Director of Public Prosecutions v Peacock
[2024] ACTSC 348
•4 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Peacock |
Citation: | [2024] ACTSC 348 |
Hearing Date: | 29 October 2024 |
Decision Date: | 4 November 2024 |
Before: | Taylor J |
Decision: | See [82]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt aggravated robbery – serious mental illness – significant criminal history – Bugmy and Verdins considerations – failure to demonstrate remorse – limited prospects of rehabilitation – sentence of imprisonment imposed |
Legislation Cited: | Criminal Code 2002 (ACT) ss 44(9), 310 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33(1)(f), 53(1)(a), 67 |
Cases Cited: | Bugmyv The Queen [2013] HCA 37; 249 CLR 571 DPP v Campbell (No 2) [2024] ACTSC 105 Hall v the Queen; Barker v The Queen [2017] ACTCA 16 Henry v The Queen [2019] ACTCA 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Alberts [2021] ACTSC 341 R v Carberry [2022] ACTSC 208 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Holt [2020] ACTSC 311 R v White [2023] ACTCA 35 R v Taouk (1992) 65 A Crim R 387 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 240 R v Watson [2021] ACTSC 339 Taylor v R [2014] ACTCA 9 The Queen v Ruwhiu [2023] ACTCA 18 Veen v the Queen (No 2) [1988] HCA 14; 164 CLR 465 Williams-Savage v The Queen [2022] ACTCA 58 |
Parties: | Director of Public Prosecutions ( Crown) Michael Bradley Peacock ( Offender) |
Representation: | Counsel K McCann ( Crown) G Le Couteur ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 170 of 2024 |
TAYLOR J:
Introduction
1․The offender, Michael Peacock, is to be sentenced for the following offence to which he entered a plea of guilty on 21 August 2024:
(i)CC2024/3497: Attempt aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (the Criminal Code).
2․The offence carries a maximum penalty of imprisonment for 25 years, 2 500 penalty units ($400,000) or both. As the facts demonstrate, the conduct engaged in by the offender amounted to an ‘attempt’ at the offence; the offender did not take any of the victim’s belongings. Pursuant to s 44(9) of the Criminal Code, an attempt to commit an offence is punishable in the same way as if the offence had been committed.
Facts
3․On 12 March 2024, the victim was walking north along Lowanna Street, Braddon, to her workplace.
4․The offender was walking south along Lowanna Street, Braddon, past Canberra Accommodation Centre (CAC) on the opposite footpath to the victim. The offender then crossed onto the same footpath as the victim. When the offender was approximately two metres away from the victim, the offender, while facing the victim, brandished a knife towards her.
5․The victim yelled for help and attempted to run away from the offender. The offender chased her. In the course of running away, the victim fell to the ground, dropping her bag. The victim left her bag and continued running away. The offender stopped chasing the victim after she dropped her bag and started looking through the contents of it.
6․Mr S, Mr W and Mr N were working in the rear service dock of CAC when they heard the victim screaming for help. Mr Sand Mr N ran towards the victim and saw her black bag with its contents strewn on the ground. Mr W followed Mr S and Mr N approximately two minutes later.
7․Mr S and Mr N approached the offender who was walking north on Lowanna Street, away from the victim. Mr S asked the offender if he had tried to rob the victim to which the offender turned to Mr S and said, “mind your business”. Mr S then pulled out his phone and photographed the offender. This photograph was later obtained by police.
8․Mr N went to grab the offender by the arm and told the offender not to leave. The offender brandished a knife from his pocket and said, “I’ll get ya (sic)” and repeatedly yelled “fuck off”. Mr N threw his radio at the offender.
9․As the offender turned to walk away, Mr W ran into the loading dock of CAC and picked up a brick. Mr W approached the offender from behind and threw the brick in the direction of the offender.
10․Mr S used his radio to tell another employee, Mr G, to call the police. Mr G contacted police to report that a lady had been robbed at knife point and provided a description of the offender based on the photograph provided by Mr S.
11․The offender, while holding the knife, was chased by Mr N and Mr W to the entrance of the northern carpark of CAC. This was captured on CCTV footage.
12․The offender ran the length of the northern carpark to the driveway entrance of 210 Northbourne Avenue (CAC), while holding a knife in his hand.
13․The offender walked past the CCTV camera located at the front driveway entrance of 210 Northbourne Avenue and readjusted his pants using the same hand he was holding the knife with. The offender ran across Northbourne Avenue with his hand on his right-side pant pocket into the Space2 Apartments carpark. The offender walked through the carpark and past four CCTV cameras located within the carpark.
14․The offender then walked out of the exit of Space2 apartments and onto Forbes Street, Turner, out of sight of the CCTV camera.
15․At about 2:15pm, Constable Luke Simmonds heard ACT Police Operations broadcast a radio transmission requesting that he attend an attempted robbery, which had occurred on Lowanna Street, Braddon.
16․At about 2:25pm, Constable Simmonds and Constable Beau Saddler arrived at Lowanna Street, Braddon. Constable Simmonds spoke with the victim and Mr R next to a silver Ford Sedan. Constable Simmonds then conducted a Record of Conversation with the victim and Mr R separately.
17․Constable Saddler spoke with Mr N and Mr W who then escorted him into CAC through the loading dock entrance. Constable Saddler spoke to Mr G and obtained a USB containing CCTV footage along with a digital image of the offender taken by Mr S. At about 2:28pm, Constable Saddler broadcasted a radio transmission with a description of the offender, requesting that other police begin searching for the offender west of Northbourne Avenue. Constables Simmonds and Saddler departed the location.
18․At about 4:30pm, Constable Simmonds produced a Look Out To Be Kept For document for dissemination within ACT Policing using still images taken from the CCTV footage collected from 210 Northbourne Avenue.
19․At about 11:25am on 19 March 2024, Constable Simmonds was informed that Mr G and his co-workers had observed the offender walking outside the CAC on Lowanna Street, Braddon. Constable Simmonds called Acting Sergeant Shannon O’Reilly and provided Mr G phone number to her.
20․Acting Sergeant O’Reilly called Mr G who stated he could see the offender walking through the Space2 building towards Forbes Street, Turner.
21․Acting Sergeant O’Reilly positioned her marked police vehicle at the intersection of [redacted], Turner, and observed the offender entering an apartment complex. Acting Sergeant O’Reilly conducted checks on police indices and confirmed the address had previously been linked to the offender.
22․Acting Sergeant O’Reilly broadcasted a radio transmission creating a Suspicious Persons Job and requested additional police patrols attend her location. The offender exited an apartment onto a street facing balcony and Acting Sergeant O’Reilly asked, “are you Michael Peacock?”, to which he replied, “yeah what do you want?”. Acting Sergeant O’Reilly then placed the offender under arrest for aggravated robbery.
23․Acting Sergeant O’Reilly walked across the road and had a conversation with Mr N, Mr W, Mr S and Mr G who all confirmed they recognised the offender as the person from the attempted robbery on Lowanna Street, Braddon on 12 March 2024.
Victim Impact Statement
24․A Victim Impact Statement was provided to the Court. I am obliged to consider the effect of the offending on the victim: s 33(1)(f) and s 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act).
25․The victim detailed the significant and varied effects of the offending on her life. The victim explained that her perception of safety had been fundamentally altered as she now finds herself continually looking over her shoulder. As a result of the offence, she suffers with anxiety and struggles with what were once simple tasks, such as going to the shops or walking in her neighbourhood. In situations where she used to feel safe, she now becomes nervous about the possibility of encountering someone who may pose a threat. The statement revealed that the offending has severely and negatively affected the victim’s capacity to function in various aspects of everyday life, which has in turn had an impact upon her relationships with family, friends and colleagues.
26․Due to the fear the victim developed of walking in public areas, she was forced to incur the additional expense of using ‘Uber’ to get to and from work. On days where she was too afraid to leave her home, she would call in sick to work. This ultimately led to her resigning from her full-time job and being without employment for approximately six weeks. She described her life in this period as “miserable”. The victim expressed that the offending “has left scars that may take a long time to heal”.
27․No sentence imposed upon the offender can return the victim to the position she was in before she was subjected to the offender’s conduct. This is a matter where recognising the harm caused to the victim is a significant sentencing consideration.
Sentencing considerations
Nature and circumstances of the offending
28․I must identify and consider those factors that bear upon the objective seriousness of the offence, though categorisations such as “low”, “mid” or “high” range objective seriousness may be unhelpful in this jurisdiction: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24].
29․The maximum penalty for the offence of aggravated robbery, being 25 years of imprisonment or a fine of $400,000 or both, is a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at 372 [31]. The significant penalty puts the offence among the most objectively serious offences in the ACT, consistent with it being both a crime against the person and a property crime: see R v Watson [2021] ACTSC 339 at [38] citing R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) at 368 [99].
30․Relevant to the assessment of objective seriousness in this instance, is that the offence was not completed by the offender. While the offender stands to be punished as if the offence had been committed, an attempt offence may attract a lesser sentence on the basis that the offence is incomplete: see Williams-Savage v The Queen [2022] ACTCA 58 (Williams-Savage) at [32]. The seriousness of the attempt must be assessed as well as the surrounding circumstances, the level of determination and sophistication: R v Taouk (1992) 65 A Crim R 387 (Taouk) at 391 and Williams-Savage at [32].
31․Relevantly, in Taouk, Badgery-Parker J observed at 391:
It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence that a naive and ill-prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naive and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. It cannot necessarily be postulated, however, that a naive and ill-prepared, even incompetent, attempt to commit a serious offence must necessarily attract a lesser sentence than would be incurred by a serious and all but effective attempt to commit an offence of less gravity. There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all of the circumstances.
32․This was not an offence “predestined to fail”. While the offending was not sophisticated, it was an attempt that very nearly succeeded. By the offender’s own admission, after rifling through the contents of the victim’s bag he realised “there was nothing in there” which he considered to be of value. This realisation, in combination with the fortunate interruption of three members of the public, stopped the offender from appropriating the victim’s property. As was conceded by counsel for the offender, “virtually everything” that could be done in an effort to commit the substantive offence was done by the offender: see R v Holt [2020] ACTSC 311 (Holt) at [10] per Burns J.
33․The guideline judgment of the NSW Court of Appeal in Henry, cited with approval in this jurisdiction in Hall v the Queen; Barker v The Queen [2017] ACTCA 16 and R v Carberry [2022] ACTSC 208, outlined the factors relevant to the objective seriousness of robbery offences. They include:
(a)The nature of any weapon used;
(b)The degree of planning involved;
(c)Whether the offending involved violence;
(d)The vulnerability of the victim;
(e)The nature and value of the property taken;
(f)The number of co-offenders; and
(g)The effect on victims.
34․The offender brandished a knife toward the victim. The offender similarly brandished the knife toward one of the men who attempted to intervene, telling the man “I’ll get ya”. In R v Alberts [2021] ACTSC 341 at [33], Refshauge AJ observed:
Courts have always strongly condemned the use of knives, regarding it as a serious matter: see Lieu v State of Western Australia [2012] WASCA 218 at [86]. As Higgins J said in R v Griggs [1999] ACTSC 22 at [41], “a knife is “always ‘loaded’”. There is the danger, when a knife is brandished at close quarters, of an injury being inflicted on the victim: R v Crowther [2019] ACTSC 338 at [7].
35․There is some evidence of premeditation, the offender having armed himself with a knife prior to the commission of the offence. The offender explained to the author of the psychological report, to which I will come, that after running out of money he picked up the knife and left home intending to commit an offence. The offending was not sophisticated or well thought out, to which the psychological report attests.
36․The offender acted alone. The knife was used to threaten the victim and those who attempted intervention. The offender did not engage in additional violence. The offender caused the victim to feel a high degree of fear and panic; the victim screamed for help and fell to the ground while trying to flee.
Subjective circumstances
37․The material before the Court consisted of a pre-sentence report dated 21 October 2024 and an expert psychiatrist report prepared by Forensic Psychiatrist, Dr Andrew Carroll, dated 22 July 2024.
38․It can be observed from the outset that the offender has a serious mental illness and has spent much of his life socially isolated as well as isolated from his family and his culture. The material revealed a profoundly lonely existence; the offender has not ever been employed and for some time has not had contact with any of his family members. The offender remains committed to daily cannabis use, likely using it to manage the symptoms of his treatment resistant, chronic mental illness.
Pre-sentence report
39․The offender is a 52-year-old man who has had significant engagement with the criminal justice system. ACT Corrective Services records indicated a history of poor compliance when subject to supervision in the community.
40․The offender was born in Melbourne and is a Yorta Yorta man however has limited connection to culture. He advised having had a difficult childhood, marred by his stepfather’s physical abuse. Due to his stepfather’s employment, the family regularly moved between New South Wales and Queensland. He informed the author that he fled the family home at age 13 which led to him living in several refuges.
41․The offender expressed that he first met his biological father when he was 13 years old. His father passed away in 2009 and he reported not having contact with his mother and stepfather for several years. He reported having several half-siblings though is not in contact with any of them. He is currently single and has two adult children, neither of whom he has ever had contact with. He stated to the author of the pre-sentence report that all his friends use drugs and he does not have any pro-social relationships.
42․The offender has resided in an ACT Housing property for the past seven years. He left formal schooling at 13 years of age and has never been employed. He has been in receipt of the Disability Support Pension for the past 20 years.
43․The offender reported no past or current problem with alcohol consumption. He commenced using cannabis when he was 15 years old and has used it daily ever since. He reported having previously experimented with methamphetamine and heroin but only for a few months. He advised that he spends his time watching television, smoking cannabis and writing about the Bible.
44․The offender reported a diagnosis of paranoid schizophrenia and that he has been receiving the depot injection for 30 years. A letter from Canberra Health Services, dated 6 September 2024, confirmed this diagnosis and advised that upon induction at the Alexander Maconochie Centre (AMC) in March 2024, the offender appeared stable and engaged in clinical management.
45․The report author stated that the offender agreed with the statement of facts however did not appear to take responsibility for his actions. The offender informed the report author that he had ran out of cigarettes and was “stressing out” and randomly approached the victim with a knife. In the author’s view, the offender failed to demonstrate any insight into the impact on the victim, other than stating it was the first time he had done something like this.
Psychological report
46․Dr Carroll recorded the offender’s cooperation and positive presentation throughout the interview. While the offender described “longstanding and persistent psychotic experiences”, Dr Carroll did not consider him to be actively hallucinating at the time of the consultation. The offender was aware of his diagnosis of paranoid schizophrenia but does not accept it as accurate. He explained that he only accepts his medication to save him from being forcibly restrained and injected. Accordingly, the offender did not demonstrate any insight into his mental illness.
47․The offender described a range of active chronic psychotic symptoms which Dr Carroll viewed as consistent with his diagnosis of schizophrenia, including:
(i) “thought insertion” whereby he experiences many of his thoughts as not being his own but rather belonging to God;
(ii)“passivity phenomena” whereby he feels that some of his bodily movements are driven by an external force, namely God;
(iii)auditory hallucinations, mostly attributed to Mary and Jesus; and
(iv)“a poorly systematised delusional system involving various supernatural religiose entities”, in which he believes he has been particularly chosen for religious experiences.
48․The offender described his routine in the community; he begs at the local shops in the morning and smokes in the afternoon and evening. He reported not having had any contact with family members for over a decade. He is not in a relationship and has no close friends.
49․Dr Carroll’s review of the offender’s psychiatric history revealed that he has spent various periods at in-patient psychiatric facilities across Australia and that the nature of his hallucinations has been consistent since at least 2008. The offender reported first being diagnosed with schizophrenia in 2004. He told Dr Carroll that he is currently administered a depot injection every two weeks, as well as fortnightly reviews from the forensic mental health team at the AMC.
50․The offender explained that when he was in the community, he spent around $145 per week on tobacco. He disclosed having been a heavy cannabis from the age of 18, and that he usually smokes 3 grams per day. He asserted his intention to continue smoking tobacco and cannabis once released. The offender attributed the level of poverty he experiences together with his need for tobacco and cannabis, as the reason for much of the offending conduct on his criminal history.
51․The offender described, throughout his childhood, having a sense that his stepfather treated him worse than his half-siblings and that he was the recipient of regular physical punishment. He was repeatedly teased by other schoolchildren and his half-siblings for “being more dark skinned than they were”. He stated that his stepfather forced him to have crewcut, military style haircuts which resulted in him being teased at school. He attributed his decision to run away from home at age 13 to his desire to avoid getting these haircuts. He said that he “hid on a mountain for a month” before entering a young person’s refuge. It was around this time he learned his stepfather was not his biological father. He met his biological father soon after and it was then that he learned he was Aboriginal. He recalled spending some time living with his father and then spending several years at a refuge in Queanbeyan. He reported that it was while living in refuges that he began [redacted], which led to [redacted] on a number of occasions. The offender stated that he was largely homeless after running away from home, until 2015.
52․The offender has a history of being placed on Psychiatric Treatment Orders (PTOs), the most recent order being made on 25 March 2024 for six months. Four days prior to the commission of the offence, the offender was administered a depot injection. Six days prior to that, his treatment team noted the following:
[C]urrently exhibiting exacerbation of delusions – that his eyes and ears have been taken looking for insects inside of him that he has murdered someone in the past (sic). Michael’s risk has increased in the context of these symptoms.
53․The offender disclosed to Dr Carroll that for a few months prior to his arrest, he had been hearing voices saying “suffer” and indicating to him that “no-one was going to give me money anymore”. He advised that he was receiving less money than usual when begging and was struggling to afford his usual amount of cannabis and cigarettes. He explained that when he goes without tobacco he goes “crazy”.
54․On the day of the offending, he spent his morning begging but was unsatisfied with the amount of money he had received. He reported feeling stressed and recalled picking up the knife and saying to himself, “I’m going to get some money then, I just wanted some cigarettes and pot… I thought I’d get away with it, God was telling me it was alright”. He recalled that when he saw the victim, his “head nodded yes and [his] finger went up”, which he interpreted as being a sign from God. He stated that the victim “dropped her bag accidently, there was nothing in there”, and that he wasn’t sure “why she was screaming and carrying on, [he] had no intention of hurting her”.
55․The offender informed Dr Carroll that he was disappointed in himself for having made a mistake which resulted in him being imprisoned for the first time in 10 years, and that if he were to run out of money again, he would “just wait until payday”.
56․Dr Carroll concluded that the offender is “significantly disabled from a psychiatric perspective”. His schizophrenic illness has proven to be treatment resistant and is further complicated by his addictions. Dr Carroll was of the view that the offender’s current mental health has likely plateaued and is unlikely to improve.
57․Dr Carroll identified that the offender was suffering from a mental impairment, specifically schizophrenia, a mild personality disorder and substance use disorder, at the time of the offending. Notwithstanding his psychotic symptoms, Dr Carroll believed the offender was aware of the wrongfulness of his conduct and capable of controlling his actions, although the extent to which he was able to do so was diminished by his mental impairment. Dr Carroll did not consider the custodial environment to have any particular effect on the offender’s schizophrenia.
Remorse, rehabilitation and degree of responsibility for the offending
58․The offender presents with complex personal circumstances, featuring childhood disadvantage, chronic mental ill-health and entrenched addiction. These factors are intertwined and collectively they influence an assessment of the offender’s moral culpability. They are also factors that influence an assessment of the offender’s prospects for rehabilitation and the need to protect the community.
59․Beyond the negative impact of the offending on his own personal circumstances, the offender failed to express remorse. The offender expressed confusion as to why the victim was “carrying on”, telling police that “nothing happened” as he “got nothing” and “God thought it was all good”. The offender’s capacity for insight into his offending is complicated by his mental impairment, made clear in the report of Dr Carroll.
60․As the High Court recognised in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537 [32], “rehabilitation, if it can be achieved, is the most durable guarantor of community safety and is clearly in the public interest”. As the prosecution properly accepted, there is a clear connection between the offender’s mental impairment and his offending conduct. This connection highlights the significance of the offender’s mental impairment to his rehabilitative prospects. Dr Carroll characterised the offender’s schizophrenia as “treatment resistant” and considered it unlikely that his mental health would ever improve.
61․The offender was subject to a PTO at the time of the offence. He was compliant with his medication regime, having received a depot injection a few days prior to the commission of the offence. The offender’s cannabis use is distinct from his psychotic symptoms and Dr Carroll observed that while the offender would benefit from substance use counselling, his participation in such programs was “exceedingly unlikely”. The offender repeatedly confirmed that he was unwilling to cease using cannabis and tobacco.
62․From 2015 onwards, the offender’s personal circumstances were at their most stable since leaving home at age 13. Dr Carroll remarked upon the “outstanding job” that community mental health services had done in supporting the offender in the community during this period. Dr Carroll considered the diminution in the frequency of his offending, as demonstrated in the offender’s criminal history, could likely be attributed to these factors. However, the offender’s compliance with his treatment and the provision of these supports ultimately proved unsuccessful in guarding against the commission of the current offence.
63․The offender has not been subject to any disciplinary action on remand. He has a role cleaning for a period each day and does regular exercise. The offender has had no visitors or phone calls in the entire period he has been on remand. He told Dr Carroll that he is “used to being by himself” with the only stressor for him in custody being that he cannot smoke cigarettes.
64․The treatment resistant nature of the offender’s diagnosis does limit the offender’s prospects of rehabilitation. Relatedly, it inhibits his ability to develop insight into his offending and substance addiction. The offender has had periods where the successful management of his mental impairment in the community has limited or eliminated interaction with the criminal justice system. The parole authorities will be best placed to assess the supports that can be provided to the offender upon his release back into the community to assist him with the management of his mental impairment.
Verdins and Bugmy
65․The prosecution properly accepted that the offender’s schizophrenia reduces his moral culpability for the offending to a substantial degree: see R v Verdins [2007] VSCA 102; 16 VR 240 (Verdins). Dr Carroll’s report made clear that the offender’s mental health directly and materially contributed to his offending conduct. The offender’s hallucinations convinced him to forcibly obtain money and he believed God was telling him it was the right choice. Further, upon seeing the victim, the offender described experiencing what he believed to be involuntary bodily movements which he interpreted as being a sign from God to rob her.
66․I am also satisfied that the offender experienced a disadvantaged and traumatic childhood of the kind contemplated by the High Court in Bugmyv The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). His upbringing was significantly affected by physical abuse, feelings of displacement, social exclusion, neglect and abandonment. His childhood operates to shed light on his offending conduct.
67․The application of the Bugmy and Verdins principles reduces the offender’s culpability for the offending and moderates the weight to be afforded to general deterrence, denunciation and punishment. At the same time, I acknowledge that those factors operate to emphasise the need to protect the community from the offender and deter him from this kind of conduct which, considering the nature of the offence, are compelling considerations. This is the nature of the tension the High Court identified in Bugmy at [44] and is what “makes the exercise of the discretion so difficult”.
Criminal history
68․The offender has an extensive criminal history across the ACT, NSW, South Australia, Queensland and Victoria. His previous offending primarily consists of burglary, robbery and assault offences. The offender’s criminal history is not an aggravating feature but does limit the leniency that can be afforded to him. The pattern of criminal conduct revealed in the offender’s criminal history demonstrates that this kind of offending is not out of character: Veen v the Queen (No 2) [1988] HCA 14; 164 CLR 465.
Time in custody
69․The offender has spent 231 days in custody solely referable to this offence. I will take this into account in the sentence I impose, which will be backdated accordingly.
Plea of guilty
70․A plea of guilty was entered on 21 August 2024 following the offender being committed to the Supreme Court for trial. The plea was entered early in the trial process. The initial plea of not guilty was entered on the basis that the extent of the offender’s mental impairment was unable to be assessed without the assistance of an expert psychiatric report. The timing of the plea served significant utilitarian value such that a 20 per cent reduction in the sentence to be imposed is appropriate.
Current sentencing practise
71․Comparable cases do not operate to achieve mathematical equivalence as between sentencing outcomes. They can assist to achieve consistency in the application of principles. A sentence that is “just and appropriate” (Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8]) must be specific to the individual case. As counsel for the offender observed, the offender’s mental health, challenging upbringing and cultural displacement are factors that may limit the assistance of comparable sentencing outcomes.
72․It is nonetheless generally useful to note the observations of the Court of Appeal in R v White [2023] ACTCA 35 at [52]:
In Barrett v The Queen [2016] ACTCA 38, the Court of Appeal noted at [40] that most sentences recorded in the ACT sentencing database for aggravated robbery following a plea of guilty were in the range of 30 months to four years’ imprisonment. In R v Lovelock [2014] ACTSC 229 at [13], Murrell CJ, when considering current sentencing practice in the ACT Supreme Court, observed that a common sentence for aggravated robbery was three years’ imprisonment. In each case, the Court was referring to the length of sentences after application of discounting for pleas of guilty
73․I have also had regard to the outcomes in this jurisdiction of Holt and DPP v Campbell (No 2) [2024] ACTSC 105.
Determination
74․In sentencing the offender, I must have regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act. The reduction of the offender’s moral culpability moderates the weight to be attached to punishment, denunciation and general deterrence. This must be balanced against the need to deter the offender and the need to protect the community. The sentence imposed in this instance must also recognise the considerable harm done to the victim by the offender’s conduct.
75․Concerningly, since 2001, the offender has demonstrated a willingness to resort to offending when in need of money to support his cannabis and tobacco addictions. Given his frank commitment to substance abuse, undoubtedly contributing to the complicated nature of his treatment resistant schizophrenia, the offender’s long term rehabilitative prospects are limited. This highlights the need for the sentence to promote the protection of the community.
76․In determining the appropriate outcome, there is no place for preventative detention. I acknowledge that in the significant period the offender has been on remand he appears to have managed well; without incident and with his schizophrenia considered stable. The stability experienced in custody is a reflection of the offender’s desire for routine but also perhaps, a recommendation for the positive effect that abstinence from cannabis could bring about. So too, previous periods in the community where he has not engaged in offending conduct. The offender’s steadfast commitment to cannabis use in the context of his schizophrenia does sound as a basis for caution with respect to his rehabilitative prospects.
77․It was conceded that the only appropriate outcome, having regard to the seriousness of the conduct, is a period of imprisonment. While Dr Carroll concluded that the custodial environment was not specifically harmful to the offender’s mental impairment, he did identify the risk of a prolonged period of imprisonment entrenching his institutionalisation and hindering his capacity to ever return to independent living in the community, as a significant concern; one that I share given that the sentence I impose will one day require the offender to be released.
78․Dr Carroll considered that prolonged incarceration would have a paradoxical effect of rendering the offender at heightened risk of reoffending. While the offender has limited prospects of rehabilitation, I must balance this against the potential of the sentence I impose to substantially diminish his capacity to live in the community upon his eventual release. Counsel on behalf of the offender submitted that the setting of a parole period, which would facilitate a supported return into the community, would provide some amelioration of the risk of institutionalisation. I agree.
79․The principles guiding the setting of a non-parole period have been the subject of consideration in the following cases: Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 at 283-285 [61]-[66]; Taylor v R [2014] ACTCA 9 (Taylor) at [19], Henry v The Queen [2019] ACTCA 5 at [33]-[37] and The Queen v Ruwhiu [2023] ACTCA 18 (Ruwhiu) at [18] (citing Taylor with approval). I have had regard to the principles articulated therein. A non-parole period is the period that justice requires the offender to serve in custody, being the minimum period of actual incarceration required having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, protection of the community and the offender’s prospects of rehabilitation: Ruwhiu at [18]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-140 [57].
80․The offender will undoubtedly require assistance to transition back into the community in a way that preserves the chance of achieving stability in the management of his mental impairment. This requires particular attention to ensuring that he is engaged with community mental health services that have, in the past, had success with assisting the offender. It is tolerably clear that successful management of the offender’s mental illness is critical to protecting the community from the kind of behaviour he revealed the capacity for when he committed this offence. A lengthy period of parole supervision will assist with that endeavour.
81․On the charge of attempted aggravated robbery, the starting point for the sentence is three years of imprisonment reduced to 2 years, 4 months and 24 days in recognition of the plea of guilty.
Orders
82․For those reasons I make the following orders:
(1)On the charge of attempted aggravated robbery (CC2024/3497), the offender is convicted and sentenced to 2 years, 4 months and 24 days of imprisonment commencing on 19 March 2024 and ending on 11 August 2026.
(2)The non-parole period will commence on 19 March 2024 and end on 18 September 2025.
(3)Pursuant to s 67 of the Crimes (Sentencing) Act, I make the following recommendations in relation to the conditions of parole:
(a)The offender be required to engage with community mental health services during his parole period.
(b)The report of Dr Andrew Carroll, dated 22 July 2024, be provided to the parole authorities to assist with any future application by the offender for their consideration.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: O Ferguson Date: 4 November 2024 |
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