Director of Public Prosecutions v Torbert
[2023] ACTSC 332
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Torbert |
Citation: | [2023] ACTSC 332 |
Hearing Date: | 31 October 2023 |
Decision Date: | 17 November 2023 |
Before: | Berman AJ |
Decision: | (1) In respect of the offence of damage to property (CC2021/10602) the offender is sentenced to 10 months imprisonment commencing on 15 September 2022 and ending on 14 July 2023. (2) In respect of the offence of assault occasioning actual bodily harm (CC2021/10603) the offender is sentenced to 12 months imprisonment from 15 March 2023 and ending on 14 March 2024. (3) In respect of the offence failing to comply with a s 3LA order (CC2021/10604) the offender is sentenced to a fixed term of 4 months imprisonment from 15 September 2022. (4) In respect of the offence aggravated threat to kill (SCCAN2023/128) (taking into account possess knife in a public place (CC2023/7620)) the offender is sentenced to 16 months imprisonment from 15 February 2024 and ending on 14 June 2025. (5) In respect of the offence of aggravated assault occasioning actual bodily harm (CC2022/11097) the offender is sentenced to 14 months imprisonment from 15 December 2024 and ending on 14 February 2026. (6) In respect of the offence of possess drug of dependence (CC2023/7621) the offender is sentenced to the rising of the Court. (7) The overall sentence is 3 years 5 months. I set a non-parole period of 2 years commencing on 15 September 2022. The offender will be eligible to be released on parole on 14 September 2024. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – damage to property – assault occasioning actual bodily harm – threat to kill – failing to comply with a s 3LA order – Bugmy principles – mental health – low prospects of rehabilitation – risk of reoffending – sentence of full-time imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 24, 30, 380 |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 |
Parties: | Director of Public Prosecutions Ivan Terrence Torbert ( Offender) |
Representation: | Counsel D Swan ( DPP) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions Briggs Law ( Offender) | |
File Numbers: | SCC 40 of 2022 SCC 19, 274 of 2023 |
BERMAN AJ:
Introduction
1․On 22 August 2021 the offender, along with a co-offender, Mr Carlos Prichard, committed a number of offences arising from their attempt to invade the home of Mr Brian Waters. Although Mr Prichard and Mr Torbert initially appeared for sentence together, complications arose in Mr Prichard’s case. His sentence proceedings could not continue. The two men will thus be sentenced separately.
2․This judgment determines Mr Torbert’s sentence.
The 22 August 2021 offences
3․Earlier on that day, Mr Waters had an argument with a woman, Ms Pilat, who was at that stage, in a relationship with him. She left Mr Waters’ home and contacted Mr Prichard with whom she had previously been in a relationship. The two of them went to Mr Waters’ home where some words were exchanged and Mr Waters pushed Mr Prichard out of a doorway.
4․Mr Prichard went to police and complained about Mr Waters’ conduct, although he declined to provide a formal statement.
5․Later that day, Mr Waters and Mr Prichard had a conversation in which threats were made and Mr Waters said “obviously you need your brother in this situation… You want to bring him over?” Later that day, Mr Prichard did precisely what Mr Waters suggested, he contacted his brother, the offender, and another man and the three of them went to Mr Waters’ home.
6․They went there in Mr Prichard’s Mercedes van wearing hooded clothing and masks. CCTV showed them arriving at about 8:26 pm before returning seven minutes later. Each of them was armed with a weapon, or at least a tool, of some description. In particular, Mr Prichard had a rather nasty looking double sided axe.
7․Mr Waters’ dog began growling. He opened the wooden front door to his home unit but left the metal screen door closed. He could not identify who was at his front door. He opened the screen door and was able to identify the offender and Mr Prichard. He did not recognise the third person. As he went to close the screen door Mr Prichard swung the axe he was holding which skimmed Mr Waters’ hand causing small scratches. Both Mr Waters and the offender are fortunate indeed that the injuries suffered by Mr Waters were limited to that extent.
8․Mr Waters was able to close the wooden door to his unit, jamming a crowbar underneath it to stop it from opening. While he was blocking the door with his body and the crowbar, he could hear what he believed to be weapons hitting his front door repeatedly. This went on for between 30 seconds to a minute.
9․A neighbour saw all of this. He saw two of the three men smashing the door with their tools, hitting the door about 10 or 12 times.
10․Again, fortunately, the three men were unable to gain entry to Mr Waters’ premises. They gave up and went back to Mr Prichard’s van.
11․Police were contacted. When they got to Mr Waters premises, they observed damage to the screen door and the metal door.
12․When police went to the offender’s home on 25 October 2021, they seized a mobile phone. Despite an order that he provide police with information enabling them to access data on his phone, he refused to provide them with that information.
13․The prosecution case against the offender was remarkably strong. It included the offender making incriminating statements in phone calls made while he was in custody, those phone calls being recorded.
14․As a result of the events I have just described, the offender has pleaded guilty to offences of:
(i)Damage property contrary to s 403 of the Criminal Code 2002 (ACT). The offence was an offence by way of joint commission by virtue of s 45A of the Criminal Code; and
(ii)Assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). The offence was also an offence by way of joint commission by virtue of s 45A of the Criminal Code.
15․The offender has also pleaded guilty to failing to comply with the s 3LA order contrary to s 3LA(6) of the Crimes Act 1914 (Cth).
16․The maximum penalties for those offences are as follows:
(i) Damaging property - ten years imprisonment or a fine of 1000 penalty units or both;
(ii) Assault occasioning actual bodily harm - five years’ imprisonment;
(iii) Failing to comply with the s 3LA order - ten years imprisonment or a fine of 600 penalty units or both.
17․More than a year after the offending I have just described, and while he was on bail, the offender committed a number of other serious offences. Mr Prichard was not involved in these in any way.
The 29 September 2022 offences
18․The offender had been in an intimate domestic relationship with a woman named Ms Hazelton for about 18 months. They separated in September 2022. About a week later, Ms Hazelton packed up her belongings and put them into her motor vehicle, parking it at the Canberra accommodation centre in Braddon, ACT.
19․She encountered two friends of the offender and had a conversation with them. A short time later, the offender himself showed up. He was in a rage, “going off his head”, and asking Ms Hazelton why she had “ditched” him. He chased her around her car.
20․This attracted the attention of bystanders. The offender yelled at some tradesmen across the road before pulling out a knife and showing it to them.
21․Another bystander walked past and looked over at what was happening as she got in her car. The offender did not take this well. He called out to her “what are you looking at? What’s your fucking problem?” and pounded on her passenger side window. Not surprisingly she became frightened and drove away.
22․By now, Ms Hazelton was in the driver’s seat of her car. She tried to start the car, but the offender pulled the keys out of the ignition. He then struck her four or five times on the head and face with both his fists and a leathered knife sheath, causing bruising and swelling to her face and neck.
23․The offender then demanded that Ms Hazelton take him to the Watson shops, saying that he would kill her. Ms Hazelton feared for her life, especially so because she was aware that the offender had a knife. She drove to the shops, entered a supermarket and ran out the back door.
24․When police arrived, they found the offender and arrested him. Upon searching him they discovered a white crystalline substance in his jacket pocket. Subsequent analysis revealed it to be methamphetamine weighing 6.452 grams.
25․As a result of the events of 29 September 2022, the offender has pleaded guilty to:
(i)Aggravated threat to kill contrary to s 30(c) of the Crimes Act 1900 (ACT);
(ii)Aggravated assault occasioning actual bodily harm contrary to s 24(2) of the Crimes Act; and
(iii)Possess drug of dependence contrary to s 169 of the Drugs of Dependence Act 1989 (ACT).
26․When I sentence him for the offences committed on 22 August 2021, Mr Torbert asked that I take into account an additional offence of possessing a knife in a public place contrary to s 380 of the Crimes Act 1900 (ACT).
27․The maximum penalties for these offences are as follows:
(i) Aggravated threat to kill - 13 years imprisonment;
(ii)Aggravated assault occasioning actual bodily harm - seven years imprisonment;
(iii)Possess drug of dependence - two years imprisonment or a fine of 50 penalty units or both; and
(iv)Possess knife in a public place – six months imprisonment or a fine of $1000 or both.
28․As I have mentioned, all of the offences I referred to have resulted in pleas of guilty being entered by the offender. The offender pleaded guilty to the offences of damaging property and assault occasioning actual bodily harm relating to the events of 22 August 2021 on the first day of the second occasion the matter was listed for trial. He pleaded guilty to failing to comply with the s 3LA order on the first day the matter was first listed for trial.
29․These were late pleas indeed, and in each matter the prosecution case was a strong one. Nevertheless, the pleas did have a utilitarian benefit to the criminal justice system. As a result, I will impose sentences on each matter which are about 10% less than they would otherwise have been: see Manfries v The Queen [2014] ACTCA 46 at [47].
30․As far as those offences of 22 September 2022 are concerned, he pleaded guilty to aggravated threat to kill and aggravated assault occasioning actual bodily harm at a Criminal Case Conference and pleaded guilty to possessing a drug of dependence and possessing a knife in a public place in the Magistrates Court, about a year after the offence was committed. These pleas have a greater utilitarian benefit and the sentence I will impose on them is about 20% less than it would have been otherwise: see Blundell v The Queen [2019] ACTCA 34 at [12].
Objective Gravity
31․The offences committed by the offender were serious indeed.
32․Dealing first with the first group of offences, Mr Waters was entitled to feel safe in his own home and the actions of the offender and his two co-offenders represented a very serious breach of the peace.
33․His decision to go with his brother and another man was not something made on the spur of the moment. He received a text message from his brother saying “need your help” but it was some 50 minutes before he and the other two men began their assault on Mr Waters’ door. In that time, they had all disguised themselves and at least two of the three had armed themselves with weapons.
34․It is significant that the injuries to Mr Waters were the result of an axe blow, although it is not clear whether the co-offender who wielded the axe intended to cause harm to Mr Waters or was merely attempting to stop him closing the door. I will sentence Mr Tolbert on the basis that the injuries were inflicted recklessly rather than intentionally.
35․There is no evidence as to the cost of repairs, nor is there any evidence of any ongoing problems suffered by Mr Waters as a result of his hand being injured. Given the description of those injuries in the agreed facts being “small scratches”, I will sentence Mr Torbert on the basis that those injuries have resolved. Nevertheless, it is a serious matter for Mr Prichard to have swung an axe in a way which causes injury to another person.
36․Mr Torbert’s decision not to comply with the s 3LA order is unexplained by any evidence. Although police were apparently able to gain access to Mr Torbert’s mobile phone without his help, that does not mean that the offence was not serious. As Mossop J said in R v White [2022] ACTSC 178 at [46]:
…[A] very significant sentencing consideration is the need for general deterrence of such offending. Without significant penalties there are strong incentives for persons to refuse to comply with those orders.
37․Turning now to the second group of offences, it is important to note at the outset that they were all committed whilst the offender was on bail for the first group of offences. This is of course a seriously aggravating factor: see Auld v The Queen [2013] ACTCA 21 at [9].
38․It is also to be noted that two of the offences were aggravated by reason of the circumstance that a victim of those offences and the offender had been in a domestic relationship. Women are allowed to leave a relationship without being subject to violence and threats of death. Mr Torbert’s behaviour demonstrated an unwillingness to allow the complainant to decide for herself whether she wanted to be in a relationship with him.
39․These offences also represented a serious breach of the peace. The offender threatened bystanders, at least one of whom became afraid of the offender’s conduct.
40․The offence of aggravated assault occasioning actual bodily harm involved repeated blows on a woman who had no real opportunity of escape.
41․As far as the offence of possession of a knife in a public place is concerned, the offender did more than merely possess it, he waved the knife about in the course of committing other offences in order, presumably, to deter anyone from intervening to protect the victim.
42․The threat to kill the complainant was made in circumstances where the complainant could well have believed that the offender intended to carry out his threat: he had just assaulted her, and he was in possession of a knife. It is notable that she effected her escape from him by entering a supermarket and running out the back door. These are the actions of a woman who is afraid of someone to a significant degree.
Subjective features
43․No evidence about Mr Torbert’s background was called by his counsel during the sentencing proceedings. What I know about Mr Torbert’s early life is to be found in the pre-sentence reports and a decision of Robinson AJ when sentencing Mr Torbert for an earlier offence of violence in R v Torbert [2015] ACTSC 331.
44․The offender was born in the USA, coming to Australia at the age of two. His father remained in the USA while his mother remarried. His stepfather was an alcoholic who was violent towards Mr Torbert on many occasions. Once his mother became aware of this fact, she ended her relationship with her husband.
45․Mr Torbert began exhibiting problematic behaviour at a relatively young age. He was removed from his mother’s home when he was 13 due to behavioural concerns, and couch surfed until he was 16.
46․He has no contact with three of his four siblings, but clearly does have contact with his remaining sibling, he being the person with whom he committed the offences involving Mr Waters. He has a close and loving relationship with his mother who lives in the ACT.
47․He has one child, a five-year-old daughter who has recently entered the care of Child and Youth Protective Services. Mr Torbert hopes to gain part-time custody of her on his release from custody.
48․Mr Torbert left school in year eight and completed his year 12 certificate whilst in gaol. His poor schooling outcomes are no doubt related to his mental health issues which I will discuss shortly. He has never really been employed, claiming to have become a professional gambler in recent years.
Mental Health
49․The offender has been diagnosed with paranoid schizophrenia, having first been diagnosed with that illness in 2005. He has also been diagnosed with an antisocial personality disorder and ADHD.
50․There is no evidence to suggest any causal connection between his mental illnesses and his offending and so his moral culpability is not diminished by the conditions from which he suffers.
51․On the other hand, I am prepared to make a finding that his time in custody will be harder than would otherwise have been the case. Prisons are uncomfortable places for those with paranoia and there are difficulties obtaining appropriate medication. For example, Mr Torbert told the author of the pre-sentence report that he is unable to access treatment for his ADHD whilst he is incarcerated.
52․Consistent with his mental illness, Mr Torbert has attempted self-harm on two occasions by overdose, one in 2021 and another in 2022.
Drugs and alcohol
53․The offender began drinking alcohol as a teenager and using illicit substances around the age of 18. His drugs of choice were varied: cocaine, heroin, methamphetamine and cannabis, although he says he has stopped using heroin but continued to use methamphetamine; such drug use ceasing whilst he is in custody. Since entering custody in October 2022, he has been subject to urinalysis on one occasion, presumably passing that test.
Remorse
54․As far as remorse is concerned, Mr Torbert has expressed regret for his actions for the offences involving his ex-partner, but not for the offences involving Mr Waters. His regret for the offences involving his ex-partner is qualified however, the pre-sentence report noting “he appeared to minimise his responsibility for the offences by claiming to have been drugged by his neighbour prior to the offences occurring”. His claim to have been drugged by his neighbour is consistent with the mental illnesses from which he suffers. He is not to be punished because his inability to express true remorse likely flows from his mental illnesses.
Time in custody
55․Mr Torbert has already spent a considerable time in gaol related to these offences. It is agreed that, taking into account a number of discrete periods of custody, I should commence the sentence I will impose upon him from 15 September 2022.
56․There are no formal disciplinary events recorded against him whilst in custody and he has achieved a number of certificates of attainment for courses involving construction and hospitality.
Criminal history
57․He has a reasonably lengthy criminal history involving offences of violence for which he has been sentenced to imprisonment, and possession of weapons amongst other matters. It is notable however that his last offence of violence was committed in 2014, almost 10 years ago.
58․Mr Torbert has been supervised by Community Corrections on many occasions since 1998 when he was first sentence to a supervised Good Behaviour Order for possessing cannabis. His compliance with supervision has been much less than satisfactory with breach of bail action being recorded on six occasions, and breach of parole on 14 occasions.
Prospects of rehabilitation
59․Community corrections assess Mr Torbert as having a medium risk of general reoffending, his risk factors including illicit substance use, unemployment, and mental health.
60․It certainly could not be said that he has good prospects of rehabilitation and is unlikely to offend again in the future.
Submissions on behalf of offender
61․Mr Sabharwal who appeared for the offender submitted that the principles in Bugmy v The Queen (2013) 249 CLR 571 were enlivened. Whilst many offenders appearing for sentence in this court have much worse backgrounds involving being exposed to violence, sexual assault, drug use and the like from a very young age, that is not to say that the Bugmy principles have no application here. They certainly do.
62․The offender experienced violence at the hands of his stepfather for many years. It is not surprising that where violence has been part of the offender’s life from a very young age he might more readily resort to violence, and threats of violence than someone raised in a peaceful, loving household.
63․It was submitted that an Intensive Corrections Order would be an appropriate sentencing outcome in the present matter. I do not agree. In my view nothing less than full-time custody is appropriate to reflect the objective gravity of Mr Torbert’s offending.
64․I have given effect to the principle of totality by partially accumulating the individual sentences for the individual offences. The overall sentence is one which I believe appropriately reflects the entirety of his offending.
65․The non-parole period I have chosen is the minimum period which justice requires that the offender serve in prison.
Orders
66․I make the following orders:
(1)In respect of the offence of damage to property (CC2021/10602) the offender is sentenced to 10 months imprisonment commencing on 15 September 2022 and ending on 14 July 2023.
(2)In respect of the offence of assault occasioning actual bodily harm (CC2021/10603) the offender is sentenced to 12 months imprisonment from 15 March 2023 and ending on 14 March 2024.
(3)In respect of the offence failing to comply with a s 3LA order (CC2021/10604) the offender is sentenced to a fixed term of 4 months imprisonment from 15 September 2022.
(4)In respect of the offence of aggravated threat to kill (SCCAN2023/128) (taking into account possess knife in a public place (CC2023/7620)) the offender is sentenced to 16 months imprisonment from 15 February 2024 and ending on 14 June 2025.
(5)In respect of the offence of aggravated assault occasioning actual bodily harm (CC2022/11097) the offender is sentenced to 14 months imprisonment from 15 December 2024 and ending on 14 February 2026.
(6)In respect of the offence of possess drug of dependence (CC2023/7621) the offender is sentenced to the rising of the Court.
(7)The overall sentence is 3 years 5 months. I set a non-parole period of 2 years commencing on 15 September 2022. The offender will be eligible to be released on parole on 14 September 2024.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Berman. Associate: Date: |
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