Director of Public Prosecutions v Roberts (No 2)

[2023] ACTSC 146

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Roberts (No 2)

Citation: 

[2023] ACTSC 146

Hearing Dates: 

6, 11 April 2023; 9 June 2023

Decision Date: 

9 June 2023

Before:

Mossop J

Decision: 

See [30]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary by joint commission – co-offender shot victim twice from close range – no acceptance of responsibility or remorse – history of illicit substance and alcohol use – guarded prospects of rehabilitation – sentence of imprisonment imposed – non-parole period set so that the offender is currently eligible for parole 

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT), s 148

Criminal Code 2002 (ACT), s 312

Cases Cited: 

DPP v Mena [2023] ACTSC 80

Parties: 

Director of Public Prosecutions

Bradley Joe Roberts ( Offender)

Representation: 

Counsel

T Hickey ( DPP)

M Keaney ( Offender)

Solicitors

Director of Public Prosecutions

Matthew Adam and Associates ( Offender)

File Number:

SCC 208 of 2021

MOSSOP J:

Introduction

1․Bradley Joe Roberts was found guilty by a jury of one count of aggravated burglary (contrary to s 312 of the Criminal Code 2002 (ACT)). His co‑offenders were Sugimatatihuna Bernard Gabriel Mena and Rebecca Parlov who were also found guilty by the jury. Mr Mena was also found guilty of attempted murder and unlawfully discharging a loaded arm so as to cause another person reasonable apprehension for his or her safety.

Facts

2․The offending occurred on 11 March 2021. The facts are as found in relation to Mr Mena in DPP v Mena [2023] ACTSC 80 at [3]-[11]:

3. For the purposes of sentencing, it is necessary to find the facts and do so in a manner which is consistent with the verdicts of the jury. It is not necessary to name the victims of the offending one of whom is subject to a suppression order. They will be referred to as Mr A and Ms B.

4.During the evening of 10 March 2021 Mr A was acting as the driver for Ms B who was supplying illicit drugs around Canberra. At 8pm Rebecca Parlov, Mr Mena and another man were in each other’s company in Bonner near Mr Mena’s house. At 8:43pm Ms Parlov enquired of Ms B if she had any methamphetamine. Arrangements were made for Bradley Roberts to collect that drug. Ultimately sometime after 3am Ms B and Mr A met Mr Roberts in a car park outside Woolworths at Bonner. Ms B supplied Mr Roberts with the methamphetamine. Mr A had a conversation with Mr Roberts and asked whether he was the person who had called him a paedophile. Mr A threatened to fight Mr Roberts. Although the evidence as to precisely what was said varied, Mr Roberts replied by saying something like “we’ll go get Sugi and that and we’ll come back and whack you”. Over the next two hours messages were exchanged between Ms Parlov and Ms B and Mr Roberts and Ms B. It was very clear that Ms Parlov and Mr Roberts wished to meet with Ms B and, it can be inferred, Mr A.

5.     Mr A and Ms B ended up at Ms B’s house.

6.At about 5:34am on 11 March 2021, Ms Parlov made a Facebook call to Ms B. At the time Ms B was at her home in Spence with Mr A. The call was put on speaker. Ms Parlov wanted to know where Ms B and Mr A were. Ms B heard a car stop outside. Ms Parlov said that she needed to speak to Mr A. Ms Parlov told Mr A to walk outside the house. Ms Parlov said something to the effect that she did not want to do it inside Ms B’s house.

7.Ms Parlov then started banging on the front door of the house asking to be let in. She said words to the effect of “open the fucking door, we are coming in anyway.” Ms B then opened the door. Ms Parlov “shoved past” Ms B as she walked past her and went straight up to Mr A. She was wearing gloves. Mr Roberts also entered Ms B’s house and was standing off to the side next to a chest of drawers. Mr A grabbed a knife and stepped away from Ms Parlov. Ms Parlov said words to the effect of “are you going to pull a knife on a girl?”. Mr A observed that Roberts was “backing up” Ms Parlov until he saw the knife. Mr A anticipated from Mr Roberts’ body language that Mr Roberts was going to rush up on to him until he saw the knife.

8.At about this time Mr Mena, who was wearing a mask, came through the front door. After he entered the house, he pulled out a sawn-off .22 calibre rifle from his waistband and shot Mr A. The bullet hit Mr A’s stomach, just above his belly button. Mr Mena then fumbled with the gun as he reloaded. He then raised the gun, pointed it at Mr A’s face and fired a second shot. The bullet hit Mr A’s jaw. Both shots were fired at close range. One of them was fired from no more than 3 m from Mr A. After the second shot was fired the three offenders fled the scene.

9.At about 6:18am Mr A admitted himself to Calvary Hospital in Bruce with gunshot wounds. He was dropped off at the emergency department carpark in an orange Toyota Corolla. Mr A was triaged as a category 1 patient (an immediate life-threatening condition). He was initially assessed as having a wound with swelling to his left cheek, a severely comminuted fracture to the left jaw, a wound to his upper abdomen and two wounds to his left forearm. Medical staff noted a change in his voice and decided to place him in an induced coma. He was intubated and placed on a ventilator. He underwent a CT scan which reported multiple metallic foreign bodies lying both superficially and deep in his jaw. His left carotid artery was in close proximity to a major metallic foreign body. He also had a single metallic foreign body lodged in his abdominal wall.

10.Mr A was transferred by helicopter to the Canberra Hospital. He underwent multiple surgeries to explore, washout, debride and remove fragmented pieces of the bullets from his jaw, neck and abdomen. He also underwent plastic surgery on his left forearm, including the repair of one of the flexor muscles in the forearm which was injured. On 14 March Mr A underwent further surgery to repair the fractured bones in his jaw. This required the internal fixation of plates, screws, wires and rods which will remain in place permanently.

11.Mr A awoke from his induced coma on 18 March 2021. He was discharged from hospital on 19 March 2021.

Victim impact

3․The victim impact statement is that read in relation to Mr Mena (see Mena at [12]-[13]). It must be borne in mind that the principal impacts upon the victim were from being shot by Mr Mena as distinct from the aggravated burglary in which Mr Roberts was a participant.

Objective seriousness

4․The objective seriousness is as assessed in the reasons given in relation to Mr Mena. Mr Roberts is to be sentenced on the basis that the aggravated burglary was committed by joint commission and that the intention was to at least put Mr A in fear of the immediate application of violence. That is an assault without a battery. Notwithstanding that Ms Parlov was the one doing most of the talking and Mr Mena carried the weapon, given that the motivation for the offending and the decision-making process is not clear, the moral culpability of each should be treated as equivalent.

Subjective circumstances

5․The offender’s subjective circumstances are outlined in a pre-sentence report dated 3 April 2023, a report of Dr Kala Ram, a clinical psychologist and a letter from a Registrar at the Canberra Hospital.

6․The offender is 25 years old. His parents separated prior to his birth. He has never met his father and has no knowledge of who he is. He has five half-brothers. He had no father figure growing up.

7․He is the father of one child, now aged seven, who is in the care of her maternal grandparents. He was in a relationship with the child’s mother when they were both very young. He has had no contact with her for a number of years although has expressed some desire to reconnect with her.

8․The offender left the formal education system during Year 7. He subsequently obtained his Year 10 certificate through the Canberra Institute of Technology. He has never held employment. He has been reliant upon Centrelink payments. Most of his companions were engaged in criminal behaviour and drug use.

9․He has used cannabis since the age of 13 and methamphetamine since the age of 16. Methamphetamine seems to be his principal problem. By the age of 18 he was using approximately $500 worth per day. He was using it at substantial levels up until the point where he entered custody. He also abuses alcohol.

10․In relation to his abuse of illicit drugs and alcohol, the report of Dr Ram said:

The substance abuse is probably causing severe disruptions in his social relationships and his work performance, with these difficulties serving as additional sources of stress and perhaps further aggravating his tendency to drink and use drugs. In fact, Mr Roberts indicates that his use of drugs has had many negative consequences on his life at a level that is above average even for individuals in specialised treatment for drug problems. With this level of problems, it is increasingly likely that he is drug-dependent, consistent with his account.

11․His behaviour in custody is recorded as being mixed, although it appears to have improved since mid-2022. It can be accepted that during part of his period in custody the conditions of custody have been somewhat more restrictive as a result of the COVID pandemic.

12․Whilst in custody he has completed the Solaris Therapeutic Community Rehabilitation program. Having regard to his history of drug use, although he expresses good intentions about remaining abstinent in the community, the prognosis in relation to abstinence from use of illicit drugs must be guarded.

13․He maintained his innocence of the offence and hence there is no expression of remorse which might be relevant to his prospects of rehabilitation.

14․The report of Dr Ram provides a diagnosis of Attention Deficit Hyperactivity Disorder amongst other diagnoses. The conclusion reached by Dr Ram is:

In the absence of Mr Roberts being appropriately medicated for his ADHD condition, he remains at risk of relapse into illicit amphetamine-type substances in the future. It is likely that this is the very reason Mr Roberts has struggled to sustain abstinence, despite repeated attempts at rehabilitation previously. Naturally his prospect of rehabilitation would thereby be markedly improved should he receive the appropriate (psychopharmacological and psychological) treatment for his ADHD.

15․He is also diagnosed with Major Depressive Disorder, Alcohol Use Disorder amphetamine‑type substance use disorder and sedative-hypnotic anxiolytic use disorder. The latter three are obviously in remission at the moment.

16․The report of Dr Ram describes him suffering from Ewing Sarcoma which required an operation in April 2020 followed by chemotherapy treatment. This occurred prior to the present period in custody. It indicates that in December 2020 he suffered a subarachnoid haemorrhage but did not appear to suffer from an acquired brain injury.

17․He is assessed as suitable for a community service work condition.

18․The author of the pre-sentence report includes the following in the summary of the offender’s circumstances:

Although it is positive Mr Roberts engaged with the Solaris Program in Custody, It is concerning he did not identify the benefits of continued engagement with such interventions when released from custody. This service holds concerns should Mr Roberts failed to engage with an AOD service in the community, as illicit substance abuse has been linked to his offending behaviour on numerous occasions. Furthermore, Mr Roberts identified engagement with antisocial companions and activities when in the community, noting the commission of the current offence before the court took place alongside antisocial companions. Although Mr Roberts identified the benefits of disassociating from such friendships, he failed to identify how he would put such a plan into practice when in the community.

19․This very guarded conclusion is consistent with the offender’s long history of offending, long history of methamphetamine use and his mental health condition.

20․This history necessarily involves the rejection of the submission made on behalf of the offender that his prospects of rehabilitation were “reasonable if not good”. His history of drug use, limited education, antisocial associates, criminal history and ADHD all indicate that a more cautious approach to his assessment of prospects of rehabilitation is warranted.

Criminal history

21․Consistent with his limited education, long-term drug use and lack of paid employment, the offender has a long criminal history. His most serious offending occurred when he was a child and was dealt with in Children’s Court. As an adult he has continued to offend but the offences are not as grave as might be expected having regard to his lack of employment and ongoing methamphetamine use. His offending includes damaging property, drink driving, drug driving, other driving offences, making a false accusation of an offence, failing to stop for police and aggravated dangerous driving. His adult offending has included sentences of imprisonment but has not included offending of the gravity of aggravated burglary.

Time in custody

22․The offender has spent 800 days (26 months and nine days) in custody prior to today as a result of having been refused bail on 31 March 2021. That makes the relevant backdate date 31 March 2021.

Consideration

23․Having regard to my assessment of the objective seriousness of the offending, the offender’s role in it, his personal circumstances and questions of parity, it is appropriate to impose the same sentence on the offender as imposed, or in the case of Ms Parlov, effectively imposed, on his co-offenders, namely, a sentence of three years and three months’ imprisonment. Given the backdate date, that will run from 31 March 2021 until 30 June 2024.

24․The offender has currently spent approximately 67 percent of that sentence in custody on remand. Counsel for the offender emphasised the further delay that would occur if the sentence involved a non-parole period rather than being suspended. That delay would arise from the period that it would take the Sentence Administration Board (SAB) to consider an application for parole. Further, there would be uncertainty as to whether or not parole would be granted. It was submitted that the regime of supervision of a good behaviour order imposed a condition of a partially suspended sentence would be more accommodating of the offender and more likely to give him the support that he needed.

25․On the other hand, counsel for the prosecution submitted that having regard to the offender’s history and the function of the SAB it would be more appropriate to make a parole order. He submitted that the process of applying for parole would require the offender to address his future plans and that this would force him to think through what was going to occur, particularly in relation to accommodation, employment and his past antisocial associates.

26․Counsel for the offender submitted that the processes of the SAB would take between 12 and 14 weeks. Counsel for the prosecution submitted that if the process was expedited it was likely to take somewhat more than four weeks.

27․In my view, the appropriate approach is to deal with the matter by way of a non-parole period rather than imposing a partially suspended sentence. In doing so I recognise that this will give rise to a further period of incarceration. It can be hoped that the SAB addresses the matter in a way that minimises that further period. I note that had the sentencing proceeded at the time when it was initially listed then it is likely that, having regard to the non-parole period that I will set, the offender would be already released from custody.

28․The reasons for adopting an approach which requires a consideration of a grant of parole by the SAB are as follows. Having regard to the offender’s ADHD, his long history of methamphetamine use, his lack of an employment history and his guarded prospects of rehabilitation, his introduction to the community carries with it the significant possibility of failure. I did not consider that the evidence before me established a regime of support and plans for the future which were such as to provide confidence that he would have his best possible opportunity to make lawful progress in his life upon release, and hence protect the community from further offending. Further, given the prospect of some lapses along the way, the processes of the SAB, which is focused upon the effective administration of the sentence, and include a degree of flexibility in relation to breach of the conditions of parole (such as the flexibility to take no action or give a warning in s 148 of the Crimes (Sentence Administration) Act 2005 (ACT)), appear to be more appropriate than the more formal and inflexible processes available if the matter has to come back before the Supreme Court.

29․The non-parole period will be the equivalent of 60 percent of the head sentence. That gives an end date of 13 March 2023. This is the non-parole period that I would have set had the sentence been served in the future and I do not consider it appropriate to adopt a different approach just because he happens already to have served longer than that. Hopefully, the fact that he is now significantly past his parole eligibility date will encourage the SAB to deal with any application for parole with a degree of expedition.

Orders

30․The orders of the Court are:

1.On the charge of aggravated burglary (CC2021/3467) the offender is convicted and sentenced to imprisonment for three years and three months commencing on 31 March 2021 and ending on 30 June 2024.

2.The non-parole period commences on 31 March 2021 and ends on 13 March 2023.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop

Associate:

Date: 30 June 2023