Director of Public Prosecutions v George
[2024] ACTSC 37
•22 February 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v George |
Citation: | [2024] ACTSC 37 |
Hearing Date: | 9 February 2024 |
Decision Date: | 22 February 2024 |
Before: | Taylor J |
Decision: | See [125]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – damaging property – offending while in lawful custody – riot – offender had a background of profound disadvantage – history of illicit substance use – extensive criminal history including other offences committed in custody – limited remorse – some prospects of rehabilitation – delay in prosecution – no explanation for delay – existing sentence – sentence of imprisonment imposed |
Legislation Cited: | Corrections Management Act 2007 (ACT), s 184 Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 64, 70(1)(a), 72 Criminal Code 2002 (ACT), ss 45A, 403, 404(1) Human Rights Act 2004 (ACT), s 19 Magistrates Act 1930 (ACT), s 90B |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions v Featherstone [2022] ACTSC 307 Griffin v R [2018] NSWCCA 259 Hogan v Hinch [2011] HCA 4; 243 CLR 506 KR v The Queen [2012] NSWCCA 32 Laipato v the Queen [2020] ACTCA 35 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Mill v The Queen [1988] HCA 70; 166 CLR 59 Muldrock v the Queen [2011] HCA 39; 244 CLR 120 NC v The Queen [2017] ACTCA 31 O’Brien v The Queen [2015] ACTCA 47 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 Carberry [2022] ACTSC 208 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Catts (1996) 85 A Crim R 171 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 George [2021] ACTSC 361 R v David Keith Green [2019] NSWDC 66 R v Howsan [2020] ACTSC 172 R v Hudson [2019] ACTSC 110 R v JW [2010] NSWCCA 49 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Millward [2012] NSWCCA 2 R v Nguyen [2018] ACTSC 146 R v Pham (2015) 256 CLR 550 R v Rahman [2021] ACTSC 257 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 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 Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 Stott v The Queen [2012] ACTCA 33 The Queen v Rappel [2019] ACTCA 11 |
Parties: | Director of Public Prosecutions ( Crown) George George ( Offender) |
Representation: | Counsel C Daly ( DPP) D Ager ( Offender) |
| Solicitors ACT Director of Public Prosecutions Agoth Solicitors ( Offender) | |
File Number: | SCC 229 of 2023 |
TAYLOR J:
Introduction
1․On 10 November 2020, a time when the Alexander Maconochie Centre (AMC) was operating under restrictions arising from the COVID-19 pandemic, a riot occurred within the prison. The riot involved the participation of a number of detainees. The offender, George George, was one of those detainees. As part of the riot, a number of fires were lit in a remand unit at the prison and, in addition, extensive damage was caused. Despite the identification of the offender as one of the participants in the riot early on in the investigation, the offender was not charged until two and half years after the offending occurred. The prosecution have not offered any reason to explain the delay. The offender was on remand at the AMC at the time he committed the offences, a fact which requires the application of provisions specifically directed toward offences committed while in lawful custody. He is now a sentenced prisoner at the AMC, having been sentenced in the meantime for other, unrelated offending. The offender has a significant criminal history as well as a background of profound disadvantage.
2․On 13 September 2023, the offender was committed to this Court under s 90B of the Magistrates Court Act 1930 (ACT) for trial. On 12 October 2023 the offender was arraigned and entered pleas of guilty to the following offences for which he now stands to be sentenced:
(a)Count 1 (CAN 2523/2023): Arson contrary to s 404(1) of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 45A of the Criminal Code, carrying a maximum penalty of 1,500 penalty units, imprisonment for 15 years or both.
(b)Count 2 (CAN 2522/2023): Damage property contrary to s 403 of the Criminal Code by virtue of s 45A of the Criminal Code, carrying a maximum penalty of 1,000 penalty units, imprisonment for 10 years or both.
Facts
3․Between 6pm on 10 November 2020 and the early hours of 11 November 2020, the offender and five other detainees were involved in a riot in the North Wing Remand Unit (AU North) in the AMC. This involved the lighting of five fires throughout the unit, which caused extensive damage totalling an estimated repair cost of $1,606,605. The detainees caused damage to a number of other items in the unit during the riot.
4․AU North is a building designed to house detainees. It has an external perimeter and is secure from the rest of the AMC. It has two floors and 14 cells, a laundry room, a programs room, an interview room and a common area (the dayroom). Cells 1-5 are on the lower floor with the other areas, and the upper floor contains only cells 6-14. There is an outdoor courtyard accessible by a door in the dayroom. The courtyard has a large concrete wall, an exterior fence along the west and north sides, as well as a wall on the east side with a door to the central access and monitoring area used by Corrections Officers. There are CCTV cameras operating in the dayroom, the outdoor courtyard and the area around the courtyard.
North Wing Remand Unit discontent
5․In November 2020 there were growing tensions among some detainees in AU North regarding COVID-19 related restrictions, including limits upon visitors, no-contact visits and internal lockdowns.
6․On the evening of 10 November 2020, before detainees were due to be locked-in for the evening, Corrections Officer Smith spoke to several detainees, including co-accused M, about the provision of cigarettes by way of supplementary buy-ups. The cigarettes were not provided, creating a perception of unequal treatment amongst detainees in AU North.
7․Additionally, desserts had not been made available, leading co-accused B to yell at staff, agitating other detainees.
8․An agreement was made between some detainees to resist that evening’s lock-in. The subsequent riot was an escalation of the planned lock-in refusal.
Preparatory conduct
9․The events described below were all captured on CCTV footage.
10․Co-accused B used white fabric to tie a door to the courtyard to an adjacent bollard. Co-offender W joined co-accused M in the laundry and carried out several rolls of toilet paper and placed them on an appliance under the stairs in the dayroom. Co-offender W placed more toilet paper rolls in the dayroom and around the courtyard. The offender later joined co-offender W in placing toilet paper in the dayroom and the courtyard.
11․The offender damaged two CCTV cameras using a long stick, while co-accused B threw objects at the same two cameras. Co-offender W threw a bin at a camera. The offender attempted to obscure a camera by placing a towel on it.
12․Co-accused M approached the interior courtyard entry door wall window and made a gesture. Shortly afterwards, co-offender W, co-accused F and the offender took several plastic bags of rubbish to the courtyard while co-accused M threw orange peels at the CCTV cameras. Co-accused B moved part of a tennis table in the dayroom to cover the interior dayroom entry door, obstructing the line of sight and access through the door.
13․Co-offender W held a black and silver lighter in one hand and a roll of toilet paper in the other. Co-accused F tied a blue jumper around his face. Co-accused B then ripped linen in the laundry into strips.
14․Co-offender W 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 the plastic bags of rubbish.
Fire 1
15․The debris at the external entry door to the courtyard started to smoke. The offender threw toilet paper on the ignited debris, causing the fire to grow larger. Co-offender W then used the fire to set cardboard boxes alight.
16․Co-offender W collected several bundles of blankets from the laundry and put them on Fire 1. Fire 1 caused smoke to fill the dayroom and the area in which the Corrections Officers were based. Co-offender W and the offender continued to stoke the fire.
17․Co-offender W added another part of the tennis table to the dayroom entry door, creating a barricade. Co-accused F tied a shirt over his face.
18․Co-offender W and the offender pulled the metal frame and legs from a table in the dayroom. Co-offender W attempted to smash the glass between the dayroom and the area where the Correction Officers were with parts of the table. Co-accused F also tried to break the glass with a metal object.
19․Co-accused F pulled the metal table frame from a leg. He hit the glass in the Interview room door with a metal pole. He then hit multiple other doors and windows throughout AU North with the metal pole. Co-offender W shattered another CCTV camera with a metal pole. The offender broke another table into pieces, adding the tabletop to the barricade.
Fire 2
20․Co-accused F threw rolls of toilet paper from cell 8 to co-offender W, who unravelled them and put them near a white cardboard box at the base of the wall connecting the laundry room to the courtyard. Co-offender W added further toilet paper and another box before bending over the pile. Flames and smoke started emanating, creating Fire 2.
21․Co-offender W handed a small item to co-accused F. Co-accused F later dropped a small item from level 2 down to the offender.
22․Co-offender W added clothing, boxes and part of a wooden table to Fire 2.
23․The offender, along with co-accused C and B struck at a locked fire hose reel cabinet in the dayroom to attempt to gain entry, believing there to be an axe inside.
Fire 3
24․Co-offender W added further linen to Fire 2, then took two burning items and placed them in the courtyard on the opposite side of the metal fence of where Fire 2 was, creating Fire 3.
25․Co-offender W pointed to co-accused F, who was on the second floor. Co-accused F took a mattress from cell 8 and threw it down to co-offender W, who dragged it outside and placed it on Fire 3. Flames began to enter the dayroom through an air vent in an external wall. The offender poured some water on the grate, which had no impact on the fire.
26․The offender collected fabric items and threw them on a flaming mattress. Corrections Officers attempted to extinguish Fire 1 using a hose through the cracks of the internal courtyard door.
Fire 4
27․Co-accused B kicked the doors off some cabinetry in the Programs room. He then placed them against the external door at the far end of the courtyard. Co-offender W dragged a mattress from cell 1 into the courtyard and added it where co-accused B had left some doors. Co-accused B added further doors and clothing items to the pile.
28․Co-offender W approached the pile, which then started to emanate smoke, creating Fire 4. Co-accused C added fabric items and another cabinet door to the fire.
29․Co-accused F, along with several other detainees, emptied liquid onto the floor of the dayroom. Co-accused M carried a box out of cell 2 to the courtyard.
30․Around this time, ACT Fire and Rescue (ACTFR) arrived and were escorted to the perimeter by Corrections Officers carrying riot shields.
Fire 5
31․Co-offender W and co-accused F entered the dayroom together. Co-accused F took brown fabric from an appliance and took it outside to the courtyard. Co-offender W and co-accused C dragged mattresses from cells 3 and 1, into the courtyard. The pair then placed the mattresses against the wall connecting the dayroom and courtyard and smoke started rising from the ground, starting Fire 5.
32․Co-accused M handed co-accused C a bundle of blankets and fabric, who then placed them on Fire 5. Co-offender W threw a computer monitor onto the fire.
33․Co-offender W, with the assistance of other detainees, dragged a washing machine into the courtyard and threw it on the fire. He then dragged a second washing machine and a fridge and placed them on Fire 5. Co-offender W continued to add blankets and fabric items to the fire.
34․Between 9pm and 10pm, fires were also lit by unknown persons in Cells 8, 14 and in the program room. Around 10:06pm, ACTFR and Corrective Services gained entry to the dayroom and extinguished the fires.
35․The offender was not subject to any administrative penalty from Corrective Services under s 184 of the Corrections Management Act 2007 (ACT) in relation to the above conduct.
Summary of damage
36․In summary, the property relied upon for the damage property offence was all owned by the ACT Government and included electrical appliances, mattresses, bedding, CCTV cameras, furniture and fixtures in AU North.
37․AU North was unfit to house detainees following the riot. The estimated total cost for repairs for the damage was assessed at $1,606,605. Ultimately the prosecution accepted that this figure was not reliable for a variety of reasons and did not press the Court to rely upon it. The offender submitted the figure should be put to one side for the purpose of assessing the objective seriousness of the offending, though conceded the damage as revealed in the photographs was extensive. The prosecution agreed with that approach.
Identification of the offender
38․At the time of the offence, 27 detainees resided in AU North, including the offender, co-offender W and the four co-accused. Corrections Officer Sassine, acting Team Leader in the Intelligence and Integrity Unit, reviewed CCTV footage of the riot and prepared a document comparing still images from 10 November 2020 of each of the 27 detainees against their Custodial Information System photographs. The document identified each detainee and included information about their heights, tattoos and other visible features, including what they were wearing on 10 November 2020.
39․Various Corrections Officers provided recognition evidence of the offender based on their workplace interactions with him.
40․Another Corrections Officer observed detainees, including the offender, co-offender and the four other co-accused, damaging the fittings and fixtures in the unit. Another Corrections Officer recalled the offender and co-accused B attempting to incite other detainees to riot. During the riot, the same officer spoke to the offender who nominated himself as being “in charge”. He asked the offender and others why the lock-in had been resisted and several detainees replied citing various reasons including provision of cigarettes; the reinstatement of normal visits; that Corrections Officer Smith be sacked; that the Commissioner be made available to speak to the offender; and that they be provided with pizza.
Considerations
Nature and circumstances of the offending
41․As part of an assessment of the nature and circumstances of the offending, the objective seriousness of the conduct must be considered. 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]. Plainly, the maximum penalties for the offences in this matter reflect 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]. 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 principal offence and the nature and extent of the offender’s involvement.
42․An assessment of where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at 266, [19]. I approach this task consistent with R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24] and Laipato v the Queen [2020] ACTCA 35 at [156], identifying those features of the offending that inform the objective seriousness of the conduct.
43․The offending conduct was a course of conduct such that both offences were committed at the same time and accordingly, there are some considerations common to both offences. 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.
Arson
44․In R v Wrigley [2015] ACTSC 114 at [34], Refshauge J set out a number of relevant considerations when sentencing an offender for the offence of arson in this jurisdiction. Those considerations include the intent accompanying the offence (for example the destruction of evidence or to perpetuate an insurance fraud); the extent of the damage caused; the risk presented to others including those called upon to extinguish the fire; the degree of pre-meditation; and the deliberate nature of the conduct.
45․In this instance, the extent of the damage was significant, even accepting that the estimated financial value of the damage provided by the prosecution is unreliable. The offender readily accepted that the damage, on any view, was extensive. 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.
Damage property
46․R v Dawson [2022] ACTSC 64 saw McWilliam J at [41] identify factors relevant to an assessment of the objective seriousness of the offence of damage property: “motivation; extent and value of the damage; and level of inconvenience caused to the owner of the property”’: see also R v Carberry [2022] ACTSC 208 at [112].
47․The motivation accompanying this offence is the same motivation for the offence of arson. The extent of the damage to property was significant and the entirety of the conduct resulted in the closure of AU North for some time. The conduct was deliberate. The offending is properly characterised as serious.
Assessment of involvement in the offending
48․Participation in a joint criminal enterprise results in liability or responsibility for all of the acts committed by the participants in the course of carrying out the enterprise: KR v The Queen [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 with approval.
49․The level of involvement by this offender in what was a joint criminal enterprise was high. The prosecution accepted that the offender was on remand at the time of the riot and being held with sentenced prisoners. This practice is, on its face, inconsistent with the s 19 of the Human Rights Act 2004 (ACT) (the Human Rights Act), though exceptional circumstances are carved out as an exception to the right for segregation among prisoners. While the prosecutor did not specifically submit exceptional circumstances existed to justify the departure from s 19 of the Human Rights Act, I bear in mind that the COVID-19 pandemic presented particular, unprecedented even, challenges for custodial settings.
50․The offender told the author of the Pre-Sentence Report that he felt obliged to participate for fear of jeopardising his safety. I accept the general submission that in the background of the offender’s conduct was the environment (referred to in submissions as the “prison code”) that operates inside a prison to create a culture whereby resistance to ‘group think’ and/or exposing criminal intent or conduct, is at the very least, unpopular and at worst, dangerous. Given the nature and extent of the offender’s involvement in the conduct, this factor, while providing some background context, does not operate to mitigate to any great degree the offender’s participation. Even allowing for the idea of some prison bravado as well as for the operation of a “prison code”, the offender’s assertion that he was “in charge” is demonstrative of a level of enthusiasm for the collective conduct which was entirely consistent with his actual level of involvement.
51․I am satisfied beyond reasonable doubt that the offender was directly involved in at least two of the fires, described by the prosecutor as “actively maintaining and increasing them”. The offender’s conduct also contributed to the maintenance of the other fires. Specifically, the offender’s conduct consisted of collecting toilet rolls and bags of garbage used to fuel the fires in relation to the arson offence. In terms of the damage property offence, the offender specifically damaged two CCTV cameras and two tables (using one as a barricade), threw fabric onto an already flaming mattress and broke a fire hose cabinet.
52․On any view, the offender’s involvement in the offending was considerable and deliberate.
Subjective circumstances
53․The material before the Court includes a Pre-Sentence Report dated 30 January 2024, and four reports in relation to the offender’s mental health.
Pre-Sentence Report
54․The offender is a 34 year old man with an extensive criminal history across New South Wales (NSW), the ACT and New Zealand, and has been known to the ACT Corrective Services since 2020. The author commented that the offender’s behaviour has been unsatisfactory at times while in custody at the AMC, but he had not been subject to disciplinary action since July 2023 and is on an incentive program due to positive behaviour.
55․The offender was born in Sydney and raised by his grandmother until the age of 10, at which point he was sent to live with his mother in New Zealand where he was exposed to alcohol and illicit substance use and subjected to abuse. [Redacted]. The author of the report described his childhood as featuring significant trauma and disadvantage. He returned to Australia when he was 23 years old. He still maintains contact with his mother but has no or limited contact with the rest of his family. He has children from previous partners but they all reside in New Zealand and he has no contact with them. He is currently in a relationship which he described positively.
56․He reported a disrupted education, and a neurological assessment identified low literacy and numeracy skills and borderline cognitive impairment, which was attributed to his childhood trauma. He has had some limited employment in manual labour, fruit picking, landscaping, stonemasonry and working in a recycle centre. He is currently employed as a sweeper in custody. He had previously received some unemployment benefits from Centrelink in the community.
57․He reported to have some pro-social friends in the community. The author assessed this as unlikely due to his extended periods of incarceration in both NSW and the ACT.
58․The offender commenced alcohol and drug use at age 13, increasing from age 16, but reported reduced use as an adult and minimal use when he was in the community between December 2021 and March 2022. He used methamphetamine from age 15 and used it daily from age 25. He used cannabis as a teenager and stated he would resume use in the community as he did not believe using cannabis to be problematic. He advised he had been mostly abstinent from illicit substances in custody and had completed the EQUIPS Addiction program in October 2023. He applied to the Solaris program but was not approved due to poor behaviour. He submitted another application more recently but later requested to be removed from the waitlist. The author considered he would benefit from more intensive treatment for his illicit substance use as it has been a contributing factor in his previous offending.
59․He has had three surgeries on his eye to treat cataracts, and lens and retina detachments. He has an upcoming surgery which he believes will resolve his eye problems. While he reported no mental health problems to the author of the report it was noted that he had been previously diagnosed with Post-Traumatic Stress Disorder (PTSD) and drug-induced psychosis. He completed the EQUIPS Aggression program in June 2023.
60․Regarding his attitude to the offences, the offender told the author of the report that there was a riot in his accommodation area and he felt he had no option but to join as he would have otherwise been labelled as a “snitch” and this may have threatened his safety. He did not feel he should have been charged for the incident, stating the length of time between the offence occurring and him being charged was unreasonable.
Psychological Assessment Report – Leesa Morris
61․Ms Leesa Morris prepared a psychological assessment report of the offender in 2021 for another matter before the Court. Ms Morris interviewed the offender and reviewed a neuropsychological assessment report conducted by Dr Molly Schafer with the offender, as well as records from the Auckland Mental Health Services which the offender was engaged in at age 12. This was provided to the Court by counsel for the offender. Ms Morris considered the offender met the criteria for complex PTSD. The family, educational and employment history the offender provided to Ms Morris is largely consistent with that summarised in the Pre-Sentence Report, revealing an unstable childhood with limited family supports; it is also noted in the report that the offender only completed schooling to Year 7.
62․The report detailed significant alcohol and substance abuse early in the offender’s life. He nominated ten years old as the age he started drinking and using cannabis.
63․When assessing his criminogenic risk factors, Ms Morris noted the offender stated he “lost control in fights” and that he sometimes lashed out but was better controlling his temper when sober.
64․Ms Morris assessed the offender’s trauma symptoms and exposure to trauma. He described intrusive memories of having a gun held to his head, physical and emotional abuse from his stepfather, domestic violence against his mother and that he tries to suppress these memories. He experienced anxiety and some periods of depression and had once attempted suicide when he was a teenager. He considered that cannabis use made him calm and that it was his methamphetamine use which contributed to his offending. Ms Morris was of the view that these traumatic experiences have led him to respond to stressors in a more extreme manner than other people. She considered psychological intervention was necessary.
65․The offender was assessed against the basic personality inventory, revealing the following areas of clinical concern: depression, alienation, persecutory ideas, anxiety and self-deprecation. The assessment also indicated the offender is more likely to engage in risk-taking behaviours without assessing consequences, has difficulty with concentration and is socially introverted.
66․His risk of re-offending was assessed using the Violence Risk Appraisal Guide (Revised) and he was considered to be at high risk of re-offending within the next five years after being released from custody. Ms Morris did not have records available to her so based this assessment off [redacted] to her by the offender as well as his experience of childhood trauma. Using the Historical-Clinical-Risk Management-20 tool, he was assessed as having a moderate to high risk of violent recidivism. He expressed a desire to avoid substance abuse when released and to have a family.
67․Ms Morris considered that given his behaviour in custody some aspects of supervision in the community may be challenging for the offender.
Clinical Psychologist Report – Sam Borenstein
68․Mr Borenstein’s report was written in 2016 in relation to separate offending committed by the offender. The report contained similar details concerning the offender’s childhood and drug use to the report of Ms Morris and the Pre-Sentence Report. Mr Borenstein considered the offender’s childhood had created feelings of abandonment and rejection and that the relevant offending was motivated by hypervigilance and a need to protect those around him from perceived threats. He considered the offender had a history of acting impulsively. The report provided more detail regarding a period of four years in New Zealand during which the offender maintained employment, remained abstinent from drugs and regularly attended church. This period appears to give the offender confidence he will be able to abstain from drugs and alcohol and avoid re-offending upon his release from custody.
Neuropsychological Assessment Report – Dr Molly Schafer
69․Dr Schafer’s report similarly contained a history largely consistent with that provided in other reports conducted with the offender to which I have referred. She conducted various intellectual and executive function, memory and language tests with the offender. His academic skills and cognitive abilities were generally assessed as impaired or very low, with some exceptions such as sentence comprehension and verbal memory in the low-average range, which Dr Schafer considered likely attributable to his limited education and “disruptive and traumatic childhood”, which may have had an impact on his brain development and current cognitive profile. She considered his childhood trauma contributed to his behaviour dysregulation but considered that he maintained ability to control his behaviour, exercise judgement and make rational choices.
Auckland Mental Health Service Report
70․This report was written from interviews conducted with the offender when he was 12 years of age and confirms the history the offender gave in most of the reports conducted with him in recent years. It described a transient and disrupted upbringing, neglect, a history of physical and verbal abuse, exposure to substance abuse and behavioural problems in school. It also details early use of alcohol and drugs, [redacted] and significant learning difficulties.
Moral culpability
71․When the offender was sentenced in this Court in December 2021 (R v George [2021] ACTSC 361) Refshauge AJ observed at [99]-[100]:
99. There is no doubt that Mr George has suffered childhood disadvantage and this was accepted by both counsel. The disruption to his living arrangements would have brought not merely attachment issues, but also failed to give him grounding and certainty that could have led to the foundations of a healthy adulthood. His uncompleted and inadequate education have inevitably profoundly increased that problem.
100. This disadvantage will have affected his development and, as the courts have accepted reduces his moral culpability: Bugmy v The Queen [2013] HCA 37; 249 CLR 571. This disadvantage can also explain the criminal behaviour with his lack of developed sense of standards and behavioural norms, as well as the important sense of self-worth, which he was unable to develop because, in part, of the lack of balance and safety in his childhood. It is important to give full weight to his background in the sentence to be imposed.
72․I was encouraged by Mr Ager to adopt the approach taken in that sentencing exercise. For completeness I note that the offender was again sentenced in this Court in 2022 and the sentencing remarks are as yet unpublished. Nonetheless the prosecutor did not suggest that anything arose during the course of those proceedings that would undermine the assessment made by his Honour in 2021 and agreed that the offender’s background was a relevant factor for consideration.
73․The material demonstrates that the offender experienced a childhood riddled with dysfunction. He was abandoned by every adult charged with the responsibility of caring for him and this has gone on to, unsurprisingly, permeate his perspectives and perceptions. He spent much of his teenage years [redacted]. Consequently he has low literacy and numeracy skills and “borderline cognitive impairment likely caused by childhood trauma”: Pre-Sentence Report at [2]. In 2021, Forensic Psychologist Ms Leesa Morris, said this of the offender:
Mr George presented as an emotionally young man, who is frequently responding to the experiences of his childhood and adolescence. Without the opportunity for stability until his late teens, Mr George has not established any adaptive strategies for coping with his extensive trauma history. As a result Mr George has internalised mush of the negative messaging around him and he meets criteria for Post Traumatic Stress Disorder, Complex. Absent the opportunity to acquire positive behavioural strategies, Mr George has developed substance use disorders.
74․Ms Morris ultimately concluded in her report that “as a result of his experiences, Mr George is likely to respond to life stressors in a more extreme manner than those without his diagnosis”.
75․Since appearing before this Court for sentence in 2021 and 2022, the offender has [redacted]. The offender’s disadvantaged childhood circumstances are the kind contemplated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), such that I accept 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 Millward [2012] NSWCCA 2 per Simpson J with whom Bathurst CJ and Adamson J agreed at [69]. This circumstance of disadvantage must be given “full weight” in every sentencing exercise: Bugmy at [44].
76․As the Court of Appeal observed in MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62], citing Bugmy:
[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.
77․I am satisfied that the offender’s background of childhood disadvantage explains, to some degree, the conduct he engaged in, noting the circumstances of frustration and dissatisfaction with prison conditions. The offending was immature, dangerous and ultimately senseless, reflecting some of the limitations the offender has when it comes to responding to stress as a consequence of his childhood circumstances. The offender is undoubtedly an adult with fewer emotional and psychological resources upon which to draw when making decisions. The absence of these emotional and psychological tools arises directly from the enormous gap left in his development through the abandonment of him by all parental figures. Accordingly his moral culpability is reduced to some extent resulting in a moderation of the weight to be attributed to the sentencing purposes of general deterrence, punishment and denunciation.
Criminal history
78․The offender has an extensive criminal history in the ACT, and a number of entries in NSW. His record includes multiple previous offences involving property damage, possession of stolen property, weapons offences, burglary offences, offences involving violence, and an attempt to escape from lawful custody.
Time in custody
79․The offender was remanded in custody at the time of committing these offences. He has been before this Court for sentence in December 2021 and November 2022. Consequently he is now subject to a sentence of imprisonment ending on 5 January 2026. He was eligible for parole on 6 December 2023. He has spent no time in custody solely attributable to these offences. The effect of the offences having been committed while in lawful custody will be addressed below.
Guilty pleas
80․The offender entered pleas of guilty on 12 October 2023 after the matter had been committed for trial, on the day of the first mention of the matter in the Supreme Court for trial directions. The timing of the pleas have a high utilitarian value and accordingly consistent with Blundell v The Queen [2019] ACTCA 34, I apply a discount of around 20 per cent in recognition of that value.
Parity
81․Co-offender W has entered pleas of guilty, is currently on a Griffiths remand and is listed for sentencing later this year.
Remorse and rehabilitation
82․Remorse is a factor that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. Rehabilitation, if it can be achieved, is the most durable guarantor of community safety: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536-537, [32]. The offender, in my view not unreasonably, feels a sense of grievance in relation to the period between the offending conduct and the time he was charged. This sense of grievance is a legitimate response in the circumstances and I have not taken it to reveal a complete absence of remorse. The offender has accepted some responsibility for his offending, though did seek to entirely justify it by reference to the pressure of the prison environment which, as I have already observed, is inconsistent with the nature and extent of his involvement. There is limited remorse.
83․What might otherwise be fairly dim prospects for rehabilitation are enhanced by the offender’s completion of 20 sessions in June 2023 of an AMC aggression program and 20 sessions of an AMC addiction program in October 2023. In addition, the offender is now in a committed relationship that Mr Ager submitted is motivating the offender to “put his head down and serve his sentence”. The offender, despite periods of incarceration over the course of his life, has some employment history to point to as evidence of his capacity in that regard and he expressed a desire to return to working in a labouring role.
84․In the past, the offender’s use of illicit substances has been disastrous and featured strongly in his offending conduct. The offender told the author of the Pre-Sentence Report that he has not been using while in custody and there is no evidence before me to undermine the reliability of that report. His resolve to maintain his sobriety in the community, while admirable, remains largely untested. He would benefit, in my view, from accessing the more substantive programs aimed at drug rehabilitation in the AMC, namely the Solaris program. Engagement of that type would enhance his capacity to maintain his sobriety when the realities of life outside the custodial environment present themselves. The offender has expressed willingness to engage in the Solaris program. Indeed, he completed the 20 AMC addiction sessions in order to be eligible. He has experienced some difficulties, in part borne of his own frustration, with accessing the program though maintains his desire to participate.
85․The author of the Pre-Sentence Report identifies that the offender requires a “medium” level of intervention. In her 2021 report, Ms Morris offered this at [14]:
Psychological intervention for Mr George will require skill, experience and deftness in his treating clinician to encourage engagement and success…The majority of intervention will centre around his substance use and mental health.
86․I do not consider that rehabilitation is lost to the offender. Indeed I consider there are some positive developments, in particular over the last 12 months, that provide a sound basis for some positivity. Realistically the offender will need significant support and a willingness to genuinely engage if he is to turn the hints of rehabilitation into substantive reform. The need for significant support and accountability when he is released into the community is a sound basis to craft an outcome that will see the offender have access to that kind of supervisory regime.
Sentencing practice
87․The prosecution provided a detailed table of comparable sentencing outcomes: R v Winters [2022] ACTSC 42 (Winters), R v Yeaman (No 2) [2021] ACTSC 287, R v Rahman [2021] ACTSC 257 (Rahman), R v Beroukas [2021] ACTSC 172 (Beroukas), R v Denniss [2021] ACTSC 15, R v Howsan [2020] ACTSC 172 (Howsan), R v Wieland [2020] ACTSC 16, R v Denniss [2019] ACTSC 283 (Denniss (2019)), 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, Griffin v R [2018] NSWCCA 259.
88․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]. Sentencing outcomes illustrate a range, they do not define the boundaries of the sentencing discretion: R v Pham (2015) 256 CLR 550 at 560, [29]. Justice must be individualised. With those principles firmly in mind, I have had regard to the following matters.
Winters
89․The offender was sentenced for one count of arson with a scheduled offence of property damage. The arson consisted of the offender placing toilet rolls inside a box and using a lighter to set the box on fire. He used the intercom to alert Corrections Officers. The motivation behind the offending appeared to be a protest against being placed in the general population area in the AMC. There was about $25,000 worth of damage caused. Acting Justice Berman considered the Bugmy principles were applicable to reduce his moral culpability for the offending. He had a significant criminal history. The offender was sentenced to 10 months of imprisonment, reduced to 8 months for his plea of guilty, which was suspended after 4 months upon entering a 2-year Good Behaviour Order.
Rahman
90․The offender started a fire within his cell using blankets, bedding and paper cups as fuel and was sentenced for a single count of arson. He used the intercom to alert Corrections Officers. Mental health was a prominent sentencing consideration, given the fire was a product of the offender’s schizophrenia. He had a relatively limited criminal history which Murrell CJ considered largely referable to his history of mental illness. The fire caused $2,961 of damage and though caused some risk, it was assessed as a relatively low risk. He was afforded a 25 per cent discount for a plea of guilty and sentenced to a 2 year Good Behaviour Order with supervision.
Beroukas
91․The offender lit a fire in his cell which spread to other parts of the cell; it was quickly extinguished by other inmates. He was charged with a single count of arson. There was $2,300 of damage. The offender attributed the offence to an “immature desire to impress people”: at [81]. He was sentenced to 10 months of imprisonment reduced from 12 months for the plea of guilty, which was fully suspended upon entering a 12-month GBO with supervision. He had shown remorse and had experienced a disadvantaged childhood, including emotional and physical abuse.
Howsan
92․The offender set fire to material in his cell and was charged with a count of arson. The greatest risk was to the offender himself, though there was also a risk the fire may have spread to other parts of the prison. It affected other occupants of the prison who could not move around freely: at [6]. It was assessed as a serious example of the offending. He was sentenced to 12 months of imprisonment, reduced from 16 months for the plea of guilty, which was fully suspended upon entering an 18-month Good Behaviour Order with supervision.
Hudson
93․The offender was sentenced for eight separate counts, one of which was arson. The offender set fire to the bunks in his cell, causing the entire cell block to be locked down. When Corrections Officers attempted to extinguish the fire, the offender blocked their attempts. A Corrections Officer suffered smoke inhalation. It required the attendance of firefighters and caused $24,224 worth of damage. The offending was likely an act of protest against moving cells, due to the offender’s fear of members of a rival gang: at [53]. The offender had a dysfunctional upbringing: at [75]. For the count of arson, a sentence of 21 months of imprisonment was imposed, reduced from 27 months for the plea of guilty.
Denniss (2019)
94․In Denniss, the offender was sentenced for two counts of arson. He set fire to his cell at the AMC using a lighter and caused extensive damage totalling $87,748. The fire was extinguished by Corrections Officers. He then set fire to a cell in the management unit. He blocked Corrections Officers from opening the cell door hatch to put out the fire. The officers used a fire extinguisher and the offender attempted to relight it, but after negotiations was extracted from the cell and handcuffed. Self-harm was determined to be the likely motivation for the offending and general deterrence featured as an important consideration for the prison population. He was sentenced to 18 months of imprisonment on each count, reduced from 24 months for the plea of guilty.
95․Additionally, I have considered R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 (Carberry; Deng). The two co-offenders were re-sentenced by the Court of Appeal for counts of arson and property damage by joint commission. The offending occurred in the AMC and the co-offenders caused significant damage to the unit by throwing various items and breaking a window. Mr Deng went into a cell carrying clothing and lighter and then left; Mr Carberry took toilet paper from a cell, set it alight and placed it in the corrections officer’s station. Both co-offenders continued to stoke this fire. When Corrections Officers attempted to extinguish the fire, the co-offenders continued throwing items into it including a microwave. The station became engulfed in flames. Two small fires were also started in a cell by Mr Carberry. After the fires were extinguished by ACT Fire and Rescue, the co-offenders started another fire in the yard; when this was extinguished the co-offenders relit it and it was then finally extinguished. The co-offenders were yelling constant abuse and threats at the corrections officers during the incident. The total cost of the damage was $4.61 million. Mr Carberry had additional charges of assault scheduled to the principal offences. Bugmy principles were applicable to Mr Carberry and both co-offenders expressed remorse for their actions. Both had extensive criminal histories. Mr Carberry was re-sentenced to 4 years and 6 months of imprisonment (reduced from 5 years and 10 months for the plea of guilty) for the count of arson and 2 years and 3 months of imprisonment (reduced from 2 years and 7 months for the plea of guilty) for the count of damaging property. Mr Deng was re-sentenced to 4 years and 4 months of imprisonment (reduced from 5 years and 8 months for the plea of guilty) for the count of arson and 2 years of imprisonment (reduced from 2 years and 6 months for the plea of guilty) for a count of damaging property.
Delay
96․The offences occurred more than three years ago. Delay itself is not necessarily a mitigating factor though it may be in combination with other relevant sentencing factors favourable to the offender: R v Donald [2013] NSWCCA 238 at [49], citing Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 at [31]-[34], [59]-64].
97․In this matter there is no explanation at all offered for the delay. It was accepted by the prosecutor that the delay is in circumstances where the offending cohort were quickly and easily identified by investigating authorities. Indeed it seems on the day of the riot positive identifications were made by ACT Corrections staff. There can be no suggestion that the offender was difficult to locate given his presence at the AMC, or alternatively under the supervision of ACT Corrective Services, for the entire period since the offending. The offending occurred in November 2020 and the first summons was issued in April 2023. The delay in commencing the proceedings in the circumstances of the investigation is quite simply, indefensible. The delay is unreasonable and unwarranted. So much was accepted by the prosecutor.
98․In NC v The Queen [2017] ACTCA 31 at [77] the Court of Appeal observed:
Nevertheless, and despite those differences, the principles enunciated in Todd, Mill and Blanco remain applicable to this matter. As Wood CJ at CL said in Blanco (at [16]), the fact that the appellant was being sentenced for a “stale crime” called for “a measure of understanding and flexibility of approach”. Nothing in the sentencing judge’s remarks on sentence, and nothing in the sentences that were imposed, demonstrates that the sentencing judge approached the difficult sentencing exercise which he faced with the required understanding and flexibility of approach. While delay, and the considerations referred to in Todd, Mill and Blanco, are not expressly referred to in the list of relevant considerations in s 33(1) of the Sentencing Act, s 33(3) makes it clear that the list in s 33(1) is not exhaustive and that the court may take other considerations into account.
99․In my view this is a particularly egregious example of delay. The prosecution submitted that this is not a case where the offender was “in a state of suspense as to whether he might be charged”: R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 (Blanco) at [17]. I do not agree. The offending was captured on CCTV cameras, the offender knew he was involved in the offending, he knew he had engaged with Corrections Officers during the course of the offending and he knew that those officers would be in a position to readily identify him (as they did). Those circumstances provide a strong basis for the offender to have been left in a state of suspense. The charges were then two and half years in the making, the offender being a detainee of the AMC for much of that time and for the three months he was not a detainee, he was under the supervision of ACT Corrective Services as part of a Suspended Sentence Order imposed upon him. Indeed these offences could have been finalised by this Court when the offender was sentenced in December 2021 and again in November 2022. The extensive delay in circumstances where there is compelling evidence has the appearance of the authorities sitting on their hands while the offender, for the most part, sat in the AMC awaiting any consequences of his conduct.
100․The case for a focus on rehabilitation in considering the influence of delay is difficult for the offender to sustain as he continued to offend while in custody after the November 2020 ‘riot’. While there are certainly glimpses of his capacity for rehabilitation it is not a matter where he has consistently demonstrated his commitment to a rehabilitative pathway in the intervening period such that it would justify an outcome weighted in favour of rehabilitation: Blanco at [17].
101․This was a case involving serious criminal conduct. As Wood CJ at CL observed in Blanco at [17], it is:
[H]ighly 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.
102․The significance of general and specific deterrence is emphasised by the prosecution in this sentencing exercise. So much is accepted. Of course the capacity for a sentence to forcefully bear upon those purposes is maximised when the sentence is imposed as close in time to the offending as is possible. This was a case where that outcome was entirely possible and yet for reasons unknown, at least to this Court, it did not happen.
103․The Court cannot be seen to endorse the approach taken in this matter and accordingly the delay demands a “measure of understanding and flexibility of approach”: Blanco at [16].
104․The prosecution accepts that the delay in this matter can operate to influence the structure of the sentence imposed including the effect upon the offender’s ability to apply for parole. In my view, this is the appropriate way for delay to be properly taken into account and will appropriately result in an outcome different to that which might have been imposed had the offender been dealt with swiftly.
Determination
105․The instinctive synthesis that attends to the sentencing task requires the Court to balance all of the relevant factors and principles to arrive at a just and appropriate outcome. The purposes of sentencing are clearly set out at s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act). Of particular significance in this sentencing exercise is the need to give effect to general and specific deterrence, punishment, denunciation and accountability. That said, as I have already determined, consideration of the offender’s moral culpability moderates to some extent the weight to be attached to general deterrence, punishment and denunciation. I consider rehabilitation remains a factor to be taken into account.
106․The offending conduct was serious and dangerous. Once commenced, riotous behaviour can take on a life of its own, can be unpredictable and can be difficult to contain. Those features, to some extent, can be observed in this matter. In a custodial environment the safety and security of all detainees and corrections staff relies on, to a significant degree, the capacity to consistently apply necessary constraints on freedom. In recognising the need for certainty and predictability in a custodial environment I am not seeking to diminish the acute effect on inmates of the COVID-19 restrictions which saw them even further isolated from their families and other outside supports. These were undoubtedly difficult circumstances to manage. Nevertheless, it must be emphatically stated that the reaction by the offender and other disgruntled detainees to those restrictions, was extreme and cannot be tolerated.
107․In my view, the seriousness of the offending and the purposes of sentencing most relevant demand a period of imprisonment. It is the only appropriate outcome having regard to possible alternatives: s 10, Crimes (Sentencing) Act.
108․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”: Carberry; Deng at [92]. I must fix an appropriate sentence for each offence and then consider questions of concurrency or accumulation and totality. The outcome must be one that reflects the totality of the criminal behaviour and is “just and appropriate” for all the offending: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63, [8]. A sentence should not crush an offender so as create hopelessness and extinguish rehabilitative prospects. Sentences must avoid outcomes that encourage a perception that multiple offences will result in a discount and a single episode of criminality with common features makes it more likely that the sentence for one offence will reflect the criminality of the other, strengthening the basis for at least partial concurrence: O’Brien v The Queen [2015] ACTCA 47 at [26].
109․There is an added layer of complexity to this matter by virtue of the offences having been committed while the offender was in lawful custody. I turn now to that aspect of the sentencing task.
Sentencing for offences committed while in lawful custody
110․It is helpful to set out the legislative regime that applies. The offences having been committed while in lawful custody results in the application of a number of provisions directed toward this circumstance. The effect of s 64 of the Crimes (Sentencing) Act is that a non-parole period cannot be set for an “excluded sentence of imprisonment” defined to be a sentence of imprisonment imposed for an offence committed while in lawful custody.
111․Section 72(2) of the Crimes (Sentencing) Act provides that in the absence of a direction under sub-s (3), the sentence (the primary sentence) for an offence committed while the offender was in lawful custody must be served consecutively with any existing sentences of imprisonment.
112․The offender is currently serving an ‘existing sentence’: s 70(1)(a)(i), Crimes (Sentencing) Act. This existing sentence started on 7 May 2022 and ends on 5 January 2026. The non-parole period for that sentence ended on 6 December 2023.
113․As was the case in Carberry; Deng in respect of the sentence to be imposed for each of these offences committed in custody, s 70(1)(a)(iii) applies such that for each of the offences, the other is an ‘existing sentence’. As the Court of Appeal observed in Carberry; Deng at [94], this results, prima facie, in no concurrency as between the instant offences and no concurrency with the existing sentence the offender is serving.
114․Pursuant to s 74(3) the court may direct that a primary sentence be served concurrently (or partly concurrently and partly consecutively) with an existing sentence. Though a “high degree” of departure from the statutory norm of consecutive sentences calls for a “clear and express explanation” in particular where no “good reason” for doing so is apparent: The Queen v Rappel [2019] ACTCA 11 (Rappel) at [25].
115․The prosecution disavowed a characterisation of the offending on this occasion, that would invoke s 72(4) of the Crimes (Sentencing) Act. The prosecution submitted that while, in particular, the offence of arson was capable of coming within the scope of s 72(4) of the Crimes (Sentencing) Act, on the agreed facts in this matter such a characterisation was not able to be established. Therefore ‘special circumstances’ are not required before a direction pursuant to s 72(3) can properly be made. While not required to decide whether ‘special circumstances’ exist in this matter, I simply note that the delay in this matter would have been an influential factor in that determination.
116․The Court of Appeal in Rappel observed at [24]:
The purpose of s 72 of the Crimes (Sentencing) Act is clearly enough to ensure that, ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody. A departure from such a clear statutory statement of a sentencing norm should not lightly be countenanced. Within the jail community, further offending must be seen to carry the consequence of a full sentence being imposed as an almost inevitable outcome, so as to effectively deter further offending, rather than being seen to be subject to an effective discount because of an existing sentence. Those already in custody will then have the strongest of incentives not to transgress further and thereby extend their incarceration, the date of release obviously being of vital importance. If a departure from the statutory norm is considered appropriate in the exercise of the discretion retained to do so, it should be explained so that all concerned, including custodial authorities, those affected by the conduct, and an appeal court, understands why that norm has been departed from.
117․In Carberry; Deng the Court of Appeal considered at [96] that “a degree of concurrency was justifiable in relation to the property damage and arson offences, as they arose out of the same course of conduct, and a direction to that effect is understandable” though concluded that making the offences wholly concurrent with each other suggested an error in principle, given the separate nature of the acts and the legislative principles concerning offences committed in lawful custody.
118․The Court further observed the following about the general principles regarding offences committed in custody, specifically those that cause physical damage to the custodial environment and facilities at [85]-[86]:
85. General deterrence is a paramount consideration in relation to offences committed in prison, especially in the ACT because there is a single prison and a single, centrally located, court system: Horan v O'Brien [2021] ACTSC 323 at [16]. Deterrence, along with denunciation, takes on particular importance as a purpose of sentencing in a case where the offence involves partial destruction of the facility in which the offenders are being lawfully detained, accompanied by threats to corrections officers. This follows from the centrality of the criminal justice system in an orderly society where the rule of law is a fundamental value. It is also reflected by the fact that Parliament has excluded parole for offences committed in custody, and limited the circumstances in which sentences in relation to such offences can be served concurrently with others: Sentencing Act, ss 64, 72.
86. It has also been recognised that deterrence is to be given substantial weight in respect of the offence of arson, in part because it is easy to commit and can have very destructive, if not tragic consequences: R v Booth [2004] ACTCA 21 at [26]; R v Catts (1996) 85 A Crim R 171 at 176. Injury or loss of life was more than a theoretical risk in this case where detainees were locked in their cells and would have been unable to escape had the fires lit by the offenders spread quickly.
119․The effect of ss 64 and 72 to both exclude parole and constrain the potential for concurrency brings into sharp focus the seriousness with which offences committed while in lawful custody should be treated by sentencing judges. The application of those provisions does not preclude the application of the totality principle to avoid a crushing or unjust outcome. While the offender in this instance will still be subject to a non-parole period notwithstanding the sentences I impose, it will be of no utility to him if I decline to make a direction under s 72(3).
120․The prosecution conceded that an entirely cumulative sentence would be “excessive” in the circumstances. I am mindful of the need to give effect to the relevant purposes of sentencing noting the clear statement from the Court of Appeal in Rappel about the significance of general deterrence in these circumstances. I am also mindful of the significant influence of delay in these proceedings.
121․Having carefully balanced all of the factors, some of which pull in different directions, it is appropriate to make a direction pursuant to s 72(3) to properly reflect the circumstances particular to this matter. The application of s 72(2) would result in a crushing outcome which is to be avoided. I consider it appropriate to direct pursuant to s 72(3) that the sentences of imprisonment I impose on the instant offences should be served partly concurrently with each other and entirely concurrent with the existing sentence the offender is serving.
122․The effect of the orders I will make is an additional period of 12 months of imprisonment attributable to the November 2020 offences. This will see the offender eligible to receive parole supervision upon release into the community which I consider will be of significant benefit to him and the community. The result of the start date for the period of imprisonment I will impose is that a period of time between December 2021 and March 2022, when the offender was subject to a suspended sentence order, is included. It will also see entire concurrence with the existing November 2022 sentence. At first glance this may appear to be an unduly lenient approach. I have carefully considered the overall outcome arising from the structure of the sentence I have crafted.
123․The structure of the sentence I will impose requires the offender to spend additional time in custody directly attributable to this offending. This is necessary and respects the intention that offending while in lawful custody should have actual consequences for detainees. The structure also requires the offender to engage in community supervision because of the terms of the existing sentence imposed in November 2022. The preservation of the requirement for parole accountability when the offender is released, a requirement that could have been partially or entirely extinguished by the imposition of a more severe sentence, in my view is also necessary in the circumstances. I am satisfied, given the complexities of this sentencing task created by the significant delay, that the outcome I have crafted is a just and appropriate outcome in all of the circumstances.
124․The starting point for Count 1, the arson offence, is 3 years and 10 months of imprisonment, reduced to 3 years of imprisonment in recognition of the plea of guilty.
125․The starting point for Count 2, the damage property offence, is 22 months of imprisonment, reduced to 1 year and 5 months of imprisonment in recognition of the plea of guilty.
Orders
126․For those reasons the following orders are made:
(1)On Count 1 (CAN 2523/2023) the offender is convicted and sentenced to three years of imprisonment commencing on 6 October 2021 and ending on 5 October 2024.
(2)On Count 2 (CAN 2522/2023) the offender is convicted and sentenced to 1 year and 5 months commencing on 6 July 2023 and ending on 5 December 2024.
| I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 22 February 2024 |
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