Director of Public Prosecutions v Campbell (No 2)
[2024] ACTSC 105
•11 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Campbell (No 2) |
Citation: | [2024] ACTSC 105 |
Hearing Dates: | 22 March 2024 |
Last Submission: | 8 April 2024 |
Decision Date: | 11 April 2024 |
Before: | Taylor J |
Decision: | See [126]-[128]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – attempted aggravated robbery – assault occasioning actual bodily harm – damage property – possess offensive weapon with intent to use – two counts of aggravated robbery – significant criminal history – some prospects of rehabilitation – where offender has a significantly disadvantaged childhood, trauma and mental ill-health – Bugmy and Verdins considerations – parity – existing sentence of imprisonment – resetting of non-parole period – sentence of imprisonment imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 33, 35 Criminal Code 2002 (ACT), ss 44(9), 45A, 310, 403(2) Crimes Act 1900 (ACT), ss 24, 381 Magistrates Court Act 1930 (ACT), s 90B |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions v Campbell [2023] ACTSC 307 DPP v Djerke [2024] ACTSC 34 Director of Public Prosecutions v JJ (No 2) [2024] ACTSC 74 Director of Public Prosecutions v Moala (No 3) [2023] ACTSC 306 Director of Public Prosecutions v Sims [2024] ACTSC 49 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Henry v The Queen [2019] ACTCA 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Imbornone v R [2017] NSWCCA 144 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360; Laipato v The Queen [2020] ACTCA 35 Leeson v Grech [2023] ACTSC 355 McCurley v Stirling [2024] ACTSC 41 Mill v The Queen [1988] HCA 70; 166 CLR 59 Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Palijan v R [2010] NSWCCA 142 R v Robertson [2010] ACTCA 19 R v Carberry [2022] ACTSC 208 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Dawson [2022] ACTSC 64 R v Deng [2022] ACTSC 143 R v Evans; R v Reid [2020] ACTSC 169 R v Hall (No 2) [2022] ACTSC 22 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hodge [2015] ACTSC 214 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lovelock [2014] ACTSC 229 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Millwood [2012] NSWCCA 2 R v Redmond (No 2) [2022] ACTSC 295 R v Taouk (1992) 65 A Crim R 387 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Verdins [2007] VSCA 102; 16 VR 240 R v Watson [2021] ACTSC 339 R v White [2023] ACTCA 35 Smith v The Queen [2011] NSWCCA 163 Taylor v R [2014] ACTCA 9 The Queen v Ruwhiu [2023] ACTCA 18 Thompson v The Queen [2018] ACTCA 2 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Williams-Savage v The Queen [2022] ACTCA 58 |
Parties: | Director of Public Prosecutions ( Crown) Aaron Kenneth Campbell ( Offender) |
Representation: | Counsel M Howe ( Crown) K Musgrove ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Briggs Law ( Offender) | |
File Numbers: | SCC 235 of 2022 SCC 236 of 2022 SCC 238 of 2022 SCC 279 of 2022 |
TAYLOR J:
Introduction
1․The offender, Aaron Kenneth Campbell, is to be sentenced for offences committed in February and April 2022. The offences include aggravated robbery offences. The offender has a long and depressing history of persistent engagement with the criminal justice system. That history is properly understood through the prism of his profound childhood disadvantage that included exposure to child sexual abuse. It is a history that set the offender firmly on a pathway to addiction, which in turn has directly contributed to his preparedness to inflict harm upon others. The offender is an example of the failure of the criminal justice system to effect meaningful change in the lives of long-term offenders who have entrenched addiction to illicit substances, arising from childhood trauma and disadvantage.
2․The offender is now a man in his late thirties and presents to the Court as finally having developed some insight into his offending conduct. The development of insight has revealed itself not only in the way the offender speaks about his offending conduct and its effect on others, but also, perhaps more significantly, in his behaviour in the custodial environment. For the first time in recent history, he is engaged in a ‘job’ that carries responsibility and he is goal-oriented with respect to his finances. There is no doubt that the seriousness of the offending warrants a period of imprisonment. The development of insight does provide a foundation for cautious optimism in relation to his prospects for rehabilitation and for crafting a sentence that holds the offender accountable for his conduct, without extinguishing the potential for rehabilitation. As is often the case with sentencing, achieving that end is finely balanced and requires consideration of a number of factors that pull firmly in different directions.
3․On 30 October 2023 I found Mr Campbell guilty of the following offences (the February 2022 offences) after a judge-alone trial:
(a)Count 1 (CC2022/4946): Attempt aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (the Criminal Code), which carries a maximum penalty of 2,500 penalty units, 25 years of imprisonment or both.
(b)Count 2 (CC2022/4943): Assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (the Crimes Act), which carries a maximum penalty of 5 years of imprisonment.
(c)Count 3 (CC2022/7588): Property damage contrary to s 403(2) of the Criminal Code, which carries a maximum penalty of 1,000 penalty units, 10 years of imprisonment or both.
4․The offender was also found guilty of a related summary charge, transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT):
(a)CC2022/4945: Possess offensive weapon with intent contrary to s 381 of the Crimes Act, which carries a maximum penalty of a fine of $2,000, 1 year of imprisonment or both.
5․Additionally, the offender entered pleas of guilty to a separate series of offences (the April 2022 offences) committed with a co-offender, Ivan Djerke:
(a)Count 1 (SCCAN2022/213): Aggravated robbery contrary to s 310 of the Criminal Code by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2,500 penalty units, 25 years of imprisonment or both.
(b)Count 2 (SCCAN2022/214): Aggravated robbery contrary to s 310 of the Criminal Code by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2,500 penalty units, 25 years of imprisonment or both.
6․During the course of the sentencing hearing on 22 March 2024 the offender sought the opportunity to put further documentation before the Court. The prosecution did not object to the offender having that opportunity and leave was granted for any further material to be filed and served. On 8 April 2024 the offender indicated through his representative that he did not seek to rely on any further documentation.
7․The offender is now to be sentenced for all offences.
Facts
The February 2022 offences: SCC 236 & 238 of 2022
8․The facts I found in relation to the offending are set out in full in my reasons in DPP v Campbell [2023] ACTSC 307 at [124]. In summary, the circumstances of the offending were as follows.
9․In the early hours of 11 February 2022, the victim drove his vehicle to a car wash in Calwell, the Australian Capital Territory (ACT). He arrived there expecting to meet with someone who called himself “Chris”, having earlier received a phone call from “Chris” and arranging to meet with him. The purpose of the meeting was undetermined at trial. The victim stopped in one of the car-washing bays and while sitting in his vehicle saw another vehicle arrive at the car wash. The offender was in this vehicle and once parked, he got out of the passenger door and approached the victim’s vehicle on the driver’s side. As the offender got closer to the victim’s car, the victim recognised him as Aaron Campbell, who he knew from previous interactions. While the offender was running towards the vehicle, he brought a machete out from behind his back and then raised the machete and struck the driver’s side window, causing the window to smash (Count 3 – property damage).
10․The victim put his vehicle into reverse and accelerated back to get away from the offender, colliding with a pillar which caused the vehicle to stop. He got out of the vehicle and the offender said words to the effect of “where are the drugs” or “where are your drugs” while holding the machete (Count 1 – attempted aggravated robbery). The offender then swung the machete and struck the victim, hitting the left side of his head above his ear, and his right hand, causing bleeding to both areas (Count 2 – assault occasioning actual bodily harm). The victim then ran to a nearby service station and the offender gave chase for a short period. He then returned to the car wash and looked in the victim’s vehicle before fleeing the scene. The victim sought assistance from the service station attendant who called police and ambulance services. The service station attendant observed blood coming from the victim’s hand and head. The victim retrieved his vehicle from the car wash and drove it to the service station while waiting for emergency services to attend. Once the ambulance and police arrived, the victim was assessed and then taken to The Canberra Hospital. He sustained a scalp laceration and a laceration to his right ring finger.
11․The interaction between the victim and the offender was partially captured on Closed Circuit Television (CCTV) footage.
The April 2022 offences: SCC 279 of 2022
12․On 14 April 2022, the offender and the co-offender, Mr Ivan Djerke, entered a residence in Kambah through an unlocked door. This was captured on CCTV footage. They walked into the kitchen wearing medical face masks, gloves and hoods and were carrying knives. The victim was asleep on the lounge. The victim was known to co-offender Djerke; they had met once previously. The victim yelled out, “who is there?”. The offenders entered the loungeroom and the victim got up from the lounge. They took her into the kitchen. The offender held a knife to the victim’s left pinkie finger and repeatedly asked “where’s the money?”. She replied, “I don’t know”, “I don’t have any money” and “there’s no money”. One of the offenders punched the right side of her face, causing swelling. The offender asked, “are there any drugs in the house?”. The victim responded, “just that”, pointing to cannabis butter that was on the table. The co-offender said, “last time I was here, it was in the cupboard”. The co-offender checked the cupboard and said, “yeah, I heard you been doing good”.
13․The offender continued to ask her for money and threatened her with the knife, holding it near her for at least two minutes. He then stopped and went to search the rest of the house. While this was occurring, the co-offender was also going through the house. The co-offender then held a knife near the victim’s throat, asked where her phone and laptop were and demanded the passwords to them. The co-offender asked the victim for the password to her phone. The victim wrote down the password incorrectly and one of the offenders then punched her in the cheek with his fist, causing bruising and swelling. The co-offender then held the knife to her throat and asked for the password again. The victim typed the passwords into her phone and laptop while the co-offender wrote them down. The co-offender went through her wallet and handbag and took her car key. The offenders asked the victim to go to the back bedroom and lie on her stomach for five minutes while they left. The co-offenders stole her phone, laptop, car key and three toolboxes and drove away in her car, a 2005 Subaru Forester.
14․The victim attended the home of a neighbour who noticed she had bruising underneath her eye, a cut lip and was not wearing any shoes or socks. She was crying and distraught and repeatedly asked for police to be called. When police arrived she told them that Ivan Djerke and another male had robbed her.
15․After her phone was taken, the password to her internet banking account was changed without her permission and the amount of $323 was transferred from the victim’s bank account to an account in the name ‘D TOWNEY’ without her permission. Between 18 and 21 April 2022 her ‘DoorDash’ account was used to order food from four different stores to an address in Coombs, where the co-offender lived at the time. The victim’s Uber account was also used to book a ride from Civic to an address in Coombs.
16․On 15 April 2022, the co-offenders entered a residence in Holt by creating a hole in the back laundry door. Co-offender Djerke kicked a bedroom door open and entered holding a machete. The first victim was in the bedroom. The machete was about one metre long and was in a black case. The co-offender swore at the first victim, told her to “get on the ground” and asked for money. The first victim lay on the ground and the co-offender left the bedroom. While the co-offender was in the first victim’s bedroom, the offender entered the bedroom of the second victim holding a crowbar and demanded she get up. The second victim was holding her phone, having attempted to call her brother after hearing banging noises. The offender said to her, “give me your phone, or I’m going to stab you”, and the second victim gave her phone to him.
17․The third victim entered the bedroom, yelled “get out, get out” and tasered the offender. The offender immediately hit him with the crowbar, once on his right forearm and once on his left forearm, knocking the taser out of his hands. The third victim sustained some minor injuries from being hit with the crowbar.
18․The second victim asked the offender “what do you want?”. He said, “I want money” and asked for the second victim’s mother, who he thought was a drug dealer. The second victim replied, “I don’t know where she is. She’s not home”. The offender threatened to hurt their dog if the third victim did not stop yelling. As they were yelling, the co-offender came from behind and pulled the third victim away. The second victim said, “I don’t know why you’re here. I don’t know why you wanna see my mum, but we’re just kids, so can you leave”. The co-offender said, “yeah, okay, I’m sorry” and took a Bluetooth speaker and a CCTV system hard drive from the second victim’s bedroom. The offender returned the second victim’s mobile phone to her before they departed. The first and second victims called the police and told them about the incident, reporting that one of the men was Ivan Djerke.
19․Co-offender Djerke was arrested by police on 17 April 2022. A search warrant was carried out at his residence in Coombs on 22 April 2022. Police located, among other things, the Kambah robbery victim’s mobile phone. Her Subaru Forester was found in a carpark in Ainslie. While police were waiting for the vehicle to be towed away, they observed the offender walk into the carpark and approach the driver’s side of another vehicle and unlock it. This vehicle was later searched in May 2022 and the keys to the Forester were found in the glovebox of the vehicle. The Forester was towed to Australian Federal Police premises and forensically examined. The co-offender Djerke could not be excluded as a contributor from the mixed DNA profile found in the trace DNA samples taken from the car.
Victim impact statement
20․One of the victims of the Holt aggravated robbery on 15 April 2022 provided a victim impact statement. He was 17 years old at the time of the offending, and sustained minor injuries from the offender hitting him with a crowbar. The offending left him and his 17 year-old sister “traumatised” and struggling with “fear, anxiety and nightmares related to the break in”. He wrote of the “horrifying” threats made during the incident and that he and his sister were screaming and begging them to leave. The offending has clearly had a long-lasting psychological and emotional impact upon the victim. Recognition of the harm done to all the victims of the offending must feature as part of the sentencing outcome.
Sentencing considerations
21․There are a number of factors that must be taken into account, where they are known and relevant, pursuant to s 33 of Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act). In so far as those factors apply to the circumstances of this offending and the offender, I have included them in the matters referred to below.
22․I wish to record that I was comprehensively assisted by counsel who appeared at the sentencing hearing. They both prepared comprehensive and thoughtful written submissions that were complemented by targeted oral submissions. There were no matters of significant contest as between the parties.
Nature and circumstances of the offending
23․An assessment of the nature and circumstances of the offending includes consideration of the objective seriousness of the conduct. The maximum penalty serves as an “indication of the relative seriousness of the offence”: Muldrock v the Queen [2011] HCA 39; 244 CLR 120 (Muldrock) at 133 [31]. The maximum penalty for the robbery offences reflects that they are serious offences. A sentencing court is required “to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock at 132 [29].
24․An assessment of where the offending conduct sits on the spectrum of offending is an important part of the sentencing task, though does not require the offence to be plotted as a point on a hypothetical scale: see R v Kilic [2016] HCA 48; 259 CLR 256 at 266 [19] and DPP v Moala (No 3) [2023] ACTSC 306 at [22]. In Director of Public Prosecutions v JJ (No 2) [2024] ACTSC 74 at [45]-[56], McWilliam J comprehensively examined what might appear to be, at first glance, a tension between the requirement to assess where offending sits on the spectrum and an approach that does not specifically express the assessment of the offence in terms such as “low, mid or upper” range, before concluding at [57]:
What may be taken from cases such as Kilic, Forster-Jones, Toumo’ua and Miller is really that labels are permissible, providing they are properly understood from the context and not a bare replacement for the assessment of gravity itself. Where their use may be a source of confusion, they will be unhelpful and should therefore be avoided.
25․I embrace her Honour’s conclusion and, in this matter, consistent with R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v the Queen [2020] ACTCA 35 at [156], I identify those features of the conduct that inform the objective seriousness of the offending.
26․A number of general statements as to the gravity of the offence of robbery were drawn to my attention: see R v Robertson [2010] ACTCA 19 at [9]. Those statements make plain the unequivocal condemnation of courts of this offence type, in particular where the offending is committed in the context of invading the sanctity of a victim’s home, as was the case in two of the offences: see Palijan v R [2010] NSWCCA 142 at [22] and R v Hodge [2015] ACTSC 214 at [36].
27․The maximum penalty for the offence of aggravated robbery, being 25 years of imprisonment or a fine of $400,000 or both, indicates the very real seriousness of the conduct. Such a yardstick reveals it to be an offence among the most serious of criminal offences in the ACT criminal calendar, 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].
28․As the factors identified below reveal, these offences were of considerable seriousness and require the imposition of significant periods of imprisonment.
February 2022 offences
29․The February 2022 offending involves an ‘attempt’ aggravated robbery offence. While the offender stands to be punished as if the offence had been committed (s 44(9) of the Criminal Code), an attempt offence may attract a lesser sentence on the basis that the offence is incomplete: see Williams-Savage v The Queen [2022] ACTCA 58 (Williams-Savage) at [32]. The seriousness of the attempt must be assessed as well as the surrounding circumstances, the level of determination and sophistication: R v Taouk (1993) 65 A Crim R 387 (Taouk) at 391 and Williams-Savage at [32].
30․Relevantly, in Taouk, Badgery-Parker J observed at 391:
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 that a naive 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 naive 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 naive 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.
31․This was not an offence “predestined to fail”. While the offending was not especially sophisticated, it was an attempt that very nearly succeeded. The offender set the scene to maximise his chance of success by luring the victim as he did to a somewhat isolated venue under false pretences. The offending in this case was only incomplete because the offender was unsuccessful in taking any property from the victim. It could not be said that this was for want of trying on the offender’s part. Rather it was the escape of the victim that saw the offence incomplete and even then, the offender pursued him on foot for a period. The offending was pre-meditated. The offensive weapon used by the offender, a machete, was capable of inflicting severe damage and engendering fear by its very nature. The offender is to be punished separately possession and use of the weapon and I make clear that I am not including that conduct as part of the assessment of the seriousness of the attempt aggravated robbery offence.
32․The offender’s approach to the vehicle and smashing of the driver’s side window made plain his determination to engage in the offending from the moment of contact with the victim. The offender’s evident determination, including pursuing the victim after he reversed his vehicle and when he fled the scene, would have been frightening and intimidating. In my view, despite the incomplete nature of it, the circumstances of the offending see it as a serious example of the offence.
33․The assault occasioning actual bodily harm charge relates to a blow struck to the head of the victim with the machete, as he attempted to flee the offender. A significant factor is often the nature of the injury: see R v Redmond (No 2) [2022] ACTSC 295 at [12]. The injury relied upon was not particularly serious, though caused bleeding and, undoubtedly, pain and discomfort.
34․The damage property offence related to the smashed driver’s side window of the victim’s vehicle occasioned by the offender striking it with the machete. I am satisfied beyond reasonable doubt that the offender was motivated to frighten the victim and communicate to him that the offender posed serious threat to him. There was no evidence provided as to the value of the item though I accept that it would have come as an inconvenience and at some cost to the victim: see R v Dawson [2022] ACTSC 64 at [41].
The April 2022 offences
35․Both offences of aggravated robbery were committed by joint commission, pursuant to s 45A of the Criminal Code. The objective seriousness of an offence committed by virtue of this section involves an assessment of the objective seriousness of the offence itself as well as a consideration of the nature and extent of the offender’s involvement in the commission of the offence.
36․The offences share common features that influence the objective seriousness of the offending. The offending in each instance was committed after the offenders trespassed in the homes of the victims at night and involved the actual use of weapons against them. They are both offences properly characterised as “home invasions”. Each robbery involved a level of planning, although were not, it must be said, especially sophisticated. The offending went on for some time in that it involved the offenders moving around the home. On each occasion the offenders played significant roles such that there is no real basis to differentiate as to the extent of their involvement. Property was taken from each home including a vehicle that was eventually returned. The loss of the property would have caused inconvenience, concern and some financial hardship. The second April 2022 offence saw damage occasioned to a door in order for the offenders to gain access to the home.
37․Both offenders contributed to the environment of threat and fear intended to achieve the acquiescence of the victims. Two of the victims of the offender in the 15 April 2022 offence were young people, being 17 years of age.
38․Both of the April 2022 offences were, on any view, serious examples of the offence.
Conditional liberty
39․The offender was on parole for offences including attempted aggravated robbery and on bail for an offence of aggravated robbery at the time of the offending. This represents a betrayal of the opportunity to be in the community: R v Tran [1999] NSWCCA 109 at [15]:
…Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.
40․The commission of these offences while in the community after being released on parole and on bail is an aggravating factor at sentencing and is relevant to determining an appropriate sentence but is not relevant to an assessment of the objective seriousness of the offending: Smith v The Queen [2011] NSWCCA 163 at [26]. I bear in mind that I must avoid double punishment of the offender: Kelly v Ashby [2015] ACTSC 346 at [61].
Subjective circumstances
41․The material before the Court includes a Pre-Sentence Report completed in October 2023, updated in March 2024. It also includes a report from psychologist Ms Leesa Morris, a functional assessment conducted by occupational therapist Ms Michelle Sullivan, and other documents from the Alexander Maconochie Centre (AMC) regarding programs the offender has engaged in.
42․A consistent theme from the reports is the positive steps the offender has taken in this most recent period of full-time incarceration, assisted by the structured environment of a custodial setting. The steps are to be viewed as particularly significant in the context of his history of failing to engage and reoffending. The influence of the combined effect of the offender’s numerous psychological challenges and intellectual capacity on his functional capability in the community remains a shared concern. This suggests a real risk that the offender has become or is becoming, institutionalised and highlights the need for a strict regime of supervision when he does transition back into the community as he will be required to do sometime in the future.
Pre-Sentence Report
43․The offender is a 37 year old man with a lengthy criminal history across both New South Wales (NSW) and the ACT. Although he has, during previous periods of incarceration, been the subject of disciplinary action in custody, the author noted that during his current period of incarceration his behaviour has been positive, and he has not been the subject of any disciplinary action.
44․The offender described having a difficult upbringing, with both he and his mother experiencing physical violence from his father, who was a heavy user of alcohol. His father would regularly physically assault him, as well as belittle and criticise him. He regularly fled the family home to escape his father and from age 13 onwards he often “slept rough”, occasionally staying with friends. He was also expelled from school at age 13 due to his escalating use of illicit substances and conflict with teachers. The offender disclosed he was the victim of sexual abuse at 15 years old when residing at a boys’ home in NSW. The author considered that the offender demonstrated insight into how his childhood had affected his development. The offender reported that although his sisters had also experienced problems with drug use and antisocial behaviour due to their similarly difficult childhoods, they are now pro-social and supportive of him. He has a close relationship with his family apart from his father.
45․The offender has had four significant intimate relationships in his life. He acknowledged that there was domestic violence in one of these relationships which he believed was influenced by their heavy use of illicit substances. He is currently in a relationship with his partner of two years. He is stepfather to her children. He described his family as a motivating factor, and his mother verified this information.
46․The offender had a limited education, leaving school at age 13. He reported that despite completing a literacy and numeracy course after leaving school he has continued to struggle with literacy. He has had limited success with employment in the community.
47․The author considered that he demonstrated insight into the financial motivation behind the April 2022 offending; he had limited money due to his heavy use of illicit substances and this contributed to the offending. He intended to lodge an application with the National Disability Insurance Scheme (NDIS) upon release, due to ongoing mental health issues and previous head injuries.
48․The offender has limited pro-social friends in the community. Many of his friends are serving long prison sentences. He identified that these relationships, including with previous romantic partners, had encouraged him to lapse into substance abuse in the community. He wished to distance himself from these individuals if released and focus on his family and partner.
49․The offender reported a lengthy history of drug use commencing at a young age when he started smoking marijuana. By the age of 12 he had moved to intravenous use of heroin, methamphetamine and amphetamine. He struggled most with use of methamphetamine and heroin. He demonstrated significant insight into his use of illicit substances, stating that he felt better able to limit and control his drug use while under strict supervision in the community.
50․He engaged consistently with buprenorphine treatment for 18 months in custody. He advised that methadone treatment in the community had not prevented illicit substance use but made it more manageable. He had used illicit substances in the AMC to a limited extent in his transition to buprenorphine. He advised he had been completely abstinent for approximately 12 months, noting the prohibitive cost of illicit substances in the AMC.
51․The offender has current diagnoses of post-traumatic stress disorder (PTSD) and depression for which he is medicated. He described recurrent flashbacks to being sexually assaulted. He also disclosed that he struggles with emotional regulation and identified that his mental health had contributed to other risk factors in his life. He reported various significant head injuries throughout his life, which a psychiatric assessment indicated may have caused brain damage. He intends to engage with the NDIS for support with everyday tasks he struggles with, such as cleaning, grocery shopping and driving upon his eventual release from custody.
52․In regard to his attitude to his offending, he demonstrated insight into the drivers behind his offending, but did not want to excuse his actions and recognised the harm and fear caused to the victims. He described his behaviour as appalling and expressed a desire to engage in restorative justice. The author of the report considered he displayed empathy for the victims and accepted responsibility for the offending.
53․The author noted that previous periods of supervision appear to have had little deterrent effect, with the offender struggling with abstinence and re-offending.
54․An updated pre-sentence report from March 2024 noted the offender has had only one negative case note in custody for smoking a cigarette. He has moved into a ‘cottage’ at the AMC and has been approved for a trusted work position in electrical maintenance. He expressed enthusiasm about this role.
55․His partner has recently been incarcerated and he has been approved for inter-jail visitation with her due to positive behaviour. He feels responsible for her arrest as he feels he left her with no money or support in the community. Their children do not visit as he does not wish for them to be exposed to a correctional centre.
56․He acknowledged he would struggle to hold a full-time job in the community and reiterated his desire to engage with NDIS. He expressed the positive impact of his job in custody on his mental health. He has been saving most of the income he is earning while in custody. He has also received a ‘payout’ associated with a claim relating to the sexual abuse he suffered as a teenager in a boys’ home.
57․He reported continued abstinence from illicit substances and engagement with buprenorphine treatment. He intends to transition back to methadone treatments in the community. He provided three urinalysis samples with no illicit substances detected and engaged in the SMART recovery program, attending all sessions. The offender continues to comply with mental health medication and feels he would benefit from accessing psychological support.
58․He demonstrated continued insight into his offending, including the driving forces of his financial stress and illicit substance abuse. He acknowledged the impact on the victims’ mental health and wished to apologise.
59․The offender expressed that he would benefit from a strict community-based order to monitor and restrict his use of illicit substances. The author considered the offender would require intensive support to reintegrate into the community and maintain a pro-social lifestyle, despite his positive progress in custody.
Psychological Report – Ms Morris
60․The offender was assessed by psychologist Ms Leesa Morris on 28 July 2023. Ms Morris reported that the offender “presented as an amiable man who demonstrates some pride in his abstinence from substances and ability to earn privileges during his current custodial period”. The offender described this as new, Ms Morris finding this to be the product of “intentional and persistent” efforts. Ms Morris noted diagnoses of Complex PTSD, Attention Deficit Hyperactivity Disorder (ADHD) and mild Intellectual Development Disorder (IDD), with two substance use disorders. The psychological conditions have impacted the offender from birth, the substance abuse disorders since his adolescence.
61․Ms Morris assessed the offender as requiring a moderate to high level of intervention to reduce his risk of re-offending. She suggested a residential rehabilitation program and further psychological intervention.
62․Ms Morris comprehensively detailed the offender’s history recording his childhood exposure to alcohol and drug abuse, and family violence. The report identified that the offender left home aged 13, couch surfing and living on the streets, that he was sexually assaulted in a boys’ home and that he has something of a complicated relationship with his family, and no contact with his father.
63․He maintains regular contact with the eldest of his sisters, who Ms Morris identified as not being involved in antisocial activity, consistent with the Pre-Sentence Report. The offender told Ms Morris that his two younger sisters are “in and out of jail”. The offender lost two close friends to suicide during his adolescent years. Ms Morris identified the offender’s limited employment history. The offender reported to her that he particularly enjoyed his current position in the AMC.
64․The offender reported he first consumed alcohol aged eight years old and was drinking a “goon bag” on weekends by Year Six. The offender began heroin use at 13 years old, followed by amphetamines around the age of 15. The offender commenced methadone treatment when he was 16 years old. Ms Morris noted that the offender was inconsistent in his compliance in 2017, aligning with increased substance use and hospitalisation due to intoxication. The offender reported that the only periods he has abstained from substances has been in custody.
65․Ms Morris assessed the offender as meeting the criteria for Opioid Use Disorder, Severe in sustained remission, in a controlled environment and Stimulant Use Disorder, Amphetamine-type substances, Severe in sustained remission, in a controlled environment.
66․Ms Morris identified that the offender displayed significant trauma symptoms, arising from three occasions of sexual assault and exposure to family violence during his childhood. The offender consequently experienced distressing dreams and intrusive thoughts, and acknowledged feelings of self-blame and persistent anger. The offender said that he believed these experiences have “made [him] more violent on the world”. Ms Morris found the offender to meet the criteria for Complex PTSD.
67․The offender shared with Ms Morris that he has “no close friends anymore”, with several friends of his now also in the AMC. He noted that he does not have any pro-social friends. He told Ms Morris that during this period of incarceration he has focussed more on his behaviour.
68․When asked about the current offending, the offender told Ms Morris that he was “using drugs and one thing led to another. I never should have gone with him. I fucked up”. The offender shared that his Centrelink payments had ceased as he was not applying for jobs, explaining that he found applications difficult due to being illiterate. Ms Morris records that this difficulty was also consistent with the offender’s ADHD and intellectual challenges.
69․Ms Morris also believed that the offender’s mental health diagnoses had an impact on his offending, with the impulsiveness associated with both ADHD and Conduct Disorders likely adding to his willingness to be involved in the offending.
70․The offender expressed to Ms Morris his willingness to participate in the restorative justice process and that he was “sorry for the grief and pain [he has] caused”.
71․Ms Morris found there to be a high chance of the offender re-offending in the next 5 years based on her clinical assessment. Ms Morris suggested that the offender required a high level of intervention to reduce his risk for violent recidivism and to assist with the impact of his exposure to trauma, his neurodiversity and intellectual conditions. She noted the offender’s pride in his ability to earn privileges and his continued engagement with mental health supports. Due to his ADHD and intellectual impairment, the offender is likely benefitting from the structured environment of the AMC. Ms Morris suggested that he will require a high level of support to maintain his current level of functioning in the community.
Functional Assessment Report of Ms Sullivan
72․The offender was assessed by Ms Sullivan, an occupational therapist at the AMC. Ms Sullivan also had access to the forensic psychologist report of Ms Leesa Morris, referred to above, and a neuropsychological report of Dr Wayne Reid dated 16 April 2019.
73․Ms Sullivan noted the offender’s diagnosed conditions and his medication regime. Though the offender told Ms Sullivan that he did not maintain regular contact with health services in the community, he does attend all scheduled health appointments in the AMC.
74․The offender has engaged with counselling sessions both in the community and during his time at the AMC. The offender has also been reviewed by a Custodial Mental Health Services psychiatrist at the AMC and reported to Ms Sullivan that the medication he was prescribed following this review has stabilised his mood.
75․The offender detailed to Ms Sullivan that he had experienced substance misuse issues “all his life”. He had previously attended detoxification programs at O’Connor House and Arcadia House, as well as engaged in multiple Alcohol and Other Drug (AOD) programs during his time at the AMC. The offender commenced methadone treatment when he was 16 years old, only ceasing it upon admission to the AMC in May 2022.
76․Ms Sullivan recorded that Dr Reid found the offender “to be of borderline intellectual ability”. Dr Reid assessed the offender as having significant impairment, particularly with regards to his auditory verbal memory, information processing skills and verbal abstract reasoning.
77․The offender reported to Ms Sullivan that he had been diagnosed with multiple physical conditions impacting his capacity to engage in work tasks. The offender has a strabismus of the left eye. A discharge summary provided by Justice Health services noted that the offender requires glasses and is awaiting an ophthalmology review.
78․The offender has engaged in literacy programs both in the community and in the AMC. He has also attended educational programs in the AMC such as the Smart Recovery, First Steps and Anger Management programs. The offender identified multiple strategies to Ms Sullivan that have helped him undertake these programs.
79․The offender recounted to Ms Sullivan experiencing difficulty managing his finances in the community and has a history of being cut off from Centrelink payments due to non-compliance, consequently leading to him having Centrelink debt.
80․Ms Sullivan assessed the offender in various areas of functional capacity. Consistent with Ms Morris, Ms Sullivan considered that the offender may find it difficult to maintain a daily routine without the structured environment of the AMC. The offender’s ability to be employed is significantly impacted due to low literacy, difficulty concentrating for more than 10 minutes, difficulty following complex verbal instructions and his physical limitations.
Letter from AMC Support and Intervention Unit
81․The offender provided a letter detailing the numerous services he has engaged in with the Supports and Interventions Unit at the AMC. The letter outlined that the offender attended six counselling sessions in 2022.
82․The offender has also participated in several training programs. He successfully completed an eight-week training program to become a Peer Listener, making him eligible to now be employed in this capacity in the AMC. The author noted this is a trusted position, and that Peer Listeners “are expected to uphold a high standard of behaviour, and to model and encourage their peers”. The offender also completed the Quit Smoking training facilitated by the Cancer Council in July 2023. The offender was noted to interact well with both peers and staff and to have actively engaged in the program.
Remorse, rehabilitation and degree of responsibility for the offending: Bugmy and Verdins
83․The offender presents with complex personal circumstances, that feature a history of childhood disadvantage, trauma, mental ill-health, entrenched addiction and cognitive dysfunction. The interaction of those circumstances with each other, and the influence of them on the offender’s moral culpability, is perhaps obvious but not straight-forward. They are also factors that influence an assessment of the offender’s prospects for rehabilitation and the need to protect the community.
84․The offender expressed remorse to the author of the Pre-Sentence Report. He acknowledged the appalling nature of the offending, recognised the impact on the victim’s mental health, displayed empathy for the victims, and wished to apologise and engage in restorative justice. He similarly expressed remorse to Ms Morris, stating he was “sorry for the grief and pain [he has] caused”.
85․The offender expressed remorse verbally in court, stating:
I just want to apologise, your Honour, for the violent crimes I've committed in Canberra on the streets and the people I hurt. I've had a lot of time to think about it. It's not the way to be done in life. I've had a hard upbringing and that and - and I've used - and I've used that against other people and that which I know I shouldn't have. This time in jail, I - I've got a lot of things in place and a lot of people that can help me when I get out this time. So I just want to let you know that.
86․The prosecution conceded that some remorse has been demonstrated. Of course, the statements made by the offender are untested and I bear that in mind: see Imbornone v The Queen [2017] NSWCCA 144 at [57]. That said, I am satisfied the offender has expressed some remorse which seems to me to be connected to his ongoing development of insight. Remorse is relevant to an assessment of the offender’s likelihood of re-offending and prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41]. As the High Court recognised in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537 [32], “rehabilitation, if it can be achieved, is the most durable guarantor of community safety and is clearly in the public interest”.
87․Counsel for the offender carefully detailed the positive steps the offender has taken while in custody, highlighting his abstinence from drug use and the newfound dignity and purpose that his employment at the AMC has promoted. While accepting that any prospect of rehabilitation remains guarded, counsel suggested that when viewed against the backdrop of his appalling history, his past behaviour while incarcerated and his long-term addiction, his progress is significant. Further, the offender continues to use his time in custody meaningfully, taking several proactive steps to prepare for life when he is eventually released, pursuing engagement with the NDIS and nominating a power of attorney to assist him with financial and legal affairs. The prosecution accepted the offender’s progress provides “some light at the end of the tunnel” though reasonably cautioned that the demonstrated progress must be balanced against his known criminal history.
88․It may be, consistent with a developing level of insight, that the offender is reflecting on his life as a man in his late thirties, having spent years in prison that he will never get back. An increase in maturity that hopefully accompanies ageing, could be responsible for the offender’s commitment to more positive and meaningful engagement while incarcerated and significantly, to abstinence while in custody. There is some empirical support for the idea that getting older can influence rehabilitative prospects, referred to by McCallum CJ when the co-offender was sentenced: see DPP v Djerke(No 2) [2024] ACTSC 341 (Djerke (No 2)). While her Honour was specifically referring to ‘older’ participants in the Drug and Alcohol Sentencing List, in my view the rationale is applicable to this offender. The Chief Justice observed at [23] (emphasis added):
I note, however, that in a review of the Drug and Alcohol Sentencing List prepared by the Australian National University, the empirical evidence is that older participants can have greater success on a DATO [Drug and Alcohol Treatment Order]: see ACT Drug and Alcohol Sentencing List: Outcome Evaluation, 66. That is thought to be because they will have reached a point where they have a better appreciation of the negative impact of drug abuse on their lives and are better equipped emotionally to develop the resolve necessary to make some change: 35.
89․I am satisfied that the offender has demonstrated genuine commitment to reform while he has been in custody. Given the lack of guidance in his formative years, and against the background of behaviour that has seen him a regular user of a revolving door into the AMC, this commitment is significant and does provide a basis for cautious optimism. That said, critical to the offender’s progress is the structured environment that a custodial setting provides. The parole authorities will be well placed to scrutinise the offender’s ongoing progress and to structure community support to give the offender the best chance of maintaining any progress when he transitions to live in the community.
Bugmy considerations
90․The observations extracted above from the various reports detailing the offender’s background and personal circumstances confirm that the offender experienced significant family violence from a young age, was the victim of sexual assault in a boys’ home as a teenager and consequently received limited formal education. He has been diagnosed with complex PTSD, ADHD, mild IDD, opioid use disorder and stimulant use disorder, as well as, potentially, conduct disorder.
91․There is undoubtedly a strong link between the offender’s childhood and his persistent engagement with the criminal justice system. The offender’s disadvantaged childhood must be given full weight: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) at 595 [44]. By virtue of his childhood circumstances he is a person who will necessarily “have fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed at [69]).
92․As the Court of Appeal observed in MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62], citing Bugmy at [43]:
[T]he moral culpability of an offender may be reduced by a dysfunctional upbringing (for which the offender cannot be held responsible) as it may thwart the offender’s capacity to mature and thus explain their criminal behaviour.
93․The offender’s childhood has little to recommend it. Ms Morris reports illicit substance use from around grade three of primary school, a time when a child’s challenges should be limited to understanding mathematics and grammar, blissfully ignorant of the perils of illicit substance use. Consistent with R v Henry [1999] NSWCCA 111 at [273(c)(ii)], the introduction of illicit substance use from such a tender age is a mitigatory factor on sentence. In sentencing the co-offender Mr Djerke, McCallum CJ observed at [29] that:
It is well understood that drug addiction, particularly an addiction acquired at such a tender age, is a medical rather than a moral issue and one which requires considerable support from a range of disciplines in order to be overcome.
94․In Bugmy the High Court explained a tension in the sentencing discretion where an offender’s deprived background operates to explain the recourse to criminal conduct, while at the same time increasing the significance of protecting the community from the offender. This tension, the High Court observed at 595 [44], is what “makes the exercise of the discretion so difficult”. This is a tension at play in this sentencing exercise.
Verdins considerations
95․Counsel for the offender submitted that the collective impact of the offender’s multiple diagnoses should reduce his moral culpability for the offending and reduce the significance of specific deterrence relying on R v Verdins [2007] VSCA 102; 16 VR 269.
96․The prosecution conceded that the effect of the application of Bugmy, the offender’s psychological diagnoses and his intellectual functioning, results in reduced moral culpability such that the offender could appropriately be viewed as an “inappropriate vehicle for general deterrence”.
97․I am satisfied that the offender’s childhood disadvantage explains his addiction to illicit substances from a very young age and further, that his addiction is directly linked to the offending conduct. His childhood experience does not excuse his conduct or undermine the seriousness of it, but to pretend it does not shed light on his offending would be to ignore the reality of his life and the need to deliver individualised justice.
98․The offender’s childhood disadvantage reduces his moral culpability.
99․Accordingly I am satisfied that giving “full weight” to the offender’s background as well as taking into account his psychological and intellectual challenges results in some moderation of general deterrence and denunciation. At the same time I acknowledge that those factors operate to emphasise the need to protect the community from the offender which in light of the nature of the offences, is a compelling consideration.
Criminal history
100․The offender has an extensive criminal history, spanning across many years and from both NSW and the ACT. His previous offending includes property offences, offences involving violence, weapons offences, a significant number of offences for contravening family violence orders and driving offences. He is also recorded for failing to comply with community-based orders.
101․An offender’s criminal history does not operate as an aggravating feature but can limit the leniency that may be afforded to an offender at sentencing. The pattern of criminal conduct revealed in the offender’s criminal history demonstrates that this kind of offending is not uncharacteristic: Veen (No 2) [1988] HCA 14; 164 CLR 465.
Time in custody
102․The offender is a sentenced prisoner and has not spent any time in custody solely referable to this offending.
Guilty pleas
103․The offender entered pleas of guilty for the April 2022 offences after Criminal Case Conferencing but before a trial date for the matter had been set. The timing of these pleas has utilitarian value and accordingly the offender is entitled to a discount: s 35, Crimes (Sentencing) Act.
104․Consistent with Blundell v The Queen [2019] ACTCA 34 at [12]-[13] I will apply a discount of around 15 per cent to the April 2022 offences, in recognition of the pleas of guilty.
Parity: SCC 279 of 2022
105․There being a co-offender for the April 2022 offences, I must consider the principle of parity, described as embodying the concept of “equality before the law”: see Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 at 473 [28].
106․In this jurisdiction, the Court of Appeal in Thompson v The Queen [2018] ACTCA 2 outlined the principles that apply to a consideration of parity at [24]:
The notion that like cases should be treated alike is fundamental to any rational and fair system of criminal justice: Lowe v The Queen (1984) 154 CLR 606, 610–11 per Mason J. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen [2011] HCA 49; 244 CLR 462 at [32] (Green). However, just as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).
107․The co-offender, Mr Djerke, was sentenced by McCallum CJ on 21 November 2023: Djerke (No 2). Her Honour found that the Bugmy principles were “enlivened” in sentencing Mr Djerke, and noted he commenced illicit substance abuse at a very young age: at [29]. Her Honour noted that Mr Djerke had a “significant criminal history”: at [4] and [22]. The Chief Justice indicated a starting point of five years of imprisonment for each offence, reduced to four years and three months of imprisonment to reflect the pleas of guilty. Her Honour considered that but for the course she ultimately took, the offences should be consecutive as to one year. The sentence imposed was reduced by the period the co-offender had spent on remand rather than backdated, resulting in a total period of three years and eight months of imprisonment served by way of Drug and Alcohol Treatment Order.
108․The prosecution submitted that there is little to distinguish the co-offenders in this instance and I agree. Both offenders were on conditional liberty at the time the offences were committed, and both played significant roles in the offending.
Sentencing practise
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 sentences 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).
Determination
112․The nature of the offending requires the sentencing purposes of punishment, specific deterrence, recognition of harm and protection of the community to feature as significant considerations. General deterrence is moderated to some extent for the reasons I have identified. It was accepted that the only appropriate outcome for all the offences is a period of imprisonment.
113․The offender has some prospects of rehabilitation if he can turn the steps he has taken towards reform while in custody, into significant strides once he is in the community. It is clear that he will need access to ongoing support and mechanisms for accountability, if he is to do that. In the meantime, the sentence I impose must adequately punish the offender, without crushing the aspirations he currently has for a different kind of future in the community. It is in both the offender and the community’s interest to promote those aspirations by ensuring a substantial period of parole supervision. The offender appears to have accepted that he requires a structured regime of support if he is to see any further progress upon his release into the community.
114․The sentencing task commonly takes account of the negative effect of childhood trauma, disadvantage and illicit substance use on offenders; such is the connection of those factors to criminogenic risk. The offender has consistently demonstrated a capacity for violent conduct that causes harm to others. His criminal conduct is inextricably linked to his childhood circumstances which were entirely beyond his control and unquestionably set him up for a lifetime of illicit substance use. I acknowledge that these background circumstances may be of little consequence for the victims of his violent offending and I make it clear that the offender’s conduct must be condemned. I nonetheless consider it appropriate to acknowledge the significant resilience the offender demonstrates having experienced a childhood and adolescence where he was consistently failed by those charged with the responsibility to protect him, care for him and guide him. His resilience in the face of significant adversity is a personal strength; a factor that would undoubtedly assist him to pursue meaningful rehabilitation if he is able to draw upon it.
115․There is no single correct approach to the structuring of 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 at 63 [8]. A balance must be struck between crushing any rehabilitative prospects of the offender and avoiding a perception that the commission of multiple offences will result in a discount. In this matter the February 2022 offences are part of a course of conduct committed against one victim within a short space of time, strengthening the basis for substantial concurrency. The April 2022 offences involve separate acts with multiple victims. Total concurrency as between the two offences would fail to recognise as much and result in an overly lenient sentence.
116․The offender is currently serving a sentence of imprisonment that expires on 14 April 2025 (the existing sentence). The sentencing task requires consideration of the interaction between the February and April 2022 offences (what will be the primary sentence) and the relationship between the primary sentence and the existing sentence. It follows that ss 65 and 66 of the Crimes (Sentencing) Act apply.
117․In this case the existing sentence is a combination of sentences imposed in 2019 and 2023 and includes a sentence imposed arising from a resentencing exercise. The existing sentence starts on 1 February 2018 and expires on 14 April 2025. The current non-parole period expired on 18 April 2023 and is automatically cancelled by virtue of the imposition of the primary sentence: s 66(3) of the Crimes (Sentencing) Act.
118․I must reset a non-parole period. The non-parole period that I must re-set will “be reckoned by reference to the new total effective sentence” (Leeson v Grech [2023] ACTSC 355 (Leeson) at [34]), backdated to commence at the beginning of the overall sentence which, among other things provides, “transparency as to the relationship between the total term and the non-parole period”: Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 (Millard) at 287 [84]. This will see the non-parole period commence on 1 February 2018, the start date of the existing sentence: see Leeson; McCurley v Stirling [2024] ACTSC 41 at [82]-[95]. When assessing the appropriate non-parole period, a decision invested with wide discretion, where the head sentence is a long period of imprisonment as will be the case here, the “actual period of full-time imprisonment will often be more important that its mathematical relationship with the head sentence”: TheQueen v Ruwhiu [2023] ACTCA 18 (Ruwhiu) at [112]-[113].
119․The application of s 66 of the Crimes (Sentencing) Act is designed to ensure that where an offender is serving more than one sentence of imprisonment, they will always have a single non-parole period subject to the constraint found in s 66(4) which dictates that the result of re-setting a non-parole period cannot produce an earlier parole eligibility date than that which the existing sentence imposed. Relevantly this could see the result in some cases, where the non-parole period will expire before the primary sentence commences, an entirely orthodox result: Leeson at [13].
120․The principles guiding the setting of a non-parole period have been the subject of consideration in the following cases Millard at 283-285 [61]-[66]; Taylor v R [2014] ACTCA 9 (Taylor) at [19], Henry v The Queen [2019] ACTCA 5 at [33]-[37] and Ruwhiu at [18] (citing Taylor with approval). I have had regard to the principles articulated therein. The principles apply equally to the resetting of a non-parole period: Leeson at [18]. A non-parole period is the period that justice requires the offender to serve in custody, being the minimum period of actual incarceration having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, and the offender’s prospects of rehabilitation: Ruwhiu at [18]; Muldrock at 139-140 [57].
121․In light of all the relevant factors the sentences I consider appropriate are as follows.
122․For the February 2022 series of offending:
(i)For the attempt aggravated robbery offence, 3 years of imprisonment.
(ii)For the assault occasioning actual bodily harm offence, 18 months of imprisonment, 6 months of which is to be cumulative on the attempt aggravated robbery offence.
(iii)For the damage property offence, 6 months of imprisonment which is to be entirely concurrent with the attempt aggravated robbery offence.
(iv)For the possess weapon with intent offence, 4 months of imprisonment which is to be entirely concurrent with the attempt aggravated robbery offence.
123․The starting point for the aggravated robbery offence committed on 14 April 2022 is 5 years of imprisonment reduced to 4 years and 3 months of imprisonment in recognition of the plea of guilty.
124․The starting point for the aggravated robbery offence committed on 15 April 2022 is 5 years of imprisonment reduced to 4 years and 3 months of imprisonment in recognition of the plea of guilty. I share the view expressed by the Chief Justice in sentencing the co-offender (Djerke (No 2) at [40]) that 12 months accumulation as between the two April 2022 offences is appropriate.
125․This will see a total term of 10 years, 2 months and 13 days of imprisonment. I have carefully considered the factors relevant to the assessment of the appropriate non-parole period, keeping firmly in mind the need for the offender to have access to, and the scrutiny of, a structured regime of supervision in the community and determined that a non-parole period representing around 64 per cent of the total sentence is appropriate.
Orders
126․I make the following orders with respect to SCC 235, 236 and 238 of 2022:
(1)On Count 1 (CC2022/4946) attempt aggravated robbery the offender is convicted and sentenced to three years of imprisonment commencing on 14 January 2021 and ending on 13 January 2024.
(2)On Count 2 (CC2022/4943) assault occasioning actual bodily harm the offender is convicted and sentenced to 18 months of imprisonment commencing on 14 January 2023 and ending on 13 July 2024.
(3)On Count 3 (CC2022/7588) damage property the offender is convicted and sentenced to 6 months of imprisonment commencing on 14 July 2023 and ending on 13 January 2024.
(4)On the transfer charge (CC2022/4945) possess offensive weapon the offender is convicted and sentenced to 4 months of imprisonment commencing on 14 September 2023 and ending on 13 January 2024.
127․I make the following orders with respect to SCC 279 of 2022:
(5)On Count 1 (SCCAN2022/213) aggravated robbery the offender is convicted and sentenced to four years and three months of imprisonment commencing on 14 January 2023 and ending on 13 April 2027.
(6)On Count 2 (SCCAN2022/214) aggravated robbery the offender is convicted and sentenced to four years and three months of imprisonment commencing on 14 January 2024 and ending on 13 April 2028.
128․The total sentence of imprisonment will commence on 1 February 2018 and end on 13 April 2028. The non-parole period commences on 1 February 2018 and will expire on 13 August 2024.
| I certify that the preceding one hundred and twenty-eight [128] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: A Turner Date: 11 April 2024 |
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