Director of Public Prosecutions v Muell
[2024] ACTSC 184
•13 June 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Muell |
Citation: | [2024] ACTSC 184 |
Hearing Date: | 3 April 2024 |
Decision Date: | 13 June 2024 |
Before: | Loukas-Karlsson J |
Decision: | See [210] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – driving with a suspended license – where the offender had a particularly disadvantaged and traumatic upbringing – where the offender was on parole for other matters at time of offending – appropriate length of non-parole period in light of offender’s prospects of rehabilitation – offender’s prospects of rehabilitation remain guarded – Bugmy, Verdins and Henry principles engaged – institutionalisation relevant – sentenced to term of imprisonment for aggravated robbery – non-parole period reset – fine with no time to pay imposed for driving with a suspended licence – automatic disqualification applies |
Legislation Cited: | Crimes (Restorative Justice) Act 2004 (ACT) ss 8, 19(1)(b), 19(1)(b)(i), 24 Crimes (Sentence Administration) Act 2005 (ACT) ss 161C, 161D Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33, 33(1)(y), 66(4) Criminal Code 2002 (ACT) s 310(b), Dictionary (definition of “offensive weapon”) Firearms Act 1996 (ACT) s 6 Road Transport (Driver Licensing) Act 1999 (ACT) ss 32(2)(a), 32(6), 32(6)(a), 32(6)(b), 32(9)(a) Road Transport (General) Act 1999 (ACT) s 68 |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Charles v The Queen [2021] ACTCA 23 Choi v The Queen [2007] NSWCCA 150 DPP v Djerke (No 2) [2023] ACTSC 341 DPP v Scheele [2016] ACTCA 23; 12 ACTLR 1 DPP v XK [2023] ACTSC 141 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Elias v The Queen [2013] HCA 31; 248 CLR 483 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hoskins v The Queen [2021] NSWCCA 169 Jackson v The King [2023] NSWCCA 121 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Ngata v The Queen [2020] ACTCA 18 O’Brien v The Queen [2015] ACTCA 47 Peter v Brownlie [2023] ACTSC 198 R v Barrett [2015] ACTSC 280 R v Blundell [2022] ACTSC 379 R v BS-X [2021] ACTSC 160; 16 ACTLR 238 R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 R v Elphick (No 2) [2015] ACTSC 23 R v Goodrich (1952) 70 WN (NSW) 42 R v Goolagong (No 2) [2021] ACTSC 131 R v Hawkins [2019] ACTSC 103; 88 MVR 273 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Irwin [2019] NSWCCA 133 R v Jajou [2009] NSWCCA 167; 196 A Crim R 370 R v Kilic [2016] HCA 48; 259 CLR 256 R v Marshall (No 2) [2022] ACTSC 102 R v McCracken [2016] ACTSC 253 R v Middleton [2023] ACTSC 50 R v Muell [2019] ACTSC 77 R v Murphy [2021] ACTSC 94 R v Pham [2015] HCA 39; 256 CLR 550 R v Radich [1954] NZLR 86 R v Serena [2019] ACTSC 231 R v TL (No 2) [2016] ACTSC 289 R v Tran [1999] NSWCCA 109 R v Verdins [2007] VSCA 102; 16 VR 269 R v Zamagias [2002] NSWCCA 17 Saga v Reid [2010] ACTSC 59 Taylor v The Queen [2014] ACTCA 9 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | Director of Public Prosecutions ( Prosecution) P Muell ( Offender) |
Representation: | Counsel M Fieldus ( DPP) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 296 of 2023 SCC 297 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․On 13 November 2023, Paul Muell (the offender) pleaded guilty to the following offence:
(a)An offence of aggravated robbery (CC2023/9519), contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 25 years’ imprisonment, 2,500 penalty units, or both.
2․The offender also pleaded guilty on 13 November 2023 to the following transfer charge:
(a)Driving with a suspended license (CC2023/9520), contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (RTDL Act). The maximum penalty for this offence for a first offender is 6 months’ imprisonment, 50 penalty units, or both.
3․If I convict the offender of the transfer charge, the offender is also automatically disqualified from holding or obtaining a driver license for a period of time, which the parties agree in this case is 1 month for a first offender and 2 months for a repeat offender: RTDL Act s 32(6)(a)-(b). The offender is not a repeat offender for the purposes of s 32(2) of the RTDL Act: see RTDL Act s 32(9)(a). I also retain the discretion to order a longer suspension under s 32(6) of the RTDL Act.
Agreed facts
4․The agreed facts are set out in the Agreed Statement of Facts, which forms part of the prosecution tender bundle. As noted in the agreed facts, the charges essentially stemmed from the theft of a Mazda vehicle on 10 April 2023. The agreed facts may be summarised as follows.
5․At 3:50am on Monday, 10 April 2023, the victim drove his grey 2012 Mazda 2 (the Mazda) to the loading dock of a newsagency in a suburb in Canberra to start his shift as a newspaper delivery driver. The victim parked the vehicle at the rear of a chemist store, close to the newsagency’s loading dock.
6․The victim and another employee of the newsagency began preparing for the victim’s shift. This involved preparing to load newspapers into the Mazda. While the victim and the other employee were doing this, at 4:15am the offender walked past the Mazda and remained in the loading dock area for about three minutes. The offender then remained in the vicinity.
7․The other employee departed the location at 4:35am. The victim closed the door to the loading dock and walked towards the Mazda. The offender then approached the victim and demanded that the victim hand over his vehicle key. The victim initially refused, and the offender subsequently produced a “handgun” and pushed it into the victim’s stomach while demanding the key. The victim obviously thought that the offender would cause him serious injury if he did not comply with the offender’s demands and believed his life to be in danger. This interaction was captured on CCTV. I note that what type of firearm, whether unloaded or loaded or a replica, was involved remains an unresolved matter.
8․The offender said words to the effect of “‘Go away, don’t call police. If you call, I will hurt you” to the victim. The offender then drove the Mazda away from the location.
9․At 6:15am, the Mazda was located on Diddams Close, Belconnen by an ACT Government Ranger. The Mazda had collided with a tree and the driver and passenger airbags had been deployed.
10․The Mazda was forensically examined.
11․The offender was arrested on 28 April 2023, not in relation to this matter. At the ACT Watch House, the offender complained of broken ribs.
12․The police also executed a search warrant on the offender’s stored property at the AMC on 26 May 2023. The offender’s phone was seized during this search. Call charge records revealed that the service was connecting to various telecommunication towers at relevant times.
13․At the time of the offending, the offender’s right to drive in the ACT had been suspended due to failure to pay an outstanding balance in an infringement notice management plan.
Victim Impact Statement
14․The Victim Impact Statement (VIS) speaks of the impact of the offence, both psychological and financial, and includes the following:
Since this has happened to me, an immigrant who has come to embrace Australia as my new home, the impact of the car theft has been particularly profound. It has shattered the sense of security and belonging that I have worked hard to cultivate in this country. The theft of my car has not only caused significant psychological distress but has also imposed financial burdens that I struggle to bear.
Psychologically, I find myself more anxious, stressed, and emotional. The constant fear and anxiety that now accompany even the simplest tasks, like entering or exiting my car for work, serve as stark reminders of the fragility of my newfound sense of belonging. The sense of violation and insecurity has disrupted my ability to sleep, leaving me restless and unsettled. As an immigrant, the support network of family and friends is crucial for navigating the challenges of settling into a new country. However, the indifference of some of my colleagues to the trauma I've experienced has left me feeling isolated and alone…
At home, I am constantly on edge, acutely aware of the need to bolster security measures to prevent further incidents…
In public, I find myself hyper-vigilant, constantly scanning my surroundings and reminding my family members to do the same. The lingering fear of another theft mars the simple act of running errands or attending social gatherings.
Financially, the repercussions of the car theft have been significant… Not only have I had to navigate the cumbersome process of filing insurance claims, but the loss of my vehicle has also resulted in a loss of income during the five working days it took to resolve the situation. I also have to spend more expense to buy a similar car that was taken. As someone already struggling to make ends meet on a low income, this setback has thrown my financial stability into disarray.
…
In conclusion, the theft of my car has not only inflicted psychological and financial hardship. Still, it has also irrevocably altered my sense of security and stability that I have worked so hard to build in Australia…
15․The Court recognises the serious effect of this crime on the victim. This has been spoken of in the victim’s VIS with great dignity. The Court acknowledges the importance of what the victim has expressed in his statement. This was an appalling experience for the victim and would have been appalling for anyone in the community to experience. Nobody should have to go through this. The victim was an innocent, blameless, hardworking person going about his work.
Issues at the sentencing hearing
16․At the hearing, counsel clarified that there is no disagreement between the parties in relation to the application of principles of sentencing to this case. Counsel for the offender particularly accepted that the principles of Bugmy and Verdins “[cut] both ways” in this case, especially as the principles relate to the offender’s moral culpability, subjective background, and specific deterrence. Both parties also properly agreed that a term of imprisonment was inevitable for the aggravated robbery offending, on the specific facts of the case.
17․Rather, what appears to be the main area of contention between the parties is the length of non-parole period sought for the offender. Counsel for the offender sought a “relatively low” (below 50%) non-parole period on the basis of the need for community support and treatment and “intensive rehabilitation” of the offender’s mental health in the community.
18․In my view, the resolution of this issue ultimately depends on the offender’s prospects of rehabilitation and engagement with treatment.
19․The Court had the benefit of sworn evidence from both the offender and [redacted], Ms [redacted] at the sentence hearing in addition to the materials and submissions made by counsel. Ms [redacted] described her qualifications as a formally trained special education teacher with a postgraduate certificate in autism.
20․[Redacted]. I take her evidence into account in so far as Ms [redacted] is a person who has known the offender for a long time and thus provided important and relevant evidence in relation to the offender.
21․I will return to their evidence throughout these reasons, particularly as I discuss rehabilitation.
Objective seriousness
22․An assessment of the objective gravity of an offence has always been an important part of the sentencing process. Nevertheless, it is not necessary for a judge to indicate where the offence falls in a scale of low, mid-range, or high criminality. These may be opaque categories. What is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. The discussion below identifies the matters that inform objective seriousness.
23․At the outset, it is useful to note areas of proper agreement between the prosecution and the offender. First, as indicated above at [16] both counsel in their written submissions agreed that no penalty but imprisonment would be suitable for the aggravated robbery offending. This was correct on the serious facts of this case. Second, both counsel for the offender and the prosecution agreed that imprisonment would not be appropriate in relation to the driving with a suspended license charge. That is also a proper area for agreement on the facts.
24․In written submissions, counsel for the prosecution submitted that the factors listed in the NSW guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) in assessing objective seriousness of aggravated robbery should be regarded as “highly persuasive”. The factors referred to by the prosecution are (at [170]):
(a)nature of the weapon;
(b)vulnerability of the victim;
(c)position on a scale of impulsiveness/planning;
(d)intensity of threat, or actual use, of force;
(e)number of offenders;
(f)amount taken;
(g)effect on victim(s).
25․The prosecution noted that the weapon involved was a firearm. While the prosecution accepted that the Court could not be satisfied that the firearm was capable of being discharged, the prosecution submitted that the presence of the firearm, identified as a “handgun”, elevates the seriousness of the offending. Nevertheless, using a “firearm” which was capable of being fired would aggravate the offending and clearly I could not be satisfied of that beyond reasonable doubt. It was noted that the legal definition of firearms in the ACT is wide enough to capture replicas: Firearms Act 1996 (ACT) s 6; DPP v Scheele [2016] ACTCA 23; 12 ACTLR 1 at [6], [42]-[43] (Refshauge, Burns and Wigney JJ). Further, the definition of an “offensive weapon” in the Criminal Code may also embrace replicas: Criminal Code, Dictionary (definition of “offensive weapon”); see also R v McCracken [2016] ACTSC 253 at [1] (Murrell CJ). I will sentence on the basis that it is not established that the weapon was capable of being discharged. I will sentence on the basis that the weapon was a replica or unloaded. As properly submitted by counsel for the offender in relation to objective seriousness, the offending involved one circumstance of aggravation on the basis of the involvement of an offensive weapon. Clearly, I must be vigilant to avoid double counting in that regard.
26․Counsel for offender conceded that firearms are a more serious example of a “weapon” and noted that the offender used a “handgun” in the offending. Regardless, counsel for the offender correctly submitted that this Court cannot be satisfied beyond reasonable doubt that the firearm was loaded or capable of being discharged and therefore capable of causing injury.
27․While counsel for the offender also accepted that the pointing of the “handgun” into the victim’s stomach aggravates the offence, counsel for the offender noted that the weapon was not discharged nor was there any explicit threat from the offender to do so. Counsel for the offender ultimately noted that the victim was physically unharmed. At the hearing, counsel for the offender clarified that there was no explicit threat as the offender never said anything and the threat by brandishing a gun was “implicit”. For my part, I view a threat by brandishing a gun as quite explicit, and counsel for the offender conceded that this submission did not assist the offender’s case greatly.
28․Counsel for the prosecution properly submitted that the victim was “subject to a degree of vulnerability”, because the victim was in the course of carrying out his employment in the early hours of the morning and was alone at the time of the offending.
29․The prosecution submitted that there was a degree of planning involved in the offending, and that the offending was not entirely opportunistic. The prosecution noted that the offender’s presence in public with a firearm “speaks to a degree of premeditation”. Further, the prosecution also highlighted how the offender had remained in the area after seeing the victim, and how the offender is stated to have “waited until the [victim] was alone to approach him”. This is also said to have further spoken to a degree of planning. Thus, in my view the offending did involve a limited degree of planning and was not entirely opportunistic.
30․The prosecution properly submitted that the intensity of the threat involving a firearm was not insignificant. It is significant. I agree. This is inherent in the nature of an aggravated robbery involving an offensive weapon.
31․The interaction between the offender and the victim was it appears relatively short as properly submitted by counsel for the offender. Nevertheless, it was a serious offence regardless of the duration.
32․Finally, as to the suspended license offending, the prosecution for their part conceded in written submissions that the offence “does not represent an overly serious example of offending of [this] kind” and counsel for the offender submitted that the offending arose from a failure of the offender to manage his administrative obligations, not a “deliberate flouting of the law”.
33․In conclusion, the matters I have set out above identify the facts and circumstances that bear upon the objective gravity of the two offences.
Subjective circumstances
Pre-sentence Report
34․In evidence before me is a pre-sentence report (PSR) dated 26 March 2024 that was prepared for the offender. The report includes the following in relation to the offender’s subjective circumstances. I will also return to the PSR’s recommendations later in these reasons. As of the date of the sentence hearing, the offender was 28 years old. He is, of course, old enough to know better. Nevertheless, as will become clear the offender was brought up in particularly disadvantaged and traumatic circumstances.
Prior Contact with Corrections
35․[Paragraph redacted].
36․The PSR discussed how the offender was on parole at the time of committing the offences, a fact which I will address later in these reasons.
Family Background
37․The offender was born in Victoria in June 1995. He moved to Queanbeyan as an infant. The PSR noted that the offender’s mother experienced issues with alcohol abuse. There was also violence in the family home, and [redacted].
38․The offender’s mother died when he was aged seven. The offender reported no relationship with his father. The father is also now deceased. After his mother died, [redacted]. As a teenager, the offender spent time in youth refuges and [redacted]. I note that this was obviously not a promising start in life.
39․[Redacted]. The PSR also noted that he was exposed to illicit substances.
40․The offender is single with no children. The PSR also reported that the offender has four brothers and one sister. The offender reported positive relationships with his sister and two brothers, although all of them live interstate. The offender also remained in contact with [redacted]. There have been visits in custody, and the offender also has regular telephone and email contact.
41․The PSR noted that the offender acknowledged that, outside of his family, all of his friends and associates are associated with illicit substance use and crime. The offender reported that he believes leaving Canberra would assist with ceasing contact with antisocial influences. The offender spoke of his future plans to move to Tasmania to live with his brother.
Socioeconomic Circumstances
42․The PSR noted that the offender lived in a property through the Justice Housing Program (the JHP) when he was last in the community. The offender was evicted for not complying with the JHP’s program rules. The offender then spent one week in a residential rehabilitation facility, before leaving and staying with a friend for one week. After this, the PSR noted that the offender was arrested and remanded in custody.
43․The PSR reported that the offender left formal education after completing Year 7, and that he went on to obtain his Year 10 Certificate while at [redacted]. The offender also completed a certificate in fitness [redacted].
44․The offender reported short periods of employment as a labourer when in the community, with his longest period of employment being a three-month stint on a cattle station when the offender was aged 15. In custody, the PSR noted that the offender is employed doing grounds maintenance.
45․The offender has received a Centrelink Jobseeker payment when he was in the community.
Alcohol and Drug Use
46․The offender reported a history of problematic alcohol and illicit substance use. The PSR noted that the offender commenced alcohol use when he was 13 years old, with frequent binge drinking. The offender noted his belief that he can now consume alcohol in moderation. However, the PSR noted that [redacted] expressed concerns that his alcohol use leads to illicit substance use.
47․The offender has reported cannabis use, also from the age of 13 years. This escalated to the offender using methamphetamines, cocaine, and heroin. The offender has identified his methamphetamine use as the most problematic in recent years.
48․The offender reported previous attempts at rehabilitation programs, although the PSR noted that he had not completed any of them. While in custody, the offender has completed the EQUIPS (Explore, Question, Understand, Investigate, Practice and Succeed) Foundation course, and the PSR noted that he is now eligible for the EQUIPS Addiction program.
49․The offender has also been subject to urine drug screening on one occasion during his current period of incarceration. On 9 March 2024, the offender returned a negative result for illicit substances.
Physical, mental and emotional health
50․The offender advised that he had recently engaged with a psychologist and had been diagnosed with Post Traumatic Stress Disorder (PTSD), Attention Deficit Hyperactivity Disorder (ADHD), and an addiction disorder. The offender also noted that he was informed that he may meet the criteria for Fetal Alcohol Spectrum Disorder, and further assessment is required. The report noted that [redacted] agreed that the offender may have been affected by prenatal alcohol use and that the offender would benefit from assessment as well as appropriate support and interventions.
51․I pause to note that the offender’s report to the author of the PSR in relation to his mental health appears to be similar to the conclusions of the psychological assessment report of Ms Rita Sosich of Forensic & Clinical Technical Services (FACTS report) of 17 March 2024 tendered by the offender.
52․The PSR noted that information received from ACT Health did not confirm any current diagnosis or treatment. The offender was assessed upon admission to custody.
53․At hearing, counsel for the offender took me to observations in the PSR that the offender supposedly lacked “major mental illness” when diagnosed upon admission to the AMC. He submitted that I could therefore infer that the information given in the FACTS report are new to ACT Corrective Services and that there does not appear to have been any engagement or assessment with the conditions identified in the FACTS report. I will discuss the FACTS report next.
FACTS Report and evidence of Ms [redacted]
54․As noted above, the offender also tendered and relied on the FACTS report. Counsel for the offender appeared to rely on the FACTS report as support for the submission that the offender’s subjective circumstances engaged the Bugmy, Verdins, and “Henry” principles in relation to early drug use. Further, counsel for the offender also noted that this case was “perhaps for the first time” a court had the benefit of a detailed psychological assessment of the offender.
55․I was taken by the counsel for the offender in written submissions to several sections of the FACTS report. The matters are summarised below.
56․Counsel for the offender noted that the offender lived with his mother and his uncle up until the age of seven. The offender described both his mother and uncle as frequent / heavy drinkers. [Redacted]. The offender described his mother as being “great” despite her alcoholism and that “she would walk him from school and back”.
57․Counsel for the offender also referred to the offender’s mother passing when the offender was seven years old, when her “body shut down on her” due to liver cirrhosis. The offender’s living situation then became volatile. [Redacted]. [Redacted].
58․[Paragraph redacted].
59․As noted by the counsel for the offender, the offender met Ms [redacted], an Inclusion Support teacher. [Redacted]. [Redacted].
60․The FACTS report noted that Ms [redacted] described the offender as an “incredibly loyal … a really lovely young man”, but also that he could be “very confrontational, quite threatening and occasionally violent”. The FACTS report also noted Ms [redacted]’s observations on the offender’s behaviour at the time, and how she suspected that the offender likely had Fetal Alcohol Spectrum Disorder. Ms [redacted] also noted her awareness that the offender had comorbid trauma as well as neglect in his developmental phase, and that the offender had supposedly been diagnosed with ADHD and was medicated for it from when he was 4.
61․[Paragraph redacted].
62․[Paragraph redacted].
63․[Redacted]. [Redacted]. Ms [redacted] also noted to Ms Sosich that she understood the offender was also using cannabis and other drugs around this time.
64․[Paragraph redacted].
65․[Paragraph redacted].
66․[Paragraph redacted].
67․The FACTS report noted that the offender was first introduced to cannabis at age 14 when he attended an ACT youth shelter (Marlow College). He used cannabis daily, and the offender progressed to trying other drugs such as MDMA, LSD, and “ice”. The offender also injected heroin and buprenorphine. The offender noted to Ms Sosich that he first smoked “ice” when [redacted] and begun injecting the drug at the age of 23.
68․The offender further admitted that he had “a bit of a problem” with alcohol use when he was a teenager, drinking daily before his use declined after his release from incarceration due to robbery. He stated that he now only drinks minimally and only on social occasions, although the author of the FACTS report noted that this statement is inconsistent with Ms [redacted]’s recollections.
69․The FACTS report noted that the offender explained that he uses substances to both change his outlook on his life and to avoid thinking about “how shitty [his] life has turned out”. For his part, the offender relayed to Ms Sosich that he thought that all of his offences were drug-related, but also that his failure to control his anger is a contributing factor.
70․Ultimately, among her conclusions in the FACTS report, Ms Sosich assessed the offender as consistent with the DSM-5 criteria for the following disorders:
(a)Antisocial Personality Disorder;
(b)ADHD (Combined Hyperactivity and Inattentiveness);
(c)Severe PTSD; and
(d)Severe Substance Use Disorder (Stimulants – Methaphetamine).
71․The DSM-5 criteria for these disorders were reproduced by Ms Sosich in an attachment to her FACTS report, and she also highlighted which criteria is met by the offender. [Redacted].
72․Ms Sosich concluded that her tests and assessments of the offender support a diagnosis of the above four disorders, and that the offender observed these difficulties as evident during his offending in April 2023.
73․Responding to the question on whether the offender’s mental illness or impairment contributed causally (and to what extent) to his offending, Ms Sosich offered the following conclusion in the FACTS report, a conclusion also highlighted by the counsel for the offender in his written submissions:
[The offender’s] antisocial personality disorder and substance dependence are primary contributors to his chaotic lifestyle, lack of compliance with societal expectations, his failure to comply with his legal orders and his current offences. Being substance dependent at the time of the offences likely amplified the symptoms of [the offender’s] antisocial personality disorder to the extent that it had a disinhibiting effect on an already reduced capacity to comply with rules, make moral judgements, effectively consider risks, and regulate his conduct. His level of moral insensitivity, impulsivity, lack of empathy, aggressiveness, and internal pleasure derived from risky behaviour would likely be exacerbated by his substance dependence and affected his already compromised ability to curtail his conduct. [The offender’s] antisocial personality disorder is an enduring propensity to disregard and violate the rights of others, and his capacity to act pro-socially is severely compromised generally. Also, [the offender’s] PTSD symptoms may have made it more difficult for him to remain calm and avoid reckless and destructive behaviour.
74․Ms Sosich closed by recommending that the offender be reviewed for the Fetal Alcohol Spectrum Disorder as “a diagnosis may make a difference to his treatment and management both in custody and the community”.
75․Counsel for the offender also particularly relied on the following recommendations of the FACTS report when it comes to appropriate treatment of the offender’s antisocial personality disorder:
Antisocial Personality Disorder is best treated by long term psychotherapy within a Cognitive Behaviour Therapy (CBT) framework where specific problems such as impulsivity, interpersonal problems and antisocial conduct can be targeted. [The offender] may be able to access this type of intervention in a custodial setting and when paroled to the community via community offender programs. These programs are best conducted whilst in a reasonably therapeutic environment. Correctional Centres by their very nature are generally not well suited to good therapeutic outcomes unless they can maintain a well-structured and supportive therapeutic community.
(emphasis added)
Remorse
76․The offender confirmed to the author of the PSR that he was aware of his current offences. The offender discussed his difficulty adjusting to being in the community after an extended period in custody and attributed this stress as a contributing factor in his relapse into illicit substance use which then led to the offending.
77․The offender expressed his disappointment in his behaviour, and he also noted the need to remove himself from antisocial peers. The offender acknowledged that the victim would have believed the gun he pointed at him was real. He indicated a willingness to participate in restorative justice. The offender reaffirmed his interest in restorative justice in his sworn evidence and described his understanding of the process in his evidence as:
From what they explained, it's a chance for both parties to – for them to come to talk to me and to basically say how it made them feel, how it's affected them, to give me the chance to apologise to them and try to, I guess, kind of give them some peace of mind, maybe, to know that I am sorry for the way I have affected their life.
78․At the hearing, the offender acknowledged that while it is a horrible feeling to be arrested and brought to court, it is “a lot worse” for his victims than him and he does not seek to take that away from his victim.
79․The offender then noted the following near the end of his evidence when asked if he wants to tell the Court anything else about his future:
I guess I know that it's – I've done the wrong thing. I accept that. And as much as I'd like to, you know, be in the community, I understand that I have done the wrong thing and I need to take my medicine for it, I guess.
80․Accordingly, some weight should be accorded to the remorse expressed. I also note the offender wishes to take part in restorative justice, discussed later at [175]-[179].
Conditional liberty
81․The offender was on parole at the time the offences were committed.
82․The PSR noted that the offender was subject to a Parole Order at the time of committing the current offences. The PSR noted that this order was cancelled on 22 June 2023, although the offender had been remanded in custody since 28 April 2023 for other unrelated offences.
83․In R v Tran [1999] NSWCCA 109 at [15], Wood CJ stated:
Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.
(citation omitted)
84․The fact that the offender was on conditional liberty at the time of this offending is an aggravating factor on sentence. I take this into account, while also being mindful of not double counting in that regard: Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [61].
Criminal History
85․The offender has a significant criminal history.
86․In the offender’s criminal history, the most recent conviction of the offender was for possessing drugs of dependence, possessing article with intent to use in course of burglary, and possessing offensive weapon with intent. Magistrate Temby convicted the offender of these offences on 20 March 2024, imposing a total effective sentence of 3 months and 21 days’ imprisonment and a fine of $300.00.
87․At the time of the offending, the offender was on parole relating to a sentence imposed by Mossop J: R v Muell [2019] ACTSC 77 (Muell). Muell concerned two charges of aggravated burglary, as well as charges of theft, dishonestly taking a motor vehicle without consent, and attempted aggravated robbery.
88․The offending in Muell has similarities to this instant offending in the following ways:
(a)it involved a stolen vehicle, namely a motorcycle and a Toyota Hilux: see at [5]-[6]; and
(b)it involved the offender also using a “handgun”, this time to attempt to take money from a taxi driver: see at [7]; and
89․Ultimately, Mossop J sentenced the offender to the following terms of imprisonment for each of the charges (at [36]):
(a)On the charge of attempted aggravated robbery (CC2018/2413), imprisonment for three years and 10 months from 8 January 2018 until 7 November 2021.
(b)On the charge of aggravated burglary (CC2018/1066), imprisonment for 26 months from 8 September 2020 until 7 November 2022.
(c)On the charge of aggravated burglary (CC2018/2410), imprisonment for 26 months from 8 March 2021 to 7 May 2023.
(d)On the charge of theft (XO2018/31353), imprisonment for 20 months from 8 March 2022 to 7 November 2023.
(e)On the charge of dishonestly take a motor vehicle without consent (XO2018/31451), imprisonment for 20 months from 8 September 2022 to 7 May 2024.
90․I pause to note that there appears to be a discrepancy between the AFP-issued criminal history of the offender and the Sentence Administration Board’s letter regarding a sentence of 18 months’ imprisonment for assault occasioning actual bodily harm imposed by Magistrate Morrison, with the former document listing this sentence as commencing on 8 May 2019 and concluding on 7 November 2020.
91․At the hearing, I raised this issue with both parties. The parties responded via email to my associates on 12 April 2024, confirming their shared view that there had been a typographical error in the AFP-supplied criminal history. That is, the sentence imposed by Magistrate Morrison should have been listed as commencing after the expiry of the sentence imposed by Mossop J (7 May 2024), namely on 8 May 2024 and ending on 7 November 2025.
92․Counsel for the prosecution submitted that the offender’s criminal history highlighted a particular need for specific deterrence. Counsel ultimately submitted that there is no leniency to be afforded to the offender in light of this history: Saga v Reid [2010] ACTSC 59 at [81].
93․[Redacted]. [Redacted]. Counsel for the offender noted that the offender has not had the benefit of “therapeutic options” nor the “intensive level of support that existed” in “modern” sentencing courts (eg. a drug and alcohol treatment order or an ICO). This submission relates to the offender’s case for rehabilitation and for a lower non-parole period, and I will return to it later in these remarks.
94․Finally, it is also relevant that the offender was last convicted with a driving with a suspended license offence on 26 April 2018. As such, the offender is not “a repeat offender” under s 32(9)(a) of the RTDL Act. As referred to earlier, this in turn has implications for the period of automatic disqualification applicable to the offender under s 32(6) of the RTDL Act.
Pleas of guilty
95․The offender entered pleas of guilty for both charges on 13 November 2023, at the third mention of his matter at the Magistrates Court. A discount of 25% is appropriate in these circumstances. This was not a matter of any controversy.
Time in custody
96․At the hearing, there was factual agreement that the offender had not spent any days in custody solely referable to the current offending.
97․As noted above, the offender was on parole at the time of the offending. From the agreed facts and the parole order included in the prosecution’s tender bundle, the offender was apparently on parole for the following offences, for which the offender was sentenced by Mossop J and Magistrate Morrison:
(a)Assault occasioning actual bodily harm;
(b)Attempt aggravated robbery;
(c)Aggravated burglary;
(d)Taking motor vehicle without consent; and
(e)Theft.
98․As agreed by both parties, the offender spent 73 days in the community under this parole. The prosecution noted that the offender was arrested on 28 April 2023 in relation to other offences. The prosecution also noted that the offender’s parole was revoked on 22 June 2023. Further, at the hearing counsel for the prosecution noted that the offender was charged with these offences in October 2023.
99․However, counsel for the prosecution noted in written submissions that the offender was not “on parole in the community” for these 55 days but was receiving “parole time credit” which would be factored into the offender’s existing sentence for which his cancelled parole related to: Crimes (Sentence Administration) Act 2005 (ACT) s 161C (Sentence Administration Act). Counsel for the offender did not disagree with the characterisation in so far as he submitted that the offender also served zero days in custody referrable to current offending.
100․That is, the prosecution submitted that these 55 days have been calculated into the existing time now being served by the offender and which was subject to the breached parole order. This is despite the offender being technically detained for other offences.
101․I pause to note the operation of s 161D of the Sentence Administration Act, the relevant portions of which reads as follows:
Exceptions—certain ACT offences161D
(1) This section applies if an offender breaches a parole obligation by committing an offence (the second offence) and—
(a) the second offence was committed within 3 months after the offender’s parole release date; or
(b) the offender’s parole offence is a serious offence or a serious non-ACT offence, and the offender’s second offence is a serious offence;
…
(2) The sentencing court for the second offence must make an order about whether the offender’s parole time credit is to be taken as time served against their parole sentence.
(3) In making the order, the court—
(a) must not take parole time credit as time served against the parole sentence unless the court is satisfied there are special circumstances to warrant it; but
(b) if satisfied there are special circumstances—may take the parole time credit, either wholly or partly, to be time served against the parole sentence.
102․For his part, counsel for the offender in written submissions conceded that the offender has not spent time in custody solely referrable to the current offending. However, counsel correctly submitted that I should have regard to any pre-sentence custody time served for the purposes of considering the totality principle in sentencing: R v Elphick (No 2) [2015] ACTSC 23 at [91]-[92] (Refshauge J) (Elphick (No 2)). Counsel for the offender noted that the offender had served significant periods of imprisonment at the time of the sentencing hearing. The prosecution tender bundle noted that the offender has served 287 days’ imprisonment at the time of the sentence hearing since his parole was revoked on 22 June 2023. Prior to this, the offender was also imprisoned from 8 January 2018 up until he was granted parole on 15 February 2023.
103․Counsel for the offender submitted that I should regard this period as substantial, and that I should be careful not to impose a sentence that is “crushing”. At the hearing, counsel for the offender submitted that the offender has only spent 3.5 months in the community in approximately six years.
104․The prosecution also submitted that in “crafting” my current sentence, I should consider imposing a degree of cumulation upon the offender’s current sentence given the distinct criminality involved in the current offending: see O’Brien v The Queen [2015] ACTCA 47 at [26] (O’Brien).
105․I will return the question of totality in the concluding section of my sentencing remarks when I come to the discussion of non-parole periods and totality.
Comparable cases
106․It is well-established that sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550; Hili v The Queen [2010] HCA 45, 242 CLR 520 (Hili). As to comparable cases, it should be noted that, as the High Court stated in DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] (Kiefel CJ, Bell and Keane JJ):
[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.
107․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].
108․I was referred to four cases by the prosecution.
109․The first is the case of R v Marshall (No 2) [2022] ACTSC 102 (Marshall). The offender was found guilty by a jury of aggravated robbery. The offender had apparently pre-arranged to meet the victim so that the victim could collect money that the offender owed to the victim’s friend: Marshall at [1]. When the victim arrived, the offender jumped into the backseat of the victim’s car and held a knife against the victim’s throat, while another offender jumped into the front seat and yelled at the victim to “get the fuck out of the car”: Marshall at [2], [13]. The victim did so, and his car was taken after the second offender called out to two other men, who arrived in a Toyota Camry: Marshall at [2].
110․The offender was arrested around the same time as the discovery of the car: Marshall at [4]. This offending meant that the offender had breached two GBOs attached to suspended terms of imprisonment for offences of damaging property and aggravated burglary with intent to commit theft: Marshall at [22]-[24].
111․Berman AJ found that that the aggravated robbery was a “serious example of a serious offence”, with a degree of planning: Marshall at [14]. Berman AJ also considered the offender’s significant criminal history and past failure to take advantages of opportunities for rehabilitation show that “it cannot be said that [the offender] is unlikely to offend again”: Marshall at [41].
112․Berman AJ accepted that Bugmy applied as the offender is a “young [I]ndigenous man with mental health difficulties, who experienced difficulties in his home life as a child”. However, his Honour did not consider the offender’s disadvantage is such that they “overwhelm the need to impose a sentence that reflects the objective gravity” of his offending: Marshall at [32]. Similarly, Berman AJ also noted that there was no evidence put forward that suggested a connection between the offender’s mental condition (schizophrenia, diagnosed when he was 15) to the offending, or that conditions of custody would be more onerous for the offender than they would otherwise be: Marshall at [37]-[38].
113․Berman AJ imposed a sentence of 3 years’ imprisonment for the aggravated robbery offending. A non-parole period of 21 months was also set: Marshall at [49].
114․The second case is the case of Barrett v The Queen [2016] ACTCA 38 (Barrett CA), an appeal from the decision of Burns J in R v Barrett [2015] ACTSC 280 (Barrett). The offender pleaded guilty to several offences and was sentenced to a total head sentence of four years and five months’ imprisonment: Barrett CA at [2]-[3], [30].
115․On 3 December 2014, the offender was arrested for driving a stolen motor vehicle while also being a disqualified driver: Barrett CA at [7]-[9]. The offender was granted bail, but on 29 January 2015 the offender proceeded to, among other offences including burglary and obstruct territory official (see Barrett CA [10]-[13]), occupy the driving seat of a vehicle when the driver had stepped out of the vehicle and walked a short distance. When the victim retrieved the car keys, the offender got out of the vehicle and demanded the keys while holding a metal pole and approaching the victim before running away after the car started to “roll forward” (attempt aggravated robbery): Barrett CA at [11].
116․The offender pleaded guilty to the offending described above along with other offences: Barrett at [1], Barrett CA at [15]. The Court of Appeal observed that Burns J accepted that the offending on 3 December 2014 involved limited planning, but that the offending of 29 January 2015 involved some premeditation: Barrett CA at [16]. The Court of Appeal considered the attempted aggravated robbery to be of “significant objective seriousness”: Barrett CA at [20].
117․At first instance, Burns J considered the subjective circumstances of the offender in [11]-[26] of Barrett. Relevantly, the offender was an Aboriginal man of (then) 31 years of age with a lengthy criminal record and a “dysfunctional family background”: Barrett at [11]. Similarly to this case, the offender had a long history of substance abuse (including illicit drugs) since he was young: Barrett at [13], [24]. The offender was diagnosed with anxiety, depression, and paranoid schizophrenia, although there was no evidence that any mental health condition was connected with the offending or that the offender’s moral culpability is reduced: Barrett at [19], [22]. Burns J was also not satisfied based on the material before his Honour that the offender’s condition cannot be adequately treated in custody, that a custodial sentence will exacerbate the offender’s condition, or that the offender’s mental condition would make custody more difficult: Barrett at [22].
118․For the relevant offending, Burns J imposed the following sentence:
(a)attempted aggravated robbery: 2 years and 3 months’ imprisonment, commencing on 19 December 2015 and expiring on 18 March 2018 (Barrett at [34]).
119․The offender received 25% discount on account of the offender’s early guilty plea: Barrett at [29]. A non-parole period of 2 years and eight months for the entirety of the offending was imposed: Barrett at [40]. An appeal of these sentences on grounds of manifest excess was also dismissed: Barrett CA at [30], [55].
120․The third case is R v Serena [2019] ACTSC 231 (Serena). The offender in Serena pleaded guilty to one count of aggravated robbery, with the incident involving a “carjacking”: Serena at [1]-[2]. The victim was in the driver’s seat of her vehicle when the offender approached with a knife, demanding that the victim hand her mobile phone over and leave the car: Serena at [2]. The victim did not give the offender her mobile phone and fled to a nearby service station. The offender then drove away in the victim’s car: Serena at [2].
121․Elkaim J imposed a sentence of 18 months’ imprisonment, to be served by way of an ICO. The offender had no criminal record.
122․The fourth case, DPP v XK [2023] ACTSC 141 (XK), involved a young offender. The young offender pleaded guilty to:
(a)one count of aggravated robbery;
(b)one count of dishonestly driving a motor vehicle without consent;
(c)one count of driving with prescribed drug in oral fluid;
(d)two counts of aggravated dangerous driving;
(e)one count of driving without a license; and
(f)one count of driving with improperly issued numberplate.
123․The young offender committed a robbery on 15 August 2022 at the Calwell Shopping Centre. The offender asked the victim the time, as the victim arrived at the shopping centre and was leaving his vehicle: XK at [5]. When the victim returned to his vehicle at 8 am, the young offender approached the car and opened the driver’s door. The young offender produced a knife and “requested” that the victim give his car keys, wallet, and mobile phone: XK at [6]. The victim refused, whereupon the offender became more aggressive and began to abuse the victim. The victim attempted to de-escalate the situation and went to exit the vehicle. At which point, the young offender placed the knife back in his pocket with his right hand. The victim grabbed the young offender’s right arm to prevent him pulling out the knife. In response the young offender punched the victim several times to the left side of his forehead with the offender’s left arm: XK at [7].
124․The young offender then pushed the victim in the chest and the victim fell back into the car. The young offender repeated the request for the car keys, and the victim handed them over before exiting the vehicle: XK at [8]. The young offender then got into the car and drove from the area. At that time, the offender had never held a driver license: XK at [18].
125․The remainder of the offences arose from the aftermath of this event.
126․McWilliam J considered the aggravated robbery offending to be of “medium objective seriousness”, perhaps “approaching the high end” of that spectrum due to the use of a knife: XK at [39]. Her Honour relevantly considered the use of a knife as a serious aggravating feature: XK at [35], citing R v Jajou [2009] NSWCCA 167; 196 A Crim R 370 at [72]. Her Honour also noted the punches to the victim’s head, the lack of advanced planning, and the “somewhat brazen” offending (occurring in daylight in on a weekday in a carpark): XK at [36]. McWilliam J observed that the amount of property taken was not small, although the taking of other valuable items was not part of the offender’s intention in taking the car: XK at [37].
127․After a discount of 25% for the early guilty plea, McWilliam J imposed a sentence of 2 years’ imprisonment, backdated to commence on 23 May 2023, for the aggravated robbery offending: XK at [106](2).
Application of Bugmy principles
128․In Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), the High Court found that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy at [42]-[43]. A background of that kind may leave a mark on a person throughout their life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [43]. Social deprivation may impact on those purposes in different ways. The Court in Bugmy explained at [44]:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
129․In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a)the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b)the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c)the application of the Bugmy principles is not discretionary: Irwin at [3].
Submissions
130․Counsel for the offender submitted that the offender’s upbringing “unequivocally engages the principles” in Bugmy for the following reasons:
(a)The offender’s background is of the kind that may “compromise [his] capacity to mature and learn from experience”: Bugmy at [43].
(b)the prevalence of alcohol use by the offender’s mother (including the possibility of doing so during pregnancy) may explain the offender’s recourse to intoxication as a coping mechanism and may have normalised such behaviour: Bugmy at [43] and Hoskins v The Queen [2021] NSWCCA 169 at [62] (Hoskins); and
(c)The offender’s background may have “warped” his moral compass: Hoskins at [61].
131․Counsel for the offender also highlighted that the offender’s “antisocial” behaviour commenced at an early age, as young as when he was 4 years old, appearing to cite the following portion of the FACTS report:
[Ms [redacted]] was also aware that he had comorbid trauma and neglect in his developmental phase and had been diagnosed with ADHD and medicated from the age of four years. Ms. R was aware from the welfare and school documents that [the offender’s] mother was unable to control his conduct and that he would ‘run riot’ from when he was 4 years of age.
132․The prosecution properly accepted that the material before this Court established that the offender is subject to childhood deprivation envisaged by the High Court in Bugmy. However, counsel for the prosecution highlighted the following passage in Bugmy (at [44]):
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
(emphasis added)
133․At the hearing, both parties properly agreed that the application of Bugmy (and Verdins, which I will discuss further below) in this specific case also means that there is a countervailing issue as to specific deterrence of the offender.
134․The prosecution properly submitted that while the offender’s moral culpability is reduced by his disadvantage, in light of the offender’s “repetition of violent conduct demonstrated in his criminal history” the offender’s deprivation also has the effect of elevating the protection of the community.
Conclusion as to application of the Bugmy principles
135․There is no doubt on the evidence before me that the offender has experienced significant childhood disadvantage, and it is appropriate that I take this into account on sentence, in the manner set out in Bugmy. Additionally, there is the countervailing issue of specific deterrence that is important in this sentencing exercise concerning this offender. Nevertheless, the countervailing factor does not of itself entail that the mitigating matters are thereby of no effect. It all depends on the facts of the case. In this case, in my view, the Bugmy factors are relevant and not entirely deprived of significance by the countervailing factor: see Jackson v The King [2023] NSWCCA 121 at [56] (Rothman J, Leeming JA and McNaughton J agreeing) (Jackson). The two factors do not cancel each other out.
Application of the Verdins / De La Rosa principles
136․As I have discussed in R v BS-X [2021] ACTSC 160; 16 ACTLR 238 (BS-X) and R v Middleton [2023] ACTSC 50, in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant for sentencing (at [32]):
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both [Payne v The Queen [2002] WASCA 186; 131 A Crim R 432 at [43]].
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
137․In DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] (De La Rosa), the New South Wales Court of Criminal Appeal also set out relevant principles, including that conversely considerations of specific deterrence may increase for example concerning anti-social personality disorder.
138․There may be an overlap in the application of the Bugmy and Verdins principles in a particular case: BS-X at [94]. In this case there is such an overlap: Jackson at [53].
Submissions
139․Counsel for the offender relied on the conclusion expressed by Ms Sosich in the FACTS report, as reproduced in paragraph [73] above in these remarks. Counsel for the offender noted that this demonstrated a “clear causal link” between the offender’s mental impairment and his offending, particularly in relation to his ability to regulate his behaviour.
140․Counsel for the offender submitted that where there is this causal link, a court may find the following:
(a)the offender’s moral culpability is reduced;
(b)that the importance of general deterrence is reduced; and
(c)that denunciation is less likely to be a relevant sentencing objective: Ngata v The Queen [2020] ACTCA 18 at [18] (Ngata).
141․Counsel for the offender also submitted that the Verdins principles require this Court to consider the interaction between incarceration and the offender’s mental impairments. Counsel submitted that if “there is serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment”: Ngata at [18](6).
142․As noted above at [75], counsel for the offender relied on Ms Sosich’s conclusion in the FACTS report to demonstrate the adverse impact incarceration is likely to have on the mental health treatment for the offender. Ms Sosich referred to treatments for antisocial personality disorder, ADHD, and PTSD. For the former, she noted:
Antisocial Personality Disorder is best treated by long term psychotherapy within a Cognitive Behaviour Therapy (CBT) framework where specific problems such as impulsivity, interpersonal problems and antisocial conduct can be targeted.
143․Ultimately, counsel submitted that incarceration (and the restriction of the offender from receiving the best treatments) has a “significant adverse effect” as it is said to hinder progress in addressing the offender’s impairments. Counsel for the offender expressly invited the Court to consider this in determining the offender’s length of imprisonment.
144․As noted above in paragraph [16], counsel for the offender accepted that the Verdins principles cut both ways. He properly accepted that the Court needs to be concerned about specific deterrence. He submitted that the best way to generate specific deterrence for the offender is to address the offender’s “criminogenic risks” of substance dependency and mental health issues. There is some force to this submission. I must also balance this factor along with the factor addressed in the following submission by the prosecution.
145․In written submissions, the prosecution accepted that the Verdins principles apply to the offender. However, the prosecution noted that the offender is not currently receiving treatment for his mental health conditions, and that the offender continued to face an issue with using illicit substances. Therefore, the prosecution properly ultimately submitted that considerations of protecting the community in sentencing the offender was important. I agree.
Consideration
146․In my view the Verdins and De La Rosa principles are enlivened and relevant. Nevertheless, the countervailing matter of specific deterrence is also very much enlivened, on the specific facts of this case. The relevant Verdins matters are in my view to an extent overtaken, though not entirely, by the countervailing matter of specific deterrence in considering the purposes of punishment. This Court must consider how best to decrease the possibility of recidivism on the part of the offender.
Application of the R v Henry and early drug use
147․The reference in the offender’s written submissions to Henry and early childhood drug use is to the NSW guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. See also Peter v Brownlie [2023] ACTSC 198. I also note in the context of early drug use: Charles v The Queen [2021] ACTCA 23 at [23]. See also R v Blundell [2022] ACTSC 379 at [97] (Refshauge AJ).
148․Counsel for the offender noted that the offender commenced drinking alcohol at 13 years old, with frequent binge drinking. Counsel also noted that the offender was introduced to cannabis at the age of 14. Counsel for the offender submitted that the offender’s addiction to alcohol and drugs are mitigating factors as the offender “was not making a free and voluntary choice to lead a life of addiction”. Further, counsel for the offender also referred to DPP v Djerke (No 2) [2023] ACTSC 341, where McCallum CJ made the following observations (at [29]):
… It is well understood that drug addiction, particularly an addiction acquired at such a tender age, is a medical rather than a moral issue and one which requires considerable support from a range of disciplines in order to be overcome.
149․Counsel for the offender also sought to draw parallels between his submissions and the finding of Mossop J with respect to the offender in Muell. As I noted above in paragraph [87], Mossop J was sentencing the offender for various offences, including aggravated burglary, theft, and dishonestly taking a motor vehicle without consent: Muell at [2]. I highlight the following apposite observations made by Mossop J at [24]-[25]:
24. It is necessary to take into account his disrupted childhood and the abuse that he suffered during that period. It is likely that the absence of secure parental figures and the abuse that he suffered was causally significant in his commencement of the use of illicit drugs at a young age and the criminal activity associated with it.
25. So far as his current offending was driven by addiction to drugs and the need to fund that drug use, I take into account as a mitigating factor that he was introduced to drugs at a very young age when he was not able to make a mature decision about their use.
150․Counsel for the prosecution correctly did not cavil with the submission concerning the addictions that began when the offender was at an early age.
Statutory and other relevant considerations
151․In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above. As can be observed, there are a number of important sentencing factors that point in different directions.
152․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. I must synthesise all of these purposes of sentencing along with all the sentencing factors both objective and subjective, in coming to my conclusion on sentence.
153․As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. Though of course giving careful consideration to the maximum penalty does not entail that the maximum penalty must play a decisive role in the final sentencing determination: Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27].
154․The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison as discussed earlier in [16]. In this case, an alternative to full-time custody is not appropriate in my view for the aggravated robbery: see R v TL (No 2) [2016] ACTSC 289 at [44] (Refshauge ACJ). I do not consider imprisonment appropriate for the driving with the suspended license offending as discussed earlier in this judgment.
155․Counsel for the prosecution properly submitted that general deterrence and adequate denunciation and punishment should be given weight. While rehabilitation remains a relevant sentencing principle, the prosecution submitted that this should not overwhelm the other considerations. I agree that rehabilitation cannot overwhelm other considerations in this case. That is clear. Nevertheless, prospects of rehabilitation is a factor that remains relevant and will be discussed under the next heading. In this context, it is important to note my earlier discussion concerning general deterrence and specific deterrence as well as Verdins (at [136]-[146]) and Bugmy (at [128]-[135])
Rehabilitation
156․As I stated above at [18], a main issue in this hearing is the offender’s prospects of rehabilitation. As counsel for the offender submitted, in my view the discussion demands a focus on what appears to be the offender’s main criminogenic risks: his mental health conditions and substance abuse. See also French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] (Hogan).
157․Counsel for the offender submitted in written submissions that there is still “ample scope” for rehabilitation to play a role in sentencing the offender. The offender is 28 years old, and counsel for the offender submitted that I should have particular regard to the prospect of the offender maturing as he enters his thirties and how the offender may respond to mental health treatments.
158․Counsel for the offender also noted how the offender continued to seek to improve himself. Among other things, counsel for the offender noted that the offender had made five attempts to engage with drug and alcohol rehabilitation programs, as well as completing the EQUIPS Foundation course. Counsel for the offender highlighted that the offender is not on the NDIS, although he may be eligible given his potential diagnosis of Fetal Alcohol Spectrum Disorder. This, it is submitted, may increase his prospects of rehabilitation. At hearing, counsel also noted that the previous lack of a diagnosis of Fetal Alcohol Spectrum Disorder is relevant for this exercise as this might unfortunately mean that previous Courts might not have a “complete picture of [the offender’s] subjective circumstances”.
159․Counsel for the offender properly conceded that the offender has not been successful in his past attempts at rehabilitation but submitted that these setbacks should be seen in context of the offender’s mental impairments. As an example, counsel for the offender relied on the FACTS report to demonstrate that the offender’s PTSD may affect the offender’s ability to engage with rehabilitation. If the PTSD is addressed, counsel for the offender submitted that the offender’s prospects may be increased.
160․Further, as noted above at [93] counsel for the offender also highlighted the fact that the offender had not had the benefit of “therapeutic options” and “intensive support” that the Court could order as part of its sentencing discretion.
161․On the one hand, in her written submissions counsel for the prosecution properly invited me to take a “guarded approach” to the offender’s prospect of rehabilitation because the offender is not receiving treatment for his mental health conditions. Without this treatment, the prosecution submitted that the offender’s treatment for his addiction will have limited effect.
162․Further, at hearing counsel for the offender properly conceded that the offender is able to receive treatment for his mental health conditions in the AMC and that psychological assistance such as cognitive behavioural therapy may still be effective in custody. He also agreed that such intervention may in turn form a basis for further interventions in the community. Nevertheless, he relied on the FACTS report to maintain that these therapeutic interventions would work best in the community.
163․Importantly, I had the opportunity of seeing the offender giving evidence before me. For his part, the offender expressed in his evidence a desire to move away from the ACT to Tasmania to get away from the “bad influences” he has in the ACT. The offender gave evidence that he will be supported by his older brother in Tasmania, who has apparently been attempting to persuade the offender to move across to Tasmania for many years.
164․The offender noted that a reason for his desire to move to Tasmania was to avoid acquaintances that had influenced the offender to engage in illicit substance use. It is relevant to quote the offender’s evidence; To quote his words:
Even this last time when I was out, it was - I don't know. It's - everybody I know since I've been about 13 they all use drugs and do crime and I haven't really had - I have had the chance but it's maybe not as much opportunity to make friends in a prosocial type of situation. From my own drug use, like it's my own fault. Like I won't deny that, but when I was out, for example, this time it was - I got - I got lonely. I got bored being either by myself at home or [redacted] as - as nice as they are. I kind of need people – friends and stuff my own age and as soon as that – I did get lonely like that, I left, and they were all using drugs…
165․The offender expressed the hope that his brother would be able to introduce him to new friends in Tasmania.
166․In cross-examination, the offender gave evidence that his brother is currently working in construction and would be working full-time. The offender acknowledged that this means that his brother may not be able to be his main support on account of the full-time work. However, the offender maintained that his brother will not be his main support, but merely someone to keep him away from his past friends and to introduce him to new, more pro-social friends.
167․As to mental health treatment, the offender has expressed his commitment to seek treatment for his mental health issues. In his own words:
Definitely. I'm definitely willing to do that. I want to do that, and I hope it works because I really don't want to be in prison, and I don't want to keep coming to these – having to come to court and getting arrested and it's a horrible feeling.
168․On examination, the offender described the efforts he undertook in treating his mental health issues as follows:
COUNSEL: And just returning back to the mental health side of things, what steps have you taken, if any, whilst in prison to address your mental health issues?
OFFENDER: I have done – in the past, I have done numerous courses. I have done a – not this sentence, obviously, but last sentence I did a cognitive self-change course with a group of people. It wasn't – I don't know, it was – we had a bit of a problem with the workers. We went through about 10 different facilitators; I think is the right word. And we'd miss weeks, and it wasn't exactly the best, but I have done one course this time, the EQUIPS – it's an EQUIPS Foundation thing, trying to help you with your offending behaviour to learn where it all stems from and stuff. I haven't seen a psych since I have – a psychologist on a one-on-one since I have been arrested. I would be willing to, but I haven't seen one yet.
COUNSEL: Have you made any applications to see a psychologist either one-on-one or in the group setting?
OFFENDER: I have put it requests through the – I think she's like your case manager. I don't know what the technical term is for it. She the case manager. For group stuff mainly. I haven't asked for anything one-on-one. I only got the – well, the report was only done recently and it's, I don't know, it's taken me a little bit to process it. I actually only got my hard copy like a week ago. Yes.
169․In cross-examination, the offender acknowledged that he had not “looked into” whether Tasmania would have the necessary support services for his mental health and drug issues, but that he “would very surprised if there wasn’t” support services there.
170․In her evidence, Ms [redacted] expressed her “lay” opinion that the offender has a low “window of tolerance” due to his background and that she is of the opinion that a lot of the offender’s drug use is related to bringing down his cortisol level so that he does not feel “in a rage all time”. Ms [redacted] gave evidence that it will take a lot of therapeutic work to expand the offender’s window of tolerance and this will take more than merely Cognitive Behavioural Therapy.
171․The offender also expressed willingness in his evidence to contact people that may be able to formally diagnose him with Fetal Alcohol Spectrum Disorder. Ms [redacted] also expressed her belief in evidence that the offender may have Fetal Alcohol Spectrum Disorder and also noted that access to NDIS, disability pensions, and assistance from support workers entailed by such a diagnosis may yield a significant impact on the offender’s rehabilitation. In cross-examination, Ms [redacted] properly conceded that she is not qualified to make a medical diagnosis of Fetal Alcohol Spectrum Disorder, and that offender’s access to the potential support is contingent on an actual medical diagnosis.
172․Ms [redacted] also gave evidence that when the offender received appropriate support when he was in Year 6 from a different elementary school to the one he was attending up until then, he responded positively to the intervention and had a “really successful year”.
173․Relevantly, in evidence Ms [redacted] also gave her view of whether there were any changes in the offender’s personality in the latest period of imprisonment:
MS [redacted]: So not - not in his personality, the personality is [the offender] is [the offender]. But I've - I've seen a maturity and that, you know, as I mentioned to you, we know [redacted] that trauma brains take longer to mature. So normally, you say, you know, a young adult is mature around about, their brain is fully developed. With trauma kids that takes longer but we're seeing changes now. We're seeing changes in his ability to reflect on things he's done, on his life, [redacted], on his relationships, and also reflect on where he might want to go, what he might need to change. So that – you know, we've had a lot of very deep, and my husband too, reflective conversations in the last year with [the offender] which is – is a new development, you know, and that gives me a lot of hope.
COUNSEL: Could you give us a concrete example of one of the things he reflected upon which has led you to opine his maturing?
MS [redacted]: … it's a lot more like what [the offender] already said when he was sitting here. You know, he's prepared to have conversations now about – it's friendships that draw him in. It's boredom that draws him in. It's – so they are, you know, conversations we have all – you know, like a lot of things, we will say things like, 'Tell us about how you might change things,' or, 'Tell us about what got you to this place.' 'What made you do the last thing you did?' or the last conversation my husband had with him, 'What went wrong for you when you were on the outside? What was hard? What supports would have been useful for you?' And Paul was really honest in talking about that and, you know, we've had conversations about sometimes life in jail is actually easier because he's been in there so long…
(emphasis added)
174․On all the evidence, in my view the offender’s prospects for rehabilitation remain guarded. Nevertheless, with the offender living with his brother in Tasmania and with the benefit of support services, this would increase the offender’s prospects of rehabilitation.
Restorative Justice
175․Section 33(1)(y) of the Sentencing Act requires me to consider the fact that s 19(1)(b) of the Crimes (Restorative Justice) Act 2004 (ACT) (RJ Act) applied to an offender, if that section does apply. That section deals with whether an offender is an “eligible” offender under the RJ Act. The only relevant provision here is s 19(1)(b)(i), which required a Court to consider whether the offender has “accepted responsibility for the commission of the offence”.
176․In written submissions, counsel for the offender submitted that the offender meets the general eligibility criteria for restorative justice set out in s 8 of the RJ Act, and that the offender wishes to participate in such a process.
177․As I discussed above at [77], the offender had expressed disappointment in his behaviour to the author of the PSR and expressed his willingness to participate in restorative justice. However, the offender also sought to explain his behaviour (at least partially) as a result of stress arising from difficulty adjusting to life beyond bars after an extended period of custody and the resultant relapse to drugs when interviewed for the PSR. Further, he has also expressed multiple times, to the author of the PSR and in interview for the FACTS report, and at the hearing, a desire to move away to Tasmania to live with his half-brother to get away from his antisocial and drug-using peers.
178․I referred the offender to restorative justice under s 24 of the RJ Act and I recommended that the referral be expedited. On 23 April 2024, my chambers received a response from the restorative justice unit indicating that the offender has been placed on a waitlist to be allocated to a convenor. The restorative justice unit is of the opinion that such an allocation may take approximately ten weeks in light of the volume of referrals. On 6 May 2024, my chambers received a restorative justice progress report, confirming that the offender remained on the waitlist.
179․As such and consistently with the offender’s wishes, I will proceed to sentence today without awaiting the result of the referral. I will be taking into account the offender’s acceptance of responsibility for his actions and his desire to engage with restorative justice.
Non-Parole Period
180․As noted above at [17], the main issue in contention between the parties in this case is the balance between the non-parole and parole periods that is appropriate for the offending.
181․Counsel for the offender advanced the case that the offender’s non-parole period should be “relatively low” to allow the offender the benefit of community support and better treatment for his mental health conditions. Counsel for the offender’s ultimate submission was that “a lengthy parole period is appropriate” as “treatment in the community is the treatment that is most likely to achieve results in rehabilitating” the offender. Further, the offender’s potential diagnosis of Fetal Alcohol Spectrum Disorder was also submitted to be related to the amount of support the offender needs in the community.
182․Counsel for the prosecution did not necessarily disagree in her oral submissions that the offender would benefit from a long period of community support. Rather, counsel’s submission was that the prosecution is less positive about the offender’s prospects of rehabilitation relying on the FACTS report and PSR together. It was noted that the offender is yet to engage in the “avenues available for rehabilitation”, including therapy. While it is to the offender’s credit that he indicated his willingness to engage with treatment or medication to the author of the PSR, it was highlighted that both parties agree that the offender’s road to rehabilitation is a long one. This is undoubtedly correct. Nevertheless, at some point the offender must leave gaol. This is not a life sentence case. A proper path for rehabilitation must be made available unless the revolving door of prison is set to continue endlessly.
183․Counsel for the prosecution also emphasised that I should also consider specific deterrence and protection of the community in setting the non-parole period. However, it was properly accepted that it will be the task of the parole board to consider whether the offender is ready for parole, and this would include considering the offender’s conduct in custody. I must of course consider these matters while not ignoring the fact that rehabilitation if it can be achieved is the best guarantor of community protection: Hogan at [32] (French CJ).
184․The offender noted that he understood what is required to avoid returning to jail, noting that he needs to “pretty much change [his] entire life”, and work towards obtaining employment.
185․The offender described the transitional release program as follows:
It's a transitional release program where you are still in custody but they integrate you slowly into the community but you can get a job and go on leave to stay like out of your family's – for a couple of hours in the afternoon or I think that eventually it's – even ends up being overnight. I think ideally if I could get into that you know, managed to get into that, it's not a guarantee, I can't say that, but then maybe having the full-time job prior to being released would help me keep – I'd meet people through my job obviously and also it would keep me occupied throughout the day and, you know, not leave me as much idle time.
186․Ms [redacted] also gave evidence of a previous attempt a community supervision when the offender was younger. Ms [redacted] noted that in 2014 the offender was doing “incredibly well”. The offender apparently obtained a Certificate III in Fitness, was doing sports and a lot of reading. The offender also had a job in construction lined-up as well as a part-time employment in a gym. The offender also apparently had secured housing near Ms [redacted]’s house and was allocated a parole officer. Unfortunately, this experience of community apparently fell apart.
187․Ultimately, Ms [redacted] gave evidence in relation to the episode that she thinks:
So what we learned from there is it's really crucial the timing of release of parole, it needs to be a time when services can be there and can wrap around him to support him. And - but - but what that showed us is that he's - he's capable, he's able to. Now, there's been a lot of really hard things that have happened since and the drug use has become much worse.
Conclusion on non-parole period
188․At the sentencing hearing, I indicated to the parties that it is obvious that proper support is necessary during the offender’s parole period. This is because of the lengthy time the offender has spent in custody over the past approximately six years.
189․Further, I will also as the sentencing judge need to “reset” and impose a new non-parole period for the offender’s current head sentence: Sentencing Act s 66. Minus any sentence of imprisonment I may impose, counsel for the prosecution noted that the offender is currently serving a sentence of 8 years, 1 month and 21 days commencing on 8 January 2018 and concluding on 28 February 2026. The offender’s non-parole period was most recently reset by Magistrate Temby on 20 March 2024 and the period now stands at 4 years and 6 months, beginning 8 January 2018 and concluding on 7 July 2022.
190․Self-evidently, the “resetting” of the non-parole period in this case for the current offending must not make the offender eligible to be released earlier than if I had not sentenced the offender to a further term of imprisonment for the current offending Sentencing Act s 66(4).
191․Counsel for the offender also properly agreed that in sentencing the offender to imprisonment, I would need to impose a non-parole period that would add to the existing non-parole period and the existing head sentence.
Concurrency and Totality
192․As discussed above in [102]-[104] both parties made submissions concerning the well-established principles of totality.
193․It is also clear that the principles of totality apply when an offender is serving an existing sentence: Mill v The Queen (1988) 166 CLR 59 at 66, cited in R v Hawkins [2019] ACTSC 103; 88 MVR 273 at [57]; see also Choi v The Queen [2007] NSWCCA 150 at [157].
194․In written submissions, counsel for the offender also relevantly referred to the observations of Refshauge J in Elphick (No 2):
91.Where, as here, some part of the pre-sentence custody is referrable to imprisonment for other offences, then a different principle applies, namely the principle of totality as referred to by the High Court in Mill v The Queen (1988) 166 CLR 59. This may also be informed by the principle on the non-linearity of sentences explained in R v Clinch (1994) 72 A Crim R 301 at 306 and followed by R v MAK (2006) 167 A Crim R 159 at 164; [16]; R v Hopkins (2008) 22 NTLR 125 at 130; [16]; and Azzopardi v The Queen (2011) 25 VR 43 at 61; [62].
92.Thus, I must consider the extent to which the current sentences should be partly concurrent and partly cumulative with the Magistrates Court sentences imposed while Mr Elphick was in custody to respect that principle.
(emphasis added)
195․Counsel for the offender submitted that any sentence of imprisonment I impose can be made partially concurrent with the existing sentence in the sense that it could begin somewhere close to the expiry of the offender’s existing sentence on 28 February 2026. In written submissions, counsel for the offender submitted that I should characterise the offender’s lengthy period of imprisonment (6 years, 5 months and 6 days at the time of sentence) as “substantial” and that the principle of totality should apply so that “any additional time not be considered ‘crushing’”.
196․Counsel for the prosecution agreed that the offender’s sentence should be partially cumulative upon the existing sentence, to acknowledge the distinct criminality of the offending: O’Brien at [26]. Counsel for the prosecution also properly acknowledged that I should have regard to the principle of totality and avoiding a “crushing sentence”.
197․Ultimately, any sentence should be partially concurrent. The question in my view is how much cumulation will be present in the case.
Protection of the Community
198․At common law it is accepted that the varying purposes of punishment including general deterrence and specific deterrence are to achieve the main purpose of protecting the community from crime: R v Goodrich (1952) 70 WN (NSW) 42; R v Radich [1954] NZLR 86; R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274; Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [54]. Relevantly, in R v Zamagias [2002] NSWCCA 17, Howie J (Hodgson JA and Levine J agreeing) said (at [32]):
It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation.
199․In Veen v The Queen (No 2) (1988) 164 CLR 465, the High Court held that while protection of the community must be considered in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime only on that basis: at 472 (Mason CJ, Brennan, Dawson and Toohey JJ). The High Court added (at 473):
The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
200․In assessing the sentencing purposes, I have kept these principles in mind.
Institutionalisation
201․As I stated in R v Goolagong (No 2) [2021] ACTSC 131 at [141] (see also R v Murphy [2021] ACTSC 94 at [73]):
The question of institutionalisation is also relevant. Institutionalisation has been discussed in a number of decisions in NSW in the context of the necessity for a longer parole period and a finding of special circumstances: see Jackson v R [2010] NSWCCA 162 at [24]; Jinnette v R [2012] NSWCCA 217 (Jinnette v R) at [98]; [103]; Dyer v R [2011] NSWCCA 185 at [50]. The Courts have made it clear that if institutionalisation has already occurred, the focus may be on ensuring that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism: Jinnette v R at [103]. I take the factor of institutionalisation into account in determining the parole period and the need for support in that regard.
(emphasis added)
Institutionalisation is relevant in this matter that I also take into account.
Sentence
202․As I indicated at the hearing, this is a sentencing exercise not without its complexities, particularly taking into account the objective seriousness of the offence, Bugmy considerations, Verdins considerations and the current long sentence already being served.
203․It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him. It would undoubtedly have been a harrowing experience for him that has long-term repercussions. Any member of the community confronted in such a manner would be seriously affected.
204․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 offence and subjective matters relevant to the offender.
205․I will set a head sentence that is appropriate in my view to take into account all relevant factors including the objective seriousness. I also note that all factors relevant to the fixing of the head sentence are also relevant to fixing the non-parole period, although it must also be noted that different weight may apply in particular concerning matters of rehabilitation: see Taylor v The Queen [2014] ACTCA 9 at [19] (Murrell CJ, Refshauge and Penfold JJ agreeing).
206․To that end, I recommend in relation to the parole period that the offender be afforded the opportunity of moving his supervision from the ACT to Tasmania under strict supervision by relevant corrective service authorities in Tasmania while the offender lives with his brother. Such conditions should include in my recommendation mental health treatment and drug rehabilitation. I note that this can only be a recommendation as parole conditions are a matter for the parole authorities. As noted by the PSR, the offender is suitable for a high level of intervention by Corrective Services, and that the offender’s supervision may include treatment to address alcohol and illicit substance use as well as further assessment and treatment for mental health issues.
207․The appropriate sentence for the aggravated robbery offending is 4 years and 8 months of imprisonment, reduced to 3 years and 6 months’ imprisonment on account of the plea of guilty. This sentence will commence on 28 February 2025 and expire on 27 August 2028. There will be a concurrency of approximately 1 year overlap as between the new sentence and the offender’s existing head sentence. The new total head sentence for the offender will therefore be a term of 10 years, 7 months and 20 days.
208․The appropriate sentence for the driving with a suspended license offending is a fine of $500.00 with no time to pay. This will allow the offender to pay off the fine while he is serving his prison sentence. I note that as per s 32(6)(a) of the RTDL Act, the offender is automatically disqualified from holding or obtaining a driver license for a period of 1 month that will automatically begin today unless I make another order: see Road Transport (General) Act 1999 (ACT) s 68. I will not make another order.
209․The offender’s non-parole period will be reset to commence on 8 January 2018 and expire on 7 August 2024. For clarity, I impose a non-parole period of 2 years and 3 months for the current aggravated robbery sentence alone. There will be a brief concurrency of approximately one month between this non-parole period and the existing non-parole period so that the offender’s reset non-parole period will conclude on 7 September 2024.
Orders
210․For these reasons, I make the following orders:
(1)On the charge of aggravated robbery (CC2023/9519):
(a)the offender is convicted and sentenced to 3 years and 6 months’ imprisonment, commencing on 28 February 2025 and expiring on 27 August 2028.
(b)I impose a non-parole period commencing on 8 January 2018 and concluding on 7 September 2024.
(2)On the charge of driving with a suspended license (CC2023/9520):
(a)the offender is convicted and I impose a fine of $500.00 with no time to pay.
(b)it is noted that the offender is automatically disqualified from holding or obtaining a driver license for a period of 1 month, commencing today.
| I certify that the preceding two-hundred and ten [210] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 21 June 2024 |
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