Director of Public Prosecutions v Joliffe-Cole
[2024] ACTSC 256
•16 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Joliffe-Cole |
Citation: | [2024] ACTSC 256 |
Hearing Date: | 8 August 2024 |
Decision Date: | 16 August 2024 |
Before: | Taylor J |
Decision: | (1) On the charge of aggravated robbery (CC2023/1689) the offender is convicted and sentenced to 2 years, 7 months and 15 days of imprisonment commencing on 20 July 2024 and ending on 6 March 2027. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – in company – injury to victim – low value of property taken – where offender had disadvantaged childhood and illicit substance abuse issues – expressed genuine remorse – significant criminal history – timing of plea of guilty in the Magistrates Court – twenty-five per cent discount applied |
Legislation Cited: | Court Legislation Amendment Act 2015 (No 2) (ACT) Crimes (Sentencing) Act 2005 (ACT) s 7 Crimes Legislation Amendment Act 2008 (ACT) Criminal Code 2002 (ACT) ss 45A, 310 Magistrates Court Act 1930 (ACT) s 90AB |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 Cole v The Queen [2019] ACTCA 3; 14 ACTLR 84 Cranfield v The Queen [2018] ACTCA 3 Director of Public Prosecutions v Campbell (No 2) [2024] ACTSC 105 Director of Public Prosecutions v Dalgliesh(a pseudonym) Director of Public Prosecutions v Matas [2024] ACTSC 234 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Imbornone v R [2017] NSWCCA 144 Mill v The Queen [1988] HCA 70; 166 CLR 59 Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 R v Apps (No 2) [2019] ACTSC 369 R v French [2021] ACTSC 205 R v Hawkins [2020] ACTSC 29 R v Lau [2020] ACTSC 120 R v Millwood [2012] NSWCCA 2 R v Moore [2021] ACTSC 333 R v Nicholas; R v Palmer [2019] ACTCA 38 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 Taylor v The Queen [2014] ACTCA 9 |
Texts Cited: | Practice Direction 2 of 2024, ACT Supreme Court |
Parties: | Director of Public Prosecutions ( Crown) Kalani Joliffe-Cole ( Offender) |
Representation: | Counsel M Fieldus ( DPP) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 39 of 2023 |
TAYLOR J:
Introduction
1․The offender, Kalani Joliffe-Cole is to be sentenced in relation to one count of aggravated robbery by joint commission. The offending involved a violent group attack on the victim in the car park of his apartment building. Several personal items including money and bank cards were stolen from the victim and later used to purchase items. Of the three people responsible for committing the robbery, the offender is the only person to be sentenced.
2․The offence of aggravated robbery by joint commission is contrary to s 310 of the Criminal Code 2002 (ACT) (the Criminal Code), by virtue of s 45A of the Criminal Code, and carries a maximum penalty of 25 years imprisonment, 2 500 penalty units or both.
3․The offender entered a plea of guilty in the ACT Magistrates Court on 15 February 2023.
Facts
4․On the morning of Saturday 23 July 2022, the victim woke up and walked down the stairs to access his vehicle in the car park area of his apartment building. At approximately 12:00PM, he saw a man in his carport. The victim thought the man was possibly lost and asked him if he was "okay". The man turned around and faced him. The victim observed the man to be Caucasian in appearance, of a stocky build, about five foot eight inches in height, with a buzz cut. The victim further observed a scripted tattoo on the right side of the man’s face, and that he was wearing a white t-shirt with black writing on the front.
5․The victim immediately recognised the man as “Kalani”, the offender. As the victim identified the offender, another unidentified male wearing a face mask approached him and threw him to the ground. As the victim laid on the ground, the offender punched the left side of his face with his right hand.
6․As the offender punched him, the victim observed the offender to have letter tattoos on the back of his right fingers. A third unidentified male began to assault the victim. As the victim was laying on the ground, he saw one of the men produce a sharp-edged weapon which he described as an “ice pick” and hold it to his neck.
7․One of the unidentified males told the victim not to move, and he was then punched again by one of the males. During the attack the victim moved in and out of consciousness and he could feel the men searching his pockets. The offender together with the two co-offenders left the victim at the location and departed. The victim saw them drive away in a white car.
8․At about 12:38PM, the victim heard his mobile phone activate with messages from his bank alerting him to suspicious transactions that had occurred at Supa Xpress Florey and Florey Bakery, ACT.
9․At this time, the victim thought he may have been unconscious for about 15 to 20 minutes. The victim could not locate the following items, having been stolen during the robbery: his ACT driver’s licence, his working with vulnerable persons card, his ACT Firearms licence, his Medicare card, his black leather wallet containing $350.00 in cash and two bank cards, and his sneakers. The victim froze his bank accounts upon being alerted to the suspicious transactions.
10․At about 1:06PM, the victim attended Belconnen Police Station and reported the incident. He was assessed by ACT Ambulance Service and conveyed to The Canberra Hospital where he underwent a medical assessment.
11․At about 11:14PM on the same date, police conducted a traffic stop on a vehicle for an unrelated matter and spoke with the offender who was the driver and sole occupant. Checks conducted on ACT Road and Transport authority showed the car to be registered in the offender's name.
12․On Sunday 24 July 2022, the victim participated in an interview with police where he told them:
(a)That he played basketball with the offender for two years;
(b)That he knew the offender from school;
(c)That the offender would “hang” out with the victim’s friends;
(d)That he was friends with the offender on the social media platform 'Facebook';
(e)That the offender bought something from him on Facebook a few years ago; and
(f)That he looked at the offender's profile on Facebook and immediately recognised him to be the same person who assaulted him the day before.
13․Police observed swelling to the victim’s left cheekbone, which he identified was the result of the offender punching him during the robbery.
14․On the same day, police attended Supa Xpress Florey and Florey Bakery and requested their Closed Circuit Television (CCTV) footage. Police viewed the CCTV footage and observed one of the unknown co-offenders purchasing $63.70 worth of goods, consistent with the unauthorised deductions from the victim’s bank account.
15․At about 6:03AM, Police attended the offender’s residence to execute a search warrant. At about 6:45AM, the offender arrived at the residence and participated in a record of search warrant with police. The offender did not make any admissions. The offender was arrested and conveyed to the ACT Watch House.
16․During a search warrant executed on a vehicle registered to the offender, police seized a “black metal pole” near to the driver’s side door which was similar in appearance to the weapon described by the victim.
17․A forensic analysis of the black metal pole revealed a mixed DNA profile and the offender could not be excluded as a contributor to that DNA profile.
Sentencing considerations
Nature and circumstances of the offending
18․Plainly, the offence of aggravated robbery is an objectively serious offence. The significant maximum penalty reflects that the offending is both against the person and involves property. As a “yardstick”, the maximum penalty sees this offending properly characterised as a very serious offence. The conduct does not fall to be categorised by reference to a range expressed as ‘low’, ‘mid’ or ‘high’. It is useful to identify the features of the conduct that influence an assessment of the objective seriousness of the offence.
19․The offence was committed by three offenders in company, a weapon was brandished and held to the victim’s neck, the victim was alone in a car park and punched repeatedly. The value of the property was not especially high, though undoubtedly represented some financial disadvantage and practical inconvenience to the victim.
20․The offending was unsophisticated. Any planning involved was not especially careful as the offenders made no attempt to conceal their identities either during the course of the robbery or later when purchases were made with the victim’s credit card. The prosecution pointed to the brandishing of the black metal pole or “ice pick” as demonstrative of planning. I accept that submission to the extent that the offenders, having made a decision to rob the victim, determined to take the weapon and use it to intimidate and frighten him, but as counsel for the offender pointed out, the use of the weapon does not exclude that the initial decision to rob to the victim was opportunistic.
21․The violence perpetrated against the victim was directed to his head and face and resulted in him losing consciousness and requiring medical attention. The victim was subjected to a random, unprovoked attack by three men who quickly indicated their preparedness to use violence against him. There is no victim impact statement. I do not require one to be satisfied that the attack would have been a very frightening and painful experience. The facts record that the victim suffered some injuries. An attack in company such as this might feel brave against a man when he is struck without warning, when he is clearly outnumbered, and when he knows there is a weapon that might be used against him. In truth the attack was cowardly; facilitated by a united willingness to behave despicably toward an unsuspecting member of the community.
22․The offending is a serious example of the offence and undoubtedly warrants the imposition of a period of imprisonment. No submission was advanced to the contrary.
Subjective circumstances
23․The offender is a 27 year old man who has had significant engagement in the criminal justice system. He reported a difficult childhood to the author of a Court Duty Report; his father was not involved in his upbringing, he experienced physical abuse from his stepfather and [redacted].
24․He has two young children from two ex-partners. He has a positive relationship with his mother, younger sister and other extended family members. He has an amicable relationship with one of his ex-partners, the mother of his eldest son. His mother and his eldest son regularly visit him in the AMC. He has not seen his youngest son from his second ex-partner since he was a baby.
25․He attained education up to Year 10 and left school in Year 11 to pursue employment in labouring jobs. He has plans to return to that kind of work once released from custody. He has no savings and some debt.
26․The offender acknowledged significant substance abuse issues with heroin and methamphetamine and was able to identify that this has significantly contributed to his pattern of offending. He has not used illicit substances for over a year now and expressed a desire to remain abstinent in the community. Consistent with that, the offender is for the first time in receipt of Buvidal injections and is engaging in drug and alcohol counselling while in custody. He has struggled with anxiety and depression for which he is currently prescribed medication.
27․The offender was assessed as being at high-risk for general reoffending. The significant criminogenic risk factors were identified as his “use of illicit substances, mental health issues, financial situation, and his attitudes towards his criminal behaviour and prior supervision with ACT Corrective Services”. The author considered it was to the offender’s credit that he was able to identify those risk factors for himself and is taking steps to address them in custody.
Letter from offender’s mother
28․The offender’s mother provided a letter to the Court. She wrote that her son “is a great father, son, hard worker and has a lot of love”. She recorded the positive steps she considered the offender to be taking before he was most recently incarcerated, including that he had stable employment and was playing an active role in his sons’ lives. She confirmed that the offender has maintained contact with her and his eldest son while in custody through visits and phone calls. She considered he had made progress and shown growth while incarcerated, having completed counselling sessions and educational courses. The offender’s mother recorded her knowledge of his involvement in peer mentoring and the commendation he has received for his leadership in this regard.
Remorse, degree of responsibility for the offending and rehabilitation
29․Ordinarily, treating untested expressions of remorse from an offender as demonstrative of genuine remorse, should be approached with caution: Imbornone v R [2017] NSWCCA 144 at [57]. On this occasion, the expressions of remorse contained in a letter written by the offender are consistent with the observations of the author of the Court Duty Report, the entry of an early plea of guilty, a willingness to engage in restorative justice and a capacity to articulate victim empathy. The combined effect of the material demonstrates that the offender is not merely sorry for the circumstances he finds himself in, but genuinely remorseful for the conduct he perpetrated against the victim.
30․The letter from the offender expressed regret and remorse for his offending. The offender demonstrated his capacity to reflect on the harm caused to the victim. The offender also identified that by his conduct his own children have had some negative impact upon their lives. He expressed a desire to apologise to the victim for the impact the offending had on his life. The letter detailed the numerous positive steps the offender has engaged in while in custody. He has attended counselling for anger management, multiple educational courses, a parenting course in which he was a peer mentor and is employed as a sweeper in his unit, a job in which he expressed pride. He has been addressing his substance abuse issues while in the AMC, having attended counselling for substance abuse; the SMART Recovery program. The offender confirmed his commitment to receiving Buvidal injections. He stated that he has remained abstinent from substance use for the last 16 months. He also confirmed that he is receiving medication for his mental health issues which he considered has “been [his] real saving grace”, giving him a “new attitude” and motivation to “change [his] future for the better and for the good”.
31․The author of the Court Duty Report considered that the offender had demonstrated remorse for his actions and victim empathy. The offender readily acknowledged that the event would have been traumatising for the victim. The offender is recorded as having remarked to the author, “Who am I to do something like that to another person? It’s not right, I feel like a piece of shit”.
32․The Court Duty Report reveals that the offender was able to directly connect his offending to his illicit substance abuse issues, stating that he was “experiencing heroin and methamphetamine withdrawals” and “made an impulsive decision to commit the robbery, to obtain money to purchase more illicit substances”. Of course, this does not excuse the offender’s conduct but does provide some explanation and context for his involvement in the attack on the victim.
33․Genuine remorse is a factor that influences an assessment of an offender’s prospects for rehabilitation. Successful rehabilitation operates as a safeguard for the community. In this way, the community has a real interest in an outcome that promotes and encourages the offender to continue with the progress he has made while in custody.
34․The prosecutor fairly conceded that based on the material before the Court it could be properly concluded that the offender is genuinely remorseful. In combination with the active steps he has taken toward reform, there is a real basis for some confidence as to his prospects of rehabilitation. In particular the offender’s involvement in the peer mentoring program in combination with his acknowledgment that treatment for his mental health issues is critical to his well-being, demonstrates enhanced insight and improved maturity. Overall the offender presents with good prospects for realising meaningful reform in the context of his history of offending and his substance misuse. Accordingly, I am satisfied that rehabilitation is a factor that must be given real weight in the sentencing exercise.
35․The material confirms that the offender experienced physical abuse from a young age, [redacted].
36․The offender’s disadvantaged childhood must be given full weight: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) at 595 [44]. By virtue of his experience of childhood abuse he is a person who will necessarily “have fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 at [69] per Simpson J (with whom Bathurst CJ and Adamson J agreed at [1], [77]).
37․The offender’s experience of abuse as a child does provide some explanation for his entrenched use of illicit substances and what is clearly an associated, persistent engagement with the criminal justice system. The offender’s moral culpability for this offence must be viewed through the prism of his childhood trauma. This factor operates to reduce to some degree the weight to be afforded to general deterrence and denunciation.
Criminal history
38․The offender has a significant criminal history in both the ACT and NSW. This history reveals previous non-compliance with community-based orders and includes offences of violence. This history limits the leniency that can be afforded to the offender.
Time in custody and totality
39․The offender has spent 27 days in custody solely referable to this offence. I will take this into account in the sentence I impose.
40․The offender is currently serving a sentence of imprisonment imposed on him in NSW on 4 January 2023 for several offences. The period imposed was 2 years and 6 months of imprisonment to expire on 3 July 2025. The offender was subject to a non-parole period of 12 months to expire on 3 January 2024. Upon his release to parole that day, the offender was arrested for the offence currently before this Court and extradited to the ACT.
41․In sentencing the offender, I take into account that he has been in continuous custody since 4 January 2023. This will represent the most substantial period the offender has spent in a full-time custodial environment. I bear in mind the need to avoid a ‘crushing’ sentence, and to avoid the appearance of more than one offence resulting in a ‘discount’.
Plea of guilty
42․The offender entered a plea of guilty to this charge on the first occasion it appeared in the Magistrates Court. Another aggravated robbery charge and two less serious offences in the alternative, were withdrawn. A brief of evidence had been prepared.
43․The prosecution did not oppose the application of a 25 per cent discount in recognition of the utilitarian value of the plea of guilty. This is consistent with the discount that will “often” be applied in this Court where a guilty plea is entered in the Magistrates Court at an early stage: Calatzis v Jones [2024] ACTSC 42; 21 ACTLR 59 (Calatzis) at [41].
44․The parties in this matter both appeared to treat the observations of Mossop J in Calatzis at [28]-[50] as casting doubt on the appropriateness of the “common, if not customary” approach of applying a 25 per cent discount in this Court to any plea of guilty entered in the Magistrates Court: per Wigney J in Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 (Miller) at [76]-[77] (with Murrell CJ and Elkaim J agreeing except as to Wigney J’s “ultimate conclusion”, at [3]).
45․It is well accepted that the timing of the entry of a guilty plea directly instructs an assessment of its utilitarian value and the range of the discount to be applied: Cranfield v The Queen [2018] ACTCA 3 at [36]-[38]. The extent of any discount is a discretionary consideration. That said, it is an important aspect of the administration of justice that accused persons who enter a plea of guilty at an early opportunity do so with the understanding that their plea will result in a significant discount reflecting its utilitarian value. The converse is true with respect to accused persons who enter a plea at the last minute, “on the steps of the Court”.
46․I do not understand Mossop J in Calatzis to be necessarily advocating for a departure from the common approach in this Court of applying a 25 per cent discount to a plea of guilty entered in the Magistrates Court.
47․The observations must be read in the context of the issue under consideration. Calatzis was a prosecution appeal against a sentence imposed in the Magistrates Court said to be manifestly inadequate. One of the issues in the appeal was whether a 25 per cent discount was too generous in circumstances where the plea of guilty was entered after a brief of evidence had been prepared. It was necessary for his Honour to consider the issue as, material error having been established as to an assessment of the objective seriousness of the offence by the sentencing magistrate, it was necessary to consider whether to resentence the offender.
48․His Honour’s view that the discount he would apply on the resentence was 20 per cent must be understood in the context not only of the plea having been entered in the Magistrates Court but in the context of the matter being dealt with to finality in the Magistrates Court.
49․His Honour tracks the development of authority in this jurisdiction that guides the level of discount to be applied at specific stages in this Court and reiterates the value of “predictability” for the administration of justice. His Honour recognised that it was not “uncommon” for a 25 per cent discount to be applied in this Court to any plea entered in the Magistrates Court. The Court of Appeal has consistently endorsed an approach that applies a 25 per cent discount to a plea of guilty entered “at the earliest reasonable opportunity” (Blundell v The Queen [2019] ACTCA 34 at [16] (Blundell)) “at an early stage” (R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [80]), and “at an early stage in the Magistrates Court” (Miller at [76]).
50․For matters committed to this Court, assessing the utilitarian value of a plea entered in the Magistrates Court does not rest only on whether a brief of evidence has been prepared. Indeed, the same could be so in the Magistrates Court. Accordingly, a plea of guilty entered in that court after the preparation of a brief of evidence may nonetheless be a plea “at an early stage” of proceedings committed to this Court for sentence. Unsurprisingly, there are examples of sentencing outcomes from this Court where reference has been made to the plea coming after the preparation of brief of evidence and a discount of 25 per cent has nonetheless been applied, the plea having been entered “at an early stage” (see R v Moore [2021] ACTSC 333 at [3], R v French [2021] ACTSC 205 at [3] and Director of Public Prosecutions v Matas [2024] ACTSC 234 at [201]-[205]).
51․An approach applying a 25 per cent discount in this Court for the entry of any plea of guilty entered in the Magistrates Court is not inconsistent with the ranges referred to in the authorities for a plea of guilty at a Criminal Case Conference. The Court of Appeal in Blundell at [12] and R v Nicholas; R v Palmer [2019] ACTCA 36 at [52] confirmed the range of discount for a plea of guilty entered at this stage to be between 15 and 20 per cent. It follows that a plea of guilty entered at any time before a Criminal Case Conference could still reasonably attract a discount above 20 per cent.
52․An approach that applies, in the ordinary course, a discount in the range of 15 to 20 per cent to pleas entered at a Criminal Case Conference is of particular importance in view of the Court’s recent introduction of an “early arraignment” procedure. The introduction of this step, prior to a Criminal Case Conference, brings about an occasion whereby a plea of guilty could be entered at an “early stage in criminal proceedings” (see Practice Direction 2 of 2024: Procedure on Committal to the Supreme Court for Trial – Early Arraignments). Among the stated objectives of the recently introduced procedure are that it is “to support consideration of appropriate guilty pleas at an early stage in criminal proceedings”. The Practice Direction mandates that at this first arraignment, legal representatives will be called upon to confirm that an accused person has been given advice “concerning the discretion to allow a discount for the utilitarian value of a plea of guilty”.
53․An “early” arraignment could be properly categorised as “the earliest reasonable opportunity” for a plea of guilty to be entered to an indictable matter, it being the step formally invoking the jurisdiction of this Court and the first occasion that an accused will be required to formally enter a plea in this Court. A plea of guilty at early arraignment would have significant utilitarian value. A discount of 25 per cent on first arraignment would properly recognise the substantial resources diverted from the conduct of a trial including those steps in furtherance of it, such as the finalisation of documents, further investigation, pre-trial applications, directions hearings and call overs.
54․In Calatzis, Mossop J observed that the process of committing a matter to this Court now rarely involves a “substantial hearing” such that the avoidance of a committal hearing is not a matter that influences an assessment of utilitarian value. The move away from the antiquated process of requiring complainants and witnesses to give evidence on more than one occasion in indictable proceedings was consistent with a modern justice system ensuring an efficient use of resources. Since 2009 the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) has facilitated what the explanatory statement for the insertion of a new s 90AB referred to as “hand up” or “paper committals” (see Crimes Legislation Amendment Act 2008 (ACT)), avoiding the need for witnesses to be called to give evidence at the committal stage. Since 2015 the Magistrates Court Act has provided for the waiver of committal proceedings altogether by an accused person with the Director’s consent (see Court Legislation Amendment Act 2015 (No 2) (ACT)). The utilitarian value of a plea of guilty entered in the Magistrates Court has for some time not been contemplative of the avoidance of a substantial committal process. The removal by the legislature of the necessity for a substantial committal process does not, in my view, operate to undermine the utilitarian value of a plea entered in the Magistrates Court in a matter committed to this Court, after a brief of evidence was provided.
55․As Mossop J recognised in Calatzis at [40], a plea of not guilty is the “trigger” for the preparation of the brief of evidence. There is no process for prosecution disclosure that would otherwise provide access to an accused person to the evidence relied on by the prosecution. An understanding of the evidence and the strength of the prosecution case is critical to the position of an accused person. The brief of evidence provides the foundation for comprehensive legal advice as to the prospect of the prosecution discharging the burden to prove their case beyond reasonable doubt. It is not until an accused has been furnished with the brief of evidence that they are required to elect, where capable, for summary disposal.
56․In my view, a plea of guilty entered in the Magistrates Court to an indictable offence proximate to the receipt of the brief of evidence is a plea capable of being characterised as one “at an early stage of criminal proceedings”. Of course, the converse will be true if an accused person having received the brief of evidence, consents to summary disposal and waits until the matter approaches or arrives at a hearing date in the Magistrates Court, to enter a plea of guilty. Where a matter is to be committed to this Court, a plea of guilty entered in the Magistrates Court necessarily contributes to the capacity of this Court to efficiently facilitate criminal trials in particular.
57․As his Honour noted in Calatzis, discounts commonly applied in this Court to pleas of guilty entered after committal by reference to the steps taken towards a trial, are relevant for the purposes of assessing the extent of a discount for a plea of guilty entered in the Magistrates Court, for matters disposed of summarily.
58․In this matter the offender entered a plea of guilty to an aggravated robbery charge that did not name the alleged co-offenders. There was no benefit to the offender; the maximum penalty being the same no matter the identity of the co-offenders. The plea was entered proximate to the disclosure of the brief of evidence and the charge promptly committed to this Court for sentence. I am satisfied that the plea was entered at an early stage of the proceedings. The utilitarian value of the plea of guilty was significant. The prosecution did not oppose the application of a 25 per cent discount and I consider that to be an appropriate discount in all the circumstances.
Current sentencing practise
59․The limitations of sentencing statistics and comparable cases are well-recognised. They do not define the possible range of available sentences, nor place a cap on the upper or lower ranges of possible sentences: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh(a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. No sentencing outcome is a precedent.
60․In Director of Public Prosecutions v Campbell (No 2) [2024] ACTSC 105 at [109]-[111] I considered the sentencing practise in the ACT for aggravated robbery offences:
109. In [White] at [52] the Court of Appeal observed:
In Barrett v The Queen [2016] ACTCA 38, the Court of Appeal noted at [40] that most sentences recorded in the ACT sentencing database for aggravated robbery following a plea of guilty were in the range of 30 months to four years’ imprisonment. In R v Lovelock [2014] ACTSC 229 at [13], Murrell CJ, when considering current sentencing practice in the ACT Supreme Court, observed that a common sentence for aggravated robbery was three years’ imprisonment. In each case, the Court was referring to the length of sentence after application of discounting for pleas of guilty.
110. Of course, sentencing outcomes do not set a precedent nor fix an upper or lower cap for an offence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. The outcomes for other offenders might assist to illustrate a range but they do not define the boundaries of the sentencing discretion. A sentence that is “just and appropriate” (Mill v The Queen [1988] HCA 70; 166 CLR 59 (Mill v The Queen) at 63 [8]) must give effect to individualised justice. The prosecution referred to several sentencing outcomes from this Court: R v Hall (No 2) [2022] ACTSC 22, R v Deng [2022] ACTSC 143, R v Carberry [2022] ACTSC 208, R v Evans; R v Reid [2020] ACTSC 169, R v Hodge [2015] ACTSC 214. Counsel for the offender referred to DPP v Sims [2024] ACTSC 49.
111. I have had regard to the circumstances of each sentencing outcome and observe generally that where the offending could be characterised as a “home invasion”, the sentences imposed were in some instances more severe than the range identified by the Court of Appeal in White (citing Barrett v The Queen [2016] ACTCA 38 and R v Lovelock [2014] ACTSC 229).
61․The prosecutor further referred the Court to the following cases said to be comparable to this offending: R v Hawkins [2020] ACTSC 29, R v Apps (No 2) [2019] ACTSC 369, and R v Lau [2020] ACTSC 120. I have had regard to those outcomes.
Determination
62․I sentence the offender in the context of the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Of particular significance in this matter is the need to recognise the harm occasioned to the victim, the need to punish the offender, hold him accountable and deter him from offending. Protecting the community is a relevant consideration which includes the need to promote the offenders prospects for rehabilitation. As is commonly recognised the purposes of sentences do not always pull in the same direction. In this matter the offender has engaged in very serious offending that had awful consequences for the victim. The offending is the kind of anti-social, violent conduct that the community makes clear must not be tolerated. On the other hand, the offender has demonstrated his desire for reform, his genuine contrition, his capacity for meaningful activity and his commitment to abstinence.
63․There was no dispute that the offending warrants the imposition of a sentence of full-time imprisonment. The sentence I impose must be “just and appropriate” in all the circumstances: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8]. The attack on the victim was without warning and brutal. No sentence other than a period of full-time imprisonment would properly reflect the gravity of the offending and give effect to the purposes of sentencing.
64․I must set a non-parole period. The relevant principles in relation to non-parole periods have been identified and discussed in Cole v The Queen [2019] ACTCA 3; 14 ACTLR 84, Henry v The Queen [2019] ACTCA 5 at [33]-[37], O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 and Taylor v The Queen [2014] ACTCA 9 at [19]. I have had regard to those authorities. I bear in mind that the non-parole period is the period that justice requires that the offender be actually incarcerated: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-140 [57]. In this matter the period of time the offender will have spent in custody by virtue of the NSW sentence is relevant to an assessment of the overall period in custody that must be served before he is eligible to apply for parole.
65․The offender’s prospects of rehabilitation are a relevant factor in determining the appropriate length of the non-parole period. The offender submitted that a longer period of supervision in the community would be of benefit to the offender’s prospects of rehabilitation. The material overwhelming suggests that his engagement with counselling and other programs targeting his mental health and substance misuse are critical to maintaining his efforts towards rehabilitation. Significantly, a long period of supervision on parole would support his ongoing engagement in evidence-based treatment such as the Buvidal program which has had a demonstrated, positive effect on the offender. The prosecution supported a sentencing structure that would promote the offender’s prospects of rehabilitation, endorsing a parole order of some length in service of that aim.
66․On the charge of aggravated robbery the starting point is 3 years and 6 months reduced to 2 years, 7 months and 15 days in recognition of the plea of guilty.
Orders
67․I make the following orders:
(1)On the charge of aggravated robbery (CC2023/1689) the offender is convicted and sentenced to 2 years, 7 months and 15 days of imprisonment commencing on 20 July 2024 and ending on 6 March 2027.
68․The non-parole period will commence on 20 July 2024 and end on 19 January 2026.
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 16 August 2024 |
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