Director of Public Prosecutions v Robertson
[2023] ACTSC 383
•12 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Robertson |
Citation: | [2023] ACTSC 383 |
Hearing Date: | 11 December 2023 |
Decision Date: | 12 December 2023 |
Before: | McCallum CJ |
Decision: | (1) For the offence of attempting to breach a family violence order, offender convicted and sentenced to a term of imprisonment for 3 months commencing on 28 September 2022 and expiring on 27 December 2022. (2) For the offence of attempted murder, offender convicted and sentenced to a term of imprisonment for 27 years commencing on 28 December 2022 and expiring on 27 December 2049. (3) I set a non-parole period of 20 years commencing on 28 December 2022 and expiring on 27 December 2042. The first date on which the offender will be eligible for parole is 27 December 2042. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of family violence order – attempted murder – life altering harm to the victim – history of family violence – where but for the plea of guilty the offence would have attracted the maximum penalty |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 34B Crimes Act 1900 (ACT) s 12 Family Violence Act 2016 (ACT) s 43 |
Parties: | Director of Public Prosecutions Daryl Allan Robertson ( Offender) |
Representation: | Counsel B Morrisroe ( DPP) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 71 of 2023 SCC 72 of 2023 |
McCALLUM CJ:
1․Daryl Robertson stands to be sentenced after pleading guilty to an offence of attempted murder contrary to s 12 of the Crimes Act 1900 (ACT) and an offence of attempting to contravene a family violence order contrary to s 43 of the Family Violence Act 2016 (ACT). The offence of attempted murder carries a maximum penalty of imprisonment for life. The offence against the Family Violence Act carries a maximum penalty of imprisonment for a period of 5 years, a fine of $80,000 or both.
2․The offences also constitute breaches of a good behaviour order imposed by the Magistrates Court on 30 November 2021 for an offence of common assault against the same victim. The prosecutor invited me to deal with the breach not by imposing any separate penalty but by taking the fact that the offences constituted breaches of the order into account in assessing their seriousness. That is the course I propose to adopt.
3․The offences are family violence offences (the offender having been the victim’s partner) and so enliven the provisions of s 34B of the Crimes (Sentencing) Act. Those provisions reflect a clear legislative mandate for courts to regard the repetition and escalation of domestic violence as an extremely dangerous pattern of offending warranting stern punishment.
4․The circumstances of the attempted murder were horrific. The offence was committed on the night of 28 September 2022. That evening at about 10:30 pm the victim was at home in her bedroom. She had been speaking with a number of people on the telephone including her son and, before that, her ex-partner. Unbeknownst to her the offender was waiting outside her window and eavesdropping. The statement of agreed facts records that the offender then entered the residence through the front door, removed his pants and walked into the bedroom shouting at the victim. He then snatched her mobile phone. The reason for removing his pants is not explained. He then walked out of the bedroom to the kitchen where he took a large metal carving knife with a blade of approximately 20 centimetres from a drawer. A photograph of the knife (bloodied by the acts that followed) was before me in the evidence at the proceedings on sentence.
5․The offender returned to the bedroom where the victim had remained on her bed. He shouted at her, held her on the bed and then used the knife to slice her ear, causing her to bleed heavily. She fell to the floor. While she was there, he stabbed her multiple times. She tried to get up but fell between the bed and a cupboard where he continued to stab her to multiple parts of the body. Photographs of the state of the bedroom after that assault were also in evidence before me.
6․The offender then went back to the kitchen, whereupon the victim took the opportunity to pull herself up and run out the back door leading to her backyard. Photographs of the crime scene show that she left spots of blood and bloody footprints along the way. When she got into the backyard, the victim screamed for help from a neighbour. She repeatedly called the neighbour's name. The neighbour eventually woke up, got dressed and came outside. The victim asked her to call police and an ambulance, which she did.
7․While the victim was in the backyard, the offender started burning her using a large cylindrical spray can and a piece of newspaper that he had lit on fire using the kitchen stove. It was during that time that the neighbour was on the phone calling 000. The transcript of the 000 call is before me. While I did not hear the audio of the call, even a reading of the transcript reveals that the neighbour made repeated calls upon the offender to stop hurting the victim whilst also attempting to comfort her that help was on its way.
8․In the meantime, the offender continued to spray flame onto pieces of paper or a newspaper or a rag and use the flame to burn the victim to her face, chest, arms and torso. The flames created by those acts were high enough to be visible over fence height by neighbours. The photographs and footage I have seen show that the fence was a conventional seven-foot fence between houses. The time of the 000 call was 10:36 pm. The police officers arrived at 10:47 pm and found the gate into the premises locked with padlocks.
9․One of the first officers on scene was Senior Constable Bott. He observed a large wooden gate at the end of the driveway and the offender behind that gateway standing near the carport. Constable Bott could see short bursts of flame and hear a female screaming in pain. Police eventually managed to get into the premises and Constable Bott and another officer approached the offender. During the proceedings on sentence, I was shown the body-worn footage of that exchange. Constable Bott repeatedly called for the offender to come out of the house, eventually entering the house himself.
10․The offender was found by the other officer inside the bedroom standing behind a double bed. He was observed to have dried blood on his hands and forearms. Police eventually pushed him onto the bed and handcuffed him. Before they were able to contain him, he indicated that he wished to put his trousers on. That is not recorded in the statement of facts but is something I heard on the body-worn footage.
11․The first paramedic arrived on scene at about 10:54 pm. She could smell burning flesh and observed the victim and her injuries. She assessed the injuries as critical. The victim was taken to The Canberra Hospital in an ambulance where she was triaged as category one, the most serious category, and admitted under the shock/trauma service team.
12․At the proceedings on sentence, the prosecutor played the body-worn footage both of Officer Bott and Officer Carnell, a female officer who assisted attending to the victim’s injuries. As I have noted, the body-worn footage from Officer Bott shows that the offender was more interested in putting on his trousers than responding to the attendance of police and heeding their commands, let alone tending to the injuries of his partner.
13․In those exchanges, to which I listened yesterday, there is not the smallest indication on the part of the offender of his having any feeling for the victim, whether jealous rage or otherwise. The body-worn footage from Officer Carnell shows the immense suffering of the victim at that time.
14․Incidentally, I note that the footage also records the courage and compassion displayed by police. I have already noted the circumstances in which Officer Bott entered the house, not knowing whether the offender was holding a blowtorch or some other form of dangerous weapon. Officer Carnell meanwhile participated in gently pouring water on the victim’s burnt flesh (as advised by the paramedics) as the victim screamed in pain and begged them to stop. Police are to be commended for the courage and compassion with which they treated these very difficult circumstances and the suffering victim. As I said at the outset of this recitation of the facts, the offence was horrific.
15․The facts of the attempted breach of the family violence order are that, extraordinarily, some weeks later, the offender attempted to send the victim a Christmas card. I cannot be satisfied beyond reasonable doubt that this act was deliberately cruel and manipulative, although it certainly has that appearance. What it does reflect is an extraordinary and inexplicable disregard on the offender’s part for his conduct and its impact on the victim.
16․It is necessary to make an assessment of the objective seriousness of the offences. As to the offence of attempted murder, the prosecutor submitted that the offence falls within the worst category. The prosecutor’s written submissions recited a number of factors said to support that conclusion. They were, first, that the offence involved a degree of premeditation, having occurred in the context that the offender, unbeknownst to the victim, was listening to her phone conversations outside her bedroom before then going inside and grabbing a knife and walking into her bedroom to commence the attack.
17․Secondly, the prosecutor relies on the use of multiple weapons to inflict multiple potentially life-threatening injuries. They included the knife with which the offender inflicted 11 cuts or stab wounds and multiple spray cans with which the offender inflicted multiple serious burns by lighting a piece of paper or a rag on a gas stove and then using that flame to set light to the contents of the cans. As submitted by the prosecutor, the use of those weapons and the period for which the offence continued make clear the offender’s intention to kill which, of course, he has admitted by his plea of guilty.
18․Thirdly, the prosecutor relies on the fact that the offence involved a sustained and tortuous attack. So much is clear from the facts I have recited.
19․Fourthly, the prosecutor relies on the fact that the manner of death would have been horrific, had the attempt been successful. She submitted that it was only the intervention of police that prevented the victim from dying and that it would have been a terrifying and horrific death.
20․Fifthly, the prosecutor identified the fact that the victim needed life-saving treatment, without which she likely would have died. The victim’s injuries and ongoing medical conditions are set out in detail in a report prepared by Dr Van Dieman tendered by the prosecution. I made a non-publication order in respect of the contents of that report and will not recite its contents today. It is enough to say that the submission that the victim had life-saving interventions at hospital is well-founded by the contents of that report. The injuries included the 11 stab wounds to which I have referred. Furthermore, it was assessed that the victim had been burned to 21 per cent of her body surface area. The manner in which that assessment is carried out and the nature of the burns is addressed in detail in Dr Van Dieman’s report.
21․Sixthly, the prosecution relied upon the fact that the offending occurred in the victim’s home, where she is entitled to feel safe. It was submitted in that context that the offending was an extreme example of family violence. I will return to consider the mandatory considerations for family violence offences.
22․Seventhly, the prosecution relied upon the fact that the victim was vulnerable, being a person who had been subjected to violence by her intimate partner, the offender, over a long period of time.
23․Finally, the prosecution relied upon the fact that the effect on the victim was and is profound. The prosecution submissions recited the detail of the effect the offender’s attack had on her. Again, for the reason I have indicated, I will not repeat that detail in this judgment. It is enough to say that I accept, as submitted by the prosecutor, that the offence had a life-altering impact on the victim. She has been in hospital since the night of the offence. She wished to attend court yesterday to read her victim impact statement but, as I was informed, was not considered strong enough to be allowed to leave the hospital for that purpose. Accordingly, she has had to observe the proceedings by AVL. The prosecutor submitted and identified evidence to support the proposition that, prior to the offence, the victim was living independently and could engage in activities of daily living. She is now an applicant through the NDIS for 2 to 1 (that is, two carers at all times) 24/7 care on an ongoing basis.
24․Mr Chen, who appeared for the offender, accepted that the offence was very grave. However, he relied on three factors which he submitted take the offence outside the worst category. First, he submitted that there was only a very limited degree of premeditation. The submission raises an interesting question as to the comparative seriousness of a planned crime and so-called crimes of passion. It may be accepted that an attempted murder by a paid assassin would fall within the worst category. How is such an offence to be compared with the present offence?
25․As I have already noted, it is a family violence offence, which means that I am required to have regard to the mandatory considerations set out in s 34B of the Crimes (Sentencing) Act. Importantly, those considerations include the family violence context of the offending. In the present case, that includes the fact that the offender had previously repeatedly assaulted the victim and had, by way of penalty for those offences, been required to undertake rehabilitation. First, in 2017, he was sentenced for an offence in which he threw a jug at the victim’s head, causing her to bleed profusely and as a result of which she said she felt she had lost consciousness. The offender then punched her in the nose, giving her a broken nose. The reason stated in the transcript was that he suspected she was speaking to other men.
26․Then, in 2021, he was sentenced for an offence which occurred when he threw or swung a bag at the victim, hitting her in the left upper arm. She attended hospital for that offence.
27․The breach of the good behaviour order relates to the offender’s failure to comply with a requirement by Corrective Services that he complete a course to address his anger management.
28․Mr Chen submitted that a premeditated offence is more serious because it involves harbouring an intent to kill in a cold, detached, calculated way. He submitted that it is the degree of commitment to the crime in harbouring an intention to kill that makes it so serious. The submission has some force, certainly, in explaining the degree of seriousness of a contract killing. Mr Chen also noted that such offences (contracts to kill) are harder to detect and involve careful planning.
29․But here, the offender harboured such precious concern for himself and such little regard for the victim that he lurched from rage to jealous rage, from assault to bloody assault in what became an inexorable march towards murderous intent. The matters mentioned in the preamble to the Family Violence Act, which are mandatory considerations in the present sentencing task, require the court to hold such men accountable.
30․In my assessment in the present case, harbouring such contempt for the value of a supposed loved one’s life, knowing from past experience that it is a hair trigger for jealous rage, is no less morally culpable than harbouring a calculated intent to kill.
31․The second matter relied upon by Mr Chen which he submitted takes the offence out of the most serious category is the fact that the victim didn’t die. As I think Mr Chen accepted during oral submissions, as a matter of law, that submission cannot be accepted. The offence is attempted murder. It necessarily involves a situation where the victim did not die and yet carries the same maximum penalty as the offence of murder, namely, imprisonment for life.
32․The prosecutor referred to a number of authorities which accept the proposition that an attempted murder can be more serious than a murder. Mr Chen nonetheless maintained the submission at the hearing of the proceedings on sentence that the injuries suffered by the victim could have been worse. That reflects a wrong approach, the worst possible case being one which falls within a class that should earn that description rather than the worst possible set of circumstances that human ingenuity can imagine. In any event, I do not accept the submission. As I have indicated, the victim has suffered terribly.
33․Thirdly, by way of response to a submission put by the Crown, Mr Chen made a submission concerning the difference between the victim's living circumstances now and before the offence. I have already noted the Crown's reliance on the fact that the offence had a life-altering impact on the victim, resulting in her now needing effectively fulltime care by two carers. Mr Chen's response to that submission was that, although he accepted there was some impact on the victim caused by the offence, it was necessary to consider the fact that, prior to the offence, the victim had some disabilities which also required support. He submitted that the fact that the victim is now seeking access to the NDIS is not evidence that the offending has rendered her unable to care for herself; it simply shows that she is seeking to transfer from reliance on informal care to formal care.
34․I reject the submission. The material before me plainly establishes, and I am satisfied beyond reasonable doubt, that, as a direct result of the offence, the victim now suffers very serious consequences which will preclude her from ever returning to the level of independent living the evidence establishes she enjoyed before the commission of the offence.
35․The prosecutor tendered an updated medical report dated 4 December 2023 describing the current treatment of the victim over the last three weeks, focusing primarily on difficulties with her breathing and the attempts made by the respiratory team to support her respiration with a BIPAP machine. In short, the evidence establishes that, for reasons plainly directly associated with the offence, the victim has difficulty tolerating that machine. The updated report concludes with the following:
[The victim] continues to demonstrate ongoing but gradual decline in her physical functioning, particularly her respiratory status and mobility and mental health. She has, thankfully, not had any acute deterioration but remains at high risk of doing so. The focus of her inpatient stay currently revolves around ongoing medical optimisation and also discharge planning.
36․Having regard to those considerations, but for the fact that the offender has pleaded guilty to the offence, I would have imposed the maximum penalty. I am satisfied that the offence plainly falls within the worst category of offending of this kind.
37․Turning to the objective seriousness of the attempted breach of the family violence order, as already noted, the offence consisted in the offender attempting to send a Christmas card to the victim. Mr Chen submitted, with respect correctly, that the offender is not to be punished for that offence in a way that would involve double punishment for the offence of attempted murder. Nonetheless, it would be wrong, in my view, to regard that offence in isolation of the circumstances leading up to it.
38․I accept, as submitted by the prosecutor, that the section 10 threshold is crossed for that offence. Had the card reached the victim, it would have been extremely distressing for her to receive a Christmas wish from a man who had wreaked such harm in her life.
39․As I have already indicated, but for the plea, I would have had no hesitation in imposing a sentence of imprisonment for life. I considered whether it would be appropriate to impose that sentence anyway. However, Mr Chen's submissions have persuaded me that it is important for the Court, for the purposes of consistency in sentencing, to pay due regard to the well-established principle that an offender is ordinarily entitled to a discount on a sentence for the utilitarian value of pleading guilty.
40․That value was high in the present case, sparing (as it did) the victim from what would undoubtedly have been an extremely traumatic ordeal of being cross-examined. It is appropriate for the Court to acknowledge that utilitarian value and not to send a message to offenders that there will be or may be no recognition for a timely plea.
41․In the present case, the plea to the charge of attempted murder was entered immediately upon the conclusion of a criminal case conference. Mr Chen submitted, in accordance with orthodox principle, that a discount in the order of 20 per cent could be allowed on that basis.
42․In my assessment, a discount of that order would be too high. That is because, when the numbers get as large as they will necessarily be for the appropriate term of imprisonment for this offence, a discount of 20 per cent would, in my assessment, reduce the sentence to something less than the period I consider necessary to reflect the seriousness of the offence. For that reason, I propose to allow a discount in the order of 10 % for the plea.
43․As to the family violence order offence, the plea to that offence was entered early and the offender is entitled to a discount of 25 per cent.
44․I turn to consider the offender's subjective case. The offender put no evidence before the Court at the proceedings on sentence. The prosecutor submitted that he is a 53-year-old man who has a long recidivist history of violence, including family violence offences committed against the same victim. She noted the seriousness of those earlier offences, as revealed by the material before me.
45․The offender's offending has been caused by his capacity or tendency to fly into a jealous rage at the drop of a hat. He has shown no remorse. The prosecutor submitted that he must have a high degree of moral culpability. She further submitted that he has no prospects of rehabilitation, having repeatedly offended again after being dealt with for previous offences. The prosecutor submitted that the one factor in the offender's favour is the plea of guilty and that, otherwise, the case would have warranted the maximum penalty.
46․The offender in his submissions as to the subjective case simply relied on the presentence report to outline his subjective circumstances. It was noted that, while he has a history of violence offences, he had never contravened a protection order prior to the offence to which I have referred. The offender also submitted that the Court could find that there was some degree of remorse because it was recorded that the offender “felt bad” upon seeing the photographs of the victim after the offending and because he pleaded guilty to the offences. I am not persuaded that the offender has any remorse.
47․It was suggested that the offender’s cooperation with police should be taken into account because he answered police frankly by explaining how he created a flame using a gas stove with an aerosol can. I have seen the body-worn footage of Constable Bott's exchange with the offender. I do not see any hint of remorse in that exchange. Rather, he was responding to questions asked of him in circumstances where he had been caught red-handed, as it were. As to the suggestion of remorse, I note that there is no explanation for the offending. Furthermore, although the offender sent the victim a Christmas card, there is not so much as an apology to her for the bitter fate she has been dealt.
48․The victim described the impact of the offences on her in a victim impact statement read to the Court yesterday. I will not recite the content of that statement but simply observe that she has shown enormous courage in making the statement to this court. I acknowledge the enormous suffering to which she has been subjected.
49․The purposes of sentencing are well-known and well understood. They are listed in s 7 of the Crimes (Sentencing) Act and are as follows; to ensure adequate punishment, to prevent crime by deterring the offender and others from committing the same or similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender and to recognise the harm done to the victim of the crime and the community.
50․Denunciation of the crime and recognition of the harm done to the victim must be prominent in the present sentencing exercise. Deterrence is also an important purpose in the present case for the reasons I have explained. While it is not a finding I make lightly, I accept the submission of the prosecutor that the offender is or may currently be seen to be beyond redemption based on his prior behaviour and his apparent attitude to the offences.
51․The offender relied on a number of so-called comparative cases. I do not think it is necessary to deal with the details of those decisions. It is enough to say that I do not consider them to be remotely comparable to the present circumstances. A better guide to the appropriate sentence is the fact that, but for the plea, I would have imposed a sentence of imprisonment for life.
52․I propose to impose a sentence for the breach of the family violence order commencing first, so as to give effect to the statutory intention that such sentences when committed by a person in custody should not be served concurrently with earlier sentences. For that sentence, I would have started with a term of imprisonment for four months which I discounted to three months to reflect the value of the plea.
53․For the offence of attempted of murder and taking into account the fact that it was committed whilst the offender was subject to a good behaviour order, I would have started with a sentence of 30 years which I discount to 27 years to reflect the value of the plea. I propose to set a non-parole period of 20 years.
Orders
54․Mr Robertson, please, stand.
(1)For the offence of attempting to breach a family violence order, you are convicted. You are sentenced to a term of imprisonment for 3 months commencing on 28 September 2022 and expiring on 27 December 2022.
(2)For the offence of attempted murder, you are convicted. You are sentenced to a term of imprisonment for 27 years commencing on 28 December 2022 and expiring on 27 December 2049.
(3)I set a non-parole period of 20 years commencing on 28 December 2022 and expiring on 27 December 2042. The first date on which you will be eligible for parole is 27 December 2042.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: |
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