Director of Public Prosecutions v Smith (No 2)
[2024] ACTSC 126
•6 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Smith (No 2) |
Citation: | [2024] ACTSC 126 |
Hearing Date: | 13 September 2023, 20 November 2023 |
Decision Date: | 6 December 2023 |
Reasons Date: | 29 April 2024 |
Before: | Refshauge AJ |
Decision: | (1) Ronan Smith be convicted of dishonestly riding in a motor vehicle without the owner’s consent (CAN 7579/2022) and be sentenced to six months imprisonment to commence on 22 March 2023 and expire on 21 September 2023. (2) Ronan Smith be convicted of aggravated robbery (CAN 94612/2022) and be sentenced to two years and three months imprisonment to commence on 22 June 2023 and expire on 21 September 2025. (3) Ronan Smith be convicted of theft (CAN 6567/2023) and be sentenced to ten months imprisonment to commence on 22 September 2025 and expire on 21 July 2025. (4) Ronan Smith be convicted of aggravated damaging property involving family violence (CAN 12200/2022) and be sentenced to eight months imprisonment to commence on 22 July 2026 and expiring on 21 March 2027. (5) Ronan Smith be convicted of aggravated assault occasioning actual bodily harm involving family violence (CAN 12199/2022) and sentenced to twelve months imprisonment to commence on 22 September 2022 and expiring on 21 September 2027. (6) Ronan Smith be convicted of minor theft (CAN 9464/2022) and be required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from 21 September 2027 with a probation condition that he be subject to the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period that the person supervising him considers appropriate and obey all reasonable directions of the person supervising him. (7) A Drug and Alcohol Treatment Order under section 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Ronan Smith in respect of the primary offence of aggravated robbery (CAN 94612/2022), of which he has been convicted and for which he has been sentenced to two years and three months imprisonment. (8) The Order be extended to the offences of Theft (CAN 6567/2022), aggravated damage property involving family violence (CAN 12200/2022) and aggravated assault occasioning actual bodily harm involving family violence (CAN 12199/2022) of which Ronan Smith has been convicted and for which he has been sentenced and which are associated offences of the primary offence. (9) The Drug and Alcohol Treatment Order be for three years, nine months and 15 days from today, 6 December 2023 to 21 September 2027. (10) The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for two years from today, 6 December 2023 to 5 December 2025. (11) The Custodial Part of the Drug and Alcohol Treatment Order be hereby suspended from today, 6 December 2023 until 21 September 2027. (12) Under section 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Ronan Smith be required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 6 December 2025 until the total end of the sentence, 21 September 2027, with a probation condition that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period that the person supervising him considers appropriate and obey all reasonable directions of the person supervising him, including as to alcohol and drug testing, counselling and treatment. (13) For the Treatment and Supervision of the Drug and Alcohol Treatment Order: (a) The core conditions of the Drug and Alcohol Treatment Order set out in section 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed. (b) Ronan Smith be directed to complete the program at the Canberra Recovery Hub, not to leave the program until he has completed it and comply with all he directions of the person in charge of the program and all the rules of the program and the facility. (c) Ronan Smith undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time. (d) Ronan Smith not return a positive test sample under alcohol and drug testing. (e) Ronan Smith comply with any directions of the Court from time tom time about attendance at Court in person by electronic means. (f) Ronan Smith be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this order is in force before he leaves the Court precincts. (14) Ronan Smith be directed to appear in person in Court of Friday 8 December 2023 at 11:30am. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Aggravated Assault – Aggravated Damaging Property – Dishonestly Riding in a Motor Vehicle Without Consent – Theft – Minor Theft – Imprisonment - Drug and Alcohol Treatment Order made |
Legislation Cited: | Bail Act 1992 (ACT) s 9D Court Procedures Act 2004 (ACT) s 54 Court Procedures Rules 2006 (ACT) rr 4, 1608 Crimes Act 1900 (ACT) ss 24, 48C, 116, 309 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 80S, 82, 83 Criminal Code 1992 (ACT) ss 25, 26, 308, 310, 318, 321 Supreme Court Act 1933 (ACT) Pt 8 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Channon v The Queen (1978) 20 ALR 1 Cooper v Corvisy [2010] ACTSC 165 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP v Rand [2023] ACTSC 408 R v Apps (No 2) [2019] ACTSC 369 R v Bloomfield (1998) 44 NSWLR 73 R v Bonfield [2021] ACTSC 36 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v Connors [2022] ACTSC 374 R v Crawford (No 1) [2020] ACTSC 245 R v Forrest (No 2) [2017] ACTSC 83 R v Gordon (1994) 71 A Crim R 457 R v Gordon [2018] ACTSC 94 R v Hall; R v Barker [2016] ACTSC 11 R v JA [2007] ACTSC 51 R v John [2017] ACTSC 144 R v Jones [2004] VSCA 68 R v Loulanting [2015] ACTSC 172 R v Lovelock [2020] ACTSC 376 R v McFarlane (1993) Tas R 201 R v McHughes (No 3) [2021] ACTSC 344 R v Parker [2018] ACTSC 55 R v Po’oi [2021] ACTSC 151 R v Steen [2015] ACTSC 259 R v Tonna (No 2) [2020] ACTSC 362 R v Verdins [2007] VSCA 102; 16 VR 194 R v Ware [2016] ACTSC 264 R v Williams [2015] ACTSC 15 Singh v The Queen [2017] ACTCA 17 Smith [1964] Crim LR 70 Singh v The Queen [2017] ACTCA 17 UD v Bishop [2021] ACTSCFC 1 |
Texts Cited: | Gregor Urbas, “The Age of Criminal Responsibility” Trends and Issues No 181 (Australian Institute of Criminology, Canberra; November 2000) |
Parties: | Director of Public Prosecutions ( Crown) Ronan Smith ( Offender) |
Representation: | Counsel S Samuel (13 September 2023), C Wanigaratne (20 November 2023, 6 December 2023) ( DPP) E Wallis ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Number: | SCC 182 of 2023 SCC 183 of 2023 |
REFSHAUGE AJ:
Introduction
1․On 6 December 2023, the Court sentenced Ronan Smith to a term of imprisonment and a Good Behaviour Order. Part of the term of imprisonment was to be served by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The Treatment Order had to be made that day so that Mr Smith could commence the treatment that had been prescribed. Because the business of the Court on that day had meant that the sentence had to be imposed at a very late time in the day, full reasons were not then able to be given orally, as would usually be done, for it would take such time as would mean that the Registry would not then be able to process the Treatment Order. Accordingly, contrary to the Sentencing Act, Mr Smith would not have been able to be released and would have had to serve further time in custody, rendering him ineligible to being able to serve his sentence by a Treatment Order.
2․As a result, though quite unusually, but, so far as can be discerned, not contrary to law, sentence was imposed with the full reasons (that had been prepared and were in handwriting at the time) to be published later. This is allowable under r 1608 of the Court Procedures Rules 2006 (ACT), applicable to criminal proceedings by virtue of r 4. It was also done with the express consent of the parties. The publication of the judgment also relies on s 54 of the Court Procedures Act 2004 (ACT).
3․It may be that this delay in publication of these reasons constitutes a breach of s 83 of the Sentencing Act, though it is, in fact, rare that, in practice, Courts sentencing offenders to prison comply with the provisions of these sections. Under s 83, however, that does not invalidate a sentence of imprisonment, as has been imposed in this case, though served by a Treatment Order. In purported compliance with s 82 of the Sentencing Act, however, a somewhat colloquial explanation was given directly to Mr Smith of the sentence and its implications with reference to the relevant factors that led to it.
4․These, then, are those reasons for the sentence imposed on Mr Smith. The Court regrets that it has not been practicable to publish these reasons earlier.
Background
5․For good reason, the law has made special provision for addressing the crimes committed by young people. Thus, those under 12 years of age are not held criminally liable and those between 12 and 14 years of age can only be held criminally liable if they can be shown to know that their conduct is wrong: ss 25 and 26 of the Criminal Code 2002 (ACT); R v JA [2007] ACTSC 51 at [29]-[82]; UD v Bishop [2021] ACTSCFC 1; Gregor Urbas, “The Age of Criminal Responsibility” Trends and Issues No 181 (Australian Institute of Criminology, Canberra; November 2000).
6․That is not to say that there is no response to criminal behaviour committed by them, but it is recognised that, for many good and valid reasons, it is not appropriate to apply to those of a young age and immaturity in so many ways, the same regimen as for mature adults.
7․Thus, a level of mitigation applies and rehabilitation becomes more important in the response to criminal behaviour of those over 14 years of age, but under 18 years of age (and those between 12 and 14 years of age, shown to known that their conduct is wrong). As was said in Smith [1964] Crim LR 70 at 70: “In the case of young offenders, there can rarely be a conflict between his [sic] interests and the public’s. The public have no greater interest than that he [sic] should become a good citizen”: see also R v CV [2013] ACTCA 22; 233 A Crim R 67 at 78 [42].
8․Of course, while specific legislative regimes have been put in place for those under the age of 18 years, this particular approach to sentencing young people is not limited to those who are, at law, minors. As was noted in R v Gordon (1994) 71 A Crim R 457 at 469, this applies to some extent to those who are still young and maturing, but older than 18 years of age. A survey of authorities in R v Tonna (No 2) [2020] ACTSC 362 at [46]-[47] suggested that it might apply, in appropriate cases, to young adults up to about 25 years of age.
9․Another area in which the law recognises that special provision must be applied in sentencing is where the offender has recognisable mental health challenges so that his or her criminal and moral responsibility may be affected: see R v McHughes (No 3) [2021] ACTSC 344 at [1]-[6].
10․Thus, particular approaches have been established by the Courts to address the fact that such mental health may “reduce the moral culpability of an offender and the deliberation which attended his criminal conduct”: Channon v The Queen (1978) 20 ALR 1 at 4.
11․The approach to such cases has been set out in a careful, thoughtful and comprehensive judgement in R v Verdins [2007] VSCA 102; 16 VR 194 at 276 [32]: see also DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177].
12․In this context, the Court has now to sentence a young man, Ronan Smith, who has severe mental challenges but has a criminal record and has now committed the serious offences of aggravated robbery, dishonestly riding in a motor vehicle without consent, aggravated damaging property, involving family violence, theft, and aggravated assault occasioning actually bodily harm, involving family violence and the offence of minor theft.
13․On sentence, the prosecution, very professionally represented by Mr C Wanigaratne, tendered, without objection, the Prosecution Tender Bundle. Behind the prescribed Cover Sheet, it included the Committal and Transfer Documentation, a Statement of Facts, Mr Smith’s criminal history and a set of photographs of the damage and injuries that were the consequence of the two offences involving family violence.
14․As Mr Smith had sought that any sentence of imprisonment be served by a Treatment Order, the Court had, on 11 August 2023, directed that Drug and Alcohol Treatment Assessments (Suitability Assessments) be prepared under s 46J of the Sentencing Act. These were prepared and included in the Prosecution Tender Bundle. They were the Drug and Alcohol Sentencing List Suitability Assessment Report dated 29 September 2023 of Alcohol and Drug Services and the Drug and Alcohol Treatment Assessment dated 5 October 2023 of ACT Corrective Services.
15․At an earlier hearing, on 13 September 2023, the Prosecution, then represented in a very proper way by Ms S Samuel, had tendered without objection a Bail Consideration Form dated 5 August 2023, a Statement by Detective Sergeant Mark Battle dated 3 June 2023 and the criminal history of Mr Smith’s mother.
16․Ms E Wallis, who very carefully and expertly represented Mr Smith, tendered without objection a letter to the Court from Mr Smith, a Psychiatric Report of Dr Richard Furst, Consultant Psychiatrist, dated 10 October 2023, an email chain dated 12 and 13 November 2023 between Ms Valois and Mr B Baxter of ACT Corrective Services and an email chain of 12 to 14 November 2023 between Dr Furst and Ms Wallis.
17․There was no challenge to the contents any of the documents tendered.
18․Ms Wallis also provided comprehensive and most valuable written submissions on sentence. Both counsel presented oral submissions that were of great assistance to the Court. They engaged in respectful debate with the Court and answered its questions.
19․From this material, the Court makes the following findings.
The Facts
20․The sentencing of an offender is always a difficult task. It involves consideration of a number of facts and factors required by both the relevant legislation and the common law.
21․The first and very important factor is, of course, the factual basis for the allegations of criminal behaviour from which the charges against the offender are derived.
22․While that Statement of Facts in the Prosecution Tender Bundle has not been the subject of any challenge, the Court must make its own findings.
23․The first offence was committed on 2 August 2022, when Mr Smith went with a co-offender, his then partner, to Bonner Shopping Centre, Bonner, ACT. While he was there, a woman, the first victim, drove her blue Subaru motor vehicle to the shopping centre at about 8.40 pm and parked her car in the parking area adjacent to the shops. She got out of the car, locked it and, while holding her keys in her hand, walked to the supermarket in the Centre.
24․As she was walking to the shops, Mr Smith came from behind her and snatched the keys from her hand. She turned around and saw Mr Smith and the co-offender and realised that her car keys had been taken from her. She then yelled out to the offenders and started to chase them.
25․Mr Smith turned around and faced the first victim. He lifted his shirt and removed a large metal wrench from the waistband of his trousers. As soon as she saw that, the first victim stopped and moved backwards, away from Mr Smith. A male at the shopping centre, who saw what was happening, came over to assist the first victim. Mr Smith started to raise the wrench over his head and shouted to him, “Fucking come on, hero”. Both the male and the first victim backed away.
26․Mr Smith and the co-offender then went to the first victim’s motor vehicle. Mr Smith got into the passenger’s seat and the co-offender got into the driver’s seat and drive away.
27․These were the facts that led to the charges of aggravated robbery and dishonesty riding in a motor vehicle without the owner’s consent.
28․The co-offender and Mr Smith then drove to a service station in Hawker, ACT, where Mr Smith filled the motor vehicle with fuel, worth $68.10. He did not, however, enter the service station or make any attempt to pay for the fuel, nor did the co-offender. Mr Smith just got back into the passenger’s seat of the motor vehicle and the co-offender drove it away. These are the facts that founded the charge of minor theft.
29․On 4 August 2022, police sighted the Subaru motor vehicle parked outside an apartment complex in Gungahlin, ACT. They checked and found that Mr Smith had “some connection” with an apartment in the complex and knocked on the door of that apartment. Mr Smith answered the door and was placed under arrest. He was detained in police custody.
30․He appeared the next day in the ACT Magistrates Court and, because of his presentation, which raised a concern for the Court about his mental health, was referred under s 309 of the Crimes Act 1900 (ACT) (Crimes Act) to a mental health clinic for examination. He was released from the clinic the next day, returned to the Court and was then granted bail.
31․On 9 September 2022, Mr Smith contacted the second victim through a social networking online dating application. He used a pseudonym to make the contact. The second victim organised for Mr Smith to be collected from his home address by an Uber driver. “Uber” is an application-based transport company, similar to a taxicab service. The driver delivered Mr Smith to the second victim’s apartment.
32․When Mr Smith arrived at the apartment block, the second victim met Mr Smith and took him up to and into his apartment. The second victim noticed a tattoo that Mr Smith had on his face.
33․After some small talk, Mr Smith told the second victim that he, Mr Smith, was 16 years old, but the second victim did not accept that. He did, however, request that Mr Smith leave. Mr Smith refused to do so, saying, “I will not leave until I get what I want”. He then went into the kitchen of the apartment and picked up a set of keys, which included the keys to the second victim’s motor vehicle and to the apartment. Mr Smith said that he was taking the car and that the second victim should not report that to the police as he said, “I know bikies and the Sergeant-at-Arms”.
34․The second victim managed to persuade Mr Smith to return the keys of the apartment, but Mr Smith persuaded him the give him the garage “fob” to allow access to it. Mr Smith also asked the second victim if he had any gold or valuables.
35․Mr Smith then went into the bedroom in the apartment and located a “Georgio Armani” brand watch which he took. He found nothing else that was of interest to him.
36․Mr Smith, however, then saw that the second victim had a mobile phone in his hand and he accused him of contacting the police. He demanded the phone. The second victim denied contacting the police and refused to give him the phone. Mr Smith then said that he would not leave until the second victim showed him his bank accounts. The second victim did so and Mr Smith transferred $700 out of the account to another account which he said was in the name of his aunt, though, actually, it was in the name of his mother.
37․Once the transfer had been completed, Mr Smith left the apartment, went to the garage, where he got into the second victim’s vehicle, a Honda Civic motor vehicle, and drove away.
38․These were the facts that led to Mr Smith being charged with theft.
39․Police were contacted by the second victim and, having checked where Mr Smith had been collected by the Uber driver, noted that Mr Smith was connected to that address. They went to that address on 10 September 2022, found the Honda Civic motor vehicle there and seized it. They also found Mr Smith’s mother there and spoke to her. She said that she knew nothing about the motor vehicle. They also spoke to Mr Smith, who initially identified himself as his twin brother, Lachlan, and who also said that he knew nothing about the vehicle. They also noted the tattoo on Mr Smith’s face. They took the motor vehicle to the AFP Exhibits Management Centre in Mitchell, ACT.
40․On December 2022, Mr Smith and his twin brother, the third victim, were at their home in Ngunnawal, ACT, when his brother was cleaning his mother’s bedroom. While holding a thin metal bar, Mr Smith approached his brother and started to argue with him. His brother tried to ignore him, but Mr Smith became agitated and began swinging the metal bar around. His brother became scared and fell onto his mother’s bed in an attempt to put himself out of reach of Mr Smith.
41․His brother asked Mr Smith to stop and not to hit him with the metal bar, but Mr Smith lifted it up and hit his brother on the back of his right thigh. This caused his brother to feel pain and it caused a bruise of over about 3 cm in length. His brother yelled, “Call the police”, but Mr Smith said, “No-one will believe you anyway”.
42․These were the facts that were the basis for the charge of aggravated assault occasioning actual bodily harm involving family violence because of the relationship between Mr Smith and the victim, his brother.
43․There were some other issues set out in the Statement of Facts, which appear to have related to uncharged acts which, therefore, do not need to be addressed.
44․On the next day, 3 December 2022, Mr Smith was still acting in an erratic manner. At about 9.30 am, his brother was in the kitchen and Mr Smith approached him, asking for a cigarette. Mr Smith was agitated and pacing. He was following his brother, trying to start an argument with him.
45․Shortly after that, his brother was still in the kitchen when he heard a loud banging from the other side of the house. When he investigated, he found Mr Smith had punched three holes in the wall closest to the bedroom door.
46․Mr Smith was still acting in an erratic and aggravated manner when he again approached his brother and, despite his brother trying to keep a distance, kept following him, acting in an aggressive manner.
47․At one stage, Mr Smith said to his brother words to the effect of “Yeah, before I go, I’m smashing this house”. He then walked to the dining room table and picked up a pot plant. He threw it against the wall, smashing the pot and causing some damage to the wall. He then picked up a photo frame, threw it on the floor, causing it to break.
48․These were the events that led to the charge of aggravated damage involving family violence.
49․His brother, frightened by Mr Smith’s behaviour, called out, “Someone call the police”, rushed out of the front door and ran to a friend’s house. The police were called, but Mr Smith had run out of the house, down the street and disappeared. The police took note of the damage and took a statement from Mr Smith’s brother.
50․Police returned to the house on 13 December 2022 and arrested Mr Smith. He was taken to the Watch House protesting, telling his brother, “Drop the charges. I didn’t hit you with the pole, you’re lying”.
The Proceedings
51․As noted above at [28], Mr Smith was first arrested on 4 August 2022. He was refused police bail and appeared the next day in the ACT Magistrates Court. He was charged with dishonestly riding in a motor vehicle without the owner’s consent. He was, as also noted above at [29], initially sent for a mental health examination, but, on 6 August 2022, reappeared in the Court and was granted bail. It appears that he did not appear on the adjourned date and a warrant was issued.
52․He was arrested and appeared on 5 September 2022 and, on 6 September 2022, he pleaded guilty to this offence. This is what is recorded on the bench sheet of the ACT Magistrates Court for the charge. That may have been recorded as an error, for, on 30 January 2023, the charge was listed for hearing for two days but there is no record of the plea being withdrawn.
53․In any event, bail was granted on 6 September 2022 and the proceedings were adjourned. Despite a further breach of bail, dealt with on 1 October 2022, when he was also charged with the offence of aggravated robbery and minor theft, he was released on further bail. He pleaded not guilty to these charges on 15 November 2022 and a Brief of Evidence was prepared by the prosecution.
54․Mr Smith remained on bail until 13 December 2022, after his arrest for the family violence offences.
55․On the next day, he appeared in the ACT Magistrates Court and was charged with aggravated assault occasioning actual bodily harm and aggravated damaging property, both offences involving family violence. Because he had been on bail at the time of committing the offences, he was subject to the provision of s 9D of the Bail Act 1992 (ACT), requiring him to show special or exceptional circumstances before bail could be granted. As a result, he was remanded in custody.
56․He then pleaded guilty to these offences on 24 January 2023.
57․He remained in custody until 24 May 2023, when he was granted bail to attend Oolong House, a residential drug rehabilitation facility. It has been described in R v Williams [2015] ACTSC 15 at [8]-[10].
58․He was, however, discharged from that facility, returning to Canberra on 1 June 2023. Despite the requirement of his bail conditions, he did not report to the Court on his discharge. He later appeared in Court on 6 June 2023 and was remanded in custody.
59․On 28 June 2023, he entered a plea of guilty to the offence of aggravated robbery. After several adjournments, he pleaded guilty to the remaining charges on 1 August 2023 and was committed to this Court for sentence. The summary charges were transferred to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
60․In this Court, he appeared in the Drug and Alcohol sentencing List on 11 August 2023, when, after he had been found eligible to proceed with preparation of Suitability Assessments, they were directed to be prepared and a date was set for sentencing with appropriate directions for preparation for the hearing.
61․On 22 September 2023, he was again granted bail, principally to attend drug rehabilitation at the day program of the Canberra Recovery Hub, a facility conducted by the Salvation Army. For a description of the facility, see DPP v Rand [2023] ACTSC 408 at [8].
62․He was required to appear in Court on 17 October 2023, but did not do so and a warrant was issued for his arrest. He was arrested on 3 November 2023 and remanded in custody until sentencing on 20 November 2023.
63․In the meantime, however, a charge of breach of bail for his failure to appear in Court on 29 August 2022 had been preferred on 5 September 2023. As that charge could not be transferred to this Court, for reasons explained in R v Loulanting [2015] ACTSC 172 at [21]-[22], it had to be dealt with in the ACT Magistrates Court. Mr Smith had actually been committed to this Court on that charge in error and the charge was then returned to the ACT Magistrates Court and, on his plea of guilty, he was sentenced there to 28 days imprisonment, which ended on 28 December 2023 and which period could not, of course, be counted as pre-sentence custody for the sentencing of the offences before this Court, though it was relevant to the totality of any sentence of imprisonment: see R v Po’oi [2021] ACTSC 151 at [44].
64․Excluding that period as a period of sentence and not pre-sentence custody, he has been in custody awaiting this sentence for a period of 359 days. This period will be taken into account on sentence.
The Offences
65․Finding the facts, as the Court has now done, is an essential but only one part of the ascertainment of the various considerations that the Court must take into account when sentencing an offender.
66․Next, it is essential to consider the actual seriousness of the offence. This is, in part, because most offences can be committed in a wide variety of ways and under various circumstances, which can have an effect on the assessment of the seriousness of the version of the offence that the offender on this occasion actually committed. This is known in s 33(1)(a) of the Sentencing Act as the nature and circumstances of the offence.
67․The first part of this consideration is the penalty for each offence. The Legislature usually provides for a maximum penalty for each offence. A maximum penalty recognises that there is a range of seriousness for each offence actually committed. The maximum penalty is reserved, of course, for the worst category of the version of the offence.
68․That penalty is an essential part of the consideration of the seriousness of the offence committed. It shows how serious the Legislature views the offence and how it compares to other offences. Taken with the other considerations, it provides a yardstick.
69․Then, secondly, the way in which the actual offence has been committed and the circumstances of its commission will assist in determining the objective seriousness of the offence. This is done by identifying matters in the commission of the offence which aggravate or mitigate its seriousness. Over time, the Courts sentencing offenders and Courts of Appeal determining appeals from sentences have identified the relevant factors that will aggravate or mitigate the actual offence. This is part of the mandatory consideration mentioned in s 33(1)(za) of the Sentencing Act, namely current sentencing practice.
70․The objective seriousness of the offence, taken with the other factors, especially the subjective circumstances of the offender, will provide the Court with the factors from which to fashion a sentence that is just and adequate.
71․Aggravated Robbery is an offence against s 310 of the Criminal Code and attracts a maximum penalty of 25 years imprisonment or a fine of $400, 000 or both. It is, thus, by that yardstick, a very serious offence and to be so regarded by the Court. Though not the most serious of the criminal offences, it is one of the most serious.
72․It has been considered in a number of decisions, which have identified various matters for consideration. For example, in R v Gordon [2018] ACTSC 94 at [71], it was held that, where both factors of aggravation are present, that is being in company and having an offensive weapon, the offence is to be regarded as a more serious one. That is the position here. Indeed, it is more serious to commit the offence with an offensive weapon than to do so while being in company: R v McFarlane (1993) Tas R 201 at 210.
73․The number of people involved in committing the offence is also relevant, the more the more serious. Here, however, Mr Smith was in company, but with only one other person.
74․The nature of the weapon is also important. Weapons such as guns or knives, which can easily inflict very serious injuries, even death, make the actual offence more serious: see R v Crawford (No 1) [2020] ACTSC 245 at [30]. Here the weapon was a wrench, a significant piece of metal which could do serious damage and, if applied with sufficient force to the head or repeatedly used, cause significant injury and possibly death.
75․The Statement of Facts states that Mr Smith actually brandished it over his head, but certainly there was no contact with any of the other persons there. Thus, there was no actual injury or harm caused by the weapon, which would have made the offence much more serious: R v Hall; R v Barker [2016] ACTSC 11 at [33].
76․The victim was not particularly vulnerable. Though she was defenceless and the incident was in the evening, there was at least one other person around and she could have escaped into the shops. She was not constrained in any way, such as is a taxi driver or a shop assistant behind a counter might be: see, for example, what was explained in R v Apps (No 2) [2019] ACTSC 369 at [23].
77․It will, of course, have been a very frightening experience for the victim, even though she was not alone, as another shopper had come to her assistance.
78․The property taken, pleaded in the Information, was the set of car keys. While not of themselves of great value, the keys were the means by which an item of greater value, the motor vehicle, could be taken, which it was, but, perhaps curiously, it was not pleaded by the prosecution as part of the property stolen in the aggravated robbery. Despite the seriousness of the offence including the access that the stolen keys gave to Mr Smith, he cannot be punished for a different offence than that pleaded.
79․The degree of sophistication and planning of the offence is always relevant. Here there must have been some planning and forethought, for Mr Smith brought a wrench with him and put it at his waist. Otherwise, the offence was quite opportunistic, given that Mr Smith could not have known that the first victim would be arriving at the shopping centre nor that she would walk to the supermarket with the car keys in her hand, from which he could snatch them. In addition, the original taking did not involve any actual confrontation with the victim, though that occurred later, or threats of or actual violence at that stage.
80․The motivation and circumstances for the offence will also be relevant. Mr Smith says that he needed the car to help his pregnant partner. He said that she was tired and did not want to walk home. That is a little difficult to understand as it is not clear why he then had the wrench with him stuck in the waistband of his trousers and which led to the aggravated robbery. He and his partner were highly intoxicated, though this does not mitigate the offence, but it is likely to confirm that the offence was not so much planned or premeditated as opportunistic.
81․While a serious version of the offence, it was by no means the most serious version that this Court has seen.
82․Dishonesty riding in a motor vehicle without the owner’s consent is made an offence by s 318 (2) of the Criminal Code which prescribes a maximum penalty of 5 years imprisonment or a fine of $80,000 or both. It is, therefore, a much less serious offence than the aggravated robbery, though it is still a serious offence for which a significant period of imprisonment is frequently imposed. The Court has, in R v Connors [2022] ACTSC 374 at [63], identified, by reference to a number of authorities, many of the relevant factors.
83․Mr Smith was riding in the motor vehicle, not driving it. The section provides for one offence covering both the driving of and the riding in the motor vehicle with the same maximum penalty. It is accepted that the riding, as opposed to the driving, is a less serious version of the offence.
84․The time during which the motor vehicle was driven and during which the owner was deprived of its use, as well as the distance driven, are all important. This gives a measure of the harm, or at least the inconvenience, suffered by the owner. Here, police recovered the motor vehicle in just over two days of it being taken. This makes it a reasonably serious offence, because of harm caused, though it could have been kept from the first victim for much longer, as is seen from time to time in this Court. It was also driven, so far as can be ascertained, from the Bonner Shopping Centre to the Hawker Service Station and then to Gungahlin. This is a not insubstantial distance, probably about 35 kilometres. It is not clear whether it had been driven much in the intervening time before it was seized. As is always important, but less relevant to the passenger than to the driver, it was recovered without any damage to it. In the absence of a Victim Impact Statement, the harm can only be assessed in a general sense. The victim had to find, and probably pay for, transport home after the robbery and then any driving which she had to do the next day and for any extra time during which it was held by the police for forensic examination.
85․The vehicle was used for the commission of the minor theft offence, which made it somewhat more serious, though this is more likely to have been a consequence of the taking of the vehicle and needing to have it with adequate fuel rather than for a planned or more significant further offence.
86․As frequently occurs, though it is relevant, there was no evidence of the value of the vehicle. The Court can take notice that it was not what is generally regarded as a “luxury vehicle”, but still of some significant value.
87․The offence of minor theft is one proscribed by s 321 of the Criminal Code and renders Mr Smith liable to a maximum penalty of six months imprisonment or a fine of $8,000 or both.
88․The principal factor in this offence is the value of the item stolen. In this case, it was fuel to the value of $68.10, so a relatively small amount. The nature and circumstances of the offence is also relevant. It was a brazen offence and, it would appear, easily committed, with a negative effect on the victim (though likely a corporate entity), and this is a factor of some seriousness.
89․The theft on 9 September 2022 was, however, a somewhat different offence. That offence, theft, is criminalised by s 308 of the Criminal Code and attracts a maximum penalty of ten years imprisonment or a fine of $160,000 or both. Thus, it is more serious than the offences other than the aggravated robbery. it is, however, more serious because it can encompass a very wide range of stolen items from those of small value to those valued at many millions of dollars.
90․Here it was a “rolled up” charge as it covered three parts - the theft of the watch, the theft of $700 and the theft of the Honda Civic motor vehicle. Each could have been charged separately, but, in the circumstances, were included in the one charge. That was certainly appropriate here.
91․The approach that the Courts take to rolled up charges has been considered in R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164] and helpfully summarised in R v John [2017] ACTSC 144 at [107] as follows:
·for sentencing purposes, the rolled-up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
·nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
·the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
·the fact that the count is a rolled-up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
92․Such counts can only be preferred by agreement with the offender or alleged offender and the practice is said both to simplify the task of the sentencing judge, thus assisting the administration of justice, but, at the same time, work to the benefit of the offender: R v Jones [2004] VSCA 68 at [13].
93․As with the offence of minor theft, the seriousness of the offence is largely determined by the value of the property stolen. As so often happens, however, no value was given for the watch or the motor vehicle. The latter would, of course, have been very likely worth some thousands of dollars, but exactly how much is not known. The watch, which can be accepted to be a “luxury” brand, would have been of some significant value for the item, but exactly how much cannot be determined. Thus, the aggravating features cannot be found exactly beyond reasonable doubt, but it can be said that the value of both items would be quite reasonably significant for each item.
94․The offence was also committed in a circumstance of threat and deceit by Mr Smith and a degree of coercion that would increase the seriousness of the offence.
95․In the end, the motor vehicle was returned, which is a factor of mitigation. Nevertheless, the offence occurred in the victim’s home, often referred to as an aggravating feature: R v Parker [2018] ACTSC 55 at [21].
96․There clearly was some planning and premeditation to the offence, which is also an aggravating feature. The use of the pseudonym and the mechanism for contacting and meeting the victim did require this. It was, however, relatively unsophisticated, relying on Mr Smith’s interaction with the victim when contact was made, but a nasty offence. It was somewhat unsophisticated as it was foolish of Mr Smith to give his own address for the Uber lift and his mother’s telephone number and bank account details, leading to his easy discovery and arrest.
97․The harm done to the victim would have been reasonably significant. Not only had he lost some valuable items - cash, a luxury watch and a motor vehicle - but he had been subject to inevitably distressing and deceitful dealings. There was no Victim Impact Statement, but these findings can be made. It is, however, not permissible to speculate on any greater harm done or, for example, any precise problems, including of inconvenience suffered by the loss of the funds or the motor vehicle.
98․So far as the family violence offences were concerned, they involve other considerations.
99․Aggravated damaging property is an offence proscribed by s 116 (3) of the Crimes Act which sets out the maximum penalty of 3 years imprisonment or a fine of $9,600 or both. It is an aggravated version of the offence, with a more serious penalty because it involves family violence: s 116 (4) of the Crimes Act.
100․Again, the value of the damage caused is an essential factor in determining the seriousness of the offence: see R v Ware [2016] ACTSC 264 at [60]. Unfortunately, no evidence was available about this. The plant and pot would not really have been very valuable, but not trivial, and there no evidence any damage to the wall, but neither description or cost of repair. The same can be said of the photo frame. Had there been damage to what was in the frame, that may have caused some further harm as it might have destroyed what had a sentimental value and could have caused irrecoverable loss, but there is no evidence of this.
101․The damage to the wall on both occasions, including three holes which would have cost some reasonably significant amount to repair, was also unspecified and unquantified. In the light of this uncertainty, it cannot be said that the offence was very, very serious, but it was certainly more than a modestly serious offence.
102․It was, also, it would appear, very much that these were emotional and impulsive actions, from the description of Mr Smith’s demeanour, possible exacerbated by his mental health, especially given the description of him acting “erratically”.
103․That it was committed in the context of family violence is also a matter of aggravation, but that is an element of the offence itself. There was nothing particular about this aspect that particularly aggravates the offence beyond that, as could have been so.
104․As to the aggravated assault occasioning actual bodily harm involving family violence is an offence under s 24 (2) of the Crimes Act, made an aggravated offence by s 48C of the Crimes Act because it involved family violence.
105․Again, the nature of the injuries is an important factor relevant to the seriousness of the offence: R v Bloomfield (1998) 44 NSWLR 734 at 739-40.
106․There was no provocation of Mr Smith by his brother to mitigate the offence. The injuries were significant: pain and bruising and, it was said, some consequential stiffness. There was, however, no ongoing or long-term injury. The use of a weapon was an aggravating factor, but it was still not the most serious form of the offence. Again, it seems to have been an offence committed in the context of Mr Smith’s mental health issues.
107․There is some basis for suggesting that this is somewhat a course of conduct involving some difficult family interaction. The suggestion of Ms Wallis, without challenge, was that it occurred when the two brothers were together in the house in the absence of their mother, as part of an argument between identical twins over who was the more attractive.
108․It would, however, have been very frightening, as well as painful, for Mr Smith’s brother and Mr Smith has subsequently apologised. It is said, without challenge, that they have repaired the relationship and are on good terms. This does not, of course, mean that an appropriate sentence for the crime, a serious action, cannot nor should not nevertheless be imposed.
Subjective Circumstances
109․Having considered the nature and circumstances of the offending, that is the objective seriousness of the offences, it is necessary to consider Mr Smith’s personal circumstances. This is the other major consideration at common law for a Court sentencing an offender and is set out in s 33(1)(m) of the Sentencing Act and some other paragraphs.
110․Mr Smith was born 20 years ago, the second-born twin. He has two sisters and two other brothers. He was born in Wagga Wagga, NSW, and grew up in Queanbeyan, NSW. His mother now lives in Canberra. He is of Aboriginal heritage.
111․He had a difficult upbringing, experiencing severe emotional and behavioural disturbances at a very early age. His father left home because of incarceration when Mr Smith was about three years of age. His father had been diagnosed as suffering from Schizophrenia, as has his twin brother.
112․His mother explained that the home life was rather unstable. His mother did not use drugs, but her subsequent partners did. His mother also has mental health challenges. Mr Smith, however, has a positive relationship with his mother and has been staying with her while on bail.
113․As a young person, he suffered from feelings of helplessness and disempowerment. He continued to live with his mother until he was about 13 or 14 years old, when Child and Youth Protection Services took over care of him and his brother.
114․He attended school in Canberra, but severe behavioural problems and a conduct disorder led to his placement in Galilee Behaviour School by the start of Year 7. [redacted]
115․Mr Smith was in a personal relationship with a woman for about three years. He had a daughter of the relationship born about six or seven months ago. He has recently seen her and is highly motivated to be the father to her that he did not have. The relationship with his child’s mother, however, is complicated. She was the co-offender in the offences committed on 2 August 2022.
116․He has never been employed, but he would like to complete a course in woodwork/carpentry and engage in employment.
117․Mr Smith has a diagnosis of asthma but that is well-managed. He has no other physical health issues.
118․His mental health, however, is quite complicated. Dr Furst has diagnosed him as suffering from Schizophrenia, Substance Use Disorder (Cannabis, Methamphetamine, Opiates), Complex Post-Traumatic Stress Disorder and Borderline Antisocial Personality Disorder.
119․His Schizophrenia has led to psychotic symptoms from time to time. He has been subject to a Psychiatric Treatment Disorder and was commenced on anti-psychotic depot injections. He has now transitioned to oral medication.
120․He has been assisted by the Gungahlin Community Mental Health Treatment Team. it is highly important that he remains involved with that Team.
121․He has applied for support from the National Disability Insurance Scheme.
122․Dr Furst opines that, so far as the custodial environment is concerned:
Mr Smith’s history of schizophrenia and complex, post-traumatic stress disorder places him at increased vulnerability compared to other inmates and would likely make a custodial sentence more onerous for him.
Specifically, he would be more vulnerable to the effects of stress in the jail environment and/or the effects of being ‘stood over’, intimidated, threatened, and/or assaulted by other more mentally robust inmates in custody. The stets of being incarcerated would probably make the risk of him relapsing into more acute phases of schizophrenia higher.
123․This is consistent with the advice from Ms B Baxter in an email to Ms Wallis, that Mr Smith is safely in the protection yard at the Alexander Maconochie Centre. She adds that he has been in there since entering custody. He is unable to participate in programs because they are not conducting them for remandees.
124․Mr Smith has a long and challenging substance use history.
125․He began smoking tobacco when he was 12 years old and used “half a pouch” weekly. He also used sporadically in the community, but is now keen to cease and is engaged in Nicotine Replacement Therapy.
126․He commenced the consumption of cannabis at the early age of about 12 or 13 years. Since he first used the substance, he has been consuming it up to three grams a day. He continued to use it on a regular basis and he was consuming it on the day of each of the offences.
127․His use of methamphetamine started around that time when he was about 13 or 14 years of age. Initially, he used sporadically, but, by age 15, he engaged in continual use of whatever he could obtain, up to about half a gram a day. He would often commit offences to get the funds to buy the drug and he was using on each of the days of his offending.
128․As a teenager, he has had some “one off” use of other drugs, such as Lysergic Acid Diethylamide, Pregabalin and Ecstasy (MDMA). He does not currently use any of them.
129․Mr Smith has, as noted above at [57] and [61], attempted residential drug rehabilitation, first at Ted Noffs Foundation, then at Oolong House. He did not last long at either facility. While that does raise a real question about his capacity to engage in drug rehabilitation, the period was not really long enough to show that he had any success in managing his drug dependence so that it was failure because of his relapse. Nevertheless, it is an issue to be addressed. He has, recently attended the Canberra Recovery Hub.
130․He has, however, had some engagement with pharmacotherapies and is currently prescribed Buvidal, which he is taking by injection. Regrettably, he did relapse and use drugs on 25 September 2023, while on custody.
131․Mr Smith does have a very troubling criminal history. [redacted]132․As an adult, he has seven offences on his record. One is of an assault occasioning actual bodily harm and being in possession of a knife. There is one offence of possessing a drug. He has been found guilty of dishonestly riding in a motor vehicle without the owner’s consent. He has, therefore, already committed some of the current offences before as an adult as well. He has spent nine months in prison.
133․Mr Smith has had some difficulty in coping with his mental health medication regime in custody. He was enthusiastic, however, in his involvement with the preparation of the Suitability Assessment by Alcohol and Drug Services, and presented as “enthusiastic, motivated and engaged”. He did ask questions about the Treatment Order and did appear to understand the answers. For the ACT Corrective Services Suitability Assessment, however, he did not appear to be co-operative. He failed to attend all the appointments made for him, attending only two of the six arranged appointments as scheduled. For one of the missed appointments, he said that he had a mental health appointment, even though he actually did not.
134․He tried to justify his actions for the aggravated robbery, though, to his credit, he did say that he was very remorseful because the victim was a woman.
Current Sentencing Practice
135․One of the required considerations is current sentencing practice, to which, under s 33 (1)(za) of the Sentencing Act, the Court is required to have regard, so far as it knows it.
136․Part of this has already been addressed when identifying the aggravating and mitigating factors for determining the nature and circumstances of the offences (as noted above at [71]-[108]). In addition, it is essential for the important sentencing value of consistency also to have regard the type and length of sentences currently being imposed.
137․There are two principal ways in which this can be done. The ACT Sentencing Database records many of the sentences impose in this Court and the ACT Magistrate Court. There are, however, many limitations to these records. While some factors are recorded, not all are, including some of the important ones, such as the value of property stolen (which, indeed, is not always known on sentencing), but which moderates the comparability of the information to the current offending. The limitations have been described in a number of decisions, including R v Bonfield [2021] ACTSC 36 at [130].
138․For what it is worth, of the 392 sentences for aggravated robbery sentences recorded in the Database, 128 were fully or partially suspended sentences of imprisonment. Of the balance of 264, being full-time sentences of imprisonment, the length of the sentences ranged from four months to 12 years imprisonment. Of them, 80% were in the range of 15 months to 3 years and 8 months imprisonment.
139․The other way to consider this factor is by looking at actual cases that are comparable. The sentencing remarks can show the relevant factors and how those have been identified, assessed and the sentence produced. No counsel referred to such cases. The Court, however, did consider current sentencing practice in R v Lovelock [2020] ACTSC 376 at [42]-[50]. There, the sentences seem to be currently showing less severe an approach to this offence.
Mental Health and Childhood Disadvantage
140․A major consideration in this matter is Mr Smith’s mental health. That has been noted above at [118]-[123], where the diagnosis of Dr Furst was set out.
141․The Victorian Court of Appeal in R v Verdins set out the appropriate approach. That approach has bene accepted in this Territory: see Cooper v Corvisy [2010] ACTSC 165 at [37].
142․Dr Furst made it clear that the disadvantaged childhood that Mr Smith suffered, including his stepfather’s abuse would precipitate, though not entirely cause, his drug dependence. Thus, Dr Furst expressed the following opinion after reviewing the relevant literature:
The relevance of this literature in relation to Mr Smith is that he struggled to cope throughout his childhood and teenage years as a consequence of his addictive disorder and the longer-term affects [sic] of childhood trauma and parental abuse/neglect. His exposure to trauma and domestic violence also made him emotionally dysregulated in the form of complex post-traumatic stress disorder.
Additionally, his drug use, especially regular cannabis abuse and the effects of methyl amphetamines, likely precipitated his schizophrenic illness at much earlier age than would otherwise have been the case had he not used drugs, thereby causing further disadvantage and psychiatric and emotional impairment.
[…]
Additionally, people with schizophrenia and/or PTSD have approximately 2-3 times the rate of drug use compare [sic] to people in the community without schizophrenia, with a further substantially increased rate of drug abuse seen in teenagers and adolescence [sic] with a childhood history of ADHD. Such increased rate of addiction likely reflect underlying brain deficiencies and genetic vulnerabilities seen in these disorder [sic], but also represent a form of maladaptive ‘self-medication’ and ‘social drift’ phenomenon, i.e. disabling effect of the schizophrenia and/or complex PTSD leads to inability to study or work and association with drug-using/pro-criminal peers, often from an early age, exerting a further negative social influence on the offender. People with such mental disorders and mental illness are more likely to use drugs to try and relieve symptoms and their illness/disorder.
Additionally, The [sic] fact his father, other relatives and peers were drug users/drug addicts and normalised drug use, including his father using drugs and being incarcerated, suggest the principals [sic] of mitigation elucidated by the High Court in Bugmy also apply this offender.
143․The reference to Bugmy is the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 where, at 594-5; [43] - [44], the Court held:
43. The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
44. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult[. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (Footnote omitted)
144․Applying these principles, Mr Smith’s moral culpability will be significantly reduced in these circumstances, both because of his childhood disadvantage and of his mental health, neither of which can really be separated.
145․This is also relevant to his sentence because, as earlier noted at [122], Dr Furst considered that the imposition of a prison sentence would bear far more heavily on Mr Smith than on a detainee without his mental condition. It is relevant, too, that he has had to be confined in protective custody for his safety, which will limit his options for courses of rehabilitation, quite apart from the isolation that this brings, which is also more difficult to bear.
146․It is also appropriate to note that, in these circumstances, especially Mr Smith’s mental health, that the role in sentence of general deterrence must be substantially moderated because of the severity of his symptoms which, for example, have led to psychotic episodes.
Consideration
147․The Court’s task in sentencing is to impose a sentence that is just and adequate in the light of all the relevant factors and circumstances: see Singh v The Queen [2017] ACTCA 17 at [93]. To do that, the Court must take into account all relevant factors and synthesise them, many of which point in different directions, into the one sentence for each offence. This is described as using the instinctive synthesis to arrive at the sentence: Singh v The Queen [2017] ACTCA 17 at [76].
148․The process is greatly assisted in this jurisdiction as the Legislature has, in s 7 of the Sentencing Act, provided for the purposes for which a sentence may be imposed.
149․Aggravated robbery is a serious offence which disturbs the peace of the community including in spaces where people should be and feel safe, such as when the first victim was just going about her business in the carpark to a shopping centre. Theft deprives people of their property, which they have often worked hard to obtain, and causes loss and inconvenience, sometimes in the case of personal items, that are irreplaceable.
150․This is similar for the misuse of another's motor vehicle by the offender. In addition, a motor vehicle is often the most expensive purchase of a person, apart from a home Damaging property is, similarly, a serious offence which destroys the property of others or the community. Violence is also to be abhorred and it is appropriate to show that such unacceptable behaviour has consequences.
151․Thus, punishment is an appropriate element of the sentence to show that these are serious offences, that there are severe consequences and that such conduct is not to be tolerated.
152․Such sentence will also denounce the conduct, but, given Mr Smith’s mental issues, the relevance of deterrence of others is considerably less.
153․The sentence may also deter Mr Smith, though his criminal record and prior conduct show that this has not been effective in the past. There is no reason to suggest that it will be more effective for this in the future. It will, however, make him accountable for the crimes that he has committed.
154․Of course, the sentence must also acknowledge the harms done to the victims, though this will inevitably have to be more limited because there are no Victim Impact Statements to identify the actual rather than generally recognised harms that the victims have suffered.
155․There is, too, a significant place for rehabilitation to play some part in the sentences that will significantly contribute to what all these factors are designed to achieve, which is the protection of the community.
156․Mr Smith pleaded guilty in the ACT Magistrates Court. It was, it appears, after a plea of not guilty was entered to some of the offences and where a prosecution Brief of Evidence had to be prepared for only them. This would not then have as great a utilitarian value as would have been provided in the case of those offences where he did enter an early plea of guilty. Nevertheless, it is appropriate for a discount to be given for that value to the administration of justice.
157․Mr Smith was also, at the time of the second and third series of offences, on bail for the earlier offences. Bail is a form of conditional liberty. Thus, it is the Court’s decision to permit Mr Smith to be in the community and not in custody, but on conditions, including that he not commit further offences.
158․While the abuse of that liberty by Mr Smith does not mean that the objective seriousness of the offences is greater, it does mean that the sentence must be more severe, as explained in R v Po’oi at [94].
159․Mr Smith’s plea of guilty is also recognised as some expression of remorse. It is not a particularly strong recognition of that important response to his offending, but it is reinforced by his expressed wish to reform and his wish to apologise to the first victim. He also was described as “remorseful” in the Suitability Assessments, but ACT Corrective Services considered that he had tried to minimise his culpability somewhat. Nevertheless, he can gain some credit for a degree of remorse.
160․Mr Smith did start to use drugs at a relatively early age before he could make an informed decision about it. His use in not mitigatory, but the circumstances of his introduction to use, corroborated by Dr Furst as noted above at [142], does moderate his culpability.
161․He has, however, a poor criminal record, including the prior commission of the offences for which he must now be sentenced. It is important that he not be punished twice for those past offences, but prior offending can reduce any leniency that may otherwise have been available to him and further reduced by the repetition of the same offending: see R v Steen [2015] ACTSC 259 at [15]. His mental health and his childhood disadvantage are important, for his offending is, as Dr Furst has opined, also related to these issues that he suffers and this also moderates his moral culpability.
162․In addition to all these matters, it is, of course, necessary to take fully into account, when coming to the instinctive synthesis that will lead the sentence, the nature and circumstance of the offending and Mr Smith’s personal circumstances.
163․Nevertheless, having regard to all these matters and then considering all the appropriate alternatives, it is clear that no other sentence than a sentence of imprisonment is appropriate and required: s 10 of the Sentencing Act.
164․There are, of course, six offences for each of which a sentence has to be imposed. A proper sentence must be imposed on each of them.
165․It is also necessary to consider whether the sentences should be wholly or partly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is also referred to above. It applies to the first series of offences and to the family violence offences, which constitute a course of conduct. The aggravated robbery offence and the minor theft offence and the offence of dishonestly riding in a motor vehicle without the owner’s consent, which, as well as constituting a course of conduct, also contain some common elements.
166․Then the length of the total sentence must then be considered carefully to ensure that the important sentencing principle of totality is respected and that the total sentence adequately reflects the total criminality but no more than that. The total sentence must not be excessive, but leave open the realistic prospect of reform and to maintain the hope required for Mr Smith to be able to take an effective part in the community and realise his aims, including his wish to be a father to his daughter, when he is released.
167․This may result in what is seen by some to be a lenient sentence, in that, for example, some sentences are concurrent or partly concurrent with another, but, while the total criminality of Mr Smith is an important factor, his growing awareness of the need for rehabilitation is also important as is the circumstances of his introduction to drugs, his mental health and his childhood disadvantage. This requires a sentence proportionate to his culpability for the crimes, the effect that they have on the community, but also Mr Smith’s subjective circumstances and the value of reform to both the community and to himself.
168․Accordingly, Mr Smith was convicted and sentenced as follows:
(1)Ronan Smith be convicted of dishonestly riding in a motor vehicle without the owner’s consent (CAN 7579/2022) and be sentenced to six months imprisonment to commence on 22 March 2023 and expiring on 21 September 2023. Had he not pleaded guilty, he would have been sentenced to 11 months imprisonment.
(2)Ronan Smith be convicted of aggravated robbery (CAN 94612/2022) and be sentenced to two years and three months imprisonment to commence on 22 June 2023 and expiring on 21 September 2025, that is to be cumulative as to two years on the sentence for dishonestly riding in a motor vehicle without the owner’s consent, Had he not pleaded guilty, he would have been sentenced to two years and six months imprisonment.
(3)Ronan Smith be convicted of theft (CAN 6567/2023) and be sentenced to ten months imprisonment to commence on 22 September 2025 and expire on 21 July 2025, that is to be wholly cumulative on the sentence for aggravated robbery. Had he not pleaded guilty, he would have been sentenced to 12 months imprisonment.
(4)Ronan Smith be convicted of aggravated damaging property involving family violence (CAN 12200/2022) and be sentenced to eight months imprisonment to commence on 22 July 2026 and expiring on 21 March 2027, that is to be wholly cumulative on the sentence for theft. Had he not pleaded guilty, he would have been sentenced to ten moths imprisonment.
(5)Ronan Smith be convicted of aggravated assault occasioning actual bodily harm involving family violence (CAN 12199/2022) and sentenced to twelve months imprisonment to commence on 22 September 2022 and expiring on 21 September 2027, that is to be cumulative as to six months on the sentence for aggravated damaging property involving family violence. Had he not pleaded guilty, he would have been sentenced to 15 months imprisonment.
(6)Ronan Smith be convicted of minor theft (CAN 9464/2022) and be required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from 21 September 2027 with a probation condition that he be subject to the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period that the person supervising him considers appropriate and obey all reasonable directions of the person supervising him.
169․Mr Smith was, accordingly, sentenced to a total of four years and six months imprisonment and a Good Behaviour Order. The first sentence, for the offence of dishonestly riding in a motor vehicle without the owner’s consent, has now been wholly served and need not be considered further. Similarly, the sixth sentence, the Good Behaviour Order stands alone and also need not be considered further.
170․The Court must, however, consider how the balance of the sentence, namely four years imprisonment be served. Mr Smith has sought that a Treatment Order be made for the service of any sentence of imprisonment. There are other ways in which the sentence could be served, but given the request made by Mr Smith, it is appropriate to consider whether a Treatment Order should be made and only consider the other options were Mr Smith either ineligible for a Treatment Order or he is unsuitable for such an Order to be made.
171․To consider whether a Treatment Order should be made, there are two issues that need to be addressed: is he eligible and is it suitable that such an Order be made, including whether it is suitable that the sentence of imprisonment be suspended and whether there are suitable arrangements for the administration of a Treatment Order?
172․The eligibility requirements are set out in ss 12A and 80S of the Sentencing Act. The requirements under s 80S of the Sentencing Act are really questions of suitability and so can be addressed when that issue is considered.
173․Mr Smith has pleaded guilty to the four offences with which the Court is now concerned. They are all eligible offences for a Treatment Order.
174․For the offence of aggravated robbery, the primary offence, he has been sentenced to a term of two years and three months imprisonment which is greater than the minimum period of imprisonment for which a Treatment Order can be made. The total sentence of the primary and associated offences, namely the offences of theft, minor theft, aggravated damaging property involving family violence and aggravated assault occasioning actual bodily harm involving family violence is four years imprisonment which is the maximum period for which a Treatment Order can be made.
175․The Suitability Assessments both show that Mr Smith has a long and entrenched drug use and, indeed, following the assessment of him by the Alcohol and Drug Service reported in the Suitability Assessment it prepared, assessed that there was a “highly likelihood of a severe substance use disorder”. This was not challenged. It was confirmed by Dr Furst, who diagnosed him as suffering from a severe Substance Use Disorder. Thus, the Court accepts that he is dependent on drugs, namely cannabis, methamphetamine and heroin.
176․Both Suitability Assessments report that he was using the drugs at the time of each offending and that he attributed the drug use to the offending. This, also, was not challenged. This is, to some extent, also corroborated by what he told Dr Furst and by his criminal record which makes such quite likely. The Court accepts that his drug dependence substantially contributed to his offending.
177․Mr Smith’s mother lives in Canberra. He has lived here for many years. There is no reasonable doubt that he will live in Canberra for the length of the sentence.
178․Mr Smith has signed the prescribed consent to the making of a Treatment Order. The Suitability Assessments reported without challenge that he had had explained to him the Treatment Order and the obligations under it and that he had had the opportunity not ask any questions about the Treatment Order. There was no suggestion that he did not have any of the questions that he asked answered or in language that he could understand. This is confirmed by his signature on the prescribed form. The Court accepts that he has given informed consent to the making of a Treatment Order.
179․Accordingly, Mr Smith is eligible for a Treatment Order to be made for service of the four-year term of imprisonment.
180․The Suitability Assessment of Alcohol and Drug Services recommended that Mr Smith is suitable for a Treatment Order. ACT Corrective Services, in its Suitability Assessment, recommended that Mr Smith was unsuitable because of his criminal record and his response to previous Court orders, namely his “substantial non-compliance with the assessment process and community-based orders” and which led to the opinion that he “will not be able to comply with the rigid requirements of” of a Treatment Order.
181․It is to be noted that the experience that Corrective Services had with the assessment process was quite different from that of the Alcohol and Drug Services. it is difficult to be clear, but it seems reasonably possible that Mr Smith’s experience with the criminal justice system has made him somewhat wary of criminal justice agencies, which were required to supervise him and, in a number of cases, had caused his community-based order to be cancelled, leading to him being returned to prison.
182․Ms Wallis submitted:
In this respect, the offender respectfully submits that this concluding [that he is not suitable for a Treatment Order] should be understood in the context of Mr Smith’s near-lifelong challenges with drug use and mental health. Noting the submissions made […] in relation to the prospect of a structured and intensive court order providing the additional support needed by someone with Mr Smith’s complex needs, the offender submits that it would not be inappropriate for this court to make a [Treatment Order] notwithstanding the finding of ACT Corrective Services per s 80T(5) of [the Sentencing Act].
183․While Mr Smith’s proven non-compliance with rehabilitation in the past is clear, it was significantly a failure to comply with obligations. This will be less possible under a Treatment Order with the intense support and judicial supervision that he will experience and in the context of an intensive community-based drug rehabilitation facility where more constant and intensive supervision will be imposed.
184․He has, however, committed further offences while in the community subject to community-based orders but that, again, was, generally but not completely, when he was not subject to intensive supervision monitoring his abstinence from drug use.
185․He has also expressed the motivation that he wishes to re-connect with his child, often a strong motivator, and the longer he leaves that, the more difficult it will become and the more likely that it will not happen.
186․The comparative circumstances do not guarantee that he will comply with a Treatment Order and behave better than while subject to other community-based orders, but the indications are generally quite positive and the Court accepts that he is suitable.
187․This is also an acceptance that it is suitable that the sentence of imprisonment be suspended.
188․A program for him to enter the program at the Canberra Recovery Hub has been organised and he is to start that immediately. Together with case management, regular urinalysis and counselling, there are suitable arrangements in place for the administration of the Treatment Order.
189․Accordingly, a Treatment Order was made in the following terms:
(7)A Drug and Alcohol Treatment Order under section 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Ronan Smith in respect of the primary offence of aggravated robbery (CAN 94612/2022), of which he has been convicted and for which he has been sentenced to two years and three months imprisonment.
(8)The Order be extended to the offences of Theft (CAN 6567/2022), aggravated damage property involving family violence (CAN 12200/2022) and aggravated assault occasioning actual bodily harm involving family violence (CAN 12199/2022) of which Ronan Smith has been convicted and for which he has been sentenced and which are associated offences of the primary offence.
(9)The Drug and Alcohol Treatment Order be for three years, nine months and 15 days from today, 6 December 2023 to 21 September 2027.
(10)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for two years from today, 6 December 2023 to 5 December 2025.
(11)The Custodial Part of the Drug and Alcohol Treatment Order be hereby suspended from today, 6 December 2023 until 21 September 2027.
(12)Under section 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Ronan Smith be required to sign an undertaking to comply with the offender’s good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 6 December 2025 until the total end of the sentence, 21 September 2027, with a probation condition that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period that the person supervising him considers appropriate and obey all reasonable directions of the person supervising him, including as to alcohol and drug testing, counselling and treatment.
(13)For the Treatment and Supervision of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Drug and Alcohol Treatment Order set out in section 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed.
(b)Ronan Smith be directed to complete the program at the Canberra Recovery Hub, not to leave the program until he has completed it and comply with all he directions of the person in charge of the program and all the rules of the program and the facility.
(c)Ronan Smith undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time.
(d)Ronan Smith not return a positive test sample under alcohol and drug testing.
(e)Ronan Smith comply with any directions of the Court from time tom time about attendance at Court in person by electronic means.
(f)Ronan Smith be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this order is in force before he leaves the Court precincts.
(g)Ronan Smith be directed to appear in person in Court of Friday 8 December 2023 at 11:30am.
| I certify that the preceding one-hundred-and-eighty-nine [189] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: |
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