Director of Public Prosecutions v Manns (No 2)
[2023] ACTSC 405
•21 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Manns (No 2) |
Citation: | [2023] ACTSC 405 |
Hearing Date: | 30 October 2023 |
Decision Date: | 21 December 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [250] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth and Territory offences – aggravated burglary – recklessly inflict actual bodily harm – aggravated robbery – drive motor vehicle without consent – possess false registration plates – use carriage service to make a threat – attempt to intentionally inflict grievous bodily harm – findings of facts after trial – mental health difficulties and neurodevelopmental disorders – significant criminal history – positive prospects of rehabilitation with ongoing treatment and management – sentenced to a term of imprisonment – nonparole period imposed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 19, 23, |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 |
Parties: | Director of Public Prosecutions Connor Manns ( Offender) |
Representation: | Counsel M Dyason ( DPP) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 79 of 2022 SCC 105 of 2022 SCC 106 of 2022 SCC 107 of 2022 SCC 328 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․Mr Connor Manns (the offender) is before this Court for sentence in relation to three separate incidents that occurred in 2021. A summary of the agreed facts (set out in the Statements of Facts for each incident), a discussion of the objective seriousness of the offending and the details of the pleas of guilty entered for each series will follow.
2․I note that one of the three series of offending came before me for trial in April and May 2023. I will make factual findings after trial in relation to that particular offending below at [90]-[100].
3․I note at the outset that different statutory regimes apply to the sentencing of the offender as he has pleaded guilty to both Commonwealth and Territory offences.
4․The principles of sentencing for Commonwealth offences are contained in pt 1B of the Crimes Act 1914 (Cth) (Cth Crimes Act). Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2). Sentencing for the Territory offences is determined in accordance with the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Thus, it is an exercise in sentencing not without some complexity, a matter that was adverted to by both counsel in their submissions.
5․It is convenient to deal with the three series of offending chronologically.
Aggravated burglary (CAN 5918/2022); Recklessly inflict actual bodily harm (CAN 5920/2022) – (SCC 328 of 2022)
Agreed facts
6․On 12 July 2023, the offender entered pleas of guilty to the following offences:
(a)An offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 20 years’ imprisonment; and
(b)An offence of recklessly inflict actual bodily harm, contrary to s 23(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is five years’ imprisonment.
7․With respect to both offences, the offender is liable by way of joint commission by virtue of s 45A of the Criminal Code. Both circumstances of aggravation were present, namely being in company and in possession of an offensive weapon.
8․This offending occurred on 27 June 2021. At approximately 5:30pm, the offender, in the company of an unidentified male person (co-offender), attempted to force his way through the front door of a residential property in Bonner, ACT. At the time, the occupants of the residence (the male victim, his partner (the female victim) and their three young children) were home. The co-offender was armed with a firearm.
9․The co-offenders attempted to force their way through the front door of the residence. The co-offender kicked the glass panel of the front door with such force that his foot went through the bottom of the panel. When the male victim saw what was happening, he proceeded to lock the deadbolt at the front door and ran to the kitchen to arm himself with a knife before returning to the front door. As the door seemed to be buckling due to the force being used by the co-offender, the victim put his hands and left foot against the door. The victim used his body to push against the door from the inside in an effort to try and keep it closed, and to prevent the co-offender and offender from breaking into the house.
10․While the offender was trying to force his way into the residence, he said words to the effect of, “Come on cunt” or “Let’s go cunt” and he was laughing. The victim replied with words to the effect of, “Fuck off” or “Fuck you, I’ll stab you”. At one point, the victim’s head became exposed to the outside of the front door and the co-offender struck the victim on the left-side of his head and shoulder through the gap in the door with a heavy object. The victim managed to pull his head back and continued to push against the front door to prevent the offender and co-offender from gaining entry into the house. About this time, one of the children in the residence came into the hallway and asked what was happening. The victim’s partner told their children to run and hide.
11․The victim moved to activate the emergency alarm and the offender managed to push open the front door. Both victims were able to see the offender, however they did not recognise him. One victim said to the co-offenders words to the effect of, “I’ve called the police, they are on the way here right now”.
12․The victim went back to the front door and again placed his body against the inside of the door, and he managed to force the door closed. The co-offender continued to bang and kick against the front door. The co-offender then produced the firearm he had in his possession. The co-offender said words to the effect of, “Move your foot”. The co-offender then pointed the weapon at the front door at around a 45-degree angle towards the bottom of the door and fired the gun. The bullet from the gun penetrated the wood of the front door, travelled inside the house and grazed the outside of the victim’s left leg, causing him to sustain an injury just above his left ankle.
13․After the shot was fired, the victim smelt gunpowder and saw that his left leg was bleeding. However, he did not move his foot away from the front door and told the offender words to the effect of, “I’m not fucking moving my foot”. The victim said words to the effect of, “Security is on the way, mate. Fuck off. What do you want?”. Shortly afterward, the co-offenders fled from the residence.
14․While searching the Bonner residence of the victims, police noted that cannabis was being grown in the garage of the premises. Police subsequently executed a search warrant during which they located a hydroponic cannabis system in the garage. Police also seized small quantities of illicit drugs and cash, as well as prohibited firearms, weapons and ammunition from the victims’ house.
15․The police executed a search warrant for the offender’s vehicle and seized the offender’s mobile phone. Police also recorded a number of conversations had by the offender following this incident.
Objective seriousness
16․The Court must make an assessment of the objective seriousness of the offences. While the Court is not necessarily required to specify where the offences fall in terms of low, medium and high range (a label which does not necessarily illuminate), it is necessary for the Court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
17․Before embarking on the discussion of objective seriousness, I note the High Court decisions in relation to the onus and standard of proof at sentence. A court may not take facts into account in a way that is adverse to the interests of the accused unless those facts are established beyond reasonable doubt: The Queen v Olbrich [1999] HCA 213; 199 CLR 270 (Olbrich) at [27]-[28]; Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [64] and [66]. The offender has the burden of proof on the balance of probabilities for matters which are submitted to be mitigating: Olbrich at [27]-[28]; Filippou at [64], [66].
Aggravated burglary
18․The prosecution properly submitted that home invasion is a “particularly nasty” form of criminal conduct. A home invasion usually involves more than one offender entering a person’s home, carrying weapons, intending to rob or injure the victims. The entry of the offenders is itself a terrifying experience for residents of the house, irrespective of what may occur after entry: R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 (Salcedo; Stretton) at [116]; Hogarth v The Queen [2012] VSCA 302; 37 VR 658 at [22].
19․The prosecution properly submitted that, while entry into the premises in this case was minimal, the conduct can appropriately be categorised broadly as “home invasion style offending”. The prosecution submitted the intention of the co-offenders was to rob, presumably, as a result of some actual or perceived wrong, as indicated by the offender in the Pre-Sentence Report (PSR) discussed below.
20․In R v Fusimalohi [2015] ACTSC 220, Murrell CJ at [10] noted that the New South Wales (NSW) guideline judgment of R v Ponfield [1999] NSWCCA 435 at [48] was useful in assessing the objective seriousness of the offence of burglary. There, the Court noted that the seriousness of the offending increases where the following, for example, are present:
(a)The offence is the result of professional planning and organisation;
(b)The offence is committed at premises of the elderly, the sick or the disabled;
(c)The offence is accompanied by vandalism and other damage to property;
(d)The offence is committed in a series of repeat incursions into the same premises;
(e)The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value;
(f)The offence was committed at a time when it was likely that the premises would be occupied, particularly at night;
(g)That actual trauma was suffered by the victim; and
(h)That force was used or threatened.
21․The prosecution submitted, as was noted by the offender to the author of the PSR, the offender was enlisted into the offending by the unidentified co-offender to “collect money”. The prosecution submitted, clearly, there was a level of premeditation and planning involved in the offending. I agree on the facts in this case.
22․The offending occurred at approximately 5:30pm on a Sunday evening. That is a time that it is more likely persons would be home. The offending also occurred while three young children were present in the residence and, indeed, the 14-year-old child who resided at the premises witnessed a portion of the offending conduct.
23․In an effort to gain entry, damage was occasioned to the premises; namely, a glass pane embedded in the front door was damaged. Further, the prosecution submitted that on two occasions the co-offender crossed the threshold into the premises, namely when his foot broke through the glass panel and when he used a heavy object to strike the victim.
24․Counsel for the offender properly noted that the offender pleaded guilty to the offence of aggravated burglary on the basis that, although he did not physically enter the premises, he was present and willing and able to assist. Counsel for the offender further noted that the offender pleaded guilty to the offence of reckless infliction of actual bodily harm on the basis that he was reckless about the commission of the offence by the unidentified co-offender. It was conceded by the prosecution at hearing that the offender is “being sentenced as being present and complicit with the conduct”; it was correctly agreed that the offender was not the “principal offender”. Flowing from this, counsel for the offender submitted that the offender’s involvement in the offences and his moral culpability for the offences is lower than that of the unidentified co-offender. I agree on the basis of the authorities discussed below.
25․I note, as stated by Wood CJ at CL in R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 (Goundar), that the assessment of culpability “should begin with the proposition that each intended the crime and each set out to carry it into effect,” this “does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality … On some occasions cause will arise for differentiation between them”: Goundar at [32]-[33]. It is often appropriate to differentiate between relative culpability amongst co-offenders by reference to the conduct of each in the joint criminal enterprise: R v BS-X [2021] ACTSC 160; 16 ACTLR 238 at [130]; R v JW [2010] NSWCCA 49; 77 NSWLR 7; R v Wright [2009] NSWCCA 3 (Wright), R v Hoschke [2001] NSWCCA 317 at [8]; GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198.
26․Having regard to the above factors, the prosecution submitted that the objective seriousness for this offending is above mid range and approaching high range. The defence submission of upper end of mid range is discussed below.
Recklessly inflict actual bodily harm
27․It is accepted that the objective seriousness of an offence of recklessly inflicting actual bodily harm is to be assessed through reference to the culpability of the offender and the degree of bodily harm that was occasioned: R v Wright; R v Edgerton [2021] ACTSC 12 (Wright).
28․Here, the prosecution submitted that the bodily harm sustained was minimal. The prosecution conceded that if the Court was to consider the bodily injury alone, the objective seriousness would be at the “very lowest end”. However, the circumstances surrounding the causing of the injury are such that the objective seriousness is increased.
29․In relation to the offender’s moral culpability, the prosecution made the following submissions:
(a)The offender is responsible by way of joint commission. He did not fire the gun and, as such, is less culpable than the unidentified co-offender. That, I agree, is correct; and
(b)The mechanism in which the injury was sustained is serious with a high potential for catastrophe. This is also correct on the facts, and I note the following:
(i)A gun was fired in close proximity to the intended target;
(ii)The gun was fired through a door. The potential that the bullet may have ricocheted is clearly open; and
(iii)This all occurred in circumstances where three young children were present inside the premises.
30․I note that an assessment of moral culpability as distinct from criminal responsibility, where the evidence does differentiate between the acts of offenders, is appropriate: see Beale v The Queen [2015] NSWCCA 120.
31․The prosecution submitted that this offence is above the mid range of objective seriousness. The defence submissions on range are discussed below.
Defence submissions
32․Counsel for the offender properly accepted that the offences are both very serious and did not cavil with the features identified by the prosecution as relevant to the assessment of objective seriousness. In particular, that both statutory circumstances of aggravation were present and that the presence of the children inside the premises is a particularly aggravating feature. These contentions are both correct as a matter of law.
33․Counsel for the offender noted that this was a targeted attack in that the offender’s motivation or objective for committing the offences was to “collect money” on someone else’s behalf. This is consistent with other evidence which would support an inference that the victim was engaged in some level of criminal activity.
34․Further, counsel for the offender submitted that, while there was some degree of premeditation and planning, there is nothing to suggest that it was particularly sophisticated. For example, neither offender made any real attempt at disguising their identity and they had arrived and departed in a vehicle that was registered to the offender’s mother, which had been captured by CCTV. Counsel for the offender’s submission regarding lack of sophistication in planning is accepted on the facts.
35․Counsel for the offender submitted the offending for both offences falls towards the upper end of the mid range for offences of these kinds. I accept this submission. Although, it must be said, not much turns on the overall label of “upper end of mid range” (offender) versus “above mid range approaching the upper range” (prosecution). What is of critical importance are the factors that have been identified in the foregoing discussion.
Plea of guilty
36․Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the Court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
37․The primary consideration when determining the discount, if any, that should be afforded to the offender as a result of his plea of guilty is the utilitarian value of the plea, largely determined by the timing of the plea: Cranfield v The Queen [2018] ACTCA 3 at [38].
38․The plea of guilty for this offence was entered on 12 July 2023. The trial was due to commence the following week on 17 July 2023. Counsel for the offender accepted that the pleas of guilty to these offences were entered relatively late and shortly before the trial was due to commence.
39․The prosecution submitted that the timing of the plea leads to a conclusion that it should be considered a “last-minute” plea. A last-minute plea usually attracts a discount of 10 percent: Monfries v The Queen [2014] ACTCA 46 at [47].
40․However, counsel for the offender noted that the matter was scheduled for a Criminal Case Conference in April 2023 which did not proceed through no fault of the parties.
41․Notwithstanding the late timing of the pleas entered, counsel for the offender submitted that there was still significant utilitarian value as it avoided the need for the victims, including the child, from having to attend court to give evidence and risk experiencing further trauma. Counsel for the offender submitted the offender should be entitled to a discount of 15 percent for his pleas of guilty.
42․In my view, a discount of somewhere between 10 and 15 percent is appropriate in light of the submissions above which I accept.
Aggravated robbery (CAN 9845/2021) – (SCC 79 of 2022)
Agreed facts
43․On 2 June 2022, the offender entered a plea of guilty to the offence of aggravated robbery, contrary to s 310 of the Criminal Code. The maximum penalty for this offence is 25 years’ imprisonment.
44․This offending occurred on 27 July 2021. The offending subject of this charge involved the offender and two co-accused planning and carrying out a robbery which was recorded by a surveillance device. The male co-accused had lured the victim to the location under the pretence of selling him cannabis (which neither the offender nor the co-accused had). During the robbery, the male co-accused used force on the victim by grabbing him. The male co-accused retained the money stolen from the victim. A third female co-accused was also present during the planning and commission of the robbery.
45․The offender is liable for this offending as the principal offender, but also by way of joint commission by virtue of s 45A of the Criminal Code. This offence is aggravated as it was committed in company.
46․The offender was arrested in relation to this offence on 23 September 2021 and released on bail the following day, 24 September 2021.
47․I note that the male co-accused in this matter absconded while on bail and a warrant was subsequently issued. The warrant has not yet been executed. The female co-accused has had information laid against her by way of summons as a result of her involvement in the incident. The female co-accused has not yet been located to serve that summons.
Objective seriousness
48․As stated above at [16], it is necessary for the Court to make an assessment of the objective seriousness of the offending.
49․The prosecution referred the Court to the NSW guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) in relation to considerations that may inform the objective seriousness of the offence of robbery. The Court of Appeal affirmed this proposition in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 (Hall) at [49]-[51].
50․The prosecution submitted this offending is “a significantly more serious example of this type of offence as compared to the “typical” case described in Henry”.
51․With respect to the factors identified in Henry, the prosecution made the following submissions:
(a)While the offender was relatively young at the time of the offending (23 years of age), the offender had a substantial criminal history including a conviction for a “concerningly similar styled conduct” in 2018;
(b)There was a significant degree of planning involved in the offence, “beyond a limited degree”, including:
(i)The interaction with the victim was arranged over a series of electronic communications under the pre-text of supplying the victim with drugs;
(ii)The offender contacted an associate to inquire as to a potent strain of cannabis in an attempt to further entice the victim into the ruse;
(iii)A prop was manufactured, designed to look like a bag of cannabis; and
(iv)The co-offenders discussed the false name to which the offender was to be referred.
(c)The victim was inherently vulnerable in that he was a child. The prosecution submitted that the age of the victim was known to the offender as he was informed by the victim himself that he was 17 years of age. The prosecution submitted that an awareness of the victim’s age and vulnerability, and having proceeded with the offence regardless, increases the objective seriousness of the offending; and
(d)There was actual violence used in the sense of the victim being trapped in the car. The prosecution submitted the violence was “marginally more than fleeting”, however noted it was significant in the context of the victim (a child) being trapped in the vehicle of the offender.
52․In response to the above submissions regarding the victim’s age, counsel for the offender submitted that the prosecution placed significant reliance on the victim being a “child” as an aggravating feature. However, in the absence of an identifiable victim, his age and any other personal characteristics cannot be proven beyond reasonable doubt. That said, counsel for the offender accepted that the victim held himself out to be 17 years old and the offenders appeared to have believed he was a young person. That proper concession is appropriate, and I take that into account.
53․In relation to the offending, the prosecution also noted the following:
(a)A weapon was not used; and
(b)The amount of money taken was a small amount, namely $450. However, the prosecution submitted, given the victim was a child, this would constitute a “significant amount” of money.
54․Counsel for the offender submitted that the Court of Appeal in Hall at [49] accepted the factors in Henry are relevant and that they have generally been followed in this jurisdiction. However, the Court’s acceptance of Henry as persuasive in this jurisdiction is limited to the usefulness of the features identified as determining the objective seriousness, rather than as providing a guideline sentencing range: R v Ruwhiu [2022] ACTSC 290 at [30]. Indeed, this Court has noted that in this jurisdiction, sentences imposed for aggravated robbery have been lower in general: R v NF [2018] ACTSC 165 at [25]. Both these submissions are correct and are accepted in this case.
55․In relation to the factors above, counsel for the offender made the following submissions:
(a)The offender was 23 at the time of the offence and therefore still a relatively young man, albeit with a not insignificant criminal history for someone of his age;
(b)No weapons were used in the commission of the offence;
(c)The instigator and primary driver of the offence was the co-accused. The offender had picked up both co-accused at about 9:40pm. The offence occurred sometime around 10:30pm. Thus, while the offence was not spontaneous, the degree of planning was neither extensive nor particularly sophisticated. The offender had been driving a car registered in his mother’s name and even suggested that the victim take photos of the car at one point. The offender was also encouraging the victim to get out of the car due to the purported presence of police and this was before any force had been applied or threatened;
(d)A limited amount of actual violence was ultimately involved with the co-accused briefly holding onto the victim before he was allowed to leave the car. Counsel for the offender submitted the actual level of violence inflicted by the co-accused was minimal. The victim was not physically harmed or injured;
(e)Counsel for the offender made oral submissions distinguishing from the examples given in Henry, noting that the victim was not in a particularly vulnerable position as compared to a shop keeper or taxi driver carrying out their employment; nor was the victim a random and unsuspecting member of the public. The victim was meeting with the offender and co-accused to purchase what he thought were illegal drugs from someone he did not know, which is an inherently dangerous and risky endeavour;
(f)The amount taken ($450) was a relatively small amount with no evidence as to its particular significance to the unidentified victim, other than that he had planned to spend it on drugs; and
(g)There were three offenders present, although neither the offender nor the female co-accused appear to have played a particularly active role in the commission of the offence, with the offender driving most the whole time. The offender’s degree of responsibility therefore must be said to be less than that of the male co-accused, but greater than the female co-accused. The principles discussed above at [25] in relation to the moral culpability of co-offenders also apply here.
56․I note in relation to the submission by counsel for the offender concerning the co-accused being the main instigator of the offending, the prosecution made further oral submissions that, on the contrary, the co-accused male and co-accused female expressed some reluctance to engage in the conduct due to the age of the victim. The prosecution submitted that the offender provided firm encouragement and was recorded saying, “you don’t feel bad, bro. He’s going to shank us” and “Bro, have no money. Fuck it", in response to concerns expressed by the co-accused as to the victim’s age.
57․Counsel for the offender correctly noted that the offence being committed in company is a statutory aggravating feature and cannot aggravate the offence twice.
58․The prosecution submitted that, with regard to the above factors, the objective seriousness for this offending is above mid-range. Counsel for the offender submitted, when considering all the relevant aggravating and mitigating factors, the offence falls below or just within the mid range on the spectrum of objective seriousness.
59․I take into account all the factors discussed above and the evidence and submissions by both the prosecution and counsel for the offender. I note, in particular, the discussion at [56]. I assess the objective seriousness as in the mid range, taking into account the relevant factors discussed above, but nevertheless in the upper part of the mid range.
Plea of guilty
60․As stated earlier, the plea of guilty was entered on 2 June 2022 in the Supreme Court. The prosecution submitted that the plea was entered “while the matter was progressing in the Supreme Court Registrar’s directions list”. Counsel for the offender noted that the plea was entered shortly after the matter was committed to the Supreme Court for trial, but before any Criminal Case Conference or trial date had been set.
61․The matters stated at [37] apply here. In R v Nicholas; R v Palmer [2019] ACTCA 36 the Court said at [52]:
Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage…
62․The prosecution submitted that the Court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the Court considers that the prosecution case for the offence was “overwhelmingly strong”: s 35(4) of the Sentencing Act.
63․The prosecution contends that the case here was overwhelmingly strong and, as such, the Court ought to make no significant reduction in sentence as a result of the plea of guilty. In support of this submission, the prosecution relied on the following:
(a)This is not a situation where the prosecution would have required the oral evidence of witnesses to establish the facts of the matter. All the elements of the offence are made out through this audio recording;
(b)The identity of the offender is established in a number of ways:
(i)One of the co-accused identifies the offender by his name on two occasions in the audio recording;
(ii)In response to the co-accused stating that the victim has “posted [the offender] on his [snapchat] story”, the offender responds with “say meet up with Connor”;
(iii)The offender has a distinctive vocal tic which is heard during the audio recording of the offending;
(iv)The offending occurred in a vehicle registered to the offender’s mother; and
(v)The offender tells the co-accused that he will drive the vehicle because it is in his mother’s name;
(c)On 29 July 2021 (two days after the offences were committed), the offender, again in his mother’s vehicle, has a conversation with two other males during which he makes detailed admissions to the offending.
64․The prosecution submitted that, taken together, these factors lead to the conclusion that the prosecution case against the offender was “overwhelmingly strong” and, therefore, the Court ought not make a “significant” reduction in the overall sentence as a result of the plea of guilty. The prosecution correctly acknowledged that s 35(4) of the Sentencing Act does not preclude the giving of a limited discount for the guilty plea: DPP v Jesse Draper (a pseudonym) [2023] ACTSC 109 at [37]; R v Newby [2022] ACTCA 20; 367 FLR 122 at [49].
65․In response to the prosecution submission that s 35(4) applies, counsel for the offender submitted that this assertion overlooks the inherent difficulty the prosecution faced by virtue of the victim remaining unidentified. Counsel for the offender submitted that the prosecution case rested almost entirely on the audio recording and necessarily meant that the prosecution case remained circumstantial. Without a witness who was physically present, the prosecution would have faced hurdles proving its case at trial. Proving each of the physical and fault elements of the offence beyond reasonable doubt on the basis of audio alone was by no means guaranteed. I accept this submission as it accords with my view of the relevant facts.
66․In my view, while the case against the offender can be said to have been very strong, it does not fall into “the very small class of cases that satisfy the overwhelmingly strong requirement” in s 35(4): R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [73]. Counsel for the offender submitted that if the Court finds the prosecution case was strong, but not “overwhelmingly strong”, there is no reason to reduce the discount for the utilitarian value of a plea of guilty. I find that the case is undoubtedly very strong. It is nevertheless not in the distinct category of overwhelmingly strong.
67․Counsel for the offender submitted that the offender’s plea of guilty in this case has significant utility because he has accepted responsibility for a serious offence he committed in company against an unknown victim. Counsel for the offender submitted that this could in fact be considered an unusual circumstance that would justify a discount greater than 20 percent. Counsel for the offender submitted that the offender ought to receive a discount in the order of 20-25 percent for the plea of guilty.
68․In my view, a discount of 20 percent is appropriate taking into account the utilitarian value. The plea was entered shortly after committal to the Supreme Court. A discount of 25 percent is not appropriate on the facts of this case.
Drive motor vehicle without consent (CAN 11633/2021); Possess false registration plates (CAN 11637/2021) – (SCC 105 and 106 of 2022)
Agreed facts
69․On 26 April 2022, the offender entered a plea of guilty to an offence of drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code. The maximum penalty for this offence is five years’ imprisonment, a fine of $80,000 or both.
70․The offender is also to be sentenced for a transferred charge of possess false registration plates, contrary to s 20(c) of the Road Transport (Vehicle Registration) Act 1999 (ACT). This offence has a maximum penalty of six months’ imprisonment, a fine of $8,000 or both.
71․This offending occurred on 20-21 November 2021. The offending involved the offender driving a vehicle that had been reported stolen from an address in the ACT. At the time the offender was driving the vehicle it was bearing an ACT registration plate; the vehicle was properly registered under NSW registration. Upon further investigation, the number plates were found to be “well-made forgeries” that were “attached with velcro”. The vehicle was used in the commission of the offence described below (attempt to intentionally inflict grievous bodily harm (CAN 2024/2022)). The vehicle has since been returned to its owner.
Objective seriousness
72․Again, as stated at [16], it is necessary to consider the features of the offending that inform the objective seriousness.
73․Consistent with R v Rosewarne [2021] ACTSC 217 at [124] and R v Massey (No 3) [2021] ACTSC 156 at [29], the following factors impact on the objective seriousness of the above offences:
(a)Whether the offender drove or rode in the vehicle;
(b)The duration of the driving or riding;
(c)If the offender was the driver – the nature of the driving (unless charged separately);
(d)Whether the driving caused damage to the vehicle (unless separately charged) and whether the vehicle was recovered undamaged and returned to the owner;
(e)Whether the vehicle was used in the commission of another offence; and
(f)Whether false numberplates were affixed to the vehicle (unless charged separately).
74․Applying the above mentioned considerations, the prosecution submitted:
(a)The offender drove the vehicle.
(b)The duration of the driving was significant. There was evidence led at trial to support the notion that the offender had driven the vehicle to Bermagui, NSW and then back to Canberra.
(c)The nature of the driving was reckless. As discussed below at [88], the offender was driving the vehicle and fired three shots out of the window. The offender then sped away from the location.
(d)It is unknown whether any damage was occasioned to the vehicle.
(e)The vehicle was used in the commission of serious offending.
(f)False number plates were affixed to the vehicle, however the prosecution correctly noted that this is separately charged.
75․Counsel for the offender submitted that the offender is to be sentenced for the offence of driving the stolen vehicle rather than the original taking/stealing of the vehicle, which is arguably a more serious offence, despite it having the same maximum penalty: see R v Reid (No 1) [2021] ACTSC 334 at [25]-[26]. The offender has pleaded guilty to the offence of driving the vehicle only. I take this into account.
76․Counsel for the offender submitted there is evidence that he was driving the vehicle around in the early hours of that day and that he drove it to the Belconnen Shopping Mall during the day. Counsel for the offender submitted there is no evidence to suggest how long the offender had the vehicle overall and it cannot be established beyond reasonable doubt that he drove the vehicle to NSW and back on some prior occasion. I accept this submission as it accords with my view of the facts and the burden of proof on the prosecution.
77․Counsel for the offender submitted that the vehicle was recovered by police when the offender was arrested on 21 November 2021 and was promptly returned to the lawful owner. There is no evidence that the vehicle was damaged.
78․However, counsel for the offender properly conceded that the vehicle was used in the commission of a serious offence and was driven recklessly during the commission of that offence. Counsel for the offender also accepted that the offence of using false number plates (which I note is separately charged) goes hand-in-hand with the dishonest driving of a stolen motor vehicle.
79․In relation to the number plates, counsel for the offender made oral submissions concerning the offender’s comments to the author of the PSR that the car was, in effect, given to him by a friend. Counsel for the offender conceded the offender had certainly suspected it was stolen, though he was not “completely sure”; and the numberplates had come with the vehicle.
80․In view of the factors above, the prosecution submitted this offending is above mid-range for offences of this type. Counsel for the offender properly accepted that these offences fall in the mid range of objective seriousness.
81․I find these offences to be in the mid range of offences of this type, at the higher end of mid range, in light of the above factors.
Pleas of guilty
82․The offender entered a plea of guilty to the offence of drive motor vehicle without consent on 26 April 2022 in the Magistrates Court. The plea was entered on the eighth mention, prior to committal.
83․Counsel for the offender submitted that the offender should be entitled to a 25 percent discount for his pleas of guilty to these offences.
84․A 25 percent discount is appropriate as the pleas were entered in the Magistrates Court.
Use carriage service to make a threat (SC CAN 69/2022); Attempt to intentionally inflict grievous bodily harm (CAN 2024/2022) – (SCC 107 of 2022)
Agreed facts
85․This offending also occurred on 20-21 November 2021.
86․At the commencement of the trial before me on 24 April 2023, the offender entered a plea of guilty to the offence of using a carriage service to make a threat to cause serious harm, contrary to section 474.15(2) of the Criminal Code Act 1995 (Cth) (Cth Criminal Code). The maximum penalty for this offence is seven years’ imprisonment. I note that this offence is subject to Commonwealth sentencing principles.
87․The offender was subsequently convicted following the trial by jury on 3 May 2023 of the offence of attempting to intentionally inflict grievous bodily harm, contrary to s 19(1) of the Crimes Act, by virtue of s 44 of the Criminal Code. The maximum penalty for this offence is 25 years’ imprisonment. The offender was found not guilty of attempted murder (CC2021/11602).
88․The following facts were not in dispute at the trial:
(a)On 20 November 2021, the offender used his mobile phone to send text messages to the victim, Ms SS.
(b)On 20 and 21 November 2021, the offender was also sending message to a contact saved in his phone as ‘Zac’ via SMS and Whatsapp.
(c)On the night of 20 November 2021 and in the early hours of 21 November 2021, the offender exchanged Snapchat messages with another victim, Mr RR.
(d)On 21 November 2021, the offender was driving a white Volkswagen Golf R (subject of the offences discussed above).
(e)At about 4:35pm on 21 November 2021, the accused discharged a .25 calibre pistol while driving the abovementioned vehicle in the vicinity of Plimsoll Drive and Whitrod Avenue in Casey, ACT.
(f)Shortly before 5am, the victim (Mr RR) called triple zero and spoke to police emergency.
(g)Between 5pm and 7pm, the offender was arrested by police in O’Connor, ACT. After his arrest, the clothes being worn by the offender and the offender’s mobile phone were seized. The white Volkswagen Golf R was located.
(h)Both the vehicle and the clothes seized from the offender underwent testing for gunshot residue which revealed that:
(i) The clothing had a recent firearm association; and
(ii) The driver’s side surfaces of the vehicle had a recent firearm association.
(i)A firearm association is defined as either being in close proximity to a firearm when it was discharged (primary transfer), coming into contact with a firearm or item with gunshot residue on it (secondary or tertiary transfer), or a combination of any of these scenarios.
(j)The mobile phone seized from the offender was examined by police and the contents of the phone were downloaded. During the examination of the offender’s phone, police located screenshots of the Snapchat conversations with the victims, Ms SS and Mr RR, and the contact saved as ‘Zac’.
89․A series of screenshots of messages between the offender and the victims were included in the Prosecution Tender Bundle before me at trial and on sentence.
Facts after jury trial
90․In relation the charge of attempting to intentionally inflict grievous bodily harm, it is necessary for me to make findings of facts following the trial.
91․The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) endorsed the NSW Court of Criminal Appeal’s approach in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) in relation to the Court’s role in sentencing and interpreting a jury’s verdict of guilty following a trial. The Court in Cheung at [14] quoted the principles from Isaacs (at 377-378) as follows:
1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …
2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …
3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. …
92․Taking into account these principles, I make the following factual findings.
93․On the basis of the evidence led at trial, the Court finds that the offender and the victim, Ms SS (then friends) had engaged in an escalating war of words via text message on 20 November 2021. This followed a disagreement about the offender’s failure to intervene in the alleged assault of a female by other females. The offender’s messages were an attempt to put a stop to perceived slights and the offender escalated to threats of violence when it appeared Ms SS was not taking him seriously. Counsel for the offender submitted the messages were not voluminous and were sent over a relatively short period of time on the same day. That is accepted.
94․Counsel for the offender submitted that this then led to the offender and Mr RR (Ms SS’s partner) exchanging messages and to Mr RR challenging the offender to a fist fight.
95․The offender drove to the location Mr RR had nominated however, instead of fighting him, the offender fired two shots out the window with the firearm as he drove in the vicinity of where Mr RR was walking. The offender continued driving before circling back and firing a third shot while Mr RR hid behind a tree.
96․Counsel for the offender correctly submitted that the evidence led at trial was not clear as to exactly where, or in what direction each of the shots were fired. The forensic evidence was consistent with at least one of the shots being fired at a low angle toward the ground.
97․The jury’s verdict necessarily means that the Court must sentence the offender on the basis that his intention was to cause Mr RR grievous bodily harm. Counsel for the offender submitted that the Court cannot be satisfied beyond reasonable doubt of the following:
(a)That all three shots were aimed at Mr RR or fired with the intention of inflicting grievous bodily harm;
(b)That any of the shots were fired or aimed at a particular part of Mr RR’s body, and especially not an area likely to have caused fatal injuries such as the head or torso; and
(c)That any of the offender’s subsequent messages to Mr RR or ‘Zac’ evinced his actual intentions as opposed to being a display of false bravado.
98․I agree, as all three submissions are consistent with the evidence before the jury and their verdicts of not guilty for attempted murder and guilty for the offence of attempt to intentionally inflict grievous bodily harm. That is, I am not satisfied beyond reasonable doubt that all three shots were aimed at a particular part of Mr RR’s body and I am not satisfied intended to cause a fatal injury, that is not satisfied beyond reasonable doubt aimed at head or torso.
99․Further, I am not satisfied all three shots were fired with the intention of inflicting grievous bodily harm. It was agreed that “at least one, but definitely not three” of the shots were fired with that intention, consistent with the verdict of the jury. I will sentence on the basis of only one shot being fired with the intention of inflicting grievous bodily harm.
100․Finally, I am not satisfied beyond reasonable doubt that the offender’s messages evinced his actual intention at the relevant time.
Objective seriousness
101․It is, again, necessary to consider the objective seriousness of these offences as discussed at [16].
Attempt to intentionally inflict grievous bodily harm
102․As discussed at [27], it is accepted that the objective seriousness of this offence is to be assessed through reference to the culpability of the offender and the degree of bodily harm that was occasioned: Wright.
103․The prosecution acknowledged that the relevant offence in this case was an attempt and that in fact no bodily harm was occasioned to the victim, Mr RR. When considering the fact that the offending was an attempt, the Court is assisted by the comments of Refshauge J in R v BI (No 4) [2017] ACTSC 71 at [40]:
…
1.The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed: FV v The Queen [2006] NSWCCA 237 at [60]; Taouk (1992) 65 A Crim R 387 at 390; Noble (1994) 73 A Crim R 379 at 381; R v Schofield (2003) 138 A Crim R 19 at 33; [61]; McKeagg v The Queen at 55; [21], 60; [55]; Mokbel v The Queen [2011] VSCA 34; 211 A Crim R 37 at 47; [43]; Tai v Western Australia [2016] WASCA 234.
2.That may particularly apply where the attempt is inept, the attempt could not physically succeed, or is doomed to fail: Taouk at 390; R v Schofield at 57; [139]; Couloumbis v The Queen [2012] NSWCCA 264 at [37]-[39]; R v Haidar [2004] NSWCCA 350 at [36]; Potts v The Queen [2017] NSWCCA 10 at [15]. Some authorities, however, suggest that this may make no difference: R v Spaull [1999] VSCA 18 at [11].
3.The “conventional view” will not invariably apply and, especially in the case of drug offences, it is often regarded that the attempt is as serious as the completed offence: R v Haidar at [31]-[35] and the case there cited; Tai v Western Australia at [31].
4.Nevertheless, the attempt to commit a serious offence remains a serious offence: Taouk at 390-1.
5.There is no clear relationship between the seriousness of the intended consequences that would follow from the substantive offence if completed and the real prospects of achieving them though the relationship must be considered: Taouk at 391; R v McQueeney at [25].
6.Thus, where the attempt is a grave one, carried out with sophistication where it is likely to succeed in effecting the substantive offence, the attempt may be punished as severely as a completed offence: Taouk at 391; R v Schofield at 57; [139].
7.It is relevant that, if the attempt is not completed, the harm caused by the substantive offence, a very relevant factor on sentence, will not have been caused: Irusta [2000] NSWCCA 391; 117 A Crim R 6 at 16; [47]; R v Falls [2004] NSWCCA 335 at [19]; Potts v The Queen at [15].
8.Other factors relevant to reducing the seriousness of the attempt to commit an offence may include where the conduct which constitutes the attempt only shows a change of the offender’s mind: R v Falls at [19].
9.It is, however, not mitigating where the charge of attempting to commit the offence rather than committing it is because the substantive offence has not been completed through “good fortune”: “C” v Western Australia at [22]; or through the intervention of law enforcement agencies: R v Mihalo [2002] VSCA 217; 136 A Crim R 588 at 596; [40]; R v Mokbel at 47; [43]; Reid v Western Australia [2012] WASCA 23; 210 A Crim R 587 at 594; [45].
10.In the end, as most of the authorities point out, the seriousness will, as in the case of most offences, depend on all the circumstances of the case. See also Dooling v Western Australia [2012] WASCA 95 at [8]; Lovett v Western Australia [2013] WASCA 78 at [15].
104․The objective seriousness must be assessed through considering the culpability of the offender.
105․In relation to the offender’s moral culpability, the prosecution correctly submitted that the offender was acting alone and was, therefore, exclusively responsible for the offending conduct.
106․The prosecution submitted that the motivation for the offending was to garner respect among his peers and to be “taken seriously” amongst these peers and external associates, as described by the offender to the author of the PSR. The prosecution submitted that it is further open to the Court to conclude that:
(a)The offender felt aggrieved that he was not being taken seriously in his communication with the victim, Mr RR;
(b)The offender felt aggrieved that the victim, Ms SS, had betrayed his trust and repeated a story told to her in confidence by the offender;
(c)The offender was motivated by these grievances and wanted retribution for the perceived slights he felt;
(d)Mr RR was vulnerable at the time of the offending; he was walking down a street in a relatively open space. The offender, in a vehicle, drove past and fired a pistol at him three times;
(e)A serious weapon, namely a pistol, was used in the offending.
107․I accept the above submissions as they are established beyond reasonable doubt in the evidence before the jury.
108․Counsel for the offender correctly, and in accordance with relevant authorities, submitted that while the same maximum penalty applies to an attempt and in some cases will be regarded as seriously as the completed offence, it is relevant to sentencing if an offence intended to bring about a certain type of harm is not completed. Counsel for the offender noted the case of R v Irusta [2000] NSWCCA 391; 117 A Crim R 6 in which the NSW Court of Criminal Appeal stated at [47]:
On the other hand, there are many instances in the criminal law which recognise that, for sentencing purposes, the criminality of an act is substantially to be judged by reference to the consequences of that act. It would affront common sense to suggest that, generally speaking, a person convicted of an attempt to murder should be punished as severely as if the attempt had been successful. There are many more such instances.
109․Counsel for the offender submitted the offender’s attempt to inflict grievous bodily harm on Mr RR in this case was not only unsuccessful, but it was also inept and unlikely to be successful. The offender fired a number of shots at a moving target, from a moving vehicle that he was driving at speed, at night, using a calibre of firearm not known for being particularly accurate. I accept these submissions as they are consistent with the evidence before the jury.
110․Counsel for the offender submitted that, while the offence was committed in highly reckless and dangerous circumstances (in a suburban street, with a firearm) the offence was targeted at a particular victim and committed at a time of day when no other persons were likely to have been present. I accept this submission on the evidence. So much is clear.
111․In these circumstances, counsel for the offender submitted that the attempt was neither grave, nor sophisticated and, as a result, the “conventional view” should apply and a lesser penalty imposed than if the offence had been completed. I agree that on the facts of this case that the conventional view applies.
112․Counsel for the offender further noted that the offence occurred because of a degree of provocation from Mr RR who had challenged the offender to a fight and repeatedly baited the offender, even after the offence was attempted. This is a relevant consideration under s 33(1)(q) of the Sentencing Act. The prosecution submitted that the offender ‘brought a gun to a physical altercation’ and, therefore, if there was any provocation it was “very limited”. Nevertheless, consistent with considerations under s 33(1)(e) and (f) of the Sentencing Act, it is relevant that the victims would have experienced a “significant level of distress and psychological pain as a result of the offender’s conduct”. Additionally, provocation is of course no excuse. While this is a factor to take into account, it is not a factor of greater or overwhelming significance in the process of instinctive synthesis. In this case, it is limited.
113․The prosecution submitted this offence is “below to approaching the mid” range of objective seriousness. Counsel for the offender submitted that both the offences in this series would fall below the mid range of objective seriousness.
114․In my view, taking into account all the factors above it falls just below the mid range.
Use carriage service to threaten serious harm
115․Counsel for the offender described the text messages sent by the offender as “relatively incoherent”. Counsel for the offender submitted that the threats occurred over a short timeframe and did not involve multiple instances of making those threats.
116․Counsel for the offender submitted this offence was in the mid range of objective seriousness. The prosecution did not make any submissions in relation to the objective seriousness of this offence.
117․In my view, taking into account the above factors, this offence undoubtedly falls in the mid range.
Plea of guilty
118․As discussed earlier, the offender was found guilty at trial of the offence of attempt to intentionally inflict grievous bodily harm. The offender entered a plea of guilty to the offence of use carriage service to make a threat at the commencement of the trial.
119․Counsel for the offender noted that on 28 March 2022, when the matter was still in the Magistrates Court, the offender made an offer to plead guilty to the above charges. This offer was rejected by the prosecution. Consequences flow in sentencing from this offer by the offender and rejection by the prosecution. An offer of a plea that is rejected by the prosecution but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: R v Oinonen [1999] NSWCCA 310; R v Johnson [2003] NSWCCA 129.
120․Counsel for the offender submitted that the offender should receive a discount given that he was found guilty of the same offence which he had offered to plead guilty to at a much earlier time. I agree, consistent with the relevant authorities.
121․Additionally, counsel for the offender further submitted that the offender should receive a reduced sentence for his assistance in the administration of justice during the course of his trial in accordance with s 35A of the Sentencing Act. The offender made concessions and formal admissions of fact which facilitated an efficient trial which had initially been estimated to take at least 10 days (and probably longer) if the prosecution had been put to strict proof on matters such as identification.
122․Counsel for the offender submitted that the offender should receive a discount for both offences in this series. The prosecution conceded that “there was utility in how the trial was conducted” which reduced the time required for the trial by “at least a week”. In view of this, the prosecution agreed 10 percent was appropriate for the administration of justice.
123․Taking into account the above factors, in my view a discount of 15 percent for the plea of guilty and 10 percent for the administration of justice is appropriate.
Victim impact
Aggravated burglary (CAN 5918/2022); Recklessly inflict actual bodily harm (CAN 5920/2022)
124․Two Victim Impact Statements were tendered in relation to the above offences. The Victim Impact Statement of the primary victim included the following:
I was physically injured when you forcibly tried to enter my home... At the time my partner and our three children were home.
I had a shoulder replacement in 2018, and due to me having to hold the door closed and brace against you and your associate smashing into the door and almost gaining entry, my shoulder replacement was damaged. I now need another operation and suffer daily shoulder pain due to your attack.
On the day… I experienced excruciating pain, and I was taken to the hospital via ambulance, where scans had to be done to check for fragments. I also developed infections in that leg as a direct consequence of being shot...
…
No matter what you are sentenced to today, you should consider yourself blessed. One small change during your despicable crime against my family and you could have killed me, or worse, one of my children....
125․I note in this context that it was the co-offender who used the firearm not the offender.
126․The Court also received a Victim Impact Statement from the partner of the primary victim who was present at the time of the offences which included the following:
Since you… came and kicked my door in with your associate… I have suffered adverse psychological, emotional, financial, economic and social effects.
In the days and weeks after your callous and unprovoked attack, I did not feel safe to leave my house for months, and in fact, I did not leave my house, not even to take my children to daycare or school for almost 21 days due to the fear and trauma it caused me. Especially as you were at large, and your identity was not known at that time.
…
The truth is, we didn’t know you, had never even heard your name, or know anything about you. You had no reason to attack us on a Sunday afternoon in a suburban area, in our own home, and we didn’t deserve any of this.
…
Being a victim of the crime you committed against me was the main factor in me leaving my job. Not only did I lose valuable experience for my career, I lost income... The decision to leave was also due to my children not wanting to be in the house without me because of your attack on us.
…
Also, your attack directly contributed to me not finishing an important unit at the University of Canberra that would have completed my post-graduate degree. This was due to the stress and trauma you caused to myself and everyone who resided in the house at the time.
So not only did I lose money replacing and fixing the damage you caused, and upgrading security, but I also lost my job and didn’t finish a post-graduate degree that would have significant increased my earning potential. Instead, due to stress, trauma, fear and anxiety my studies suffered to the point I am only now finishing the unit to complete my degree in 2023. The consequence of not finishing my degree means I lost out on 2 years of having a post-graduate degree [salary]…
…
I also had to try to rebuild my children’s feelings of safety and security. They all still suffer from the trauma of that day, and two of my children refused to sleep in their own rooms, instead sleeping in my bed at the far most position of the house for over a year because of “the bad men that shot Dad and tried to get in the house to hurt us”. My son, who was 10 then, still mentions the “guys that shot dad” and asks if they are both in jail and how I know they wont return. I can’t answer these questions, as your co-offender has never been formally identified or charged.
I now know you have a young child of your own, and I want you to think about how you would feel if someone unknown to you, for no discernible reason, kicked in your door and fired shots in the direction of your young child.
…
127․A bundle of photographs of the damage done to the door of the property and the injury to the victim’s leg were included in the Prosecution Tender Bundle and were before me on sentence. Undoubtedly, this incident was traumatic for the victims.
128․The Court recognises the serious and lasting effects of these crimes on the victims and acknowledges the significant impact that the offences have had on their sense of safety in their home and their community. The Court further acknowledges the importance to the Court of what the two victims have expressed in their eloquent statements.
Aggravated robbery (CAN 9845/2021)
129․I note that the victim in this matter has not been able to be identified. Despite this, the prosecution submitted that the Court could infer that this would have been a significantly distressing incident for a 17-year-old child, involving a degree of emotional and psychological injury. That is, of course, correct.
Use carriage service to make a threat (SC CAN 69/2022); Attempt to intentionally inflict grievous bodily harm (CAN 2024/2022)
130․The prosecution submitted that, despite neither victim wishing to provide a Victim Impact Statement, the Court may take judicial notice of the fact that the victims would have experienced a significant level of distress and psychological pain as a result of the offender’s conduct. This was consistent with the evidence given by the victims at trial before me. I take this into account.
Subjective circumstances
131․The following materials were before me in relation to the offender’s subjective circumstances on sentence:
(a)A Pre-Sentence Report dated 18 October 2023;
(b)A Pre-Sentence Report dated 15 February 2018;
(c)A Forensic Psychiatrist Report authored by Dr Carroll dated 16 October 2023;
(d)A Letter of Acceptance into the Wellways Program dated 18 October 2023;
(e)A Letter of Engagement from Custodial Mental Health Services dated 21 September 2023; and
(f)A Mental Health, Justice Health and Alcohol and Drug Services (MHJHADS) Health Care Plan dated 22 September 2023.
Pre-Sentence Report dated 18 October 2023
132․In evidence before me is a PSR dated 18 October 2023 prepared for the offender which includes the following in relation to the offender’s subjective circumstances.
133․The offender has been at the Alexander Maconochie Centre (AMC) on remand since 22 November 2021 (following his arrest on 21 November 2022). Service records indicate his behaviour has been inconsistent during the period to date. Service records indicate the possibility these behaviours may be related to mental health.
134․The offender reported he was born in Bega, NSW, the eldest of four children. The offender reported strong supportive relationships with his family, and described a stable upbringing. The offender did not describe any exposure to family violence, alcohol or drug use, and reported no significant mental health concerns.
135․The offender [redacted] advised he had not reported these incidents to authorities or family, except for his partner. The information contained in this report was verified by the offender’s father. The offender’s father reported the offender moved out of the family home at the age of 15 to be independent, however then fell in with a “rough crowd” and ceased taking his medication.
136․The offender advised he had been in his current relationship for approximately seven years and is engaged to marry his partner. He reported one child from the union, who is currently residing with the offender’s partner. The offender stated the relationship experienced a period of strained tension due to family violence between 2019 and 2020. He stated he had grown up significantly since that time and has ceased using illicit substances. Service records indicate the offender’s partner is a regular visitor at the AMC.
137․The offender reported he left the formal education system part way through Year 11. He advised he had obtained a white card, asbestos ticket, traffic control tickets and is a qualified stone mason. The offender reported he had worked as a stone mason for approximately five years with various employers, and his most recent employment had been between 2019 and 2020 in the traffic control industry on an on-call basis for 12 months on the NSW South Coast. The offender maintained employment while in custody until recently when he had to withdraw his position due to an injury. The offender reported a current injury to his right quad that requires initial rest, and may additionally benefit from physiotherapy moving forward. The offender’s father reported there is employment available for his son through a family friend in the gardening and landscaping industry on release. The offender reported no significant debts or assets in the community at this time.
138․The offender disclosed some anti-social acquaintances, however claimed to have ceased communication with most negative peers. He advised he intends to spend time with family and working when in the community. The offender identified that, should he be able to return to the NSW South Coast, he would additionally have the support of his partner’s family and social network.
139․The offender denied any current or historical problematic use of alcohol. The offender reported he commenced smoking cannabis at the age of 14 and continued to use the substance daily until the age of 16, when he claims to have ceased the practise. He stated he commenced using “pills and cocaine” at the age of 18 years and continued the use of these substances for a period of two years. The offender advised at the age of 20 years he experimented with crack cocaine and had found this substance to be instantly problematic. He advised he had accidently overdosed on this substance on two separate occasions. When asked what he was spending on the substance he stated it had been “a lot”. The offender reported he had consumed crack cocaine for approximately nine months. The offender reported he started to use methamphetamine at the age of 21 years. He advised he had smoked the substance initially, however then progressed to intravenous use.
140․The offender reported he ceased using illicit substances 18 months ago. The above information was verified by the offender’s father. Service records indicate the offender was subject to urinalysis drug testing on 12 April 2023. A pathology report dated 18 April 2023 confirmed the presence of methamphetamine contained in the sample provided. He was further subject to testing on 17 September 2023 and returned a negative preliminary result with no substances detected. The offender is currently engaged with the Buvidal Pharmacotherapy Treatment Program. He was able to identify the negative impact illicit substance use has had upon his life, mental health, family members and offending behaviours. The offender reported he had not engaged with alcohol and drug treatment programs while in custody.
141․A case review of his Mental Health Care Plan dated 19 September 2023 indicated the offender declined additional supports in regard to illicit substance use, stating he felt he was coping quite well at the current time, however may consider access to supports closer to his release date. Due to currently being a remanded detainee, he has not been eligible for targeted group programs. The offender reported his intention to remain engaged with the Buvidal Treatment and to attend regular Narcotics Anonymous meetings when in the community.
142․The offender reported he had not been engaged with community-based activities when last in the community. He advised he had registered to play football prior to being remanded, however had not been able to commence. He has identified he may be interested in sport upon his release.
143․The offender reported having been formally diagnosed with a range of mental health conditions including Autism Spectrum Disorder (ASD) and Obsessive Compulsive Disorder (OCD) at the age of 13 years, Tourette’s Syndrome at the age of 14 years, and Anxiety and Post-Traumatic Stress Disorder (PTSD) at the age of 18 years. This information was confirmed by ACT Health in an information letter dated 15 September 2023. The offender reported he experienced difficulties at school due to some of these conditions, and had struggled to remain compliant with his medications, especially when using illicit substances. The offender claimed some of his behavioural issues during the current period of remand had been associated with his mental health.
144․The offender identified his mental health had been in significant decline at the time the offences were committed, and disclosed he had ceased taking his medication at the time. This information was verified by the offender’s father. It is noted the offender is now prescribed appropriate medication, has commenced a Mental Health Care Plan, and has received a referral to Detention Exit Community Mental Health Outreach Program for mental health support in the community. He is currently working with custodial mental health, with a focus on anger management, achieving a reduction of anxiety symptoms, and exposure and response prevention for the treatment of OCD. While it is positive that the offender is now engaged with appropriate treatment and medication, the PSR author noted that it is yet to be demonstrated he possesses the ability to maintain compliance with medication regime and treatment in the community. A National Disability Insurance Scheme (NDIS) application will be explored after sentencing.
145․Should he be sentenced to an Intensive Correction Order (ICO), the offender has expressed a preference to reside with his partner, child and parents-in-law in Batehaven, NSW. Otherwise, the offender is able to reside with his father in Harrison, ACT for as long as required. Assessments were conducted by ACT Corrective Services and the ACT property was found suitable for the purposes of an ICO.
Pre-Sentence Report conclusion
146․The offender has been assessed by ACT Corrective Services as suitable for a medium level of supervision and intervention, should he be sentenced to a community-based order. His criminogenic risks relate to static factors, illicit substance use, mental health, attitudes, and orientation toward offending behaviour.
147․It is noted the offender has protective factors in the support of his family and partner, stable accommodation, and potential employment. While the offender appears to have abstained from illicit substance use for most of his remand period and has commenced Buvidal Treatment, he is yet to engage with drug and alcohol counselling. I note, as stated earlier, this is in part due to his status as being on remand. It is also yet to be determined if the offender will remain compliant with treatment and medications in relation to his mental health when in the community. Although he has demonstrated a period of stability while in custody, it is noted this is a controlled environment, including the provision and supervision of medication administration.
148․In the event the offender is sentenced to a community-based supervision order, the author of the PSR recommended that time be allowed for significant supports and referrals to be put in place to allow a supported transition into the community. The author of the PSR recommended that supervision would include strategies to address the following identified areas of dynamic risk:
(a)mental health;
(b)illicit substance use;
(c)attitude toward offending behaviour; and
(d)engagement with mental health service provider, drug and alcohol counselling interventions.
149․The offender was assessed as not suitable for an ICO due to the degree of dependence on alcohol or a controlled drug and psychiatric and psychological conditions. The offender was also assessed as not suitable for a community service work condition.
Pre-Sentence Report dated 15 February 2018
150․An additional PSR dated 15 February 2018, over five years ago, was tendered as part of the Prosecution Tender Bundle before me on sentence.
151․The PSR author noted then that the offender demonstrated some insight into his offending behaviour and acknowledged the need to stay away from negative influences and illicit substance use to prevent further offending.
152․I note that rehabilitation is, of course, not linear. Rehabilitation requires both insight and behavioural change. Clearly, behavioural change did not occur in light of the offences before me.
Forensic Psychiatrist Report prepared by Dr Carroll dated 16 October 2023
153․Also before the Court was a Forensic Psychiatrist Report prepared by Dr Carroll, dated 16 October 2023 which was tendered as part of the Offender Tender Bundle on sentence. The report included the following.
154․Dr Carroll had scheduled an interview with the offender via AVL on 12 October 2023 for the purpose of the preparation of this report which the offender declined to attend because “he was busy with another visit at that time”. It was agreed between the offender’s instructing solicitor and Dr Carroll that he would proceed with the production of the report, noting that Dr Carroll had previous produced a report dated 23 September 2022 following an interview with the offender on 16 September 2022. It was agreed that it would not have been possible to reschedule a time to meet with the offender prior to the matter being listed for sentence hearing.
155․I note at this juncture, as was agreed by the parties, that the decision by the offender not to attend the meeting with Dr Carroll for the purpose of the preparation of this report has resulted in a somewhat dated report, a caveat accepted by Dr Carroll himself in his report. I further note the submission by the prosecution that the Court would have regard to the offender’s decision not to attend, and to instead attend an alternative visit, when considering the offender’s attitude towards his rehabilitation and the court proceedings. It is indeed most unfortunate that the offender did not attend this important appointment.
In 2021, almost two years since [the offender] was arrested, I have [him] back. When [the offender] was first incarcerated, I watched from a distance as he battled with himself to fight the old patterns and to stay sober. He spent time self-harming and in and out of trouble. He was also battling his addiction and learning to live with his OCD and Tourette’s again, without the silence the drugs provided him.
…
I have the privilege of getting to talk to him daily on the phone and see him every week either via zoom, or in person, and I can honestly say the man that stands in front of me is not the same man that he was when he was arrested in 2021. He is a man who has lost two grandparents since being incarcerated, missed (massive) milestones we didn’t think we would get to experience with our son, a man who has had to listen to his child beg and scream for him to come home almost daily, who still is fighting with every ounce of himself to keep doing and being better. For the first time ever, I see [the offender] being proud of himself, believing in himself and most of all loving himself. I can’t conclude this letter by saying [the offender] is never going to fall again, but I believe now he has the tools, the self-worth and self-motivation to pick himself up and ask for help, instead of turning to drugs and crime, and I wholeheartedly believe he is ready to leave his “criminal apprenticeship” that he started almost seven years ago at the gates of the gaol and never come back to it.
197․A reference under the hand of the offender’s parents was also tendered and included the following:
We are writing this letter in support of our son… who appears before you today for sentencing. [The offender] has a very supportive extended family including us his parents, his sisters, brother, aunts and a loving partner and dear son. [The offender’s father] and I have been separated for approximately six years however we remain a close family unit for our four children. [The offender] was diagnosed with Obsessive Compulsive Disorder, Tourette’s and of being on the spectrum for Autism in his early teens. It has taken many years of trial and error to get him on the right combination of medications and therapy. Unfortunately, this has also led to [the offender] self-medicating with illegal drugs at times when the combination of prescribed [medications] was not adequate and he had feelings of no self-worth or low self-esteem which ultimately led to his incarceration almost two years ago.
[The offender] is sincerely remorseful for his actions and has been actively participating in therapy sessions with a clinical manager from Canberra Mental Health Services within the AMC. They have together implemented a Mental Health Care Plan that is ongoing and consists of many aspects such as an adjustment to his medications, therapy to reduce OCD symptoms and compulsions, anger response and emotional regulation, combating drug addiction to name a few. [The offender] has responded extremely cooperatively and positively to this ongoing plan and has been fully engaged and committed to regaining control of his mental health issues…
198․A reference under the hand of the offender’s partner’s parents dated 24 October 2023 was tendered and included the following:
We are the parents of [the offender’s partner] and grandparents of [the offender’s son]. [The offender] has been part of our family for the past seven years. During this time, we have witnessed [the offender] through many varying situations. We have seen his struggles with his own mental health disorders and at times the debilitating effects of his medications. We have also been involved with [the offender] through the period of drug use and seen the effects that has had on him and all those who love and care for him.
…
[The offender]’s strength and love for his son and partner I see and hear daily through the phone calls, the [Facetimes] and Sunday visits. [The offender’s partner] and [the offender] have normalised the situation of [the offender]’s imprisonment as much as possible to ensure [their son] feels the inclusion and love of his father. Through the weekly visits and family activity days and support activities arranged through “Shine for Kids”, [the offender’s son] has been able to benefit from his father’s contact, support and love and will assist all in transitioning to family life all together in the future.
To the best of our knowledge, we understand that [the offender] has remained drug free and is attending ongoing personal support programs and seeking the medical support he requires to build himself and to be the [person] we know he is. We are proud of [the offender] and will continue to be part of his support network now and into the future.
199․The support the offender has available to him in the community is significant for his rehabilitation.
200․I take these references into account on sentence.
Criminal history
201․Criminal history is relevant to show whether the offence is an uncharacteristic aberration, or whether the offender has manifested a continuing attitude of disobedience to the law (illuminating moral culpability): Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [38].
202․The prosecution noted the case of R v Bourne; R v Manns [2018] ACTSC 35 in which the offender was previously sentenced for similar conduct, as compared to the aggravated robbery and aggravated burglary for which I am sentencing the offender. The previous matter involved the offender attending at a victim’s house to threaten the victim and extort money from him.
203․The offender has a significant criminal history, including for violent offences. The offender has been convicted of offences in the ACT including common assault, driving offences and drug offences.
204․In NSW, the offender has been convicted of family violence offences including numerous convictions for assault occasioning actual bodily harm, destroy or damage property, intentionally choke person, stalk or intimidate with intent to cause fear of physical or mental harm and use carriage service to menace, harass or offend. Relevantly, the offender has also been convicted of offences of possess housebreaking implements, goods in personal custody suspected of being stolen (motor vehicle) and a number of driving and drug offences.
205․This is a significant criminal record.
206․Counsel for the offender conceded the offender has a “not insignificant criminal history for someone of his age, which disentitles him to any significant measure of leniency”.
207․The offender’s criminal record is not a basis for leniency in this case.
Time in custody
208․As stated earlier, the offender was arrested on 23 September 2021 in relation to the aggravated robbery offence (CAN 9845/2021) and spent one night in custody before being granted bail on 24 September 2021. The offender was arrested again on 21 November 2021 and has been in custody continuously since that time.
209․Accordingly, as at 21 December 2023, the offender has spent a total of two years, one month and two days in custody attributable to all offences.
Rehabilitation
210․Rehabilitation is an important consideration having regard to the offender’s relatively young age and improved engagement with mental health treatment. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
211․Counsel for the offender properly submitted that, despite the offender’s criminal history, the offender remains a relatively young man and rehabilitation is still very much a relevant sentencing consideration.
212․I note the comments of Dr Carroll in the Forensic Psychiatrist Report discussed above at [166․166] in which he observed that the offender has “engaged very well with high quality mental health care” and “he has made great strides forward”. This was described to be “a very positive rehabilitative trajectory”.
213․As stated earlier, Dr Carroll further noted that the offender’s future risk of recidivism is likely to be tightly linked to future substance use, and that lifelong care and management of the offender’s OCD and Tourette’s will also be an important element of his rehabilitation. If the offender is able to continue to engage in this lifelong management, this is likely to assist him to achieve desistance from illicit drugs.
214․On the evidence, the offender’s prospects for rehabilitation are guarded but can be positive provided he continues to access necessary mental health treatment for ongoing management, and does not consume illicit substances in the community. He will require significant supervision on parole for a significant period.
Comparable cases
215․Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
216․The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
217․I was referred by the prosecution to the following cases in relation to the offences of aggravated burglary:
(a)R v Saipani (No 2) [2020] ACTSC 228: sentenced to two years and four months’ imprisonment, with a nonparole period of one year and two months.
(b)Salcedo; Stretton: for the offence of aggravated burglary, Mr Salcedo was sentenced to seven years’ imprisonment; Mr Stretton was sentenced to two offences of aggravated burglary and sentenced to seven years’ imprisonment and four years and six months’ imprisonment respectively.
(c)R v Fifita [2019] ACTSC 362: sentenced to four years and six months’ imprisonment, with a nonparole period of two years and six months.
(d)R v EC; R v KT; R v Sharp [2019] ACTSC 364: sentenced to three years for the offence of aggravated burglary, with a nonparole period of 32 months in respect of overall sentence.
(e)R v Minnis [2014] ACTSC 268 (Minnis): sentenced to five years’ imprisonment for the offence of aggravated burglary.
218․For the same offence of aggravated burglary, counsel for the offender referred the Court to the following cases:
(a)DPP v Mena [2023] ACTSC 80: sentenced to three years and three months’ imprisonment for the offence of aggravated burglary (and eight years’ imprisonment for the offence of attempted murder).
(b)DPP v Roberts (No 2) [2023] ACTSC 146: sentenced to three years and three months’ imprisonment for the offence of aggravated burglary.
(c)DPP v Stasinos [2023] ACTSC 179: sentenced to 18 months’ imprisonment for the offence of aggravated burglary, with a nonparole period of 10 months for the overall sentence.
219․I was referred to the following comparable cases in relation to the offence of aggravated robbery (CAN 9845/2021), which counsel for the offender described as useful, though generally of a more serious nature:
(a)R v Batcheldor [2021] ACTSC 208: sentenced to three years and five months’ imprisonment for the offence of aggravated robbery.
(b)R v Campbell [2021] ACTSC 359: sentenced to two years and four months’ imprisonment, reduced from three years and three months on account of the plea of guilty.
(c)R v Marzotto [2021] ACTSC 184: sentenced to 19 months’ imprisonment, with a nonparole period of 16 months for the overall sentence.
(d)DPP v Trewartha [2023] ACTSC 13: sentenced to an overall sentence of two years and three months’ imprisonment for two offences of aggravated robbery, to be suspended from 2 February 2023 and served by way of Good Behaviour Order (GBO).
(e)DPP v Butkovic [2023] ACTSC 62: sentenced to 30 months’ imprisonment, to be suspended after having served 147 days’ imprisonment and for the balance of the term to be served by way of GBO.
(f)R v Haddara [2022] ACTSC 224: sentenced to two years and seven months’ imprisonment to be served by way of ICO, with community service conditions.
220․I was referred to the following cases by the prosecution in relation to the offence of intentionally inflicting grievous bodily harm:
(a)Salcedo; Stretton: both offenders were sentenced to four years’ imprisonment for the offence of intentionally inflicting grievous bodily harm.
(b)R v Sidaros (No 6) [2021] ACTSC 24: sentenced to four years’ imprisonment.
221․Counsel for the offender properly noted that these cases all involve circumstances where grievous bodily harm was actually inflicted and, therefore, are more serious examples of the offence.
Statutory and other relevant considerations
222․In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above. As with every sentencing exercise, careful attention must be paid to the maximum penalty, as I have indicated earlier in this judgment, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. I also separately take into account Commonwealth sentencing provisions concerning the offence of use carriage service to make a threat.
223․The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
224․The prosecution submitted, in relation to the offence of aggravated burglary, that the offences are abhorrent and that it is important to send a strong message to the community to deter that conduct: Minnis at [20]. The need for general deterrence is important, as is punishment, denunciation and accountability: Minnis at [20].
225․I note that the offender’s experiences with lifelong mental illness are relevant to the sentencing exercise as a factor to be considered under s 33 of the Sentencing Act, in particular ss 33(m) and (t). Counsel for the offender submitted this acts as “some moderation” on the offender as an appropriate vehicle for general deterrence: Luque v R [2017] NSWCCA 226. Counsel for the offender also correctly noted that the offender’s mental health would result in “somewhat greater hardship” in custody than a person without these mental health conditions.
226․The prosecution submitted that, in particular, the need for specific deterrence here is significant. In my view, this somewhat counterbalances any moderation concerning general deterrence in the process of instinctive synthesis in this case. The prosecution further submitted that the offender, in conversation with associates, has bragged about his offending conduct. The desire of the offender to improve his reputation amongst such people is of concern. Another judge of this Court, Elkaim J, warned the offender in 2018 that his then associates were undesirable. The offender did not cut ties with them but rather attempted to ingratiate himself with them even further. I emphasise the conduct for which the offender has expressed “pride” cannot be tolerated in the community. There now appears to be some greater insight on the part of the offender and a desire to distance himself from these associates.
227․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. The prosecution submitted that nothing but a sentence of full time imprisonment is warranted in this case. Counsel for the offender conceded that a sentence of imprisonment is the “only appropriate sentence with respect to the offences before the Court”. An alternative to full-time custody is not appropriate in my view, in light of the combined seriousness of the matters before me.
228․When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at 63, Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38. I note, as was submitted by the prosecution, these offences are separate events and this ought to be properly reflected in the overall sentence.
229․The principle of totality should not be applied so as to suggest the offender is receiving a discount for multiple offending. In relation to this, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]:
[W]here offences are not separate and distinct but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
230․The prosecution submitted that the degree of accumulation here should be relatively minimal to recognise the serious nature of the offending conduct engaged in by the offender. At the same time, I must ensure the total sentence is not crushing: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]; Sampson v The Queen [2018] ACTCA 67 at [36].
Commonwealth and Territory offences
231․The Court here is required to sentence the offender for one offence contrary to the Cth Criminal Code. The Court must then have regard to s 19(3) of the Crimes Act 1914 (Cth) (Cth Crimes Act). Section 19 states:
19Cumulative, partly cumulative or concurrent sentences
General requirements
(1)Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:
(a)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)if a non‑parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non‑parole period commences immediately after the end of the period.
(2)Where:
(a)a person is convicted of 2 or more federal offences at the same sitting; and
(b)the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
(3)Where:
(a)a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b)the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d)if a non‑parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non‑parole period commences immediately after the end of the period.
(4)For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first‑mentioned sentence.
232․In Morrison v Maher [2021] ACTSC 312, Mossop J summarises the interplay of the above referenced section and sentencing for Territory offences. His Honour suggests at [49] that compliance with the above referenced section could be achieved by placing the sentence for the federal offence at the start of the overall sentence.
233․Further, the Court may not impose a single nonparole period or recognizance release order in respect of both Commonwealth and ACT terms of imprisonment: s 19AJ of the Cth Crimes Act.
234․In relation to Commonwealth offences, the Court must fix a single recognizance release order if a sentence of imprisonment exceeding six months but not exceeding three years is imposed: ss 19AC(1)(b) and 19AC(3) of the Cth Crimes Act. Where the sentence of imprisonment imposed exceeds three years, the Court must fix a single nonparole period: s 19AB(1).
235․There is “no judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order”: Hili at [13]. The minimum term that be served should be determined by reference to pt 1B of the Cth Crimes Act and the principles in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367, and Bugmy v The Queen (1990) 169 CLR 525; Hili at [44]. These cases require an assessment of the minimum time that justice requires the person to serve having regard to all the circumstances of the offence.
236․In accordance with s 19(3) of the Cth Crimes Act, where an offender is sentenced to a term of imprisonment for Commonwealth and Territory offences, the Court is required to direct when the Commonwealth sentence commences, but so that:
(a)No federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)If a nonparole period applies in respect of a Territory sentence, the first federal sentence to commence after the end of that nonparole period commences immediately after the end of that period.
237․As has been noted in Edwin v The Queen [2014] ACTCA 47 at [11], when sentencing in the context of both Commonwealth and Territory offences, “a sentencing judge must accommodate the two distinct regimes”. Necessarily, the structure of the sentences imposed must accord with these two regimes.
Sentence
238․It must be recognised by the Court that the offences committed against all the victims have had a serious and significant impact upon them all. As discussed earlier, both the short and long-term consequences of being a victim of these offences must be acknowledged.
239․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters of the offender. Inevitably, in view of the seriousness of the offences, a significant term of imprisonment is appropriate.
240․I have set the nonparole period on the basis that it is the minimum amount of time that the offender should spend in custody, while at the same time recognising that the offender will need a significant period on parole with intense supervision. I will not impose a nonparole period in respect of the Commonwealth offence as the ultimate sentence imposed is less than six months’ imprisonment.
241․The appropriate sentence for the offence of aggravated burglary (CAN 5918/2022) is 3 years of imprisonment, reduced to 2 years, 7 months and 20 days on account of the plea of guilty.
242․The appropriate sentence for the offence of recklessly inflict actual bodily harm (CAN 5920/2022) is two years of imprisonment, reduced to one year, nine months and three days on account of the plea of guilty.
243․The appropriate sentence for the offence of aggravated robbery (CAN 9845/2021) is 22 months of imprisonment, reduced to 1 year, 5 months and 18 days on account of the plea of guilty.
244․The appropriate sentence for the offence of drive motor vehicle without consent (CAN 11633/2021) is one year of imprisonment, reduced to nine months on account of the plea of guilty.
245․The appropriate sentence for the offence of possess false registration plates (CAN 11637/2021) is a fine of $500, with no time to pay.
246․The appropriate sentence for the offence of use carriage service to make a threat (SC CAN 69/2022) is 6 months of imprisonment, reduced to 4 months and 15 days on account of the plea of guilty. This offence will be backdated to commence on 20 November 2021 to account for the time already spent in custody.
247․The appropriate sentence for the offence of attempt to intentionally inflict grievous bodily harm (CAN 2024/2022) is three years and three months of imprisonment, reduced to two years, five months and seven days on account of the plea of guilty.
248․This is an overall sentence of 7 years, 1 month and 26 days’ imprisonment. I will impose a nonparole period of 3 years, 10 months and 17 days, expiring 19 December 2025. This is approximately 57% of the overall sentence, noting that the actual nonparole period begins with the start of the Territory offences.
249․In accordance with s 67 of the Sentencing Act, I make the following recommendations for parole, that the offender:
(a)Engage in mental health treatment;
(b)Engage in treatment for illicit substance abuse; and
(c)Engage with the DECO Wellways program on his release.
Orders
250․For those reasons, the following orders are made:
(1)On the charge of use carriage service to make a threat (SC CAN 69/2022), the offender is convicted and sentenced to 4 months and 15 days’ imprisonment commencing 20 November 2021 and expiring 3 April 2022.
(2)On the charge of attempt to intentionally inflict grievous bodily harm (CAN 2024/2022), the offender is convicted and sentenced to two years, five months and seven days’ imprisonment commencing 3 February 2022 and expiring 9 July 2024.
(3)On the charge of drive motor vehicle without consent (CAN 11633/2021), the offender is convicted and sentenced to nine months imprisonment commencing 9 March 2024 and expiring 8 December 2024.
(4)On the charge of possess false registration plates (CAN 11637/2021), the offender is convicted and sentenced to a fine of $500 with no time to pay.
(5)On the charge of aggravated burglary (CAN 5918/2022), the offender is convicted and sentenced to 2 years, 7 months and 20 days’ imprisonment commencing 8 November 2024 and expire 27 June 2027.
(6)On the charge of recklessly inflict actual bodily harm (CAN 5920/2022), the offender is convicted and sentenced to one year, nine months and three days’ imprisonment commencing 27 April 2026 and expiring 29 January 2028.
(7)On the charge of aggravated robbery (CAN 9845/2021), the offender is convicted and sentenced to 1 year, 5 months and 18 days’ imprisonment commencing 28 July 2027 and expiring 14 January 2029.
(8)I impose a nonparole period of 3 years, 10 months and 17 days commencing 3 February 2022 and expiring 19 December 2025.
(9)In accordance with s 67 of the Sentencing Act, I make the following recommendations for parole, that the offender:
(a)Engage in mental health treatment;
(b)Engage in treatment for illicit substance abuse; and
(c)Engage with the DECO Wellways program on his release.
| I certify that the preceding two hundred and fifty [250] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 21 December 2023 |
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