Director of Public Prosecutions v Roberts
[2024] ACTSC 405
•18 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Roberts |
Citation: | [2024] ACTSC 405 |
Hearing Date: | 28 October 2024 and 28 November 2024 |
Decision Date: | 18 December 2024 |
Before: | Christensen AJ |
Decision: | See [107]-[110] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving offences – aggravated burglary and robbery – dishonestly obtain property by deception – three series of offending spanning multiple years – application of principle of totality – “overwhelming and untreated” background of trauma – Bugmy, Verdins, Henry principles enlivened – whether drug and alcohol treatment order appropriate and suitable – criminal history disentitles offender to leniency – strong motivation to rehabilitate – previous attempts at rehabilitation unsuccessful – treatment order not capable of meeting complex needs of offender – risk of further institutionalisation – community protection – nonparole period imposed – recommendation made to Sentence Administration Board to support continued rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT) ss 308, 312, 318, 321, 324, 326, 361 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Texts Cited: | Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2019) |
Parties: | Director of Public Prosecutions Guy Pearson Roberts ( Offender) |
Representation: | Counsel G Meikle; M Fieldus ( DPP) S Baker-Goldsmith ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 76 of 2022 SCC 77 of 2022 SCC 33 of 2024 SCC 34 of 2024 SCC 167 of 2024 SCC 168 of 2024 |
CHRISTENSEN AJ:
Introduction
1․This is a sentencing matter with, as the prosecution submitted, a long and complicated history. Guy Roberts is to be sentenced for six offences committed in November 2021 and five offences committed in May 2023.
2․In April 2023, he was sentenced in the Supreme Court for other offences committed in 2021. Mr Roberts was then granted an opportunity to demonstrate his ability to comply with a community based order. He did not fully embrace the opportunity, and he committed further offences in May 2023.
3․Mr Roberts now comes to be sentenced for the remaining offences for sentence from 2021, and for the 2023 offences.
Overview
4․The offences, and applicable maximum penalties that are now the subject of sentence are as follows. The offending which occurred on 10 November 2021 (series one offending), involves:
(a)Dishonestly drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both (Count 1 – CAN 2021/11568);
(b)Attempted aggravated burglary, contrary to s 312 of the Criminal Code, carrying a maximum penalty of 20 years imprisonment, 2,000 penalty units, or both (Count 3 – CAN 2021/11570);
(c)Aggravated burglary – intent to steal, contrary to s 312 of the Criminal Code, carrying a maximum penalty of 20 years imprisonment, 2,000 penalty units, or both (Count 4 – CAN 2021/11573); and
(d)Theft, contrary to s 308 of the Criminal Code, carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both (Count 5 – CAN 2021/11576).
5․In sentencing Mr Roberts in respect of these offences, it is sought that offences of use a numberplate calculated to deceive (s 22(1)(b) Road Transport (Vehicle Registration) Act 1999 (ACT)) be taken into account pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The maximum penalty for these offences (CAN 2021/11572, CAN 2021/11575) is 20 penalty units.
6․The next offending occurred on 11 November 2021 (series two offending) and involved the same type of offences as committed on 10 November. The same maximum penalties apply:
(a)Aggravated burglary – intent to steal, contrary to s 312 of the Criminal Code (Count 6 – CAN 2021/11579); and
(b)Theft, contrary to s 308 of the Criminal Code (Count 7 – CAN 2021/11580).
7․Mr Roberts also seeks, with respect to the offending on 11 November, that an offence of use a numberplate calculated to deceive be taken into account (CAN 2021/11578) pursuant to Pt 4.4 of the Sentencing Act. The offences to be taken into account will occur in the manner provided by Mossop J in DPP v Vincent (No 2) [2023] ACTSC 379 at [64].
8․The most recent offending occurred on 31 May 2023 (series three offending) (SCC 33, 34 of 2024; SCC 167, 168 of 2024), and involves the following offences:
(a)Dishonestly obtain property by deception, contrary to s 326 of the Criminal Code, carrying a maximum penalty of 10 years imprisonment, 1,000 penalty units, or both (CAN 2023/5598);
(b)Hinder territory official, contrary to s 361(1) of the Criminal Code, carrying a maximum penalty of 2 years imprisonment, 200 penalty units, or both (CAN 2023/6947);
(c)Unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code, carrying a maximum penalty of 6 months imprisonment, 50 penalty units, or both (CAN 2023/6946);
(d)Attempted aggravated burglary, contrary to s 312 of the Criminal Code (SCCAN 160/2024); and
(e)Minor theft, contrary to s 321 of the Criminal Code, carrying a maximum penalty of 6 months imprisonment, 50 penalty units, or both (CAN 2023/5595).
9․Mr Roberts accepts that terms of imprisonment are to be imposed, and seeks a drug and alcohol treatment order (treatment order). The prosecution does not submit against Mr Roberts being eligible for such an order in terms of the legislative limitation (i.e. four years imprisonment: s 12A(2)(b)(ii) Sentencing Act). The prosecution does though oppose the imposition of a treatment order, submitting that Mr Roberts does not demonstrate an ability to comply with a treatment order, and raises concerns over the administration of such an order.
10․Canberra Health Services and ACT Corrective Services have found Mr Roberts not suitable for such an order. Such findings are not a bar to the Court making an
order: s 80T(5) Sentencing Act. However, the reasoning for this finding of unsuitability includes that there is no suitable rehabilitation program available for Mr Roberts. That is, appropriate arrangements for the administration of the order are impracticable:
s 80S(c) Sentencing Act.11․On his behalf, it is submitted that a treatment order could be imposed and that other support services be utilised to assist Mr Roberts with the ‘wrap around’ support he requires to rehabilitate. It was submitted that Mr Roberts is genuinely motivated to rehabilitate, and that the mechanism of a treatment order is the best option available to support that rehabilitation.
12․As will become apparent, I accept that Mr Roberts is eligible for a treatment order. Nonetheless, a treatment order is neither an appropriate nor suitable order for Mr Roberts.
10 and 11 November 2021 offending: series one and two offending
13․The first offending the subject of sentence involved offending on 10 and 11 November 2021.
14․It begins with Mr Roberts and his co-offender attending at the Prohibition Bottle Shop in Curtin at about 4:44am. Their conduct was captured on closed circuit television (CCTV) footage. They were in a Kia vehicle that was later determined to have been stolen. The number plates on the Kia were not those issued for the vehicle and were affixed for the purposes of deception. This is offending to be taken into account.
15․Mr Roberts got out of the front driver’s seat of the Kia with a snatch strap. He approached the front doors of the shop and attempted to secure the strap to the bolts which lock the door. He returned to the Kia and reverse parked it outside the front of the shop.
16․He again got out of the front driver’s seat. The co-offender got out of the front passenger seat. Mr Roberts again attempted to attach a snatch strap to the doors of the shop. They then got back in the Kia and drove off.
17․Minutes later, the Kia returned, and again reverse parked out the front of the shop. Mr Roberts got out again and this time was able to attach a snatch strap (that was attached to the Kia), to the bolts on the front door. He then attempted to remove the doors from the shop by driving the Kia forward.
18․When this was unsuccessful, Mr Roberts attempted to open the doors by using a jemmy bar. He also took a block splitter from the boot of the vehicle and used it to smash the front doors. Mr Roberts and the co-offender then returned to the Kia and left the location.
19․This was a determined attempt to gain entry to the retail shop. It was not particularly sophisticated given the multiple unsuccessful attempts involving different forms of attempted entry. The damage that would have been caused was not insubstantial, although the value to repair it is not known.
20․The vehicle that Mr Roberts was using was stolen, and in using it in this way, he risked causing damage to the vehicle. The charge provides that the vehicle belonged to National Capital Motors in Goulburn. Mr Roberts clearly had no regard for the valuable property belonging to this company, nor the business owners of the retail store. The vehicle was recovered some 11 days after it was driven by Mr Roberts and used by him in all of the offending, although the facts do not provide when it was originally stolen. Regardless, following Mr Roberts’ use of the vehicle, the owner was deprived of it for a lengthy period. Inevitably, there was frustration and inconvenience caused, and likely financial implications for the owner.
21․Later in the day on 10 November, at 12:40pm, Mr Roberts reversed the Kia into a disabled parking spot outside of an apartment complex in Phillip. Numberplates that were again not those issued for the vehicle were being used and this will be taken into account on sentence. The offending conduct was captured on CCTV footage.
22․Mr Roberts and his co-offender got out of the vehicle. They entered the apartment complex through the front door. This was without authority, and as such they were trespassers. Shortly after, they exited the building carrying two khaki backpacks and one blue duffle bag. They left in the Kia.
23․At around 7:20pm that night, the owner of an apartment in the complex returned home. She noticed that a number of items, including bags, backpacks, a laptop, and her work identification pass were missing.
24․Mr Roberts’ role in the entry to the complex and unit, and the theft of the items, will have caused significant concern to the victim. This is borne out in a victim impact statement in which the victim describes that her apartment was her first property and the first home where she had lived alone. She had felt safe there until the burglary occurred. She experienced the immediate distress of finding her home having been ransacked, and concern at how someone had been able to access her apartment on the sixth floor. The
victim describes feeling unsafe and violated in her own home. This distress was
long-standing. The victim’s family members were also impacted, experiencing a feeling of helplessness that there was little they could do to assist. The victim lost items of sentimental value that were irreplaceable. She also bore financial implications with insurance and replacement of items.25․The value of the items stolen was not insignificant, and their theft will have caused considerable alarm for the victim. There was a brazenness to the conduct in entering the complex at a time when it could be expected residents would be moving about.
26․The offending that occurred the following day also has features of brazenness, although this occurred in the early hours of the morning. It involved again an entry into an apartment complex, which was captured on CCTV footage.
27․On 11 November 2021 at 3:07am, Mr Roberts parked the Kia outside another apartment complex in Philip. The number plates affixed to the Kia were again not those issued for the vehicle, with this to be taken into account.
28․The co-offender got out of the Kia and attempted to enter the lobby of the apartment complex. After being unsuccessful, she returned to the passenger seat, and they drove away in the Kia. Some seven minutes later, the Kia returned.
29․Mr Roberts got out and he entered the rear of the building as a trespasser. He was using a fob to enter. He went to the lobby area and stole multiple parcels, placing them in the Kia. He then drove away. The facts provide that this ends the co-offender’s role in the offending.
30․Mr Roberts returned, again driving the stolen Kia, to the apartment complex at about 4:41am. He got out of the driver’s seat and an unidentified male got out of the passenger seat. Mr Roberts and the male approached the front doors of the building and forced them open. They entered the building as trespassers and stole the remaining parcels from the lobby area. The facts provide that the items stolen included a parcel containing two red Tefal frypans.
31․Police conducted investigations which included conducting searches at a residence in Lyons on 23 November and 12 December 2021. During the searches, police located items of clothing that matched that worn by the offenders. Police also located an identification card that was stolen from the unit during the 10 November offending, and located the two Tefal frypans, and packaging for a parcel for a person who resided in the apartment complex at the time of the 11 November offending.
32․The total value of the items stolen, and the number of victims involved, is not included in the facts, beyond it involving the theft of the frypans. At least two, but potentially many, community members experienced the frustration and financial implications from the theft of the parcels. The owner of the frypans at least likely had these items returned. The residents of the complex will have also been distressed by the unauthorised entry, with their sense of safety eroded. While not a sophisticated example of this offence, it was persistent and entirely disregarded the property of other community members.
Parity
33․The co-offender for the offences in this series was the then, and current, partner of Mr Roberts, Ms Carla Sebbens. Ms Sebbens was sentenced by Refshauge AJ on 8 August 2023 (DPP v Sebbens (Supreme Court of the Australian Capital Territory, Refshauge AJ, 8 August 2023) (DPP v Sebbens)). The sentences imposed, before a reduction for the pleas of guilty in the range of 20 to 25 per cent, were:
(a)Attempted aggravated burglary: 15 months imprisonment.
(b)Aggravated Burglary: 22 months imprisonment.
(c)Theft: 10 months imprisonment.
(d)Aggravated Burglary: 18 months imprisonment.
(e)Theft: 7 months imprisonment.
34․In addition, Ms Sebbens was sentenced for riding in the stolen motor vehicle being driven by Mr Roberts. A sentence of nine months imprisonment was ordered, with the reduction for the plea of guilty not specifically quantified.
35․The total sentence imposed on Ms Sebbens was one of 3 years and 11 months, with the sentence suspended for a period of 4 years: DPP v Sebbens. Ms Sebbens had spent 40 days in presentence custody.
36․In sentencing Ms Sebbens, his Honour had regard to her role as a lesser participant in the offending. That is, Mr Roberts was the lead offender who committed the more serious conduct. I agree with this assessment of their respective culpability. Ms Sebbens had compelling subjective circumstances. This included that she had made progress with her rehabilitation.
37․The parties were heard as to the application of the parity principle. While acknowledging the relevance of this principle, the prosecution conceded that a total effective sentence of less than four years is within range in respect of Mr Roberts’ sentence. On behalf of Mr Roberts, the principles of parity were outlined, with the Court reminded of what was said by Dawson J, with whom Wilson J agreed in Lowe v The Queen (1984) 154 CLR 606 at 623 that “[t]here is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them.” Further, as to what was said by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 302 that “the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components”.
38․It is significant here that whilst Mr Roberts has more culpability than Ms Sebbens for the offending, and their subjective circumstances are not dissimilar (albeit, R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) has greater application for Mr Roberts (see below at [84])), a suspended term was imposed on Ms Sebbens. It is not appropriate that Mr Roberts be afforded such leniency. Rather, I accept the submission on behalf of Mr Roberts that the likelihood that Mr Roberts will be required to serve a lengthy period of fulltime custody, for at least part of his sentence, is informative as to the appropriate lengths of the sentences to be imposed.
39․Nothing in the parity principle requires that I disregard the role of individualised justice in the sentencing exercise and increase the head sentences that are otherwise appropriate in order to achieve head sentences commensurate with those imposed on the
co-offender. Whether the sentence orders for Mr Roberts lead Ms Sebbens to have a sense of grievance, and whether the Court of Appeal considers that is a justifiable one, is not of concern in the sentencing exercise I am undertaking. That is not to say that I have not had regard to the sentences imposed on Ms Sebbens, including as to their role in informing current sentencing practice, but they are not determinative as to the appropriate terms for Mr Roberts.
Pleas of guilty: series one and two offending
40․In relation to the charges the subject of the series one and two offending, pleas of guilty were entered in the Supreme Court. They were entered prior to the criminal case conference and a trial listing was vacated. I assess the appropriate reductions to be in the range of 15 per cent.
31 May 2023 offending: series three offending
41․The offending in this series involves three distinct forms of criminal activity –
(a)An attempt to enter a jewellery store within a Westfield shopping centre;
(b)Obtaining property by deception by using a bank card stolen from a residence, along with possession of other items stolen from the residence; and
(c)Hindering a territory official, involving defiance of police and risk to their safety.
42․The offending in this series began with an attempted entry to the Westfield at Woden from about 3:15am. Two men attempted to break into the centre’s loading dock on Keltie Street. The men jacked up the roller door, damaging it in the process, but left in a silver Ford Focus before they had gained access to the shopping centre.
43․At about 3:21am, the Ford returned and parked in the loading dock close to a staircase. Mr Roberts and two unidentified men climbed out of the car and entered the centre. One person remained seated in the driver’s seat of the Ford.
44․Mr Roberts was wearing long clothing and a black face covering. He had a small radio clipped to his top and was wheeling a suitcase. One of the unidentified males was wearing a white face mask and carrying a small sledgehammer. The other unidentified male was wearing a mask over his head that depicted an old man and was carrying a black bag.
45․The three offenders followed a corridor out of the loading dock and emerged near the shopping centre’s food court. They passed through the food court and climbed an internal staircase. They approached the door of the Angus & Coote jewellery store. Within moments, an alarm sounded, and they started to sprint back towards the staircase, still carrying the tools and suitcase.
46․One of the unidentified offenders sprinted to the Ford and got in. A police car, with its emergency lights activated, drove up to the Ford and partially blocked the exit. The Ford accelerated away, and police followed.
47․Mr Roberts and the other male ran up the corridor to where the Ford had been parked and looked around the corner. They waited until the police car had driven away, before running through the loading dock. Mr Robert’s had removed his face covering by this stage and his face was clearly visible on CCTV footage. He dropped an axe and black headwear. The other male picked up the axe and they both fled the premises.
48․Despite not having successfully gained entry to the jewellery store, there are serious aspects of planning to this offending. It was a seemingly targeted attempt to enter and steal from a high value retail premises, within a large commercial centre. Mr Roberts was plainly making an attempt to disguise his appearance, as well as utilising items intended to be of assistance in the planned offence. Fortunately, the time when the offence occurred was such that other persons were not, and were not likely to be, present.
49․The prosecution submitted that the offending was not sophisticated. I disagree. There are aspects of sophistication to the offending. It involved:
(a)the entry to a large commercial premises;
(b)the apparent use of radios for communication between the offenders;
(c)the bringing of items for, inferentially, the carrying of stolen goods;
(d)the wearing of items to conceal identity;
(e)the carrying of items for effecting the entry; and
(f)the involvement of a ‘get away’ driver.
50․I do accept though that the ultimate rapid withdrawal from the premises once an alarm sounded is indicative of offenders who did not plan the offending to a high level of sophistication. The circumstance of the alarm sounding seemingly accounts for the ‘attempted’ nature of the offence, and is indicative of Mr Roberts rapidly desisting from the offending conduct once there was risk of detection.
51․There will have been financial implications for the premises involved, even without successful entry. There was damage caused to achieve the initial entry to the commercial premises, although Mr Roberts was not present for this.
52․The attempted burglary is aggravated by two forms of aggravation; the possession of an offensive weapon, being the axe, and that Mr Roberts was in company with two unidentified males. These factors of aggravation provide for the increased maximum penalty, although it is relevant that both forms of aggravation exist. The prosecution also submitted that this is, overall, a less serious example of this form of offence. I accept this, although it remains that there are aspects of seriousness, and the applicable maximum penalty is high.
53․The next part of the offending in this series began from about 9am. An occupant of a residence in Weston left her residence at that time. When she returned, she found the residence had been entered by force and the house was ransacked. Amongst other items, a bank card belonging to her husband had been stolen.
54․It was ascertained that several payments had been made at the Lyons Shops using this card. There was a total of five payments ranging from $25 to $98 for purchases of cigarettes and alcohol. A total of $354.95 was dishonestly obtained.
55․Police investigations, with reference to CCTV footage that an occupant of the residence in Weston obtained from the shop where the card was used, established Mr Roberts had made the purchases.
56․At about 12:30pm, the Ford Focus used at the Westfield drove into an Ampol service station in Kaleen. Mr Roberts, as shown on CCTV footage, got out of the front passenger seat. He filled up the car with petrol. He got back into the car and the car was driven away without the fuel being paid for. An amount of 10 litres, valued at $20 was taken. While it was a relatively small amount that was stolen, offending involving a petrol ‘drive-off’ typically warrants a deterrent sentence.
57․At about 6:30pm, Mr Roberts reported at the Woden Police Station in accordance with his bail conditions. He was wearing clothing consistent with what was visible in the CCTV footage from the service station. That Mr Roberts was on bail at the time of this offending is an aggravating factor on sentence. His conduct in reporting to police, having committed a number of serious offences within the preceding 15 hours, is indicative of an attitude of boldness when it comes to his engagement in criminal offending and law enforcement.
58․At about 9:43pm, police attended at Mr Roberts’ residence for the purposes of a search. Police identified themselves and Mr Roberts refused to allow police entry to his residence. Police attempted, at length, to explain the conditions of the warrant, however he refused to comply with the warrant and prevented the police from entering the residence.
59․Police determined that Mr Roberts was not going to comply with the conditions of the warrant. As police began to force entry into the residence, Mr Roberts brandished a machete, approximately 30 centimetres in length, while making threats of self-harm. This action caused police to also be worried as to their own safety. Mr Roberts then brandished a butane torch, an action which police considered was indicative of an intention to burn the residence down.
60․Police engaged in a two hour long “stand-off” with Mr Roberts. Police negotiators, tactical response members, and ACT firefighters were required to attend.
61․Mr Roberts was eventually negotiated out of the residence and exited of his own accord. At about 11:45pm he was arrested.
62․Police then conducted the intended searches. They located an item of clothing that matched Mr Roberts’ appearance in the CCTV footage. They also located a purse, a licence, and a Medicare card that had been taken from the residence in Weston. Items consistent with those used in the attempted aggravated burglary were also found in Mr Roberts’ house.
63․Mr Roberts is not charged with, nor to be sentenced for the entry to the house in Weston. He is to be sentenced for the use of the bank card involving five purchases, totalling $345.94. While there is no doubt that the circumstances in which the bank card, and other property later found to be in Mr Robert’s possession, was taken was significantly distressing for the victims, Mr Roberts is not to be regarded as responsible for this. Nonetheless, the use of the bank card, and possession of the other cards, will have caused financial implications and significant inconvenience for the victim. The victim was plainly concerned given their role in obtaining the CCTV footage to assist the police investigation. Offending in the nature of use and possession of items stolen has a prevalence that typically warrants deterrence in sentencing.
64․The hindering of the police also typically warrants a deterrent sentence. It is offending that demonstrates a defiance of a lawful order, and involved a resort to varied forms of serious threats of violence and harm during the hindering conduct. The safety of the police was put at risk. Significant police resources were expended to respond to the conduct, and inevitably police experienced significant stress as a result of the conduct. It was a protracted example of this form of offence. A stern sentence reflecting the seriousness of the conduct is appropriate. However, Mr Roberts has subjective circumstances, which I will come to, which bear particularly on his moral culpability for this offending.
Plea of guilty: series three offending
65․In relation to the attempted aggravated burglary (SCCAN 2024/160), there was initially a plea of not guilty, but a plea of guilty was indicated at a subsequent mention in the Magistrates Court. It was indicated that there was a dispute as to the facts. The matter then came to be committed for trial to the Supreme Court. A plea of guilty was entered after criminal case conference and approximately one month prior to the listed trial. A reduction in the order of 10 per cent is appropriate.
66․Other charges in this series were transferred to the Supreme Court at the same time, following an initial plea of not guilty in the Magistrates Court. While not reflected on all of the Magistrates Court bench sheets, the information provided by the prosecution was that the pleas of guilty were entered following representations being made and prior to a listed hearing (CAN 2023/5598, CAN 2023/6946, CAN 2023/6947). Where there appears to have been oversight to ensure pleas of guilty were entered as indicated, and they were instead entered at the Supreme Court sentence, I will regard these as being a plea entered at the stage intended (CAN 2023/5595). I assess the appropriate reduction for all of these charges to be in the range of 20 per cent.
Chronology since November 2021
67․Following the offending in November 2021, Mr Roberts engaged in the offending in May 2023, as well as other offending. The other offending has been the subject of sentence orders in the Magistrates Court and Supreme Court.
68․Mr Roberts has also failed to appear at Court following the grants of day bail. He has otherwise spent periods in custody, and been on bail throughout this period.
69․What has occurred since November 2021 is relevant when considering the significance of varying sentencing purposes, as well as the application of the totality principle and the applicable period in presentence custody pursuant to s 63 of the Sentencing Act.
70․The events that have occurred since the offending in November 2021 can be summarised as follows:
Date
Event
10, 11 November 2021
First offending the subject of this sentencing exercise occurs.
12 December 2021
Offence of accessory after the fact to robbery committed (SCC 119 of 2022).
13 December 2021
Offence of resisting arrest committed (CAN 2021/11888).
Remanded in custody and not serving a sentence from 13 December 2021 – 19 January 22 (38 days presentence custody).
11 January 2022
Offences of using a carriage service to harass (x 5) committed.
20 January 2022
Backdated commencement date for offences sentenced on 17 April 2023.
19 March 2022
Offence of attempt to escape lawful custody (CAN 2022/5404) and obstruct territory official (CAN 2022/5405) committed.
4 April 2022
Offence of arson committed (CAN 2022/8389) (while in AMC).
18 July 2022
Plea of guilty entered in relation to 2021 and 2022 offending.
25 August 2022
Granted day bail to attend sister’s funeral. Directed to surrender to the AMC by 7pm on 26 August 2022.
26 August 2022
Attempts to surrender himself to the AMC at approximately 11pm. AMC unable to facilitate intake. Departs AMC and remains at large.
16 September 2022
Commits offence of possessing stolen property (CAN 2022/9150).
Returned to custody and continues serving sentence.
24 November 2022
Granted day bail to attend mother’s funeral. Directed to surrender to the Court by 4:30pm on 25 November 2022.
25 November 2022
Failed to appear at Court (CAN 2022/12092) and remains at large.
10 December 2022
Arrested, returned to custody and continues serving sentence.
17, 22 March 2023
Sentence hearing in the Supreme Court for the 10 and 11 November 2021 offending, the offence of arson (SCC 32 of 2023) and an offence of accessory after the fact (SCC 119 of 2022).
17 April 2023
Sentenced by the Supreme Court for offences of arson (SCC 32 of 2023) and accessory after the fact (SCC 119 of 2022). A total sentence of 1 year and 3 months imprisonment imposed (from 20 January 2022 – 19 April 2023): R v Roberts (Supreme Court of the Australian Capital Territory, Refshauge AJ, 17 April 2023).
19 April 2023
Sentence conclusion date for offences sentenced on 17 April 2023.
Remanded in custody and not serving a sentence from 20 April 2023 – 24 April 2023 (5 days presentence custody).
24 April 2023
Granted bail by the Supreme Court: R v Roberts (Supreme Court of the Australian Capital Territory, Refshauge AJ, 24 April 2023).
On bail from 20 April 2023 – 1 June 2023.
15 May 2023
Arrested for an alleged breach of bail, but subsequently released by police.
25 May 2023
Sentence backdated commencement date for offences sentenced in Magistrates Court on 24 July 2023.
31 May 2023
Second offending the subject of this sentencing exercise occurs.
Arrested on this date and remanded in custody.
Has been continuously in custody from this date, serving sentences and on remand, as at the date of sentence.
24 July 2023
Sentenced in the Magistrates Court for offences of using a carriage serve to harass (CAN 2022/7634, CAN 2022/7635, CAN 2022/7447, CAN 2022/7448, CAN 2022/7449). Three months imprisonment imposed (25 May 2023 – 24 August 23).
8 August 2023
Co-offender for the first series sentenced to a suspended term of imprisonment.
29 September 2023
Sentenced in the Magistrates Court for offences committed on 13 December 2021 and 19 March 22 (CAN 2022/12092, CAN 2022/9150, CAN 2022/5405, CAN 2022/5404, CAN 2021/11888). Appeal with respect to CAN 2021/11888 dismissed on 17 May 2024: Roberts v Wright [2024] ACTSC 154 (Roberts v Wright). Total effective sentence of 12 months imprisonment, to be served from 25 August 2023 to 24 August 2024.
24 August 2024
Sentence conclusion date for offences sentenced on 29 September 2023.
Remanded in custody from this date solely on remand.
25 August 2024 – 17 December 2024 (115 days presentence custody).
71․The total period on remand with respect to the offences the subject of this sentencing exercise, and which has not otherwise been taken into account, is 158 days. The sentence will be backdated to commence taking into account this period: s 63 Sentencing Act.
72․This procedural history is also informative as to the application of the totality principle in the sentencing exercise. There are plainly distinct series of offending, and distinct victims, which warrants recognition in the structure of the sentence. It is also of significance to have regard to the sentence imposed for the offending that occurred soon after the series one and two offending, which were not sentenced at that time, and that Mr Roberts has now been continuously in custody, albeit not solely on remand, for a lengthy period. This has been since 31 May 2023, a period of some eighteen months.
Subjective circumstances
73․Mr Roberts is now 44 years of age. He is a Wiradjuri man through the ancestral birthrights of his mother. His father was a Dunghutti man.
74․His subjective circumstances are set out in detail in numerous reports that were provided for the purpose of the sentence. Additionally, previous decisions of the Court have considered Mr Robert’s subjective circumstances. They have been described as involving experiences which “very few people could comprehend, and which are devastating to read”: Roberts v Wright at [18], quoting Special Magistrate Hopkins in Wright v Roberts (Magistrates Court of the Australian Capital Territory, Special Magistrate Hopkins, 22 September 2023).
75․At the time he was born in Mt Druitt, New South Wales (NSW), Mr Roberts was the youngest of two siblings to his parents’ union. As an adult, he has experienced the passing of his parents, and an older sister.
76․Throughout his childhood, Mr Roberts was exposed to excessive alcohol consumption and significant domestic violence. When he was approximately seven or eight years old, his parents separated, and his living situation was unstable. Mr Roberts started to run away from school regularly. [Redacted].
77․[Redacted]. But negative peer associates influenced him to offending behaviour. His behaviours were also undoubtedly reflective of, as psychologist Ms Vanessa Edwige describes, a childhood “marred by … Stolen Generations [redacted]”. Ms Edwige describes:
Mr Roberts presents with a childhood history of disadvantage that in my opinion has resulted, in complex developmental trauma. Mr Roberts’s psychological state and how he views himself in the world has been deeply affected by these adverse childhood experiences.
78․Ms Edwige opines that adverse childhood experiences significantly impact on a child’s social and emotional wellbeing, and she is of the opinion that the research from the Bugmy Bar Book applies to Mr Robert’s experience. I accept this entirely, and that the Bugmy principles (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) are enlivened and to be given full weight in the sentencing exercise. His moral culpability is reduced, and the role of deterrence is mitigated.
79․I infer that it was negative influences that introduced him to early substance misuse. He began smoking cannabis and drinking alcohol when he was approximately ten years of age. He began using heroin at fourteen years of age, which he was using intravenously by fifteen years of age. This became his “drug of choice” until he was twenty two years old. He commenced a pharmacotherapy program, which has been effective, and he is currently on such a program to good effect. Mr Roberts describes being introduced to methamphetamine while in custody and that it became problematic for him some six years ago. ACT Health Services identify this substance as the most problematic substance for Mr Roberts currently. I accept that Mr Roberts’ substance abuse challenges as an adult stem from an early addiction, such that the role of substances in his offending behaviour is mitigatory: R v Henry [1999] NSWCCA 111; 46 NSWLR 346.
80․As an older adult, Mr Roberts has maintained a stable and supportive relationship. He has been in a relationship for the last seven years. His partner has physical health challenges. Additionally, they have eight children that they care for.
81․Mr Roberts has had some physical health challenges, a number of which occurred as a result of incidents that have occurred in custody. These are manageable challenges and not an impediment to a treatment order.
82․Mr Roberts has an extensive documented psychiatric and psychological history, and he has medical support in this regard. This history includes treatment for attention deficit hyperactivity disorder and post-traumatic stress disorder (PTSD). He has previously been diagnosed with bipolar affective disorder, anti-social personality disorder, and substance use disorder.
83․While Mr Roberts plainly has complex mental health challenges, he has no symptoms of major mental illness or disorder that indicated that he was not suitable for a treatment order. Health Services do though caution that there are psychological indicators which may make adherence to the strict parameters of a treatment order difficult for Mr Roberts to achieve. Health Services note that Mr Roberts has previously been assessed as having a significant impairment of cognitive ability. Ms Edwige describes that Mr Robert’s cognitive deficits include a severe impairment in executive functioning, but that he has the ability to engage in programs that are inclusive and accepting of diversity in individual functioning. Mr Roberts himself produces evidence of his ability to engage in programs, having completed eight programs while he has been in custody, and having been employed. He has recently been allocated to what is described as a trusted position in the kitchen, and is described as being polite, respectful, and a positive influence on the team.
84․The opinion of Ms Edwige extends to a finding that at the time of the offending, Mr Roberts had a mental health impairment that was clinically significant and arose from PTSD, substance use disorder, and a mild to moderate cognitive disability. He has a significant trauma history which impacts on his ability to self-regulate and which leads to the use of substances as a means to self-medicate. He continues to present with behaviours consistent with his diagnosed disorders. I am satisfied that limbs one, three and four of Verdins have application in the sentencing exercise such that moral culpability, denunciation, and deterrence are to be moderated.
85․Additionally, the remaining limbs have application with regard to the impact of incarceration on Mr Roberts. Mr Roberts expressed in his evidence the conditions of his incarceration and the impacts this has on him. The complexity of his challenges are described by Ms Edwige as being “extremely difficult” to manage in the context of a custodial setting. Additionally, the custodial setting is one that Ms Edwige describes as being unlikely to be an optimal environment for Mr Roberts to receive the long-term supports he requires. The support he requires is said to be “significant”. He requires “constant supervision and care”. In the absence of such support, Mr Roberts experiences adjustment difficulties when returning to the community from a custodial setting.
86․The impacts of continued incarceration, and his previous incarceration, on Mr Robert’s ability to be employed, and engaged in pro-social activities, was also borne out from the report of Ms Edwige. Ms Edwige referenced the Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2019), which observes:
Without sufficient material and social support upon release, the cycle of release and rearrest can become increasingly difficult to break.
87․Ms Edwige describes that Mr Roberts continues to experience the trauma of his childhood every day. He cannot resume the normal course of his life, as the trauma repeatedly interrupts it. A further example of trauma he has experienced was the arrest by police on 15 May 2023 for an alleged breach of his bail. I have heard the audio of this arrest. As I understand it, it is accepted that Mr Roberts was in fact not in breach of his bail reporting condition, and the police came to release him from custody after some ten hours.
88․Ms Edwige describes that the repetitive intrusion of traumatic events continues to cause Mr Roberts considerable psychological harm and drug dependency. In relation to the ‘false arrest’, Mr Roberts describes this as having caused him to ‘spiral’, leading to substance use and the May 2023 offending. I accept that Mr Roberts was, before this incident, making solid efforts to comply with his bail, and that this was disrupted by conduct of police that was outside of his control. Additionally, his failures to return to Court after release on day bail involve extenuating circumstances. There is a basis upon which to conclude that Mr Roberts does have a capability, and intention, to comply with community based orders.
89․Mr Roberts also expressed that while on bail he did not have psychosocial support, which impacted on his rehabilitation efforts. He has recently said to Ms Edwige that he needs trauma counselling. This highlights the need for Mr Roberts to receive support beyond only drug dependency rehabilitation. To that end, he does have the support of Yeddung Mura and Winnunga Nimmityjah, who provided letters to that effect at the sentence.
90․The challenge with Mr Roberts breaking the cycles that he experiences is also borne out by Mr Roberts’ criminal history, which must be considered with reference to his background and early introduction to substances as referenced above. His criminal history, for offending primarily in NSW, involves previous convictions for breaking and entering, stealing motor vehicles, theft and property damage, robbery, and assault. It is a criminal history that disentitles him to leniency.
91․Nonetheless, it is a history that does demonstrate the cycle that Mr Roberts finds himself in. Mr Roberts describes that it was after a release from custody, during a period of COVID-19 lockdowns, that he began using substances again. He is described as expressing significant remorse and regret for his behaviour. This remorse is demonstrated in correspondence he provides in which he addresses an apology to the victims for the series one and two offending.
92․Mr Roberts is described as having protective factors available to him to reduce his recidivism. Ms Edwige opines that with intensive support and compliance with treatment plans, Mr Roberts can make positive changes to his life. His protective factors include:
(a)His willingness and wanting to engage in drug and alcohol counselling;
(b)The love he has for his culture and his desire to be supported by culturally responsive organisations to enhance his wellbeing; and
(c)His skill and passion for painting and his desire to continue to paint and produce art to enhance his wellbeing.
93․These strengths, and protective factors, were apparent to me when Mr Roberts gave evidence at the sentence hearing. He spoke of his partner and children, and that he had no intentions to “run away”. He presented as strongly motivated to rehabilitate and, as he described, to “better [him]self”. Mr Roberts described his strong motivation for a treatment order given the supports that he understood would be available, and the ability to address negative behaviours with the Court rather than being necessarily exposed to an immediate return to custody.
94․This intention to be a participant in the Drug and Alcohol Sentencing List (DASL) is one that Mr Roberts has held for some time. He expressed this during the sentence proceeding in the Magistrates Court in September 2023, and has expressed this intention throughout the Supreme Court proceedings.
Treatment order consideration
95․It is plain that, having considered possible alternatives, the only appropriate sentences are ones of imprisonment. As will become apparent, the sentences to be imposed on Mr Roberts are such that I am satisfied he is eligible for a treatment order in terms of the individual and total periods to be imposed: s 12A(2)(b)(ii) Sentencing Act. It is appropriate to record that in reaching this conclusion, and determining the appropriate sentences to be imposed, I have given weight to the prosecution concession that “a total effective sentence of less than four years is within range in this matter”: s 34AA Sentencing Act.
96․The issue is whether such a treatment order is an appropriate and suitable one for Mr Roberts. I am not satisfied it is.
97․ACT Corrective Services, in an assessment dated 18 October 2024, finds Mr Roberts unsuitable for a treatment order with reference to his previous non-compliance with community based orders and unsuitable accommodation. There have also been some disciplinary issues while he has been in custody, indicative of an ongoing defiance of authority. The finding of unsuitability is consistent with previous assessments for a treatment order for Mr Roberts by ACT Corrective Services, dated 15 March 2023, 14 March 2023 and 9 February 2023.
98․Canberra Health Services, in an assessment dated 18 October 2024, finds Mr Roberts unsuitable for a treatment order with reference to the challenges he would experience in complying with one. In any event, Health Services report their attempts to identify a suitable program for Mr Roberts, with one not able to be identified. He is not eligible for the Ngunnawal Bush Healing Farm as he is on pharmacotherapy. He has been declined for admission to Canberra Recovery Services due to his extensive history of assault, although they are willing to assess him further once he is in the community. The Karralika Matrix Program were at capacity at the time of assessment, but in any event, Health Services note that his history of offending behaviour may preclude him from this program.
99․The unavailability of a program for Mr Roberts is significant. Despite Mr Roberts’ keen intention to be sentenced to a treatment order, none of the programs provided under a treatment order are available to him. While it is open to the Court to delay the imposition of the sentence to enable further enquiries to occur, I do not consider it appropriate to do so. Firstly, no submissions were made that this should occur. Secondly, to do so would only serve to continue Mr Roberts’ incarceration on remand, without enabling him the ability to access programs only available to sentenced prisoners, while continuing the uncertainty that arises without the knowledge of an end date of his sentence. Doing this in circumstances when Mr Roberts is otherwise not an appropriate or suitable participant for a treatment order, even if a program provided under a treatment order is available, is not an appropriate course.
100․I make that final observation because I am not satisfied that there is any program available under a treatment order that is capable of meeting the complex needs that Mr Roberts has. This is by no means a criticism of any of the program providers, who assist the participants in the DASL to overcome significant challenges of drug dependency and to rebuild their lives. They are not though necessarily equipped to assist with the individually tailored supports that Mr Roberts requires, nor to address the depth of assistance he requires to address his background of trauma. This is a trauma that Ms Edwige describes as “overwhelming and untreated”. Interstate service providers, such as the Glen Program or Oolong House may be more suitable to assist Mr Roberts.
101․It follows that a treatment order is neither an appropriate, nor suitable, order for Mr Roberts.
102․Mr Roberts will inevitably experience, I expect, disappointment and frustration with this decision of the “system” to his offending behaviour. As he has expressed, he did not choose this life. He describes that he was stolen off his mother and taken from the stolen generation, and the system abused him “in the worst way she could”. I accept this. I also accept that the progress of these matters, particularly the delay in sentencing for the 2021 offending has only likely served to exacerbate this frustration and disappointment. I consider this relevant to take into account in the application of the totality principle, one that provides that a crushing sentence that engenders feelings of hopelessness is to be avoided.
103․It remains to consider the appropriate time at which he becomes eligible for parole.
Nonparole period consideration
104․It is clear that the continued incarceration of Mr Roberts will only exacerbate his trauma and limit his capacity to address it, exacerbate his apparent institutionalisation, and limit his ability to address his substance dependency. A sentence order that does not recognise this would ultimately detract from the role that the promotion of community protection has in the sentencing exercise.
105․Mr Roberts is plainly someone for whom previous community based orders and opportunities has not resulted in rehabilitation from substance misuse and offending. It follows that community protection, and punishment for what were serious offences, must also be met through a period of continued incarceration. However, he has not previously had the opportunity to attend a residential rehabilitation program and the opportunity for him to attend a suitable program of this nature would be of benefit.
106․Mr Roberts has led a life of trauma, drug dependency, and incarceration for offending behaviour. He is strongly motivated to address this, and he demonstrates an innate strength to persevere despite the adversity that he has experienced. A drug and alcohol treatment order is not the mechanism by which he will be able to be supported in his rehabilitation. Rather, taking into account all of the matters considered, including the sentences imposed in 2023 for 2021 offending, the period already spent in custody, and the negative role that continued incarceration has on the prospects of Mr Robert’s rehabilitation, I will significantly moderate the nonparole period that will be set. Mr Roberts will become eligible for parole on 31 May 2025. I will also make a recommendation to the Sentence Administration Board that, if given effect to, has the prospect of supporting Mr Roberts to finally achieve the rehabilitation he seeks.
Orders
107․For those reasons, the following orders are made:
(1)On the charge of drive motor vehicle without consent (CAN 2021/11568), the offender is convicted and sentenced to 10 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 11 July 2024 and end on 10 May 2025.
(2)On the charge of attempt aggravated burglary (CAN 2021/11570), the offender is convicted and sentenced to 11 months imprisonment, reduced from 13 months on account of the plea of guilty, to commence on 11 August 2024 and end on 10 July 2025.
(3)On the charge of aggravated burglary (CAN 2021/11573), the offender is convicted and sentenced to 16 months imprisonment, reduced from 18 months on account of the plea of guilty, to commence on 11 September 2024 and end on 10 January 2026.
(4)On the charge of theft (CAN 2021/11576), the offender is convicted and sentenced to 10 months imprisonment, reduced from 12 months on account of the plea of guilty, to commence on 11 September 2025 and end on 10 July 2026.
(5)On the charge of aggravated burglary (CAN 2021/11579), the offender is convicted and sentenced to 12 months imprisonment, reduced from 14 months on account of the plea of guilty, to commence on 11 November 2025 and end on 10 November 2026.
(6)On the charge of theft (CAN 2021/11580), the offender is convicted and sentenced to 5 months imprisonment, reduced from 6 months on account of the plea of guilty, to commence on 11 August 2026 and end on 10 January 2027.
(7)On the charge of dishonestly obtain property by deception (CAN 2023/5598), the offender is convicted and sentenced to 2 months imprisonment, reduced from 75 days on account of the plea of guilty, to commence on 11 December 2026 and end on 10 February 2027.
(8)On the charge of unlawful possession of stolen property (CAN 2023/6946), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 11 December 2026 and end on 10 January 2027.
(9)On the charge of attempted aggravated burglary (SC CAN 160/2024), the offender is convicted and sentenced to 16 months imprisonment, reduced from 18 months on account of the plea of guilty, to commence on 11 October 2026 and end on 10 February 2028.
(10)On the charge of minor theft (CAN 2023/5595), the offender is convicted and sentenced to 1 month imprisonment, reduced from 40 days on account of the plea of guilty, to commence on 11 February 2028 and end on 10 March 2028.
(11)On the charge of hinder territory official (CAN 2023/6947), the offender is convicted and sentenced to 8 months imprisonment, reduced from 10 months on account of the plea of guilty, to commence on 11 August 2027 and end on 10 April 2028.
(12)The total period of imprisonment of 3 years and 9 months will commence on 11 July 2024 and end on 10 April 2028.
(13)A nonparole period of 10 months and 21 days is imposed, to commence on 11 July 2024 and end on 31 May 2025.
(14)It is recommended to the Sentence Administration Board under s 120(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) that:
When released on parole, Guy Roberts be required as a condition of the parole to undertake a substantial period of supervised or mandated drug rehabilitation, preferably in a residential drug rehabilitation facility, if an ACT or interstate program is available to him.
(15)The Court withdraws the charge of use numberplate calculated to deceive (CAN 2021/11569).
(16)The Court withdraws the charge of use numberplate calculated to deceive (CAN 2021/11582).
(17)The Court withdraws the charge of possess article with intent to use in course of burglary (CAN 2023/5591), or in the alternative, if that charge is unable to be withdrawn by the Court due to it being erroneously transferred to the Supreme Court, the charge is remitted to the Magistrates Court, and in exercising her Honour’s jurisdiction as a Special Magistrate, the charge is withdrawn.
108․It is noted that the additional offence of use numberplate calculated to deceive (CAN 2021/11572) was taken into account in making the sentence order in relation of the offence of drive motor vehicle without consent (CAN 2021/11568) and the list of additional offences is scheduled to these orders.
109․It is noted that the additional offence of numberplate calculated to deceive (CAN 2021/11575) was taken into account in making the sentence order in relation of the offence of drive motor vehicle without consent (CAN 2021/11568) and the list of additional offences is scheduled to these orders.
110․It is noted that the additional offence of numberplate calculated to deceive (CAN 2021/11578) was taken into account in making the sentence order in relation of the offence of drive motor vehicle without consent (CAN 2021/11568) and the list of additional offences is scheduled to these orders.
| I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: |
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