He took a large knife from the kitchen bench before entering the victim’s bedroom. He held her down, placed the knife near her throat and said, “I’m not going to hurt you”. She asked what he wanted, to which he replied, “Oh, actually, I want sex”. She told him not to be ridiculous to which he then said, “I’m going to kill you”. The victim got out of bed and screamed. Mr Brooks punched the victim in the head two to three times. He then left the bedroom, grabbed the victim’s handbag and exited the premises. Clearly, the offences are objectively serious.
110․The following periods of imprisonment remain outstanding:
(i)Burglary (XO2013/30024) – a total period of imprisonment of 2 years was imposed. The sentence was suspended after Mr Brooks had served 4 months of imprisonment.
(ii)Theft (CH2010/283) – a total period of imprisonment of 9 months was imposed wholly concurrent with the period of imprisonment imposed on the burglary offence. Accordingly, this sentence was also suspended after Mr Brooks had served 4 months of imprisonment.
(iii)Threat to kill (XO2014/30084) – a total period of imprisonment of 22 months was imposed, 4 months was consecutive on the period of imprisonment imposed on the burglary offence. The sentence was wholly suspended.
111․The result of the structure of the sentence imposed by Murrell CJ is that Mr Brooks remains liable to serve 1 year and 8 months of imprisonment on the burglary offence, 5 months of imprisonment on the theft offence (to be served concurrent with the burglary offence) and 22 months of imprisonment on the threat to kill offence (18 months of which was concurrent with the burglary offence). The total period outstanding therefore is 2 years of imprisonment.
112․The circumstances of the original serious offending and the timing of the breach weigh in favour of the imposition of the outstanding periods of imprisonment. Mr Brooks was a juvenile when the original offences were committed, and the breaches are now many years old. Since the breach Mr Brooks has demonstrated a consistent disregard for the law. The principle of totality has application to the overall sentence because of the requirement to deal with multiple offences. Re-sentencing Mr Brooks to anything other than a period of full-time imprisonment would not be a just and appropriate outcome. In my view, it is appropriate to impose the outstanding periods of imprisonment. The application of the totality principle in the circumstances warrants a degree of concurrency. The prosecutor did not oppose this approach.
Determination
113․The purposes of sentencing to which I must have regard are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Punishment, recognition of harm and denunciation all feature as significant considerations. The need to protect the community, hold Mr Brooks accountable and deter him from offending behaviour loom large in this sentencing exercise, notwithstanding some moderation of his moral culpability. Rehabilitation remains relevant.
114․Courts have consistently emphasised that general deterrence is a significant consideration for offences involving the use of violence by one prisoner against another. The effect of s 72 of the Crimes (Sentencing) Act to which I will come, underscores that emphasis. In R v Islam [2015] ACTSC 99 Burns J said at [8]:
Violence in prison cannot be tolerated and sentences imposed by the court for serious offences of violence within prison must be such as will be likely to deter others from committing such offences.
115․In Horan v O’Brien [2021] ACTSC 323 Mossop J relevantly observed at [16]-[18]:
16. Although there may be considerable scepticism about the operation of the feedback loop that underlies the theory of general deterrence as a sentencing consideration, there is much less room for such scepticism when dealing with offences committed in prison. That is particularly so in a jurisdiction such as the Territory where there is a single prison and a single, centrally located, court system. In those circumstances, there is a much sounder basis for saying that stern sentences for prisoners who commit acts of violence within the prison will have a deterrent effect.
17. It is very clear that courts ought to treat the need for general deterrence as a very significant sentencing consideration when sentencing for crimes of violence committed by a prisoner on another prisoner. Generally speaking, a court should deal very sternly with violence against prisoners. In this court that has been recognised in the decision in R v Potts [2018] ACTSC 299 at [18] where Murrell CJ said:
Prisoners are vulnerable when in custody. The custodial environment should be free from violence and the threat of violence. Corrections officers cannot supervise prisoners on a close, continuous basis. Further, as the facts of this case illustrate, among inmates there is a regrettable “code of silence” that applies to protect violent perpetrators. These factors mean that a court should deal very sternly with violence against prisoners.
18. That approach is consistent with the approach adopted in other jurisdictions: in R v Byron; R v Earley (1992) 59 SASR 132 at 135 – 136, King CJ (with whom Cox and Matheson JJ) said:
Crimes committed in prison against a fellow prisoner are notoriously difficult to prove due to difficulties in obtaining witnesses who are willing to depose to what occurred. For that reason alone the courts must impose severe and deterrent penalties in the cases which can be proved. Moreover, prisoners are entitled to look to the courts for protection against violence from their fellow prisoners. They are necessarily in a vulnerable position by reason of the very circumstances of being confined in the prison. The circumstances under which they are confined deprive them to a great extent of the opportunity of taking prudent measures for their own safety and protection. They must depend entirely or very largely upon authority to protect them from violence.
116․The aggravated robbery offence was a serious example of what is an objectively serious offence. Conduct involving, as it did, random, deliberate violence must be unequivocally deterred and denounced. The seriousness of the offending in each case warrants the imposition of a period of full-time imprisonment. Sensibly no submission was advanced to the contrary.
117․There is no one correct approach to structuring multiple sentences. The principle of totality “can be implemented in a variety of acceptable ways”: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]. The outcome must reflect the total criminality involved in the conduct and be “just and appropriate” in all the circumstances: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8]. In recognising the period in custody referrable only to these offences, I bear in mind that Mr Brooks has now been in custody since 12 December 2023.
118․Offences committed in lawful custody are no longer excluded from the requirement to impose a non-parole period for a term of imprisonment of one year or longer. The sentence imposed must be consecutive with an existing sentence of imprisonment unless otherwise ordered: s 72 of the Crimes (Sentencing)Act. As was conceded by the prosecutor, the need to give effect to the principle of totality requires some concurrency; to do otherwise would risk a crushing outcome. I am mindful of the need to avoid the perception that the commission of multiple offences results in a discount.
119․I acknowledge that the imposition of periods of full-time imprisonment, being the only just and appropriate outcome, will serve to further entrench Mr Brooks’ institutionalisation. This is a factor that weighs heavily in favour of a lengthy period of parole in order that Mr Brooks be supported and held accountable upon his release into the community. I am satisfied that further assessments and investigations could greatly assist Mr Brooks, and those tasked with supporting him, to understand the full picture of his psychological and cognitive needs. Mr Brooks’ capacity to be in the community without offending will be enhanced by tailored medical and psychological supports that address his physical, psychological, emotional and cultural needs.
120․I doubt the capacity for the custodial environment to meet those needs but I am compelled to make recommendations in relation to his release on parole in an effort to highlight the necessity for these matters to be addressed to give Mr Brooks the best chance of successfully fulfilling the obligations of parole and ultimately, moving away from the persistent engagement with the criminal justice system that has plagued his entire life.
121․Mr Brooks is a beloved son, brother and nephew. He has a family and a community to whom he belongs. They eagerly anticipate his return to their fold. I fear that unless or until Mr Brooks receives tailored support that draws on the strength of his family and culture to address problematic behaviours now so familiar to him, he will go on to spend the rest of his adult life walking through a revolving door to correctional facilities. There is an opportunity for the period of parole he will become eligible for to provide the kind of meaningful intervention that will assist him to avoid that future, and in turn, reduce the risk he presents to the community.
122․The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37] and Taylor v The Queen [2014] ACTCA 9 at [19]. I have had regard to those principles. Setting a non-parole period involves the exercise of a wide discretion. The non-parole period should reflect the minimum term that justice demands Mr Brooks serve before he can be considered for release into the community. Rehabilitation is of course a factor when assessing what is required in order to protect the community. It is in both Mr Brooks’ interest and the public interest that he be supported by a lengthy period of parole upon his release into the community.
123․The starting point for the aggravated robbery offence (CC2023/12305) is 5 years of imprisonment reduced to 3 years and 9 months of imprisonment for the plea of guilty.
124․The starting point for the assault occasioning actual bodily harm offence (CC2024/6566) is 15 months of imprisonment reduced to 11 months and 7 days of imprisonment for the plea of guilty.
125․In respect to the breach matters it is appropriate in the circumstances to impose the remaining periods of imprisonment. I consider there should be a degree of concurrency with the more recent offences taking account of the delay in the resolution of the proceedings, that the offences were committed when Mr Brooks was a juvenile and applying the principle of totality.
Orders
126․I make the following orders:
(1)The offender is convicted of the offence of aggravated robbery (CC2023/12305).
(2)The offender is convicted of the offence of assault occasioning actual bodily harm (CC2024/6566).
(3)The good behaviour orders imposed by Murrell CJ on 9 May 2014 in respect to the offences of burglary (XO2013/30024), theft (CH2010/283) and threat to kill (XO2014/30084) are cancelled.
(4)The 1 year and 8 months of imprisonment outstanding on the suspended sentence order in respect to the burglary offence (XO2013/30024) is imposed. This period of imprisonment is to commence on 12 April 2024 and end on 11 December 2025.
(5)The 5 months of imprisonment outstanding on the suspended sentence order in respect to the theft offence (CH2010/283) is imposed. This period of imprisonment is to commence on 12 April 2024 and end on 11 September 2024.
(6)The 1 year and 10 months of imprisonment outstanding on the suspended sentence order in respect to the threat to kill offence (XO2014/30084) is imposed. This period of imprisonment is to commence on 12 June 2024 and end on 11 April 2026.
(7)For the offence of aggravated robbery (CC23/12305), I impose a sentence of 3 years and 9 months of imprisonment to commence on 13 April 2025 and end on 12 January 2029.
(8)For the offence of assault occasioning actual bodily harm (CC2024/6566), I impose a sentence of 11 months and 7 days of imprisonment to commence on 5 August 2028 and end on 11 July 2029. Pursuant to s 72(3) of the Crimes (Sentencing) Act 2005 (ACT), I order that the sentence is to be served partly concurrently with the sentence imposed on the aggravated robbery offence (the existing sentence).
(9)The total period of imprisonment is 5 years and 3 months. The non-parole period is to start on 12 April 2024 and end on 7 June 2027.
(10)Pursuant to s 67 of the Crimes (Sentencing) Act 2005 (ACT) I make the following recommendations in relation to conditions for parole:
(a)Mr Brooks is to submit to assessments in relation to his psychological, physical, neurological and/or psychiatric wellbeing for the purposes of confirming, clarifying or identifying medical and other supports that can be made available to him.
(b)Mr Brooks is to be supported where possible by First Nations specific service providers to assist him to:
(i)re-integrate into the community;
(ii)identify suitable education, training and employment opportunities;
(iii)attend and engage with long term drug and alcohol support, including First Nations specific residential rehabilitation.
| I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: O Ferguson Date: 25 February 2025 |
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