Director of Public Prosecutions v Rhodes
[2024] ACTSC 216
•8 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Rhodes |
Citation: | [2024] ACTSC 216 |
Hearing Date: | 8 July 2024 |
Decision Date: | 8 July 2024 |
Before: | Hopkins AJ |
Decision: | See [77]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –attempt robbery – assault occasioning actual bodily harm – damage property – possess knife in public – Drug and Alcohol Treatment Order Assessment – refusal to participate in therapeutic community while in custody – limited insight and remorse for offending – history of non-compliance with community based orders – not appropriate to impose a Drug and Alcohol Treatment Order – age and subjective circumstances of the offender – rehabilitation through parole |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 46K, 80S Crimes Act 1900 (ACT) ss 24, 32, 116, 382 Criminal Code 2002 (ACT) s 310 |
Cases Cited: | Hogan v Hinch [2011] HCA 4; 243 CLR 506 O’Brien v The Queen [2015] ACTCA 47 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v Henry [1999] NSWCCA 111; 46 NSWR 346 Taylor v The Queen [2014] ACTCA 9 |
Parties: | Director of Public Prosecutions ( Crown) Jenard Jim Rhodes ( Offender) |
Representation: | Counsel M Fieldus ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 86 of 2024 |
HOPKINS AJ:
Introduction
1․Mr Rhodes, you are to be sentenced for offences of attempted robbery, making a demand of another person accompanied by a threat, assault occasioning actual bodily harm and damaging property committed on 14 November 2023. These are serious offences involving a significant degree of violence. For this reason, a substantial term of imprisonment must be imposed upon you. You are also to be sentenced for possessing a knife in a public place. All offences were committed whilst you were subject to suspended sentences and good behaviour orders.
2․Because you are dependent on illicit substances and this dependency substantially contributed to your offending, you have asked that I make a Drug and Alcohol Treatment Order (Treatment Order). This would suspend the sentence of imprisonment and enable you to work towards your rehabilitation in the community under strict supervision with intensive support.
3․Compliance with the conditions of a Treatment Order is challenging. It requires a deep commitment and strong determination to change. Unfortunately, for reasons I will explain, I am not persuaded that you are yet ready to meet that challenge. For that reason, I will not impose a Treatment Order on you.
4․I will impose a total sentence of 22 months imprisonment, to commence on 14 December 2023, when you came into custody, and end on 13 October 2025.
5․I will set a nonparole period of 14 months to commence on 14 December 2023 and end on 13 February 2025.
6․I understand that this will be disappointing for you. I urge you to apply for the Alexander Maconochie Centre Karralika Solaris Therapeutic Community prison-based rehabilitation program (Solaris TC) to prepare yourself for release on parole. I hope that you will use the further time that you must spend in prison to strengthen your commitment to rehabilitation, rebuild your relationships with your family and create a foundation for a future that looks different to your past.
7․I will now explain the reasons for the sentence I will impose and why I have not made a Treatment Order for you.
The offences
8․On 14 November 2023, you committed offences of:
(1)Attempted robbery (CAN 12384/2023), with a maximum penalty of 14 years imprisonment: s 310 of the Criminal Code 2002 (ACT) (Criminal Code) (by virtue of s 44 of the Criminal Code).
(2)Making a demand of another person accompanied by a threat (CAN 12387/2023), with a maximum penalty of 10 years imprisonment: s 32(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act).
(3)Assault occasioning actual bodily harm (CAN 12386/2023), with a maximum penalty of 5 years imprisonment: s 24 of the Crimes Act.
(4)Causing damage to property (CAN 12385/2023), with a maximum penalty of 2 years imprisonment: s 116(3) of the Crimes Act.
9․On 14 December 2023 you committed the further offence of:
(5)Possessing a knife in a public place (CAN 12388/2023), with a maximum penalty of 6 months imprisonment: s 382(1) of the Crimes Act.
10․For each offence where a term of imprisonment can be imposed, a fine can also be imposed in addition to or instead of imprisonment.
11․The facts relating to these offences can be summarised as follows. At 4:45pm on 14 November 2023, the victim, whom I will identify by the pseudonym of “Dr Lo”, was sitting in the driver’s seat of his car, a 2017 Porsche Boxter, in the Belconnen Westfield Shopping Centre carpark. You approached the car, opened the front passenger side door and sat in the front passenger seat.
12․Dr Lo was scared for his safety and asked you to leave. You asked him to shake your hand and he did. You spoke with him further and he again asked you to leave. You then said, “I will cut you if you don’t leave the car”. This caused Dr Lo to feel fearful and believe that you wanted to take his car.
13․You then reached over and took the vehicle keys from Dr Lo’s hand. Dr Lo said he was going to call the police and you attempted to take his phone.
14․You then headbutted Dr Lo in the face and pinned him against the driver’s side window, punching him in the face with a closed fist around eight times. Dr Lo attempted to block the punches with his leg. A number of your punches made heavy contact with his nose and face. He punched you several times in an effort to defend himself.
15․You continued to punch him several more times before getting out of the car.
16․You walked around the back of the car to the driver side door. Dr Lo got out and you grabbed him and attempted to throw him to the ground. This resulted in you both falling to the ground. You then hit Dr Lo with you backpack twice and punched him again, several times.
17․Dr Lo wrapped his arms around your legs. You then attempted to stomp on his head.
18․Having freed yourself from Dr Lo’s grip, you got into the driver’s seat. Dr Lo used the keys, of which he had regained control, to lock you inside the vehicle. You searched the car for an additional key, then took an item from your backpack, using it to strike the driver’s side window twice, causing it to shatter. The replacement cost of this window was $1,260.82.
19․You climbed through the smashed window and ran away.
20․On 14 December 2023, you were arrested by police. A search of your backpack revealed a folding knife. You told police that you had the knife for the purpose of self-defence.
Impact on the victim
21․As a result of the offences, Dr Lo sustained a fractured nose, a fractured finger, a sprained ankle and a sprained wrist. He also sustained bruising to his face.
22․I have read Dr Lo’s victim impact statement. In addition to physical injuries, he has also experienced and continues to experience anxiety, depression, insomnia and paranoia, affecting his social life. He was unable to work for approximately two months and remains unable to work to his full potential.
23․Dr Lo will live with the memory of that day. He responded bravely in the face of your sustained and significant violence towards him in your attempt to steal his car.
Objective Seriousness
24․There are a number of features of your offending on 14 November 2023 that are relevant to assessing the seriousness of each offence.
25․At the time you climbed into his car, Dr Lo was sitting alone. Once inside, you issued a significant threat to “cut” him if he did not leave his car. No doubt you hoped that he would do as you said, enabling you to steal his luxury vehicle. He did not. He resisted you, intent on keeping possession of his car, as he was entitled to do.
26․You then subjected him to a relatively sustained and brutal assault which targeted his face and head. These are vulnerable areas of the body. The injuries described, particularly the fractures, are serious examples of actual bodily harm.
27․There is no evidence of any significant planning or premeditation. There was nothing sophisticated about what you did. The serious physical assault you subjected Dr Lo to appeared to be a spontaneous reaction to his refusal to comply with your demand rather than a planned attack.
28․There is nothing remarkable about the offence of possession of a knife on 14 December 2023. It was found in your backpack whilst you were being searched at the time of arrest.
Plea of guilty and remorse
29․You pleaded guilty to each offence at an early opportunity. This has saved the community significant time and expense. I will reduce the sentence that I would otherwise have imposed by 25 percent because of this fact.
30․Unfortunately, there is little evidence that you are remorseful for your offending or that you have an understanding of the harm you caused to Dr Lo. Some of the statements you made to the author of the Drug and Alcohol Treatment Assessment Report are deeply concerning and indicate that you have not yet found the courage to truly reflect on and accept responsibility for your actions and their consequences.
31․You provided a letter to the court at the time of the sentence hearing. It did not contain any further indication of remorse.
32․Remorse and acceptance of responsibility are an important foundation for change. I hope that you will reflect more deeply on the harm you have caused and commit to doing the hard work required of you to rehabilitate so that you do not continue to harm others as you did.
Conditional liberty and breach of good behaviour orders
33․The offences that you are to be sentenced for today were committed whilst you were subject to five good behaviour orders.
34․Two of these good behaviour orders were imposed on you on 8 November 2023, just days before you committed the attempted robbery and associated offences. These good behaviour orders were attached to suspended sentences of imprisonment, totalling 4 months and two days, with you having already served 29 days of that period.
35․The remaining three good behaviour orders were imposed on you on 15 May 2023.
36․The fact that your offences were committed in breach of your good behaviour order obligations is relevant to determining the appropriate sentence. It is an aggravating factor.
37․I will resentence you in relation to the suspended sentences of imprisonment in such a way that will mean you are required to serve the outstanding 3 months imprisonment. I will take no further action in relation to the good behaviour orders to which no suspended sentences are attached. I have taken their breach into account as part of considering the totality and the appropriate sentence to impose for your fresh offences.
Criminal history
38․Your history of past offending is significant and serious. You committed your first offences at age 18. Your record establishes that you have primarily committed dishonesty offences, including offences of aggravated burglary, burglary, theft, riding or driving in stolen motor vehicles, obtaining property by deception and receiving stolen property.
39․Concerningly, you have been sentenced for offences involving violence, including robbery and acts causing grievous bodily harm. You have been sentenced to significant terms of imprisonment before.
40․You also have a significant history of failing to appear when granted bail and one offence of escaping arrest or custody.
41․You are not to be punished again for your past offences. However, this history demonstrates that your offending is not an aberration. Instead, it is a continuation of a pattern of offending.
Time in custody
42․You have been in custody since the time of your arrest on 14 December 2023. I will backdate your sentence to that day to take account of this time that you have already served.
Subjective circumstances
43․Mr Rhodes, you are now 24. Since the age of around 16, your life has been shaped by your addiction to illicit substances. You are yet to find a way to address your addiction. You do, however, understand the damage that it has caused to your life and your relationships with family members.
44․Your personal history is set out in the Drug and Alcohol Treatment and Suitability Assessment Reports.
45․Having been born in Queensland, you were primarily raised in Canberra. You are a dual citizen of Australia and the Philippines, through your mother, and lived between the two countries over a number of years during your childhood. You would like to live in the Philippines at some time in the future.
46․You have two brothers and a one sister. You have described your childhood as generally positive. You were raised by your mother after your parents separated when you were around two years old. You report that your father was charged with family violence offences against your mother. Unsurprisingly, given your age at the time, you do not report any memory of exposure to family violence. This does not mean it did not affect you. You have not had a relationship with your father. You feel “empty” as a result, with this emptiness being linked to your drug use.
47․As a young person, you witnessed your mother’s struggle to support you and your siblings. You were not, however, exposed to any further family violence or substance abuse.
48․Despite the challenges, you told the report writers that you have had a close relationship with your mother and your siblings but that this has been strained because of your drug use and periods of imprisonment. Sadly, you are not in contact with your mother or two of your siblings. However, you believe the relationships can be repaired if you can cease drug use and criminal activity. You maintain contact with your older brother. He is a role model to you and your only source of support.
49․You spoke to the report writers about your schooling. You described yourself as a “good” student who worked to achieve high marks. Unfortunately, in late high school, you began associating with the “wrong crowd”, skipping school and using drugs. This led to you leaving school at the beginning of Grade 11. You have been employed for short periods in retail, hospitality and labouring but have been unable to maintain employment because of your dependence on illicit substances.
50․You commenced using cannabis at the age of 15 and then methamphetamine at 16 or 17, progressing to intravenous use by the age of 20. You have used a variety of other illicit substances along with alcohol. Methamphetamine is your primary drug of addiction. At the time of your offending, you were using methamphetamine regularly and committing offences to fund your addiction.
51․Your age and maturity at the time that you commenced drug and alcohol use means that you did not have the capacity to consider the consequences of your actions in the same way as an adult: R v Henry [1999] NSWCCA 111; 46 NSWR 346 at [273] (Wood CJ at CL), [335]-[355] (Simpson J).
52․It is likely that you were suffering with a severe substance use disorder at the time of your offending. You said that at the time of committing the offences on 14 November 2023 you were under the influence of methamphetamine and committed the offences to get funds to purchase more of the drug.
53․You were largely homeless from the age of 15 to 18 because of your illicit substance use. Though you would frequently return to live with your mother, this “didn’t last because of the drugs”. Since turning 18 you have continued to experience homelessness whilst in the community.
54․Unfortunately, although you have been placed on an ACT Housing waiting list, you do not currently have accommodation available to you. It is not clear when accommodation will become available.
55․You have also had challenges with your mental health. You have reported diagnoses of depression, anxiety and attention deficit hyperactivity disorder (ADHD). You are currently receiving medication for your ADHD and depression, which is having a positive effect. You had engagement with forensic mental health services from the age of 17 and have a history of self-harming behaviour. You explained that in the past you have used illicit substances to escape from thoughts of suicide.
56․There is no evidence that you have engaged any drug and alcohol rehabilitation programs since you were remanded in custody on 14 December 2023. I do not know what programs were available to you. I do know that you decided not to apply for the Solaris TC. You have not explained the reason for this, though it appears that you believe it would not assist you to rehabilitate. This is a shame because experience has shown that participation in the TC program can provide a strong foundation for successful rehabilitation in the community.
57․That fact that you have not engaged in rehabilitation whilst in custody also means there is no evidence from which to find that you have demonstrated a commitment to doing the hard work required of you under a Treatment Order.
58․It is important for me to acknowledge that you do have clear and considered goals. This is important because it means that you have something to work towards. Your goals, as you expressed them, are to “[s]top all drug use and regain [your] relationships with family” and to “[f]ollow [your] dream job and make a clothing brand”. You also understand that you will have to “take it one step at a time and keep staying away from people who are using”.
59․You are young and these goals are well within your reach. I hope that you can maintain a commitment to them.
Sentencing purposes and consideration
60․No sentence other than imprisonment is appropriate having regard to the seriousness of your offending.
61․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused and your moral culpability.
62․Your sentence must deter you and others from offending, particularly from violent offending.
63․The sentence must recognise the harm you caused to Dr Lo and denounce the conduct you engaged in. It is important that you understand that I am not denouncing you as a person. You are responsible for your offending, but it does not define you.
64․The sentence must be designed to promote your rehabilitation. This is particularly important because you are still a young man.
65․Finally, the sentence must also be designed to protect the community. I note that, “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536-7 (French CJ).
Totality
66․The offences you committed on 14 November 2023 must be considered separately. An appropriate sentence must be fixed for each. However, all offences were committed during the course of your attempt to steal Dr Lo’s car or escape from that car once your effort to steal it had failed. For this reason, I will impose concurrent sentences for all offences committed on 14 November 2024.
67․The sentence for possession of a knife with be cumulative. It was committed on a different day and is unrelated. I will also impose a further three months imprisonment in resentencing you for breaches of suspended sentences of imprisonment.
68․The total sentence is intended reflect the overall criminality of your offending, as well as to “hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”: O’Brien v The Queen [2015] ACTCA 47 at [26]; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 341.
Drug and Alcohol Treatment Order
69․Mr Rhodes, it is important for me to explain why I have not imposed the Treatment Order you sought to address your drug dependence.
70․You were found suitable for a Treatment Order by the author of the Canberra Health Services’ Drug and Alcohol Sentencing List Suitability Assessment Report. Though concerns were expressed by the author about an absence of suitable long-term accommodation.
71․You were found unsuitable for a Treatment Order by the author of the ACT Corrective Services’ Drug and Alcohol Treatment Assessment because of your criminal record and response to previous court orders: s 46K of the Sentencing Act. In particular, the author expressed concern about your history of failing to comply with community-based orders and your significant history of failing to appear in answer to bail. I share these concerns.
72․Ultimately, I am not satisfied that a Treatment Order is suitable for you or appropriate in your circumstance: ss 12A(2)(b) and 80S of the Sentencing Act. Compliance with the obligations imposed under a Treatment Order is very challenging. It requires deep commitment and strong determination. I am not satisfied that you are ready to meet this challenge, particularly given the absence of family support and current uncertainty about the availability of accommodation. I might have been persuaded that you were ready if you had undertaken rehabilitation programs whilst in custody. This would have provided evidence that you are ready to do the hard work required of you to address your substance use dependency.
Nonparole period
73․A nonparole period must be fixed having regard to a number of considerations: see Taylor v The Queen [2014] ACTCA 9 at 19. These include the purposes of sentencing, the objective seriousness of your offending, and your personal circumstances. A nonparole period is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 629.
74․Your prospects of rehabilitation are important, particularly given your age. It is necessary to take a cautious approach, because of your history of reoffending when subject to conditional release into the community. However, I remain persuaded that you have reasonable prospects of rehabilitation.
75․I will set a nonparole period of just over 60 per cent of your total sentence.
76․I have given consideration to making a recommendation that a residential drug rehabilitation program condition be made as a condition of your parole. I have decided against this. You will require support in a broad range of areas, and it will be a matter for the Sentence Administration Board to determine the rehabilitation and support needs to be targeted upon and during parole.
Orders
77․For those reasons I will make the following orders:
(1)Jenard Jim Rhodes be convicted of attempted robbery (CAN 123384/2023) and be sentenced to 18 months imprisonment, reduced from 24 months on account of his plea of guilty, commencing 14 December 2023 and ending on 13 June 2025.
(2)Jenard Jim Rhodes be convicted of making a demand of another person accompanied by a threat (CAN 12387/2023), and be sentenced to 9 months imprisonment, reduced from 12 m on account of his plea of guilty, commencing 14 December 2023 and ending on 13 September 2024.
(3)Jenard Jim Rhodes be convicted of assault occasioning actual bodily harm (CAN 12386/2023), and be sentenced to 9 months imprisonment, reduced from 12 m on account of his plea of guilty, commencing 14 December 2023 and ending on 13 September 2024.
(4)Jenard Jim Rhodes be convicted of damage property not exceeding $5,000 (CAN 12385/2023), and be sentenced to 3 months imprisonment, reduced from 4 months on account of his plea of guilty, commencing on 14 December 2023 and ending on 13 March 2024.
(5)Jenard Jim Rhodes be convicted of possessing a knife in a public place (CAN 12388/2023), and sentenced to 1 month imprisonment, reduced from 6 weeks on account of his plea of guilty, commencing 14 June 2025 and ending 13 July 2025.
(6)The conviction of Jenard Jim Rhodes of receiving stolen property (CC 9094/2023) be confirmed, the good behaviour order imposed on 8 November 2023 be cancelled, and the offender be resentenced to 3 months imprisonment commencing 14 July 2025 and ending 13 October 2025.
(7)The conviction of Jenard Jim Rhodes of failing to appear (CC 8302/2023) be confirmed, the good behaviour order imposed on 8 November 2023 be cancelled, and the offender be resentenced to 1 month imprisonment commencing 14 July 2025 and ending 13 August 2025.
(8)The conviction of Jenard Jim Rhodes of obtain property by deception (CC 2448/2023) be confirmed and no action taken on the breach.
(9)The conviction of Jenard Jim Rhodes of obtain property by deception (CC 2449/2023) be confirmed and no action taken on the breach.
(10)The conviction of Jenard Jim Rhodes of obtain property by deception (CC 2450/2023) be confirmed and no action taken on the breach.
(11)The total sentence is 22 months imprisonment commencing 14 December 2023 and ending on 13 October 2025.
(12)A nonparole period of 14 months be imposed to commence on 14 December 2023 and end on 13 February 2025.
Final words
78․Mr Rhodes, I am sure that you will be disappointed that I did not make a Treatment Order for you. I hope that you will find a way to turn this disappointment into a commitment to your rehabilitation and healing.
79․Facing and recovering from your addiction will be very difficult. You know this far better than I do. It has been your lived experience.
80․There is a mountain to climb. You will need to commit to this climb and get support along the way. I strongly urge you to apply for the Solaris TC program whilst you are in custody, and to complete it if you are offered the opportunity. This may provide a strong foundation for your return to the community and to restore your relationships with your family members.
81․Remember, each step you take up the mountain will give you a better view. If there are steps back along the way, then you will still remember the view. With courage you will continue to climb.
82․You have the strength to do this. The view from the top will be worth it. I wish you luck.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins Associate: J Liu Date: |
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