Director of Public Prosecutions v Smith (No 3)
[2024] ACTSC 146
•10 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Smith (No 3) |
Citation: | [2024] ACTSC 146 |
Hearing Date: | 2 May 2024 |
Decision Date: | 10 May 2024 |
Before: | Hopkins AJ |
Decision: | See [113]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order cancelled – review under s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) – unsatisfactory circumstances – imposition or resentence under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) – where compliance with the Drug and Alcohol Treatment Order was limited – Bugmy considerations – Verdins principles – resentence – rehabilitation through parole order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 80ZE, 80ZH |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Texts Cited: | Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021) |
Parties: | Director of Public Prosecutions ( Crown) Ronan Albert Smith ( Offender) |
Representation: | Counsel C Wanigaratne ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecution ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 182 of 2024 SCC 183 of 2024 |
HOPKINS AJ:
Introduction
1․Ronan Smith, on 6 December 2023, you were sentenced to a total term of imprisonment of 4 years and 6 months for offences committed between August and December 2022, when you were 19 years of age. Your sentence was backdated to 22 March 2023 to take account of time you had spent in custody.
2․You were given the opportunity to serve the remainder of your sentence, which was 3 years, 9 months, and 15 days, by way of a Drug and Alcohol Treatment Order (Treatment Order) to enable you to address your dependency on illicit substances. This was because your use of illicit substances substantially contributed to your offending.
3․Substance dependency is only part of the explanation for your offending, and indeed, your history of offending, [redacted].
4․At the time of sentence on 6 December 2023, you were diagnosed with schizophrenia, substance use disorder, borderline and antisocial personality traits, and complex post-traumatic stress disorder (‘CPTSD’), arising from prolonged and repeated exposure to trauma as a child.
5․Mr Smith, you had experiences that no child should have to face. They have shaped you. They explain, to a significant extent, the development of your mental health conditions, your substance dependency, and your involvement with the criminal justice system.
6․Unfortunately, following your release on 6 December 2023, you were unable to comply with the conditions of your Treatment Order. You were quickly returned to custody on 21 December 2023. Your Treatment Order was cancelled on 11 January 2024, after Refshauge AJ found that you were unlikely to comply with the conditions of that Order: ss 80ZE(1)(c) and 80ZE(1)(d) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
7․On 2 February 2024, you were granted bail to give you a further opportunity to progress your rehabilitation before a decision was made about whether to impose the sentence that was suspended or resentence you: s 80ZE(2) of the Sentencing Act. Unfortunately, you relapsed into psychosis, spending time in the Canberra Hospital between 9 and 15 February 2024.
8․On 16 February 2024, I revoked your bail and ordered a further Forensic Psychiatric Report be prepared. At that time, I took the view that your mental illness was such that you did not have the capacity to comply with bail conditions.
9․Despite your apparent inability to comply with conditions of your Treatment Order, and of bail, you have not reoffended since December 2022.
10․For the reasons that follow, I have decided that it is appropriate to resentence you.
11․You will be sentenced to a total term of 23 months imprisonment, commencing on 1 January 2024 and ending on 30 November 2025.
12․I will set a nonparole period of 4 months and 10 days, commencing on 1 January 2024 and ending on 10 May 2024, which is today.
13․The nonparole period appears very short. However, it is calculated to take into account the period of 8 months and 15 days that you spent in custody prior to your sentence on 6 December 2024.
14․This means you are now eligible for parole. The decision to grant you parole will be made by the Sentence Administration Board. It will likely depend on the extent to which your mental health has stabilised, enabling conditions of parole to support your return to the community, compliance with your Psychiatric Treatment Order and abstinence from illicit substances.
15․I acknowledge that you have been working hard with Canberra Health Services since 16 February 2024 to develop a detailed Health Care Plan that will provide a foundation for your return to the community, supporting you to be well and reducing the risk that you will relapse and reoffend.
16․I will now explain why it is appropriate to resentence you and the reasons for the sentence I will impose.
Decision to Resentence
17․Because your Treatment Order was cancelled due to unsatisfactory circumstances, I must either impose the sentence that was suspended or resentence you. In either case, I must take account of the extent to which you complied with the treatment and supervision part of the Treatment Order: s 80ZE(2) of the Sentencing Act. In your case, there is no significant period of compliance to take into account.
18․A high degree of non-compliance will ordinarily result in the imposition of the suspended sentence of imprisonment. This approach is necessary to ensure that “current and potential participants on the Drug and Alcohol Sentencing List appreciate the privilege available to them and the likely consequences for non-compliance”: R v Cook (No 2) [2024] ACTSC 27 at [20].
19․However, the degree of compliance with the Treatment Order is only one of the circumstances to consider. The discretion to resentence arises where “the court considers it appropriate in the circumstances”: s 80ZE(2)(b) of the Sentencing Act. This enables a court to consider all of the circumstances that are relevant and known at the time of deciding whether to impose the sentence that was suspended or resentence.
20․In your case, the evidence establishes that at the time of being non-compliant with your Treatment Order and subsequent bail conditions, you were struggling with complex, intersecting mental health conditions.
21․As set out in the Forensic Psychiatric Report of Dr Barker dated 30 April 2024, upon your admission to the Canberra Hospital on 9 February 2024, you were recorded as experiencing a “relapse of psychosis on [a] background [of] schizophrenia in [the] context of likely substance use and medication non-compliance”. At that time, the plan for your treatment included an “aim to optimise depot [a slow-release form of medication administered via injection] given likely non-compliance with oral medication”.
22․There is no direct evidence relating to your mental health condition during the short period that you were in the community subject to your Treatment Order. However, the fact that your mental illness is long-standing and was operative at the time of your offending in 2022 establishes the likelihood that it compromised your capacity to comply. This means your mental health condition likely impaired your ability to exercise appropriate judgement and make calm or rational choices about compliance with your Treatment Order. For this reason, you are less responsible for your failure to comply with the Treatment Order than a person who was not suffering under the same burden of mental illness.
23․In these circumstances, to now impose the outstanding sentence of imprisonment upon you would be disproportionate, and potentially crushing for your prospects of rehabilitation.
24․The decision to resentence is supported by consideration of the psychiatric report of Dr Barker as well as the evidence given in Court by you and your mother. Together, this evidence has enabled me to gain a deeper understanding of the extent and nature of your mental health condition, the profound challenges you have faced since childhood, and the potential for you to meet these challenges and shape a more positive future. This deeper understanding is reflected in the sentence to be imposed on you.
The offences
2 August 2022 – Aggravated Robbery
25․On 2 August 2022, you committed an offence of aggravated robbery, contrary to s 310 Criminal Code 2002 (ACT) (Criminal Code). The offence is aggravated because you committed it with another person and used an offensive weapon. The maximum penalty for this offence is imprisonment for 25 years, a fine of $400,000, or both.
26․Closely associated with this offence was an offence of dishonestly riding in a motor vehicle, contrary to s 318(2) of the Criminal Code, with a maximum penalty of 5 years imprisonment. Stealing the motor vehicle was the motivation for the robbery. For this offence you were sentenced to 6 months imprisonment, which was fully served by 6 December 2023 as a backdated sentence. You are not to be resentenced for this offence. However, the time you spent in prison serving this sentence remains relevant in considering the total sentence to be imposed upon you and for the calculation of a nonparole period.
27․The facts of the aggravated robbery are that you and the co-offender, Ms Sheridan, were at Bonner Shops in the ACT at around 8.40pm on 2 August 2022. Ms Sheridan was, at the time, three months pregnant with your daughter. You had a metal wrench under your shirt, though it is not suggested you were in possession of this wrench for the purposes of committing the robbery. The wrench was approximately 30 cm long.
28․The victim walked past you and your co-offender, holding her car keys in her hand. On your evidence of 2 May 2024, which was unchallenged on this point, your co-offender grabbed the keys from the victim from behind as she approached the entrance to the supermarket.
29․The victim turned and saw you both running away towards her car. She yelled at you and your co-offender and began to chase you. You turned to face her, lifted your shirt, and removed the wrench.
30․When the victim saw the wrench, she backed away. Another male shopper, Mr George, came to assist her. You held the wrench and began to raise it over your head saying “Fuck, come on, hero!”. Both the victim and the man who came to her aid stopped approaching. By taking out the wrench, raising it and saying what you did, you threatened to use force with intent to escape. This is what makes what you did a robbery.
31․You then followed your co-offender, who had entered the driver’s seat of the car. You got into the front passenger seat and the vehicle sped off.
32․The fact that you committed the offence with Ms Sheridan and that you had an offensive weapon means that both circumstances of aggravation were present. However, there are some features of the offence that make it less serious than many aggravated robberies that come before the Court. The weapon involved can be contrasted with a knife or a firearm. The manner of use of the weapon is reactive and intended to facilitate escape. Indeed, the offence appears spontaneous and impulsive, rather than premeditated or planned. This finding is supported by the evidence you gave on 2 May 2024 about the circumstances of pressure and stress you and Ms Sheridan were under, having had “an argument with a bloke” down the road from the shops.
33․Whilst there is no evidence of any particular vulnerability of the victim, it must be accepted that having her keys snatched from her hand, being threatened with a wrench, and watching her car get stolen, must have been frightening for her. She will live with this memory.
9 September 2022 – Theft
34․On 9 September 2022, you committed the offence of theft contrary to s 308 of the Criminal Code, with a maximum penalty of 10 years imprisonment, a fine of $160,000, or both.
35․The facts of the theft are that at about 10pm, you communicated with the male victim on a social networking online dating application. You used the name “James”. You and the victim did not otherwise know one another.
36․The victim offered to have you picked up in an Uber and dropped off at his apartment. You agreed and arrived at the victim’s apartment at around 10.30pm. After a short conversation, taking place inside the victim’s apartment, he asked you to leave. You said, “I will not leave until I get what I want”.
37․You then entered the kitchen of the apartment, picked up a set of keys to the apartment and a set of car keys and said: “I am taking your car. Do not tell the Police. I will return it on Monday. If you do not give me what I want, I know bikies and the Sergeant at Arms.”
38․The victim managed to negotiate the return of the set of apartment keys. You kept the car keys. He handed you a spare garage fob. You asked if he had any gold or valuables. You then searched the apartment and took a Giorgio Armani branded watch.
39․You then saw that the victim had a mobile phone in his hand. You demanded he give it to you and accused him of contacting the police. He refused to give you the phone. You then told the victim you would not leave until you saw his bank accounts. The victim showed you his accounts and transferred $700 through a PayID system into your mother’s account, with you telling him that she was your aunt. You then left, entered the basement carpark, and drove off in the victim’s car.
40․At about 5:00am on 10 September 2024, police arrested you at your mother’s house. The undamaged stolen vehicle was parked outside.
41․The offence is made more serious by the fact that it involved the theft of a car, a garage fob, a watch and $700. These are significant items of property. It is made more serious because it took place in the home of the victim, in which he was entitled to feel safe. It must have been a particularly frightening experience for him. I can only imagine his sense of powerlessness in the situation he faced.
42․The facts do suggest some degree of premeditation, though there are aspects of the offence that are bizarre and indicate a lack of planning. In particular, there is the fact that you directed the victim to transfer money into your mother’s account in circumstances that enabled your almost immediate identification.
2-3 December 2022 – Assault Occasioning Actual Bodily Harm and Property Damage
43․On 2 and 3 December 2022, you committed the offences of aggravated assault occasioning actual bodily harm involving family violence, contrary to s 24(2) of the Crimes Act 1900 (ACT) (Crimes Act), with a maximum penalty of 7 years imprisonment, and aggravated damage to property involving family violence, contrary to s 116(3) of the Crimes Act, with a maximum penalty of 3 years imprisonment.
44․The facts of the assault are that at about 10.30am on 2 December 2022, you were at home with your twin brother. You approached your brother, holding a thin, black metal bar, and started an argument over which one of the two of you was better-looking. Your brother tried to ignore you. You became agitated, swinging the bar around and pacing back and forth. Your brother became scared and fell onto a bed. You then hit him once with the metal bar, striking him on the back of his right thigh, causing pain and bruising. Your brother yelled out: “Someone call the Police!”. You ran from the house. Your brother had some trouble walking and his leg felt numb and stiff.
45․The facts of the property damage are that at about 9.30am on 3 December 2022, you woke up agitated and upset. You tried to start an argument with your twin brother. You damaged the wall in your bedroom. Later that day, at around 5pm, you got upset when your brother wanted to leave the house. You were agitated and aggressive. You told your brother you were going to smash up the house. You then threw a pot plant against a wall, breaking the pot and damaging the wall. You threw hot wax from a burning candle on the ground and broke a photo frame. Your brother then left the house.
46․What you did on 2 and 3 December 2022 caused your brother to fear you. The assault would have been particularly frightening. He was entitled to feel safe in his own home. Sadly, your brother was likely very familiar with your erratic behaviour, given what is known about the circumstances of your upbringing together, and your long-standing mental health conditions and illicit substance dependency. As I understand it, you have apologised to him, and your relationship has been repaired. It is a sad fact that for a time prior to your sentence, you shared a cell together at the prison, enabling you to provide comfort and a sense of safety to one another.
47․In each case your offending was impulsive and emotional, consistent with the likelihood that you were mentally impaired at the time and influenced by the use of illicit substances.
Plea of guilty, remorse and acceptance of responsibility
48․You have expressed remorse for your offending and shown a significant degree of insight in your evidence to the Court and your comments to the various report writers. Your pleas came at a relatively early opportunity, all having been entered in the Magistrates Court. I will reduce the sentence that I would otherwise have imposed by approximately 20 percent.
Criminal history
[Paragraph 49 redacted].
50․You have been convicted of two offences of assault, one of those being an assault occasioning actual bodily harm committed as an adult in 2021, for which you received a fine. Your adult criminal record is relatively limited. It does include one offence of damaging property in circumstances involving family violence.
51․Whilst your criminal record does limit the leniency that can be given to you in sentencing, it also reflects the way in which your life has been shaped by your childhood experiences, early introduction to illicit substance use, and mental illness.
Subjective circumstances
52․Mr Smith, there are now four reports before the Court that enable me to understand your background and experience as a proud Ngiyampaa man. Two of these are reports prepared by ACT Corrections and ACT Health in relation to your suitability for a Treatment Order. Then there is the report of Dr Furst dated 1 October 2023, and the report of Dr Barker dated 30 April 2024. Both Dr Furst and Dr Barker are Forensic Psychiatrists.
53․In addition, I have a letter from you that was tendered in evidence on 2 May 2024, as well as the evidence that you and your mother, Ms Thompson, gave from the witness stand on that day. This evidence is important to help me understand your insight, motivation, and potential to meet the significant challenges that you face.
54․It is necessary for me to refer to some of the information and opinions contained in the reports I have read to explain the sentence that I will impose. I appreciate that it may be difficult for you and for your mother to hear what I have to say. I will try to keep what I say limited as others do not need to know the details of your experience.
55․It is important for you to know that you are not to blame for what happened to you as a child. I am also not blaming your mother or others who may be responsible in some ways for what happened to you. There is little doubt that they faced significant challenges in their own lives. So often disadvantage has this intergenerational aspect.
Childhood disadvantage
56․You had an extremely traumatic childhood. This is summarised in the words of Dr Furst at page 11 of his report, as follows:
Mr Smith was disadvantaged from an early age, with his father using drugs, being mentally unwell, and being a violent man. Some of his mother[’s] subsequent partners also use[d] drugs, and were violent and she suffered from bipolar disorder, contributing to the chaotic and unstable home environment that Mr Smith grew up in. He witnessed domestic violence, [was] the subject of physical violence, and was also subject to emotional abuse and neglect. Consequently, Mr Smith missed out on adequate nurturing and care in his early childhood and he also missed out on school.
57․It is clear that you did not experience the sense of safety, stability or structure that is necessary to enable a child to thrive. In fact, you experienced the opposite, living in fear in a chaotic environment in which family violence and illicit substance use were a part of everyday existence. Your parents separated when you were two, with your father being imprisoned for four years. There is nothing to suggest you experienced any greater degree of safety after this time, witnessing and being subject to violence perpetrated by your mother’s subsequent partners.
58․You struggled with school. You had severe behavioural problems. You were diagnosed with Conduct Disorder at the age of 10. It is also likely you were suffering from attention deficit hyperactivity disorder.
[Paragraph 59 redacted].
60․From around the age of 12, you ceased all engagement with schooling. On your account, you “ran the streets”, began using illicit drugs, committing crimes to obtain drugs [redacted].
61․This short summary cannot hope to describe the traumatic experiences you faced or their impact upon you. What is clear is that you suffered extreme disadvantage. This experience has profoundly impacted all aspects of your life.
62․The High Court in the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) at 595 [44] made clear that sentencing courts must give “full weight” to the impact of adverse childhood experience. This is to recognise that there are lines of force that shaped your life as a child that continue to impact you today, explaining your descent into addiction and a cycle of offending. Your childhood experience is also closely linked to your various mental health conditions. This reduces your “moral culpability” (Bugmy at 595 [44]), which is the extent to which you are to blame, and the weight that would ordinarily be given to “punishment, denunciation and general deterrence”: see R v Hagen [2022] ACTSC 362; 374 FLR 260 at 266 [40].
Drug Use
63․You were introduced to cannabis and methylamphetamine at the age of 13. At the time of the offences for which you are being resentenced, you were using both cannabis and methylamphetamine daily. Dr Furst diagnosed you with substance use disorder relating to both of these drugs. Your age and maturity at the time that you commenced drug use, and your life circumstances, mean that you did not have the capacity to consider the consequences of your actions in the same way as an adult: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397-8 [273] (Wood CJ at CL), 410-4 [335]-[355] (Simpson J). This again means you are less culpable than those who commence drug use at a later age or in less disadvantageous circumstances.
64․Dr Furst also noted interrelated genetic factors explaining your substance dependency, stating at page 11:
[T]here is now strong evidence that the risk of addiction to alcohol and drugs is largely inherited, with genetic factors accounting for at least 50% of the causation of addiction. That means that Mr Smith’s subsequent drug use and addiction was largely a product of his genetic vulnerability to drug addiction, coupled with the traumatic effects of parental abuse and neglect.
Mental Illness - Dr Furst
65․Dr Furst diagnosed you with four “mental disorders”: schizophrenia, Substance Use Disorder, CPTSD, and borderline and antisocial personality traits.
66․The diagnosis of schizophrenia was based on the persistent and recurring nature of your psychotic symptoms, both when using drugs in the community and when abstinent in custody. These symptoms have included paranoid delusions and auditory hallucinations of a command nature.
67․At page 12 of his report, Dr Furst found that your schizophrenia “had a negative impact on [your] level of psychosocial function, problem-solving, and consequential thinking, contributing to the offending behaviour before the court”.
68․At page 3, Dr Furst explained that because your mother was diagnosed with bipolar disorder and your father with schizophrenia, you had a genetic vulnerability to developing schizophrenia. Sadly, both you and your twin brother have developed the condition.
69․Of the link between your drug use and your schizophrenia, Dr Furst said at page 12:
[H]is drug use, especially regular cannabis abuse and the effects of methylamphetamines, likely precipitated his schizophrenic illness at a much earlier age than would otherwise have been the case had he not used drugs, thereby causing further disadvantage and psychiatric and emotional impairment.
70․Dr Furst also expressed the opinion at page 10 that:
[Your] lengthy history of emotional instability, depressive tendencies, anxiety, angry outbursts, self-harm tendencies, interpersonal difficulties and personal insecurity [were] indicative of the longer-term effects of physical abuse and neglect and exposure to drug use and violence in the family home.
71․He said that this “cluster of symptoms, especially severe behavioural and emotional problems and conduct disorder, is better explained by the diagnosis of Complex Post-Traumatic Stress Disorder”.
72․Finally, Dr Furst expressed an opinion that because of your mental health conditions, your experience in prison would be more difficult for you. At page 14, he said:
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 … 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.
73․You are currently in protective custody because of your vulnerability.
Mental illness – Dr Barker
74․Dr Barker conducted a psychiatric examination of you on 5 April 2024 and reviewed your psychiatric history in detail. His report records your engagement with psychiatrists and other mental health professionals before, during, and after the period of your offending in 2022.
75․Dr Barker confirmed your diagnosis of schizophrenia against a background of harmful use of illicit substances and significant personality vulnerabilities.
76․Importantly, he went on to express opinions about the link between your mental health condition and your offending. At page 12 of his report, Dr Barker says this about the offence of aggravated robbery you committed on 2 August 2022:
The available information suggests that Mr Smith was experiencing an acute exacerbation of his psychotic illness in the context of amphetamine use, and also non-compliance with his prescribed antipsychotic medication … it seems likely that his mental health condition was realistically connected to his alleged offences by way of: having impaired his ability at the time to make calm or rational choices and to think clearly; having made him disinhibited; having impaired his ability to appreciate the wrongfulness of the conduct; and having obscured the intent to commit the offence. It is also possible that his mental health condition contributed causally to the commission of the offence, in that he may have [been] acting in response to persecutory ideation, or out of frustration in response to auditory hallucinations. However, it is likely that amphetamine misuse was also a major factor in Mr Smiths alleged conduct, and it is possible that Mr Smith’s conduct at the time of the alleged offences was a result of amphetamine intoxication.
77․At page 13, Dr Barker expressed a very similar opinion about the connection between your mental health condition and your offending in December 2022. He did not express an opinion about the offence you committed on 9 September 2022. There is, however, little doubt that your mental health was significantly compromised throughout the period of your offending.
78․Dr Barker also agreed with Dr Furst that a prison sentence will weigh more heavily upon you than a person who does not suffer the mental health conditions that you do.
79․What Dr Furst and Dr Barker said about your mental health conditions is important. Because these conditions significantly impaired your mental functioning at the time of the offences, you will receive a lower sentence than would otherwise have been the case. This is because your moral culpability and the weight that would ordinarily be given to punishment, denunciation, and deterrence is reduced. It is also because your mental health conditions make it more difficult for you to serve a prison sentence: R v Verdins [2007] VSCA 102; 16 VR 269 at 276 [32] (Verdins); Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43-4 [177] (De La Rosa).
Rehabilitation and Healing
80․Mr Smith, I have said quite a lot about the forces that have shaped your life; forces which have largely been beyond your control. Now the question is whether you can find the strength and support to shape a different future; one in which you can be the father your one-year-old daughter needs you to be. The father you never had.
81․I have read the letter that you wrote to the Court for the sentencing hearing on 2 May 2024. I listened closely to the evidence you gave on that day. I have also read the detailed mental health care plan you have been working on twice a week with Canberra Health Services. This plan includes information about your recovery goals and supports, including those relating to your mental and physical health, substance use, family, and parenting.
82․It is also clear from the plan that you are working with an Aboriginal Liaison Officer at the prison to enable you to establish culturally appropriate support in the community through Winnunga Nimmityjah Aboriginal Health and Community Services as well as Yeddung Mura Aboriginal Corporation. There is also the potential for you to engage in the Ngunnawal Bush Healing Farm program in the future.
83․Strengthening your connection to community and culture through working with these services may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021).
84․In your evidence, you said that in the past you have chosen not to work with mental health professionals. This time, I have no doubt that you are working as hard as you can to get the help you need. You have had regular appointments with psychiatrists, and the dosage of your antipsychotic medication, which you receive by way of depot injection, has been substantially increased. You said this has had a big impact on you and that you are the best you have ever been. It is apparent that you have insight into your mental illness, which you have not always had. Regardless, you are currently subject to a Psychiatric Treatment Order which will likely be continued for some time to ensure you continue to receive the appropriate medication.
85․The evidence you gave with respect to the improvement in your mental condition is consistent with Dr Barker’s assessment of your psychiatric presentation on 5 April 2024.
86․You also gave evidence of your desire to be abstinent from illicit substances and your understanding of the way in which these substances impact your mental health, leading to you becoming mentally unwell.
87․If you are to shape a future that is different from your past then it will be essential for you to maintain your commitment to receiving mental health care and medication, as well as addressing your substance dependency. It is also apparent that you will need trauma-focused therapy to address the CPTSD that resulted from your experiences as a child.
88․There is a lot of hard work ahead of you, but you have all the motivation in the world in your daughter. [Redacted]. You also have a dream to become a youth worker, helping young people who are facing some of the challenges that you have faced. Step by step, this dream can become a reality.
89․Achieving your goals will require you to have significant support. Your mother gave evidence of her capacity to support you upon your release to live with her at home. She gave evidence of her understanding of your mental health diagnoses, her capacity to identify when you have become unwell and when you are using illicit substances. She was clear that if you are granted parole and stop taking your prescribed medication or start using illicit substances, she will contact your parole officer.
90․You mother is motivated by her love for you. [Redacted]. The potential for you to work with your mother to be there for your daughter must be very exciting for you.
Current sentencing practice
91․I was not directed to any comparative sentences to support my consideration of current sentencing practice. I have benefited from the consideration given by Refshauge AJ in DPP v Smith (No 2) [2024] ACTSC 126 at [135]-[139].
92․Comparable sentences illustrate, but do not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]. Sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445-6 [51]-[53].
Sentencing purposes and considerations
93․No sentence other than imprisonment is appropriate having regard to the seriousness of your offending.
94․In sentencing you today, I am required to consider the purposes of sentencing set out in s 7 of the Sentencing Act.
95․You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused, and your moral culpability, which is reduced by reason of your history of childhood disadvantage and your mental illness: Bugmy at 595 [44]; Verdins at 276 [32]; De La Rosa at 43-4 [177].
96․Your sentence must deter you and others from offending, though your disadvantaged background and mental illness significantly moderates the extent to which you can be considered an appropriate vehicle for general deterrence. In plain speech, that means your experience as a child and mental condition reduces the extent to which an example should be made of you to deter others from committing offences.
97․The sentence must recognise the harm you have caused to your victims. Your conduct must be strongly denounced. This is not to denounce you as a person. You are responsible for your offences, but they do not define you.
98․The sentence must be designed to protect the community as well as to promote your rehabilitation. Though, these purposes can conflict. However, ultimately, as stated by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537 [32], “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. Though your history of relapse and reoffending is reason to be concerned about your prospects for rehabilitation, there is reason to hope. Upon your release into the community, there will be an opportunity to realise that hope, to believe in yourself, and begin the process of becoming the father you hope to be.
99․The fact that you are still a very young man is another important reason why rehabilitation is an important sentencing consideration: KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577-8 [22].
Totality
100․The totality principle requires me impose a sentence for each offence that is appropriate and then consider the extent to which these sentences should be concurrent or accumulated to reach a total sentence. It is then necessary for me to step back and ensure that the total sentence imposed on you reflects the overall criminality of your offending, such that the total sentence is just and appropriate for all the offences: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at 249-250 [26].
101․In considering the total sentence in your case, it is necessary for me to consider the period of 8 months and 15 days which you spent in custody prior to being sentenced on 6 December 2023.
102․In considering the overall criminality of your offending, it is important to take into account that throughout the period of offending, you were struggling with mental illness and drug dependency against a background of significant childhood disadvantage: see, for example, R v Crawford (No 1) [2020] ACTSC 245 at [85]-[87].
103․Further, totality requires that the overall sentence “hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”: Postiglione v The Queen (1997) 189 CLR 295 at 341. Given that you are only 20 years of age, this encouragement is all the more important.
Time in Custody
104․Since your sentence you have spent two separate periods in custody: 44 days between 21 December 2023 and 2 February 2024, and 86 days between 15 February 2024 and 10 May 2024. This is a total of 130 days. I will backdate your sentence to 1 January 2024 to take account of these periods.
105․I have not backdated your sentence to take account of any of the period you spent in custody prior to 6 December 2023. Instead, this has been taken into account by reducing the sentence for the aggravated robbery by the period that you have already served on that sentence. As I explained, I have taken the full 8 months and 15 days you served prior to 6 December 2023 into account in considering the total sentence to be imposed on you today. I will also take it into account in calculating your nonparole period.
Nonparole period
106․A nonparole period must be fixed, having regard to a number of considerations: see Taylor v The Queen [2014] ACTCA 9 at [19]. These include the purposes of sentencing, the objective seriousness of your offending, and your personal circumstances. A nonparole period is the minimum period of imprisonment that justice requires to be served.
107․Your prospects of rehabilitation are important. I have considered these above. Your rehabilitation will likely depend on the extent to which you continue to engage with mental health professionals and receive your medication, as well as the extent to which you can address your substance dependency. You are young, motivated, and have faced challenges few can imagine. You will find any extended period of imprisonment challenging. It may undermine your potential for rehabilitation and healing. For these reasons, a lengthy period of parole, with the supervision and support that will be provided to you, will likely be of benefit to you and the community.
108․In calculating your nonparole period, I have taken into account the 8 months and 15 days that you spent in custody prior to your sentence on 6 December 2023. With this period included, your nonparole period is effectively 40 per cent of the total sentence that has been imposed on you for all offences committed between 2 August and 3 December 2022.
109․I did not suspend your sentence because of the importance of ensuring that release plans are in place and appropriate conditions for supervision and support have been established. This will give you the best opportunity of achieving your rehabilitation goals. This means that you will need to make a parole application as soon as possible. I hope that you will be released as soon as robust plans can be put in place to give you the best chance of success.
Orders
110․For those reasons, I will make the following orders:
(1)The cancellation of the Drug and Alcohol Treatment Order made on 6 December 2023 be confirmed.
(2)The conviction of Ronan Albert Smith of aggravated robbery (CAN 94612/2022) be confirmed and he be resentenced to 13 months 15 days imprisonment, reduced from 24 months to 19 months on account of his plea of guilty and then by 5 months and 15 days to account for time served on the original sentence, to commence on 1 January 2024 and end on 15 February 2025.
(3)The conviction of Ronan Albert Smith of theft (CAN 6567/2023) be confirmed and he be resentenced to 8 months imprisonment, reduced from 10 months on account of his plea of guilty, to commence on 1 October 2024 and end on 31 May 2025.
(4)The conviction of Ronan Albert Smith of aggravated assault occasioning actual bodily harm involving family violence (CAN 12199/2022) be confirmed and he be resentenced to 7 months imprisonment, reduced from 9 months on account of his plea of guilty, to commence on 1 March 2025 and end on 30 September 2025.
(5)The conviction of Ronan Albert Smith of aggravated damaging property involving family violence (CAN 12200/2022) be confirmed and he be resentenced to 4 months imprisonment, reduced from 5 months on account of his plea of guilty, to commence on 1 August 2025 and end on 30 November 2025.
(6)The total sentence imposed is 23 months imprisonment, commencing on 1 January 2024 and ending on 30 November 2025.
(7)A nonparole period be imposed to commence on 1 January 2024 and end on 10 May 2024.
Final words
111․Mr Smith, facing and recovering from childhood trauma, mental illness and addiction will be very difficult. You know this far better than I do. It has been your lived experience. There is a mountain for you to climb.
112․I hope that you will get support to put plans in place for your release on parole and that this will happen soon. When that time comes for your release, there will be a steep climb ahead. Step by step, and with support, you have the strength to make this climb. Each step up will give you a better view. Each step up will make those who love you proud and take you closer to your goal of being the father you want to be. There will be many challenges, but if you can keep your daughter in mind, you will find the courage to meet these challenges and continue the climb.
113․The view from the top will be worth it. Imagine sharing it with your daughter as she grows. I wish you luck.
| I certify that the preceding one-hundred-and-thirteen [113] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins. Associate: Date: |
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