Director of Public Prosecutions v Collier

[2024] ACTSC 340

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Collier

Citation: 

[2024] ACTSC 340

Hearing Date: 

16 October 2024

Decision Date: 

31 October 2024

Before:

Taylor J

Decision: 

See [96].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –– arson – scheduled offence of damage property – offending committed while in lawful custody – riot – moderate criminal history including a previous offence committed in custody – no further reoffending – excellent prospects of rehabilitation – where offender has been in custody for a lengthy period – egregious delay in prosecution – no explanation for delay – existing sentence – partially suspended sentence imposed

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 72, pt 4.4

Criminal Code 2002 (ACT) ss 45A, 403, 404(1)

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42; 94 NSWLR 194

DPP v Coulter [2024] ACTSC 262

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v George [2024] ACTSC 37

Duncan v R [1983] WASC 210; 47 ALR 746

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462

Griffin v R [2018] NSWCCA 259

Hogan v Hinch [2011] HCA 4; 243 CLR 506

KR v R [2012] NSWCCA 32

Markarian v R [2005] HCA 25; 228 CLR 357

Mill v The Queen [1988] HCA 70; 166 CLR 59

Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

NC v The Queen [2017] ACTCA 31

R v Beroukas [2021] ACTSC 172

R v Blanco [1999] NSWCCA 121; 106 A Crim R 303

R v Booth [2004] ACTCA 21

R v Carpenter [2022] ACTSC 6

R v Collier (No 2) [2021] ACTSC 177

R v Collier [2022] ACTSC 18

R v David Keith Green [2019] NSWDC 66

R v Dawson [2022] ACTSC 64

R v Denniss [2019] ACTSC 283

R v Denniss [2021] ACTSC 15

R v Donald [2013] NSWCCA 238

R v Dunn [2019] ACTSC 75

R v Gay [2002] NSWCCA 6; 49 ATR 78

R v Haque [2022] ACTSC 10

R v Howsan [2020] ACTSC 172

R v Hudson [2019] ACTSC 110

R v JW [2010] NSWCCA 49; 77 NSWLR 7

R v Liang; R v Li (1995) 124 FLR 350; 82 A Crim R 39

R v MAK [2006] NSWCCA 381; 167 A Crim R 159

R v Millwood [2012] NSWCCA 2

R v Nguyen [2018] ACTSC 146

R v Rahman [2021] ACTSC 257

R v Schwabegger [1998] 4 VR 649; 38 ATR 30

R v SP [2004] ACTCA 16; 149 A Crim R 48

R v Todd [1982] 2 NSWLR 517

R v Toumo'ua [2017] ACTCA 9;12 ACTLR 103

R v UG [2020] ACTCA 8; 281 A Crim R 273

R v Wieland [2020] ACTSC 16

R v Winters [2022] ACTSC 42

R v Wrigley [2015] ACTSC 114

R v Yeaman (No 2) [2021] ACTSC 287

Sabra v R [2015] NSWCCA 38; 257 A Crim R 33

Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191

Sayer-Jones v The King [2024] NSWCCA 73

Scook v The Queen [2008] WASCA 114; 185 A Crim R 164

Stott v The Queen [2012] ACTCA 33

Veen v R (No 2) [1988] HCA 14; 164 CLR 465

Parties: 

Director of Public Prosecutions ( Crown)

Norman Robert Collier ( Offender)

Representation: 

Counsel

C Daly ( DPP)

J Purnell SC ( Offender)

Solicitors

ACT Director of Public Prosecutions

Kim Bolas Lawyers ( Offender)

File Number:

SCC 249 of 2023

TAYLOR J:   

Introduction

1․On 10 November 2020, the offender, Norman Collier, was a detainee at the Alexander Maconochie Centre (AMC).  The offender, along with several other detainee co-offenders, participated in what has been referred to during the course of these proceedings as a “riot”.  The riot saw the lighting of five fires throughout the North Wing Remand Unit of the AMC.  The fires caused extensive damage with the cost of repairs estimated to be in the vicinity of $1.6 million.  The offender is now before this Court to be sentenced for his participation in the riot.  The offender pleaded guilty to the following charge on 19 July 2024:

(a)CC2023/2524 – Joint commission arson contrary to s 404(1) and by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code).  The maximum penalty is 15 years of imprisonment, a fine of $240,000 or both.

2․Pursuant to pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act) the offender has asked the court to take into account the following offence in making a sentence-related order for the principal offence:

(a)CC2023/2525 – Joint commission damage property, contrary to s 403 and by virtue of s 45A of the Criminal Code.  The maximum penalty is 10 years of imprisonment, a fine of $160,000 or both.

Facts

Background

Layout of North Wing Remand Unit

3․The North Wing Remand Unit (‘AU North’) within the AMC in Hume, ACT is designed to house detainees.  It has an external perimeter and is secure from the rest of the AMC.  It attaches to a central access and monitoring area used by Correctional Officers.

4․AU North has two floors and is comprised of 14 accommodation cells, a laundry room, a programs room, an interview room, and a common area (‘the Dayroom’).  The Dayroom, the laundry, the programs room, the interview room and Cells 1 to 5 are located on the lower floor.  The Dayroom contains a kitchen and sink area.  Stairs in the Dayroom lead to the upper floor, where Cells 6 to 14 are located.  A large outdoor common area (‘the Courtyard’) can be accessed by a door in the Dayroom.  The Courtyard had a large concrete wall on its south side, an exterior fence along its west and north sides, and a wall on its east side which has a door to the central access and monitoring area.  The Courtyard contains outdoor gym equipment.  CCTV cameras are located in the Dayroom, the Courtyard and the area around the Courtyard. 

Identification of the offender

5․The offender Collier had a shaved head, wore no shirt, dark shorts, and dark shoes.  He has no identifiable features and was not identified by any detainee or correctional officer during the riot. 

AU North discontent

6․By November 2020, there were tensions among some detainees of AU North regarding COVID-19 related restrictions.  Limits upon visitors, no-contact visits, and internal lockdowns contributed to detainees being “pretty much on edge”. 

7․In the evening of 10 November 2020, before detainees were due to be locked-in for the evening, Correctional Officer Smith spoke to several detainees including detainee DN about the provision of cigarettes by way of supplementary buy-ups.  The cigarettes were not provided, and a perception of unequal treatment toward the detainees of AU North spread amongst detainees.  Further to this, desserts had not been made available, which led to detainees yelling at staff and agitating other detainees.

8․An agreement between some detainees was made to resist the evening’s lock-in.  KT (an inmate of AU North at the time) later told police, “it was supposed to just be a sit down, and everyone kind of – not everyone, but everyone kind of agreed to just sit down and not get locked in because we thought we were getting treated unfairly”. 

Preparatory conduct

9․The events described below were depicted on CCTV footage.

10․A detainee used white fabric to tie a door to the Courtyard to an adjacent bollard.  A detainee joined a detainee, DN, in the laundry and carried out several rolls of toilet paper and placed them on an appliance under the stairs in the Dayroom.  A detainee placed more toilet paper rolls in the Dayroom and around the Courtyard.  Co-offender George George later joined the detainee by also placing toilet paper in the Dayroom and the Courtyard. 

11․Co-offender George used a long stick to damage CCTV cameras 413 and 412.  A detainee also threw objects at these two cameras.  A detainee threw a bin at a camera.  Co-offender George attempted to obscure a camera by placing a towel on it.

12․Detainee DN approached the interior Courtyard area and made a gesture.  Shortly afterwards co-offender George and two other detainees took several plastic bags of rubbish to the Courtyard.  Detainee DN threw orange peels at CCTV cameras while this happened.

13․A detainee moved part of a tennis table in the Dayroom to cover the interior Dayroom entry door, obstructing line of sight and access through the door.  A detainee held a black and silver lighter in one hand and a roll of toilet paper in the other.  A detainee tied a blue jumper around his face.  A detainee ripped linen in the laundry into strips.  A detainee took a cardboard box and toilet paper and took them to the external Courtyard entry door and placed it at the base of the door with plastic bags of rubbish.

Damage property

14․At approximately 7.00pm, more than an hour after the disturbance started, the offender Collier and two detainees struck at a locked fire hose reel cabinet in the Dayroom to attempt to gain entry.

Fire 4

15․At about 7:30pm, a detainee kicked doors off the cabinetry in the Programs room.  He then placed them against the external door at the far end of the Courtyard.  A second detainee dragged a mattress from Cell 1 into the courtyard and added it to where the other detainee had left the doors.  The first detainee added further doors and clothing items to the pile.  Before the second detainee approached the pile, which then started to emanate smoke, creating Fire 4.  At around 7:50 pm the offender Collier added fabric items and another cabinet door to the fire.

16․Around this time, ACT Fire and Rescue (‘ACTFR’) arrived and were escorted to the perimeter by Correctional Officers carrying riot shields, and then put out the fire.

Fire 5

17․The offender and other detainees entered the Dayroom together.  One detainee took brown fabric from an appliance and took it outside to the Courtyard.  One detainee dragged a mattress from Cell 3 into the Courtyard.  The offender Collier dragged a mattress from Cell 1 into the Courtyard.  The mattresses were placed against the wall connecting the Dayroom, and smoke started rising from the ground, starting Fire 5.

18․DN handed the offender Collier a bundle of blankets and fabric, who placed them on Fire 5.  The offender had no further involvement in the riot or disturbance.

19․At around 10:06pm, ACTFR and ACT Corrective Services gained entry to the Dayroom and extinguished these fires. 

Sentencing considerations

Nature and circumstances of the offending

20․The maximum penalty reflects the seriousness of the offence (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133 [31]) and is a “yardstick” against which to assess the objective seriousness of the offending: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [31]. As part of considering the nature and circumstances of the offending, the objective seriousness of the conduct must be assessed. I approach this task bearing in mind that references to low, mid or high range objective seriousness may generally be unhelpful in this jurisdiction. I have approached an assessment of objective seriousness by identifying the features of the offending that inform it: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24].

21․The offence of arson is, on any view, a serious offence.  The Court of Appeal in R v Booth [2004] ACTCA 21 observed at [26]:

Arson is a very serious crime and the need for deterrence must generally be given substantial weight when an offender is sentenced: Small (1980) 2 Cr App R (S) 25 at 26; R v James (1981) 27 SASR 348 at 351; and Dowell (1982) 6 A Crim R 113 at 116.

22․In R v Wrigley [2015] ACTSC 114 Refshauge J set out factors relevant to the objective seriousness of the offence of arson as follows at [34]:

(a) arson may be committed for many reasons;

(b) the crime might also be committed in a wide variety of circumstances;

(c) the real gravity of the offence lies in the intent with which it is committed;

(d) the crime is often difficult to detect which generally requires a deterrent sentence;

(e) nevertheless, a custodial penalty is not inevitable;

(f) the amount of damage is relevant;

(g) there is no “tariff” for the offence;

(h) as with other offences, a significantly relevant mental health issue may result in general deterrence playing a much less significant role, but does not mean, however, that imprisonment will not be appropriate even where there are mental health issues;

(i) aggravating circumstances include that the offence is committed at night, use of an accelerant, the commission of the offence for financial gain, such as insurance fraud, commission of the offence for the purpose of revenge, commission of the offence for the purpose of destruction of evidence of other crimes and the potential risk of injury to life or serious harm to persons, including fire-fighters; and

(j) the degree of pre-meditation and the deliberate nature of the offence is important.

(Citations omitted).

23․In this matter the extent of the damage was significant and extensive, as could be seen in the photographs of the AMC tendered by the prosecution.  I repeat the observations I made in DPP vGeorge [2024] ACTSC 37 (George) at [43] and [45] regarding the factors relevant to the objective seriousness of the offence:

43.The entire conduct caused significant damage and presented risk to the participants themselves as well as other inmates and employees of the AMC.  The damage caused considerable inconvenience to inmates and to the overall management of the prison.  While there is no evidence of extensive pre-meditation or planning there is evidence of preparatory action in the immediate lead up to the commencement of the conduct, as well as conduct designed to give effect to the intention to cause chaos uninterrupted and undetected (barricading of doors, obscuring of security cameras, multiple sources of fire).  There was evidence of co-operation (a typical feature of offences committed jointly) as between the co-offenders and co-accused, indicative of their shared motivation to express their dissatisfaction with prison conditions.  I am not satisfied beyond reasonable doubt that the co-operation is evidence of planning or significant premeditation in relation to the offences of arson and damaging property.  The agreement having been made, the participants quickly moved to give it effect. 

…

45.The motivation for the offending seems to be entirely connected to a sense of frustration, perhaps even anger, felt by detainees at the conditions imposed upon them as part of the AMC’s response to the COVID-19 pandemic.  I hasten to add that acknowledgement of that motivation should not be read as any endorsement of the conduct but it would be artificial to pretend that further restriction in an already restricted environment did not have a psychological and/or emotional effect upon detainees such as the offender.  The conduct was an extreme, dangerous and ultimately, entirely senseless expression of detainee discontent.  In my view, the conduct was very deliberately crafted to maximise the chaos of the situation.  The offending is properly characterised as very serious. 

Scheduled offence

24․Unlike in George, the offender is not to be separately sentenced for the offence of damage property. Rather, pursuant to pt 4.4 of the Crimes (Sentencing) Act 2006 (ACT) (the Crimes (Sentencing) Act), this offence is to be ‘scheduled’ to the principal offence of arson, meaning I must take it into account when sentencing for the offence of arson. 

25․R v Dawson [2022] ACTSC 64 saw McWilliam J at [41] articulate those factors relevant to an assessment of the objective seriousness of the offence of damage property. They are the motivation for the offence, the extent and value of the damage and the level of inconvenience caused to the owner of the property. I have had regard to the extent of the damage and the inconvenience it represented to the operation of the prison. As in George, the prosecution did not press a specific financial valuation of the extent of the damage caused.  On any view, it was extensive. 

Assessment of involvement in the offending

26․A determination of the objective seriousness of an offence committed by virtue of s 45A of the Criminal Code requires consideration of both the objective seriousness of the offence and the nature and extent of the offender’s involvement. 

27․Participation in a joint criminal enterprise results in liability for all of the acts committed by the participants in the course of carrying out the enterprise: KR v R [2012] NSWCCA 32 (KR) at [19]. An assessment of liability or responsibility and moral culpability are relevant at different stages of the criminal process: KR at [20]. The moral culpability of an individual participant is assessed by reference to the specific conduct they engaged in as well as their subjective circumstances “in order to determine the appropriate degree of punishment”: KR at [22]. Thus, an assessment of the objective seriousness of a joint criminal enterprise offence will have limits to the amount of differentiation amongst co-offenders: Stott v The Queen [2012] ACTCA 33 at [64], citing R v JW [2010] NSWCCA 49; 77 NSWLR 7 with approval.

28․The prosecution accepted that the offender’s involvement was less than that attributed to co-offenders George and Winters.  The offender’s involvement was limited to the following acts:

(a)Striking at a locked fire hose reel cabinet in the Dayroom to attempt to gain entry. 

(b)Adding fabric items and a cabinet door to Fire 4.

(c)Dragging a mattress into the Courtyard which was used to start Fire 5.

(d)Adding a bundle of blankets and fabric to Fire 5. 

29․The offender was not involved in any other preparatory conduct or other acts involved in starting or maintaining the other fires.  The conduct the offender did engage in, I am satisfied was deliberate.  It contributed to the overall effect of the riot and the atmosphere of chaos within AU North as well as the resulting damage. 

Subjective circumstances

30․The offender is a 31-year-old Aboriginal man.  He experienced neglect and disadvantage in his childhood, reporting to the author of the report that his mother was an alcoholic and there were times when there was no food in the house.  He has a strained relationship with his father who separated from his mother when he was two years old.  He maintains contact with two half-siblings and with his mother.  The offender lived with an aunt prior to his incarceration and expressed a desire to return to this accommodation when released. 

31․The offender left formal schooling in Canberra in Year 9 and then moved to New Zealand to spend time with his father.  He reported behavioural issues at school, eventually leaving to enter employment.  He has previously worked in scaffolding, as a concreter and fruit picker but was unemployed in the three years prior to his incarceration.  He received Centrelink unemployment benefits.  He is currently employed in the NSW correctional facility he is being held at and has participated in educational programs.  The author of the pre-sentence report recorded that the offender claimed to have engaged in a program while incarcerated to pay off all of his outstanding court fines.  He reported many of his friends and acquaintances are involved in criminal activities. 

32․The offender has history of illicit substance use and first began using cannabis at age 15.  He continued to use cannabis daily until he was remanded in custody.  In addition to using cannabis, the offender stated he began using methamphetamine at age 25, which he used frequently prior to being remanded.  He used cocaine daily for 2 years from the age of 21.  He reported a history of abusing pain medication and benzodiazepines.

33․Since 2021 the offender has received Buvidal injections, which he credits with being instrumental in him remaining abstinent from drugs for at least the past three years. 

34․He reported no significant mental health challenges and noted he had previously suffered an assault in 2019 which caused a broken wrist, impacting his ability to do manual work. 

35․The offender stated to the author of the pre-sentence report that he did not fully agree with the statement of facts for his current offence however he had pled guilty.  The author considered that while the offender stated he accepted responsibility for his actions, he also deflected blame onto prison staff for relocating him to another accommodation unit, which he stated consequently led him to commit his current offence.  The offender gave evidence regarding these statements to the author of the report at the sentencing hearing, clarifying that he was referring to the process whereby he was moved into the area of the prison where the offending occurred without notice to him and without what he considered to be justification.  This evidence was unchallenged. 

36․The author of the report considered the offender was “suitable for a medium level of intervention”.  I observe here that this conclusion was reached absent any detail of the specific programs in which the offender has engaged since being a prisoner housed in a NSW correctional facility, and without confirming either the offender’s consistent engagement with Buvidal treatment or the support he has through his family members. 

Remorse, responsibility for the offending and rehabilitation

37․Remorse is a factor that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 (MAK) at [41]. Rehabilitation, in turn, is the best guarantor of community safety if it can be achieved and is in both the offender’s and the community’s best interests: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32].

38․I am satisfied that the offender has expressed some remorse for his conduct.  His attitude to the offending has been influenced by the sense of grievance he feels about being unceremoniously moved into the area of the prison where the “riot” was organised.  The offender gave evidence that he was “mad” about the decision to move him and that he considered that had he not been moved to that area, the opportunity to participate in the offending conduct would not have been presented to him. 

39․The offender’s level of remorse is not the only matter in this case that influences the assessment of his prospects of rehabilitation.  The offender gave persuasive evidence of the effect upon him of his move to a NSW correctional facility and the opportunities made available to prisoners there that he has taken advantage of, such as a driver licensing program and the work he has been able to do to pay off his outstanding fines.  The offender described his focus on reading and education, as well as a level of clarity that a significant period of sobriety has afforded him. 

40․The offender’s childhood is one to which the principles articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) clearly apply.  By virtue of the offender’s exposure to neglect, family instability and alcohol abuse, his early departure from formal education together with his early introduction to illicit drug use, he is a person who has fewer emotional and psychological resources to guide his decision making: R v Millwood [2012] NSWCCA 2 at [69].

41․In the previous sentencing decisions concerning the offender, both Loukas-Karlsson and Elkaim JJ referred to the offender’s disadvantaged upbringing.  In R v Collier (No 2) [2021] ACTSC 177, Loukas-Karlsson J noted “the offender appears to have experienced a dysfunctional upbringing which involved exposure to alcohol consumption and violence from a young age” and that “[the offender] was subjected to abuse by his mother’s associates”. Childhood disadvantage does not “diminish with the passage of time and repeat offending”: Bugmy at [44]. The impacts of the offender’s dysfunctional childhood are clearly still operating upon him and must be afforded “full weight”.

42․I consider the offender’s moral culpability to be reduced to an extent by virtue of his negative childhood experiences.  At the same time, I acknowledge that there is a need to consider the extent to which that factor influences an assessment of the need to protect the community and deter the offender.  Which brings me to his prospects for rehabilitation. 

43․The pre-sentence report is short.  The offender gave evidence as to the completion in custody of a Work and Development Program he has successfully competed to pay off substantial fines that he has accrued.  His evidence revealed that he was clearly motivated by a program available to prisoners whereby they are supported to obtain their drivers licence in the lead up to their release into the community.  There is no information as to the detail of any engagement the offender has had with programs or supports available to him through NSW Corrective Services in the pre-sentence report.  The offender himself produced a certificate evidencing his completion of the EQUIPS program as well as the Work and Development Program. 

44․The offender described the success he has had with Buvidal in relation to his use of illicit substances and his intention to continue with that program upon his release.  He said that at the time he was using illicit substances he did not consider that he had a problem but since being “off it” he has come to understand that he did have a problem with illicit substance use.  The offender explained that the effect of Buvidal is that he no longer feels the need to “chase” drugs saying, “all I do on the injection is train, read books and eat well”. 

45․The offender identified that much of his offending conduct in the past has had connection to his use of illicit substances.  The offender said that he did continue to use drugs upon his initial remand in custody but since obtaining sobriety and maintaining it for a significant period, physical fitness and reading have become his focus.  The offender explained that he has not ever spent a period of this “magnitude” in prison and that his plan for the future included obtaining employment stating, “I will work anywhere”. 

46․I am satisfied that the offender has good prospects for rehabilitation.  His largely unchallenged evidence demonstrated a commitment to rehabilitation and a desire to maximise his potential for employment upon his release.  It would be fanciful to attribute the offender’s abstinence from drug use to the mere fact of his incarceration; the experience of this Court, confirmed by the evidence of the offender, is that if prisoners want to use illicit substances they are in ready supply in the custodial environment.  The offender was able to frankly articulate the insight he has developed into the effect upon his life of his use of illicit substances and his wish to stay drug free.  The offender appeared focused on a simple future involving meaningful employment having now spent a considerable period of time being punished for his criminal conduct. 

Guilty plea

47․The offender entered a plea of guilty on 18 July 2024 having previously entered a plea of not guilty on 14 June 2023.  The matter was listed for trial on 22 July 2024.  The plea could not be said to be an early plea; rather it was last-minute.  In Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [50]-[51], the Court of Appeal canvassed the range of discounts afforded in various outcome in this jurisdiction:

50․ In Cranfield, the offender had pleaded guilty a week before the trial was due to commence.  The Court increased the sentence discount from five to 10 per cent.  In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), the offender had pleaded guilty after committal to the Supreme Court but before a trial date had been set.  The Court of Appeal reduced the sentence discount from 25 to 17 per cent.  In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count.  The Court confirmed the sentence discount of 10 per cent.

51.  Among others, these decisions illustrate that, in circumstances such as the present, an accused person should confidently expect to receive a discount of 10 per cent—or, perhaps, slightly more if their plea was not entered “on the steps of the Court”.  They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute.

48․The plea is properly described as having been entered “on the steps of the court” and did not have significant utilitarian value.  The entry of the plea in the days before the trial was set to commence did save witnesses from being called and the time and cost of a trial in relation to the offender.  A 10 per cent reduction in the sentence I impose is appropriate. 

Parity

49․There being co-offenders for this matter, 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 472 [28].

50․In Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 at [56], the Court of Appeal articulated the principle in this way:

The “parity principle” is a manifestation of the fundamental principle of equality before the law.  As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”.  As
his Honour observed, however, other things are not always equal.  There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them.  The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.

51․There are four co-offenders in this matter.  One co-offender is awaiting trial. Co-offender George was sentenced by me in February 2024.  Co-offender Winters is currently awaiting sentence in relation to this incident and other matters.  The imposition of a sentence in the matter of Winters has been frustrated by difficulty the prosecution has had in providing information necessary for the sentencing materials to be completed.  Co-offender Black is listed before me for sentence early next year. 

52․The co-offender George entered pleas of guilty to one count of joint commission of arson and one count of joint commission of damage property and was sentenced by me on 22 February 2024.  For count 1, the arson offence, after a reduction in recognition of the plea of guilty, a sentence of 3 years of imprisonment was imposed.  For count 2, the damage property offence, after a reduction in recognition of the plea of guilty, a sentence of 1 year and 5 months of imprisonment was imposed.  By virtue of the requirement to re-set a non-parole period, the effect of the sentence for co-offender George was an additional 12 months of imprisonment to serve in full-time custody: George at [122]-[123].

53․I found in George at [51]-[52] that he was “directly involved in at least two of the fires” and contributed to the maintenance of the other fires. The involvement of co-offender George was considerable, him having claimed a leadership role in the implementation of the “riot” consistent with the actual extent of his conduct. The co-offender experienced a disadvantaged and dysfunctional upbringing which had caused borderline cognitive impairment: George at [73]. I considered the co-offender’s upbringing required the application of the Bugmy principles which explained to some degree the conduct he engaged in, such that his moral culpability was reduced to some extent: at [75]-[77].

54․Co-offender Winters was released from the AMC after the incident and faced the same delay as co-offender George and the offender.  Having been released from the AMC and having demonstrated some positive indications of rehabilitation, co-offender Winters was initially given the opportunity to prove that he could serve a sentence of imprisonment for his part in this incident in the community, by way of an Intensive Correction Order (ICO). 

55․Despite the position adopted by the prosecution for this offender being that he must spend an additional period in full-time imprisonment for his part in the offending, the approach in relation to co-offender Winters whereby he would not be required to serve a period of full-time imprisonment in relation to the “riot” was initially entirely supported by the prosecution.  Co-offender Winters failed to engage in supervision while on bail and committed further offences, so the option of serving a period of imprisonment in the community has been effectively lost to him.  In a recent sentence hearing, counsel for co-offender Winters accepted that a period of full-time imprisonment was the only appropriate outcome in circumstances where he has now engaged in further offending and not pursued the opportunity to remain in the community. 

56․The subjective circumstances of all three co-offenders are similar.  Like the offender, both co-offenders George and Winters relied on the application of Bugmy, they both had extensive criminal histories and the delay that attended to their charges was egregious and entirely unexplained. 

57․There are three factors in this sentencing exercise which distinguish the offender.  First the offender, unlike both co-offenders, has been in continuous full-time custody since the commission of the offences.  Secondly, reflected in the narrower scope of the agreed statement of facts in this matter, and accepted by the prosecution in their characterisation of his conduct, the extent of the offender’s involvement in the group offending was significantly below that of co-offenders George and Winters.  Finally, unlike the offender both co-offenders George and Winters committed offences after the November 2020 arson including serious offences for which they were sentenced to periods of full-time imprisonment.  Accordingly, neither had achieved the level of rehabilitation by the time of sentence that I am satisfied this offender has achieved.

Criminal history

58․The offender has a criminal history consisting largely of entries for violent offending including one for aggravated burglary.  He also has two convictions for failing to appear and other entries for more minor offences.  The offender’s criminal history limits the leniency that might otherwise be afforded to him.  That the offender has a previous charge for an offence committed in custody demonstrates that this offending conduct is not entirely out of character for the offender: Veen v R (No 2) [1988] HCA 14; 164 CLR 465.

Sentencing practice

59․The prosecution provided a detailed table of comparable sentencing outcomes: R v Winters [2022] ACTSC 42, R v Yeaman (No 2) [2021] ACTSC 287, R v Rahman [2021] ACTSC 257, R v Beroukas [2021] ACTSC 172 , R v Denniss [2021] ACTSC 15, R v Howsan [2020] ACTSC 172, R v Wieland [2020] ACTSC 16, R v Denniss [2019] ACTSC 283, R v Hudson [2019] ACTSC 110, R v Dunn [2019] ACTSC 75, R v David Keith Green [2019] NSWDC 66, R v Nguyen [2018] ACTSC 146, and Griffin v R [2018] NSWCCA 259.

60․I am mindful of the limited utility of comparable outcomes and sentencing statistics.  No sentence is a precedent, and sentencing outcomes do not set a lower nor an upper limit for a particular offence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. A sentencing court is concerned to ensure the consistent application of principles, and justice must be individual. With those principles firmly in mind, I have had regard to the detail of the outcomes I outlined in George at [89]-[95].

Delay

61․Delay is not one of the sentencing considerations included in s 33(1) of the Crimes (Sentencing) Act. By virtue of s 33(3) a sentencing court is not limited only to those considerations. In this matter delay is a relevant consideration.

62․As I observed in George at [96]-[104], there has been a substantial, unjustifiable delay in commencing the proceedings for SCC 160 of 2023 (the AMC riot offences), the offences having been committed in 2020 and the first summons issued to the offender in May 2023.

63․There was no submission advanced that the case against the offender was so weak in the aftermath of the incident such that a charge against him could not be laid until complex or difficult investigations were completed.  There is no evidence before me that demonstrates any improvement in the evidence such that the challenge in identifying the offender referred to at [5] was rectified and resulted in the swift institution of these proceedings in May 2023.  The images of the offender captured from CCTV footage of the incident included in the agreed statement of facts did not reveal his face from the front.  The images did reveal his body shape, his skin tone, that he was wearing shorts with no shirt and that he had a closely shaven head.  The prosecution offered no explanation whatsoever for the delay, in circumstances where the offender has remained in custody for the entire period since the incident, was known to be a detainee within the area where the offending occurred, and the offending was almost entirely captured on CCTV footage.  The prosecution readily accepted a characterisation of the delay in those circumstances as “outrageous”. 

64․Delay can be a mitigating factor in certain circumstances: see R v Donald [2013] NSWCCA 238 (Donald) at [49], citing Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 (Scook) at [31]-[34] and [59]-[64]. See also Sayer-Jones v The King [2024] NSWCCA 73 (Sayer-Jones) per N Adams J (with whom Leeming and Campbell JJ agreed). 

65․As Street CJ observed in R v Todd [1982] 2 NSWLR 517 (Todd) at 519:

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

66․In R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 (Blanco) at [17], Wood CJ at CL (with whom Bell J and Smart JA agreed) observed at [16]-[17]:

16.  The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288.

17.  The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of his ways.  However, it remains the fact that it is highly desirable that prosecuting authorities act promptly where they have evidence of serious criminality.  If they fail to do so, then they must expect that circumstance to be taken into account on sentencing.  It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case against them. 

67․In Thorn v R [2009] NSWCCA 294; 198 A Crim R 135, Bowie J, with Rothman J and Campbell JA agreeing, held at [23]:

[T]he prosecution is not to be punished for delay by a reduction in the otherwise appropriate sentence, even though it must be said that the delay in the present case is completely unacceptable.  But it is the impact of the delay upon the applicant that is the most significant consideration. 

68․As N Adams J explained in Sayer-Jones at [42] there are “circumstances in which delay can entitle an offender to an element of leniency”. Thereafter in Sayer-Jones her Honour comprehensively considered numerous authorities where the effect of delay in sentencing had been considered: in addition to those already cited, see  R v Schwabegger [1998] 4 VR 649; 38 ATR 30 (Schwabegger ) cited with approval in R v Gay [2002] NSWCCA 6; 49 ATR 78 by Mason P (with whom R S Hulme and Hidden JJ agreed). See also R v Liang; R v Li (1995) 124 FLR 350; 82 A Crim R 39 at 356 [45] and Duncan v R [1983] WASC 210; 47 ALR 746 (cited with approval in Schwabegger); Sabra v R[2015] NSWCCA 38; 257 A Crim R 33; Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42; 94 NSWLR 194 (Pratten).

69․Relevantly, her Honour also identified two decisions of this Court to which I will come (R v Haque [2022] ACTSC 10 (Haque) and R v Carpenter [2022] ACTSC 6 (Carpenter)). 

70․In addition to those already cited, I have also had regard to R v SP [2004] ACTCA 16; 149 A Crim R 48, NC v The Queen [2017] ACTCA 31 at [77] (citing Blanco with approval at [77]) and the principles contained therein. The principles can be relevantly summarised as including:

(a)Delay is not, of itself, a mitigating factor.  The influence of delay will depend on the circumstances in which it occurred.  Notwithstanding the explanation for the delay the focus is on the impact of the delay on the offender. 

(b)Delay which is not attributable to the offender, and which includes the offender being held in a state of suspense or anxiety or acting on a legitimate expectation that there would be no prosecution, constitutes “a powerful mitigatory factor”. 

(c)Reasonable delay attributable to detecting and investigating an offence and identifying an offender will ordinarily not be a mitigating factor.  So too reasonable delay as part of the ordinary course of the processes which attend to the criminal justice system. 

(d)Where an offender has achieved rehabilitation and the requirement to protect society from the offender is accordingly reduced, considerations of punishment and deterrence should not operate to extinguish the effect of that rehabilitation.

(e)The public interest as well as the interest of the offender require serious offences to be brought to justice quickly.  A failure by the authorities to do so will mitigate an otherwise appropriate sentence. 

71․In Sayer-Jones the appellant sought to rely on a factor identified by Buss JA in Scook. In agreeing with McClure JA, Buss JA outlined six factors consistent with those summarised above and identified an additional seventh factor relevant to delay caused by “dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies” which “may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question”: at [64]. While McClure JA referred to at [21] the prospect of a sentencing court “expressing its disapproval by imposing a more lenient sentence” referencing Schwabegger and Todd, the approach described in the seventh factor was not endorsed.  The third judge in Scook, Miller JA, agreed with both Buss and McClure JJA. 

72․As N Adams J observed in Sayer-Jones the seventh factor identified by Buss JA in relation to effect of “dilatory” conduct was expressly disavowed in Donald and in Pratten.  In this jurisdiction in Haque, Mossop J endorsed Buss JA’s seventh factor when considering the effect of delay observing that where it was appropriate for a court to express disproval of a delay, it may result in a lesser sentence. His Honour also identified that the state of suspense the offender had been left in arising from an “unexplained” and “extended” delay was also a factor that warranted leniency: at [34]. In Carpenter, Loukas-Karlsson J at [77] followed Donald noting that it was “not permissible” to reduce a sentence to express disapproval of “dilatory” conduct by the State.  In Haque, but for delay the sentence imposed would have been a “custodial one”.  The offender had entirely rehabilitated himself in the period since the offending occurred.  The offender was not sentenced to periods of imprisonment.  In Carpenter there was no finding made as to the reasonableness of the delay and the offender had “well progressed” prospects of rehabilitation: at [102]. There was no requirement to additionally consider the principal of totality in either case.

73․It should be observed that in Haque the unexplained and unreasonable delay together with an entirely rehabilitated offender warranted leniency.  While endorsing the seventh factor identified by Buss JA in Scook, Mossop J did not point to that factor alone as the foundation for the leniency he extended to the offender because of delay.  The outcome was not the subject of prosecution appeal. 

74․In this matter counsel did not seek to address this particular issue.  Consistent with Donald, I do not consider that the sentence I impose should be reduced to mark the Court’s disapproval of the slack approach to the institution of the charge against the offender. 

75․Nonetheless the delay in bringing the proceedings is a significant consideration in this matter.  Not just because of the delay itself and the impact of it on the offender but by virtue of the application of the principle of totality.  As in George, the delay demands a “measure of understanding and flexibility of approach”: Blanco at [16]. Significantly in this matter, the offender was sentenced (the existing sentence) on 7 February 2022 by Elkaim J (R v Collier [2022] ACTSC 18 (Collier)) for an offence of recklessly inflicting grievous bodily harm, being an offence committed while in custody. Delay was also a factor in that matter the offence having occurred on 4 October 2020. His Honour specifically noted the delay and took it into account when he imposed the existing sentence: at [18].

76․The unexplained, substantial delay in charging the offender for these offences denied to him the opportunity to have the offending conduct he engaged in on 4 October 2020 and 10 November 2020 dealt with together where his Honour could have drawn upon the flexibility available when considering questions of concurrency and accumulation for two proximate offences committed while in lawful custody: Mill v The Queen [1988] HCA 70; 166 CLR 59 (Mill) at [14].

77․Unlike in Blanco the offender in this matter has spent a considerable period in a state of suspense as to whether he would be charged in relation to the incident.  In the meantime, since the time he committed this offence, the offender has demonstrated a commitment to rehabilitation, having now not used illicit substances for a significant period and since the offending has engaged in pursuits, while in custody, designed to directly assist him upon his release.

78․The prosecution accepted that the delay should operate to influence the structure of the sentence.  However, the prosecutor ultimately submitted that it would be inappropriate for the sentence to be wholly concurrent with the offender’s existing sentence, pointing to the need for there to be an additional period of imprisonment to that imposed in February 2022 to “acknowledge the criminal culpability of the offender” and the seriousness of the offence. 

79․As in Schwabegger, there is in this matter “a serious incongruity” between the submission advanced by the prosecutor that the offence is serious and that the sentence I impose should deter its occurrence on the one hand, and the “leisurely” progress of the criminal justice system such that years passed before the matter first appeared in Court, on the other: at [659].

80․In my view, the substantial, unexplained delay in this matter was, in the circumstances of the offending and the offender, extraordinary.  It has resulted in unfairness to the offender.  In the meantime, the offender has demonstrated his capacity for genuine rehabilitation.  It is appropriate in this instance for the delay to warrant leniency. 

Determination

81․The purposes of sentencing are set out at s 7 of the Crimes (Sentencing) Act.  Notwithstanding that I am satisfied the offender’s moral culpability is reduced to some degree, general deterrence, punishment, denunciation and accountability remain relevant considerations given the nature of the offence.  The observations I made in George at [106] are equally applicable to this matter.

82․The rehabilitative prospects of the offender being as they are, together with the egregious delay involved in initiating the proceedings, see the promotion of the offender’s capacity for reform as a significant consideration. 

83․It was properly accepted on the offender’s behalf that the only appropriate outcome, having regard to the seriousness of the conduct and possible alternatives, is a period of imprisonment.  I must fix a just and appropriate sentence for the arson offence and then consider totality.  The real question in this matter is whether the effect of the sentence I impose on the offender should result in a requirement for him to remain in custody beyond the release date nominated in the existing sentence.  This is where the effect of delay and the principal of totality intersect. 

84․The offender has now been in full-time custody since August 2020.  The time he has spent in custody is referable to sentences of imprisonment imposed upon him.  The existing sentence imposed on him by Elkaim J in February 2022 was partially suspended and I acknowledge was in relation to a serious offence.  The period of full-time imprisonment that the offender was required to serve under that order expires on 31 January 2025 and the offender will be required to be of good behaviour for the following 12 months.  The existing sentence was imposed as a suspended sentence because at the time a non-parole period could not be set for an offence committed in lawful custody and his Honour considered it necessary to avoid an outcome that crushed the offender’s “hope for rehabilitation”: Collier at [20].

85․Subsequently, in addition to remaining in a state of suspense as to whether he would be charged for his part in the arson, the offender has been diligently and successfully working toward setting himself up for the release date guaranteed to him before this charge was laid, arising from the existing sentence. 

86․The offence was committed in lawful custody which requires the application of s 72 of the Crimes (Sentencing) Act which provides that the sentence I impose for this offence be served consecutively with the existing sentence. Section 72(3) provides that the Court may direct the sentence for this offence (the primary sentence) be served concurrently (or partly concurrently and partly consecutively) with the existing sentence. The prosecution supported an order for partial concurrency. 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. I consider it appropriate in the circumstances to make an order pursuant to s 72(3).

87․The principle of totality was considered in Mill, where the Court held at [14]:

The principle is not confined in its operation to the fixing of a non-parole period.  It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances.  In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd.  The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence.

88․In this matter the question of whether the offender should be required to spend any further time in full-time imprisonment requires a consideration of that definitive guidance in Mill.   I also bear in mind the observations in MAK at [18] and [99]:

18. [W]here an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.

…

99.  It should be made clear that, where a judge is sentencing for offences in a situation where another judge has already sentenced the offender for other offences, the second judge must regard the first sentence as an appropriate exercise of the first judge’s discretion and not seek to reduce or increase it by the sentences the second judge imposes.  We are not suggesting that this is what Hidden J did or attempted to do.  But we note the difficulty that confronts the second judge in trying to determine what the overall sentence would have been had a single judge been sentencing the offender for all offences for which he is, and has been, punished.  That is in effect part of what an application of the principle of totality requires. 

89․I consider that the relevant sentencing considerations can be given effect, and the offender’s circumstances appropriately acknowledged, by the imposition of a sentence that does not require him to spend any further time in custody beyond that which is presently nominated by the existing sentence.  After a proper application of the “flexibility” and the “considerable measure of understanding” required by Todd and subsequently endorsed in Mill, such an outcome, while lenient is nonetheless just and appropriate.

90․To require the service of an additional period of full-time imprisonment in the circumstances would be to achieve what Elkaim J deliberately sought to avoid in February 2022: the crushing of rehabilitative hope.  Now, years having passed, it is not just a “hope” of rehabilitation that would be crushed, but a demonstrated achievement of it that would suffer detriment. 

91․The principles of sentencing can pull in different directions and in this instance while the offending was undoubtedly serious, I do not consider that the offender’s interests, or the public’s interests will be served by an outcome that could risk the significant progress that the offender has made while in custody toward rehabilitation. 

92․As I observed in DPP v Coulter [2024] ACTSC 262, citing R v UG [2020] ACTCA 8; 281 A Crim R 273 (UG), when considering the imposition of a partly suspended sentence, “there is no “usual relationship” between the part served and the part suspended”.  The relevant considerations in imposing a partly suspended sentence were expressed in UG at [82]:

A partly suspended sentence may be the sentencing option that is most constructively adapted to a particular offender and their circumstances. For example, it may be used where an offender has served a significant part of the total term, and the sentencing court wishes to ensure that the offender is released promptly and without the need to undergo a parole assessment process. It may be an appropriate sentence for an offender who has committed a relatively serious offence that, ordinarily, would suggest a significant sentence of fulltime imprisonment, but where the sentencing court considers that s 7 sentencing purposes such as punishment and denunciation can be adequately addressed by a short period of fulltime imprisonment. Alternatively, the sentencing court may wish to retain overall supervision of the offender, permitting a somewhat flexible response to any breach of the good behaviour order (although, prima facie, any significant breach of a good behaviour order will result in the offender serving the sentence in fulltime custody). A sentencing court may consider that a “carrot and stick” approach involving a relatively short period of fulltime imprisonment and a relatively long period of supervision within the community is appropriate for an offender who has not previously served a significant period in fulltime custody and who seems capable of rehabilitation.

93․I consider that it is appropriate arsing from the sentence I impose that the period requiring the offender to be of good behaviour and to accept supervision will be extended.  Supervision of the offender in the community will provide the offender with support to continue with his rehabilitative efforts while at the same time providing a mechanism for swift and direct accountability to this Court for any breaches of the requirements to be of good behaviour and accept supervision. 

94․The sentence I impose must take into account the scheduled damage property offence. I have done so. The starting point for Count 1, the arson offence, is 3 years and 2 months of imprisonment, reduced to 2 years, 10 months and 6 days of imprisonment in recognition of the plea of guilty. 

95․I direct pursuant to s 72(3) of the Crimes (Sentencing) Act that the sentence I impose will be served concurrently with the existing sentence. 

Orders

96․For those reasons the following orders are made:

(1)On Count 1 (CC2023/2524) the offender is convicted and sentenced to 2 years, 10 months and 6 days of imprisonment commencing on 31 October 2024 and ending on 5 September 2027. 

(2)This sentence is to be suspended on 31 January 2025 after the offender has spent 3 months and 1 day in custody, upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) until 5 September 2027.

(3)In addition to the core conditions the offender is to accept the supervision of the Director-General of ACT Corrective Services and comply with all reasonable directions for the period deemed necessary by the Director-General or their delegate.

I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. 

Associate: A Turner

Date: 1 November 2024