Director of Public Prosecutions v Featherstone
[2022] ACTSC 307
•8 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Featherstone |
Citation: | [2022] ACTSC 307 |
Hearing Date: | 8 November 2022 |
DecisionDate: | 8 November 2022 |
Before: | Elkaim J |
Decision: | (a) I direct that special circumstances exist enabling the relevant sentences (those falling within s 72(4)) to be partly concurrent and partly consecutive with the existing sentence. (b) For the offence of occasioning actual bodily harm the offender is sentenced to two years and nine months’ (reduced from 3 years’) imprisonment to commence on 27 November 2023 and end on 26 August 2026. (c) For each offence of assaulting a frontline community service worker the offender is sentenced to 11 months’ (d) For the offence of possessing a prohibited weapon the offender is sentenced to three months’ imprisonment to commence on 27 March 2026 and end on 26 June 2026. (e) For the offence of unlawfully confining another person the offender is sentenced to one year and 11 months’ imprisonment (reduced from two years) to commence on 26 February 2026 and end on 25 January 2028. (f) For the offence of making a demand accompanied by a threat to kill the offender is sentenced to three years and nine months’ imprisonment (reduced from four years) to commence on 27 February 2026 and end on 26 November 2029. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – assaulting a frontline community service worker – being a detainee in possession of a prohibited item in prison – unlawful confinement – making demand accompanied by threat to kill – where offences committed while in custody – operation of ss 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) – whether special circumstances exist |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33, 35, 64, 72 |
Cases Cited: | R v Featherstone [2019] ACTSC 218 R v Snowden [2022] ACTSC 186 R v Verdins [2007] VSCA 102; 16 VR 240 |
Parties: | ACT Director of Public Prosecutions Damien Featherstone (Offender) |
Representation: | Counsel A Williamson SC (ACT Director of Public Prosecutions) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions JDR Law (Offender) | |
File Number: | SCC 83 of 2022 SCC 84 of 2022 SCC 211 of 2022 SCC 212 of 2022 |
Elkaim J:
1․The offender has pleaded guilty to two lots of offences:
(a)On 13 May 2021 he pleaded guilty to assault occasioning actual bodily harm (maximum penalty is five years’ imprisonment), two counts of assaulting a frontline community service worker (each bearing a maximum of two years’ imprisonment) and being a detainee in possession of a prohibited item in a prison (the maximum punishment is six months’ imprisonment and/or 50 penalty units).
(b)On 18 August 2022 the offender pleaded guilty to unlawfully confining another person (carrying a maximum of 10 years’ imprisonment) and making a demand accompanied by a threat to kill (which carries a maximum of 20 years’ imprisonment).
2․The first group of pleas were entered at an early date. The second group were entered two weeks before a trial date. The prosecution accepted that a discount could be applied arising from the utilitarian value of the pleas. However, said the prosecution, the extent of the discount must take into account s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which states:
However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
3․I think the prosecution case was overwhelmingly strong. Most of it is captured on CCTV. The footage I saw in relation to the first lot of offences leave the criminal involvement of the offender beyond doubt.
4․Section 35(4) does not say there should be no reduction, only that the reduction should not be significant. In R v Snowden [2022] ACTSC 186, Mossop J said that a five per cent reduction “will not infringe the prohibition in s 35(4)”. He continued however:
Any more than a five per cent reduction in the circumstances would be a significant reduction.
5․Mossop J began his consideration, stating:
What is a “significant reduction” in sentence may vary from case to case.
6․I generally agree with his Honour’s assessment of a significant reduction. However, I think there is scope in this case to include as a factor the time when the pleas were entered. On this basis I will allow an eight per cent reduction for the first lot of offences and a five per cent reduction for the second lot. Both percentages will be subject to a small degree of rounding off.
7․Details of the offences are set out in the two Statements of Facts (part of Exhibit A and Exhibit C). The following is a summary.
Lot 1
8․The offender was in prison. On 1 November 2020, he and four other prisoners assaulted another prisoner. The offender used an improvised knife to cut the victim across his face. He then stomped on the victim and continued the assault with the knife. The assault included kicks to the face and stomach. This is the assault occasioning actual bodily harm. The motivation for the attack seems to have been an assertion that the victim was a paedophile.
9․The offender threatened the corrections officers who had come to the rescue of the victim. He invited them to “fuck off”. They declined the invitation and were able to persuade the offender to leave the scene. The threats make up the two offences of assaulting a frontline community service worker. The possession of a prohibited item refers to the knife.
10․When I sentenced one of the other assailants, Mr Tuifua, I observed that Mr Tuifua’s part “was small” (R v Tuifua [2021] ACTSC 298 at [27] (Tuifua)). Mr Tuifua was sentenced to 12 months’ imprisonment for his part. The leading part played by this offender renders consideration of parity of little effect.
11․There is also a transfer charge arising from this incident, namely possessing a prohibited item, the knife used in the attack. This offence carries a maximum penalty of six months’ imprisonment.
Lot 2
12․The statement of facts gives this version: On 27 March 2021 a detainee could not be located. He was later found in the offender’s cell. He was sitting on the bed. The offender was holding a blade to his neck. When officers attempted to enter the cell they were warned: “Don’t come any closer, if you do, I will stab him, get out”. More threats followed. This is the detention charge.
13․The officers called for assistance which soon arrived only to be accompanied by yet more threats against the victim. These facts relate to the threat to kill offence.
14․I was initially informed there would be a disputed facts hearing in relation to the background to the incident in the cell. The parties were however able to agree on some amendments to the agreed facts are which are to be found in Exhibit C, from [19]. The effect of the amendments is to some extent to lessen the terror that might have been felt by the victim who “acknowledged that this event would occur”.
15․The victim was released after about two hours when he expressed an interest in converting to Islam, the religion practised by the offender.
16․The offender was in prison serving sentences imposed on 16 August 2019 by Mossop J for an assortment of offences (R v Featherstone [2019] ACTSC 218). This assortment flows consistently through his extensive criminal record. The effect of the sentencing by Mossop J was a term of imprisonment of seven years and nine months commencing on 28 February 2018 and ending on 27 November 2025. A non-parole period was set to end on 27 April 2023.
17․The offender was born in 1988. His subjective factors were set out by Mossop J from [43]:
43. The evidence concerning Mr Featherstone’s personal circumstances comes from a pre sentence report and a report of Dr Douglas Boer, a clinical psychologist. Dr Boer was cross-examined on his report.
44. Mr Featherstone is 31 years old. He was born in Wollongong and identifies as being of Aboriginal descent with ties to the Aboriginal community in the Wollongong region. His parents separated when he was young. His mother commenced a relationship with his stepfather who was violent and had alcohol dependency issues. He witnessed and experienced violence perpetrated by his stepfather.
45. Mr Featherstone reported that his involvement with the criminal justice system began when he was 11 years old.
46. He only attended school up to Year 5. He reported literacy difficulties and that he had never held employment. He reported that he had been approved for a disability support pension prior to his remand.
47. Most of his friends and acquaintances are involved in criminal activities. He is connected to a criminal gang. He converted to Islam in 2009. He has been in relationship with his current partner for three years and they have a newborn child. His partner has two children from a previous relationship. Prior to coming to Canberra he resided with his partner and her children in their government housing property in Wollongong.
48. He has a history of illicit drug use which began with cannabis at the age of 10. Prior to his arrest he was smoking up to six points of methamphetamine and taking non prescribed buprenorphine daily. He has never attended any programs or counselling in relation to drug use. He is on the methadone program while in custody.
49. He suffers from serious mental health problems. The report of Dr Boer outlines his history of mental health problems in greater detail. Past diagnoses have included attention deficit disorder with hyperactivity, severe conduct disorder and a possible learning disorder as well as obstructive sleep apnoea. In 2006 his history was recorded as including “schizophrenia disorder, paranoid type (as well as) conduct disorder, borderline intellectual functioning and polysubstance dependence”. Dr Boer applied the Historical Clinical Risk-20 (V3) assessment tool according to which his risk for violent recidivism was high. Dr Boer expressed the opinion that his elevated risk for violence is related to active symptoms of mental illness and substance use subsequent to being non-compliant with his medication. He noted that there are some positive signs in relation to his assessed level of risk, namely, his hopes to work in the community, the stability of his relationship and his desire to attend residential rehabilitation for his drug use problems. The basis for Dr Boer’s report appears to involve him placing some weight upon the prognostically positive statements by the offender to the effect that:
(a)he is very committed to getting out of prison to help his spouse with raising the children;
(b)that he had no interest in the therapeutic community program organised at the Alexander Maconochie Centre (AMC) and that he would prefer programs that would help him readjust into the community;
(c)he could not foresee any problems with treatment or supervision compliance upon his release;
(d)he did not feel the need to be placed on a psychiatric treatment order to maintain his compliance with oral medication;
(e)he could not foresee any problems with being compliant with supervision including ongoing drug testing;
(f)he had a plan to avoid future problems by avoiding gang affiliation, drug use and going back into crime;
(g)his conversion to Islam while in custody made him more eager to stop doing drugs and crime.
18․The offender has relied on the same report of Dr Boer in these proceedings.
19․The offender has been in custody since being sentenced by Mossop J. There has been no relevant change to his personal circumstances.
20․Of note however is that the current offences contradict the slender hope that was held out for rehabilitation. The “prognostically positive statements” referred to by Mossop J have not borne any weight.
21․This is probably due to his continuing psychiatric condition. Although no submission was made as to the applicability of the ‘Verdins’ principles (R v Verdins [2007] VSCA 102; 16 VR 240), I nevertheless think that the offender’s mental health background is a relevant factor in particular in relation to the assault occasioning actual bodily harm where it seems the offender was acting, at least in part, from a stimulation derived from his own abuse.
22․I have been provided with the offender’s patient progress notes while in custody (Exhibit 1). They detail continuing fluctuations in his mental health condition in particular his schizophrenia. I note that there are entries of TOSH and TOHTO (thoughts of self-harm and thoughts of harm to others respectively) but also a denial of plans to “harm self”.
23․In the notes for the first half of 2021 there are indications of positive progress but also some indications of refusal of medication and paranoid and hallucinatory episodes. For example, in an interview on the day following the detainment included in the Lot 2 charges the offender gave this history:
When asked directly about his behaviour yesterday and auditory hallucinations, Mr Featherstone stated that up until recently they hadn’t been happening but as he grew increasingly distressed about his safety and started to hear that the ‘screws were setting him up to be killed on the unit’. He also stated that his voices can become derogatory in nature.
When asked why he chose (the victim) as his hostage, Mr Featherstone stated matter are factually ‘He told me that he is getting smokes of someone on the outside and I thought he was part of the contract [to kill him].
24․The perception of an imminent attack upon him was reiterated in discussions with a psychiatrist. He said:
I heard some voices…Some stuff at the back of my head…I knew it wasn’t real, but it was stressing me out.
25․The psychiatrist gave this opinion:
It is likely that in a highly fearful state, he formed distorted views about the risk that others posed to him, but collateral information suggests that his underlying concerns for his safety have bases in reality. It appears that when highly fearful he also became angry when experiencing difficulties bringing about a change in placement.
26․There is an opinion, which seems to have been reached in about November 2021, which states:
Schizophrenia with residual positive and negative symptoms. Additional diagnoses of substance use disorder and personality vulnerabilities. Significant trauma history impacting on mental health and interactions with others. Concerns about mental health deterioration if required to recount his trauma history again as part of civil claim and reported upcoming meetings with new lawyers. Concerns about elevated risk of violence towards others given the addition of the significant stressor.
27․There is a very similar opinion given on 25 August 2022. On this occasion the opinion ends with: “Nil acute risks identified at time of review.”
28․Turning to objective seriousness, although each lot of offences are comprised of different individual crimes, they each arise from a confined circumstance; the assault of the prisoner and the detainment of another prisoner respectively. Importantly part of the first set of offences includes the threatening of correction officers.
29․Simply committing a crime while in custody is an aggravating feature. Further aggravation arises from the offences involving the corrections officers. These officers had no choice but to confront the offender, both to restore order and to assist the victim. People who face danger in simply doing their jobs are entitled to assume that threats of danger to them will attract appropriate punishment.
30․In respect of the assault on the victim alleged to have been a paedophile, it is a further aggravating feature that he was subjected to an assault by a gang of men. I reached the same conclusion in Tuifua after viewing CCTV of the incident.
31․The prosecution submitted that the attack involved “a significant pre-meditation”. Viewing the CCTV does suggest an intent to attack the victim. Clearly the offender was armed prior to the attack. It is unknown whether the weapon was generally carried by him or if it had been procured for the purpose of this attack. It is also significant to note that the psychiatric reports indicate a predisposed antagonism towards persons who might have been thought by the offender to be responsible for child abuse. This arises from the abuse that he asserts he suffered as a young person.
32․Another aggravating feature is the use of a weapon and the offence being committed together with other persons, but apparently leading those others. Taken together with the offences being committed in custody, I would assess objective seriousness of the first lot of offences as being about medium.
33․The second lot of offences were also committed in custody, involve the use of a weapon and involved a subject, who also being in custody, had little avenue to escape the environment. My assessment of these offences is that they are fall just below the medium level of objective seriousness. Importantly however the maximum penalties for these offences are extensive.
34․Sentencing in this matter requires the consideration and application of ss 64 and 72 of the Sentencing Act. In my view, for purposes of this matter, the following consequences arise from these two sections and general sentencing principles:
(a)The legislature intends that offences in custody be regarded more seriously than the same offences committed outside of custody.
(b)Without more, sentences for each offence should be imposed consecutively upon each other and upon the end date of the head sentence imposed by Mossop J.
(c)The principles of totality, through concurrency and starting dates, may be used to ameliorate any crushing effect arising from the necessity for consecutive sentences.
(d)In respect of the assaults upon a corrections officer, this amelioration requires a specific finding of special circumstances pursuant to s 72(4).
(e)Although the non-parole period imposed by Mossop J will continue to exist it will be rendered of no effect because the offender will need to serve the whole of the extended sentence that will be imposed upon him.
(f)The effective absence of a non-parole period is a valid factor in the overall sentencing process because there will be no scope for early release.
35․Arising from the points just made, I note the following:
(a)On behalf of the offender, it was conceded that the sentences that I impose would go beyond the end date of the sentences imposed by Mossop J.
(b)The prosecution conceded that the special circumstances required by s 72(4) existed by reason of the need to avoid the overwhelmingly long sentence that would otherwise result. I note that the offender had submitted that special circumstances arose from his psychiatric history in any event.
36․In my view both for the reason put forward by the prosecution and, independently, for the reason advanced on behalf of the offender, I agree that special circumstances exist. Accordingly, I will make a specific direction allowing the sentences to be served partly concurrently and partly consecutively pursuant to s 72(3).
37․In addition the degree of concurrency will be greater in respect of the offences that occurred as part of the same criminal activity.
38․Sentencing in this matter is difficult because it requires the balance of avoiding a very long, and crushing, time in prison but also recognising the severity of the offences that were involved. In respect of rehabilitation, noting that the offender has spent most of his life in custody of one form or another, prospects seem limited. However he is only 34 years of age and his future must not be determined entirely by his past. There must still be some hope given to him of entering and remaining in society.
39․The absence of a non-parole period is I think significant. I accept that the offender is unlikely to have been granted parole in April 2023 because of his ‘in-custody’ record. Nevertheless, a non-parole period can be an aspirational target which will be denied to the offender in the current matter.
40․The sentences that I have crafted attempt to achieve the above considerations. They also take into account general sentencing principles as set out in the above Act (in particular ss 6, 7 and 33).
41․I make the following orders:
(a)I direct that special circumstances exist enabling the relevant sentences (those falling within s 72(4)) to be partly concurrent and partly consecutive with the existing sentence.
(b)For the offence of occasioning actual bodily harm the offender is sentenced to two years and nine months’ (reduced from three years’) imprisonment to commence on 27 November 2023 and end on 26 August 2026.
(c)For each offence of assaulting a frontline community service worker the offender is sentenced to 11 months’ imprisonment (reduced from 12 months) to commence on 27 March 2026 and end on 26 February 2027.
(d)For the offence of possessing a prohibited weapon the offender is sentenced to three months’ imprisonment to commence on 27 March 2026 and end on 26 June 2026.
(e)For the offence of unlawfully confining another person the offender is sentenced to one year and 11 months’ imprisonment (reduced from two years) to commence on 26 February 2026 and end on 25 January 2028.
(f)For the offence of making a demand accompanied by a threat to kill the offender is sentenced to three years and nine months’ imprisonment (reduced from four years) to commence on 27 February 2026 and end on 26 November 2029.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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