DPP v Calhoun (a pseudonym)
[2023] ACTSC 189
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Calhoun (a pseudonym) |
Citation: | [2023] ACTSC 189 |
Hearing Date: | 17 July 2023 |
Decision Date: | 19 July 2023 |
Before: | Mossop J |
Decision: | See [87]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – young offender – culpable driving causing death – aggravated robbery – attempted theft – culpable driving offence in the high-range of objective seriousness – aggravated robbery and attempted theft offences in the mid-range of objective seriousness CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – prosecution case overwhelmingly strong for purposes of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) because of admissions made by offender – no substantial reduction of sentence available under s 35 – whether reductions available under s 36 because of admissions – reduction available under s 36 – combined discount under ss 35 and 36 of 25 percent |
Legislation Cited: | Crimes Act 1900 (ACT), ss 29(2), 382(1) Crimes (Sentencing) Act 2005 (ACT), ss 7, 8A, 35(4), 36, 53, 133C, 133G(4), pt 4.4 Crimes (Sentence Administration) Act 2005 (ACT), s 108(2)(a) Criminal Code 2002 (ACT), ss 308, 310, 403 Road Transport (Driver Licensing) Regulation 2000 (ACT), s 20(3) Road Transport (General) Act 1999 (ACT), s 62 Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 16 |
Cases Cited: | R v Campbell [2010] ACTCA 20 R v Haven (a pseudonym) [2022] ACTCA 61 R v Newby [2022] ACTCA 20 R v Snowden [2022] ACTSC 186 |
Parties: | Director of Public Prosecutions “Micha Calhoun” ( Offender) |
Representation: | Counsel A Williamson SC ( DPP) E Chen ( Offender) |
| Solicitors Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 1 of 2023 SCC 2 of 2023 |
MOSSOP J:
Introduction
1․The offender has pleaded guilty to a total of seven offences. He is identified by a pseudonym, Micha Calhoun, as he was under the age of 18 at the time of the offending. The offences involve two separate occasions and will be identified as the series one and series two offences.
2․The first series of offences occurred on 30 January 2022. They were:
(a)Aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (CH 2022/101). The maximum penalty of imprisonment is 25 years;
(b)Attempted theft, contrary to s 308 of the Criminal Code 2002 (ACT) (CH 2022/1058). The maximum penalty of imprisonment is 10 years; and
(c)Possess knife in public place without reasonable excuse, contrary to s 382(1) of the Crimes Act 1900 (ACT) (CH 2022/1059). The maximum penalty of imprisonment is six months.
3․The parties requested that the Court take into account the following additional offence in sentencing the offender for the offence of aggravated robbery, namely, property damage, contrary to s 403 of the Criminal Code 2002 (ACT) (SCCAN 2022/81). The maximum penalty of imprisonment would be 10 years.
4․The second series of offences occurred on 9 October 2022. They were:
(a)Two counts of culpable driving causing death, contrary to s 29(2) of the Crimes Act 1900 (ACT) (CH 2022/1180 and 1181). The maximum penalty for each of those offences is 14 years’ imprisonment;
(b)Failing to render assistance, contrary to s 16 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CH 2022/1185). The maximum penalty of imprisonment is 2 years; and
(c)Being an unaccompanied learner driver, contrary to s 20(3) of the Road Transport (Driver Licensing) Regulation 2000 (ACT) (CH 2022/1184). This is a fine-only offence carrying a maximum fine of $3,200.
5․The commission of the second series of offences put the offender in breach of a good behaviour order which had been imposed by the Magistrates Court on 10 August 2022.
Facts
6․The facts are agreed in two Statements of Facts which were admitted into evidence without objection. I find the facts in accordance with those Statements of Facts. The facts may be summarised as follows.
First series of offences – 30 January 2022
Attempted theft and possess knife
7․At about 5:40am on 30 January 2022, the victim of the offending, Ms T, was driving on Ashley Drive in Monash. The offender and his co-offender, K, a minor who was almost 17 years old, were walking on opposite sides of the car lane along Ashley Drive. The offender was walking in the left lane and K was walking in the right lane. Ms T honked her car horn and the two offenders approached Ms T’s vehicle. The offender gave Ms T a thumbs up sign.
8․Ms T reversed her vehicle a short distance and then stopped the vehicle. K approached the driver’s side of the vehicle and requested a lift to Erindale. At the same time, the offender approached the passenger’s side of the vehicle. Ms T replied that she could not give them a lift as she would be late for work. The offender walked around to the driver’s side, where K opened the front driver’s side door.
9․K swore at Ms T, saying “Fuck you bitch. Come out of your car. Fuck you, get out of the car. Fuck you. Give me all your – give me your fucking car, give me your fucking bag, your wallet and everything”. K then slapped Ms T, and reached into the vehicle, turning the vehicle off using the key. The offender was holding a medium-size knife. He said “Give me your fucking car. Give me your fucking key”.
10․Ms T pleaded with the offenders and attempted to close the driver’s side door. She observed K use his hand to prevent the door from closing. She screamed repeatedly. The two offenders walked away from the vehicle. Ms T closed the driver’s door and turned on the vehicle. The offender and K stuck up their middle fingers towards Ms T before she drove away.
11․Ms T immediately reported the incident to her husband. She then drove to her workplace in Hughes and arrived just after 6:00am. Her husband called ACT Police and reported the incident on Ms T’s behalf.
12․At around 5:55am the offender and K were captured on CCTV walking past the petrol pumps at the Erindale 7-Eleven. The 7-Eleven is located adjacent to Ashley Drive.
Aggravated robbery
13․At about 6:02am, Mr A was driving a taxi towards the Erindale 7-Eleven and came to a stop behind a red vehicle. Mr A observed the offender and K speaking to the driver of the red vehicle. The two offenders then walked away from the red vehicle and towards Mr A’s taxi. They approached the taxi and asked about the price of a taxi fare to Tuggeranong. Mr A stated that the fare would be “near about 15 to 20 bucks”.
14․K told Mr A that they did not have any money and asked Mr A to drive them to Gowrie shops. Mr A agreed to drive K and the offender to Gowrie shops at no cost. The two offenders got into the back seat of the taxi. Mr A requested that K and the offender provide directions, and the two directed Mr A to turn into Bugden Avenue, Gowrie. K and the offender said “Please, could you stop” and Mr A stopped the vehicle.
15․K produced a knife and held it to Mr A’s neck. K and the offender directed Mr A to leave the vehicle, saying “Leave your cab, leave your cab”. Mr A refused to leave, stating “Look, why would I leave my cab? I’m helping you”. The two offenders swore at Mr A. The offender produced a butcher’s knife and held it to the left side of Mr A’s stomach.
16․The offender then exited the vehicle and walked around to the driver’s side. He opened Mr A’s door and attempted to physically remove Mr A from the vehicle by pulling on Mr A’s hand. Mr A was wearing a seatbelt, which prevented the offender from pulling Mr A from the vehicle. K then undid Mr A’s seatbelt and the offender dragged Mr A out of the vehicle. Mr A did not receive any physical injuries during the incident.
17․K moved into the driver’s seat of the vehicle, and the offender got into the front passenger seat. At some point after exiting the back seat, the offender punched the vehicle’s camera on the passenger side. K then drove away. About 30 seconds later, Mr A called his employer Canberra Elite Taxis and later 000 to report the robbery.
18․Within a few minutes police who were looking for the taxi located the on-board computer of the taxi lying on a road in Conder.
19․At about 6:13am the taxi was observed in a reserve off Wilburd Street in Banks. The offender, K and an unidentified teenage female were in the vehicle. At around 6:30am all three youths left the reserve on foot. Police arrived at the reserve and found the vehicle shortly after.
20․One of the officers observed blood on the driver’s side door handle, a bloodied knife in the front passenger footwell and black cabling and wires protruding from the vehicle’s dashboard.
21․At about 7:06am, another officer observed two males and a female walking along Beaumaris Street and onto Tom Roberts Avenue. The officer pulled over, exited his vehicle, and spoke to the two males and female. The males identified themselves as K and the offender, and the female also gave her name.
22․Both K and the offender had cuts and blood on their hands. A police dog tracked the persons who had left the taxi to where the offender and K were on Tom Roberts Avenue. K and the offender were arrested at about 7:50am for aggravated robbery.
23․Analysis of samples taken from the taxi indicated that there was extremely strong support for the proposition that the offender was the source of the DNA profile obtained from blood and DNA swabs taken from the knife, the front driver’s side seatbelt buckle, the front passenger side window control button and the cab charge unit.
24․Photo boards were prepared and Ms T identified K as one of the males involved in the attempted theft. Mr A identified the offender as one of the males involved in the aggravated robbery.
25․The taxi was damaged in a variety of ways following the robbery. There was damage to three different stickers that were on the taxi, damage to the indicator light housings on each side mirror, damage to the vehicle’s surface, and damage to the EFTPOS terminal and another electrical device that had been removed from the vehicle.
Good behaviour order – 10 August 2022
26․On 10 August 2022, the offender received a non-conviction good behaviour order from the ACT Children’s Court in relation to charge CH 2022/91 (riding or driving a motor vehicle without consent), charge CH 2022/105 (negligent driving) and charge CH 2022/426 (common assault). The offender signed an undertaking to be of good behaviour for six months.
27․The conditions of the good behaviour order included that he must not commit an offence against a Territory law, or a law of the Commonwealth, a State, or another Territory, that is punishable by imprisonment.
28․On 19 September 2022, the offender signed a continuance of bail undertaking at the ACT Children’s Court in relation to charges SCCAN 2022/81, CH 2022/101, CH 2022/1058 and CH 2022/1059 arising from the first series of offences. The bail conditions included residing with his mother and remaining at his place of residence between the hours of 8:00pm and 8:00am, except when in the company of his mother, or for the purposes of work or with prior approval of Child and Youth Protection Services or for a Child and Youth Protection Services related activity.
Second series of offences – 9 October 2022
29․During the afternoon and evening of Saturday 8 October 2022, the offender and his friend Mr F were at Mr F’s address in Denman Prospect. While at Mr F’s address, the offender consumed about 12 x 375 ml stubbies of Carlton Dry beer. At around 8:00pm, the offender and Mr F left the address in an Uber for the offender’s mother’s address in Dickson. They arrived at some time before 9:00pm. At his mother’s residence, the offender and Mr F shared a one litre bottle of Captain Morgan rum. The offender said that he drank approximately half of the bottle. Also at the residence was the offender’s mother and two other females, who arrived at about 10:00pm.
30․At about 12:00am on Sunday 9 October 2022, the offender and Mr F decided to leave the offender’s mother’s residence. The offender took the keys to his mother’s vehicle from the bench by the front door. The vehicle was a red 2004 Toyota Camry sedan. The offender drove to Theodore to collect their friend Claire Sankey (15 years old) from her residence. They arrived at Ms Sankey’s residence at about 1:00am.
31․The offender held an ACT learner driver licence and was not allowed to drive without a person with a full active licence accompanying him. Mr F was not a full licence holder.
32․After collecting Ms Sankey, the offender continued driving around the Tuggeranong Valley. He attempted to cause the rear of the vehicle to slide out in the wet conditions, while driving through roundabouts. The offender later said that he was driving at about 60 to 70 km/h through the roundabouts, trying to impress Ms Sankey and Mr F.
33․About 45 minutes later, Ms Sankey called her friend, Susi Kopysiewicz (also 15 years old). The youths in the vehicle formed a plan to meet up with Ms Kopysiewicz. The offender drove the vehicle to Coombs and picked her up. The offender then allowed Mr F to drive, and they drove to a family friend’s house in Gowrie. About 30 minutes after arriving at the Gowrie address, all four young people departed in the vehicle. The offender was driving, Ms Sankey was in the front passenger seat, Ms Kopysiewicz was in the rear driver’s side seat and Mr F was in the rear passenger side seat.
34․The offender drove around Tuggeranong Valley for a while, and eventually drove onto the Monaro Highway at Hume heading in a northerly direction. Mr F believes they entered the Monaro Highway at the intersection with Isabella Drive. That section of the Monaro Highway has a posted speed limit of 80 km/h.
35․The offender continued driving in a northerly direction along the Monaro Highway. Traffic cameras recorded the vehicle travelling at 200 km/h approximately 12.6 seconds before the collision. Ms Sankey and Ms Kopysiewicz told the offender to slow down. Shortly before the collision, Mr F noticed the odometer displaying the vehicle’s speed at 180 km/h. While driving along the sweeping left-hand bend south of the intersection with Lanyon Drive, the vehicle started shaking and lost traction on the road surface. The road surface was wet due to heavy rain. The weather was overcast with light rain and the area was illuminated by streetlights. The traffic was light.
36․The vehicle slid across lanes one and two and onto the grassed verge and started to spin before crashing through the temporary construction fencing. The vehicle collided with a tree to the rear of the vehicle, with sufficient force to completely sever the tree at the trunk. The vehicle collided with another tree on the passenger side before coming to rest in the grass median facing in a northerly direction.
37․After the vehicle came to a stop, Mr F exited the vehicle and called out to the other passengers. After only hearing a response from the offender, Mr F assisted the offender to exit the vehicle. Both Mr F and the offender ran from the scene and got into a passing Uber. The Uber drove them to the offender’s mother’s address in Dickson. While inside the Uber, the offender used Mr F’s phone to repeatedly call Ms Kopysiewicz. The calls were unanswered. The offender had lost his own phone during the collision.
38․The offender and Mr F arrived at his mother’s address and informed her that the offender had crashed the car. The offender used his mother’s phone to log into his Snapchat account and tried to call Ms Sankey and Ms Kopysiewicz via Snapchat. The calls were unanswered. The offender told Mr F not to call the police.
39․Police, ambulance and ACT Fire and Rescue were at the scene of the accident by 8:30am. There was evidence of the vehicle leaving the roadway and sliding along the grass verge approximately 50 m south of the vehicle’s location, through the cyclone fencing continuing to its final resting place. There was a section of the fence under the vehicle, with a downed tree to the passenger side of the vehicle.
40․Photographs were tendered showing catastrophic damage to the vehicle, particularly to the rear section.
41․ACT Fire and Rescue extricated a deceased female from the front passenger seat of the vehicle, later identified as Ms Sankey. Another deceased female was observed in the rear of the vehicle, later identified as Ms Kopysiewicz. Due to the collapse of the rear passenger cell of the vehicle, she was unable to be removed from the vehicle without external intervention.
42․The Forensic Medical Officer attended the scene and pronounced both Ms Sankey and Ms Kopysiewicz as life extinct. Autopsy reports revealed that both had survived the collision for a period of time. However, more likely than not, both deceased would have died from their injuries irrespective of whether medical assistance had been provided shortly after the crash. There is no evidence as to whether either deceased was conscious at any time after the accident.
43․The offender was arrested at his mother’s house at about 10:30am that morning. He admitted that he was the driver of the vehicle at the time of the collision.
Victim impact
44․A victim impact statement was read by Claire Sankey’s sister. She describes the consequences of the grief at losing her sister which have affected her in the nine months since the accident and will undoubtedly affect her in the future.
45․I have not drawn any inference about the harm suffered by a victim from the fact that a victim impact statement was not given to the court in relation to the offence: s 53 Crimes (Sentencing) Act 2005 (ACT). It is clear that the loss of two such young lives in such tragically pointless circumstances will have a profound effect upon, most particularly, their extended families. The unfortunate reality is that although the court can, and does, acknowledge the profound loss arising from their deaths as part of the sentencing process and recognise the harm done as part of the sentence imposed, that is likely to be of little comfort to those suffering the effects of the two victims’ deaths.
46․So far as the earlier offending was concerned, the incidents involving K would have been terrifying for the victims. Ms T was threatened by two aggressive males, one of whom was holding a knife. She begged them to stop and screamed repeatedly as the incident continued. Similarly, Mr A was threatened both to the neck and the stomach with knives. The offending involved a betrayal of the kindness that he had extended to the young offenders. Such offending has the potential to cause long-term psychological damage to its victims.
Objective seriousness
47․In relation to the first series of offences:
(a)The attempted theft was a serious attempt at a theft of an item of substantial value. The attempt only came to an end as a result of Ms T’s resistance which led to the offenders walking away. Given the unlimited nature of the offence of theft, the offending is in the mid-range of objective seriousness.
(b)The aggravated robbery involved the theft of the vehicle, committed in company with both offenders using weapons to seriously threaten the victim of the offending and the victim being dragged from the motor vehicle. It involved a betrayal of the kindness that Mr A had directed towards the offenders. As a taxi driver he was vulnerable to the offending conduct of strangers. Insofar as the offence of damaging property is to be taken into account, the property damage led to the taxi being written off at a market value of $12,500. The offending is in the mid-range of objective seriousness for an aggravated robbery.
48․In relation to the second series of offending, the most serious offending is that of culpable driving causing death. In this case the offending is aggravated by the fact that:
(a)the offender had three other people in the vehicle;
(b)he was intoxicated;
(c)the speed of driving was very much in excess of the speed limit over a not-insignificant period;
(d)he was doing so to show off;
(e)the driving conditions clearly required caution as the road was wet due to heavy rain;
(f)the offender had failed to abide by warnings of his passengers to slow down; and
(g)the offending took place when the offender was on conditional liberty as a result of the good behaviour order imposed by the Magistrates Court on 10 August 2022 and also in breach of the curfew condition upon the offender’s bail arising from the commission of the first series of offences.
49․The moral culpability of the offender was high. The offending is at the high end of objective seriousness for the offence of culpable driving causing death.
50․The failure to stop and render assistance arises out of a very serious accident. It is true that the agreed facts disclose that each of the victims was unlikely to have survived even if the offender had not fled the scene. However, I do not consider that fact to reduce the objective seriousness of the offending. The legislature has enacted a standard of common decency imposed upon drivers involved in traffic accidents on a road. The gravity of the accident and the knowledge of the need for assistance are the most significant features that determine the seriousness of the provision. In the present case the accident was obviously very serious. It is not clear precisely what the offender knew when he fled the scene although he must have realised that the two victims were seriously injured. His conduct is in the mid-range of objective seriousness for this offence.
Subjective circumstances
51․The subjective circumstances of the offender are outlined in a pre-sentence report dated 13 July 2023, a variety of reference letters, a letter from the offender himself, as well as a psychological assessment report prepared by Rita Sosich dated 29 May 2023. The offender is 17 years and eight months old. At the time of the first series of offences he was 16 years and two months old. At the time of the second series he was 16 years and 10 months old.
52․He identifies as being half New Zealander and half Samoan. He was born in Canberra. He has three full siblings and two older half siblings.
53․He has been largely raised by his mother. His father and mother separated when he was about seven years old. Although the chronology is not clear it appears that his father moved to Queensland when he was about 10 years old. The offender has little contact with him. This has left him without a father figure to provide guidance and discipline. He has a good relationship with his mother. He also has a positive relationship with his maternal grandparents.
54․He completed primary school. He started Year 7. At some point he became disengaged from school and had patterns of drug use at school. His mother attributed some of this to his size and appearance in that he looked older than his age. He attended a program run by the Police Community Youth Club in Year 9 and Year 10. While in custody he has engaged with education having a goal to complete Year 12 while in custody. He is reported as having a positive attitude to education.
55․Prior to being remanded in custody he was employed by a scaffolding company. He enjoyed this work and had good relations with his work colleagues. He would like to return to this work in the future.
56․During his period on remand he has displayed positive behaviour, being polite and respectful to staff at Bimberi. He has participated in various programs and has demonstrated a consistently high standard of behaviour. He has remained committed to education. He has maintained regular contact with his family.
57․He has suffered from some anxiety since being admitted to Bimberi.
58․He first used alcohol when he was 13. He accepted that he was “getting close to being an addict”. So far as illicit drugs were concerned he used cannabis, cocaine, MDMA and LSD. His mother tried to get him off drugs but he did not listen. He described cocaine as his biggest addiction. He first started using cocaine in late 2021.
59․He admitted to being intoxicated during both series of offences. He described himself as having been on a “three-day bender” at the time of the second series of offences.
60․The report of Ms Sosich indicated he was slightly below the average level of academic achievement and general aptitude. She diagnosed him with a conduct disorder in accordance with the DSM-5 criteria, a substance use disorder relating to alcohol, cannabis, MDMA and cocaine, and PTSD arising from the second series of offences. I do not consider that a diagnosis of conduct disorder at the time of the offending is a mitigatory factor.
61․A theme of the reports and letters relating to the offender is that he is polite, respectful and engaged with the various programs made available to him. Another theme is the significant change that has occurred as a result of being incarcerated. He appears to be motivated to advance himself through education and paid employment. He has expressed to his mother an interest in being able to give back to the community. These are all positive signs. It obviously remains to be seen whether, once in the community, he is able to retain this positive motivation and avoid the pitfalls of drugs and anti-social associates. A substantial period of supervision in the community is desirable.
Criminal history
62․The offender has a limited criminal history. In August 2022 the three offences subject to the good behaviour order were found proved and were dealt with by a good behaviour order with no conviction. Two other charges were dismissed and two charges of minor theft were subject to reparation orders. All of these offences were committed in December 2021. They occurred prior to the first series offences but were only dealt with after the first series of offences had been committed.
Plea of guilty
63․The offender pleaded guilty to the attempted theft and possess knife charges after a criminal case conference. The plea to the charge of aggravated robbery was entered in the Children’s Court after a brief of evidence was served. Such pleas would usually warrant reductions of between 15 and 25 percent. In the present case the co-offender was given a reduction of approximately 20 percent and that is appropriate in this case.
64․The plea of guilty in relation to the second series was entered in the Children’s Court at an early stage before a full brief of evidence had been prepared. The offender would ordinarily be entitled to a 25 percent reduction in relation to these offences. However, the prosecution submitted that s 35(4) of the Crimes (Sentencing) Act was engaged. One of the principal reasons why it was engaged is that the offender made candid admissions to police about the fact that he was the driver of the motor vehicle. That admission was supported by the statements made by Mr F that the offender was the driver. Having regard to the elements of the offence of culpable driving causing death I agree with the submission of the prosecution that, adopting the language in R v Newby [2022] ACTCA 20, an acquittal would be realistically unlikely. Without more that would mean that no substantial discount could be given on account of the plea of guilty. That would limit the discount available to approximately five percent: R v Snowden [2022] ACTSC 186 at [44]. The effect of s 35(4) would be to deny the offender a discount on account of the plea of guilty because of the strength of the prosecution case in circumstances where the strength of that case arose from voluntary admissions made by the offender. This would appear to be an outcome which was unfair and reflected no real sentencing purpose. However s 35(4) must be read along with s 36 which permits a lesser penalty to be imposed where the offender has assisted in investigating the offence or assisted in a proceeding in relation to the offence. That must include the making of admissions that assist in the investigation or prosecution of the case against the offender. Nothing in the considerations in s 36(3) indicate that assistance in this form is not within the contemplation of the section. In circumstances where the offender would have been entitled to a reduction of 25 percent under s 35 but for the making of admissions that assisted the prosecution case, it is appropriate that he receive that discount by a combination of ss 35 and 36 of the Crimes (Sentencing) Act. Therefore the second series of offences will be subject to a 25 percent reduction.
Time in custody
65․The offender has spent 309 days in custody wholly or partly attributable to these offences which have not been taken into account in relation to any other offending. The time in custody will be taken into account through backdating of the sentence to be imposed. It results in a backdate date of 13 September 2022.
Co-offender’s sentence
66․K, his co-offender for the first series, was sentenced by a magistrate for the offence of attempted theft and common assault relating to Ms T, as well as the offence of aggravated robbery. The periods of imprisonment were suspended but were as follows:
(a)attempted theft (Ms T): three months’ imprisonment;
(b)common assault (Ms T): one month imprisonment concurrent with the earlier sentence; and
(c)aggravated robbery (Mr A): five months’ imprisonment cumulative as to three months upon the earlier sentences.
67․This gave an aggregate sentence of six months’ imprisonment which was wholly suspended. The magistrate indicated that had there not been a plea of guilty then she would have imposed an aggregate sentence of eight months’ imprisonment wholly suspended. The magistrate had earlier indicated that she would apply a 20 percent discount to the sentences imposed although did not indicate the starting points for the individual sentences.
68․The magistrate declined to make reparation order in circumstances where Mr K had little or no capacity to pay.
Breach of good behaviour order
69․The offender was the subject of an undertaking to be on good behaviour for a period of six months in relation to the three offences of ride/drive motor vehicle without consent (CC 2022/91), negligent driving (CC 2022/105) and common assault (CC 2022/426).
70․The first two of these offences occurred on 26 December 2021. The offender was discovered by police next to a Hyundai Tucson which had crashed into a pole in the early hours of the morning on Cotter Road. He ran away from police. He was intoxicated. When caught by police he admitted to driving the car to get cigarettes. He said he knew it was stolen.
71․The common assault occurred on 26 March 2022. It occurred during the course of a robbery of a BWS store during which the offender and another unidentified male stole alcohol. The offender struck an employee of the business with an open left-handed palm in the centre of his chest with moderate force causing the employee to lose his balance and take steps backwards to avoid falling over. The offender left with three bottles of whiskey in his possession. The offender was arrested the next day by police.
Consideration
72․A significant feature of the sentencing exercise are those principles of sentencing that are set out in s 8A of the Crimes (Sentencing) Act in relation to the sentencing of juvenile offenders. The principles were summarised in R v Haven (a pseudonym) [2022] ACTCA 61 at [66]-[67].
66. … Those provisions [ss 133C, 133D and 133G] still applied. In order to emphasise their significance, it is useful to summarise what they require:
(a) the court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7(1): s 133C(1);
(b) the court must have particular regard to the common law principle of individualised justice: s 133C(2);
(c) the court must have regard to (s 133D(1)):
(i)the young offender’s culpability for the offence having regard to his or her maturity;
(ii) the young offender’s state of development;
(iii) the past and present family circumstances of the young offender;
(d) a sentence of imprisonment imposed on a young offender must be a last resort and for the shortest appropriate term: s 133G(2); and
(e) the court must consider making a combination sentence consisting of the sentence of imprisonment and a good behaviour order with a supervision condition: s 133G(3).
67.Even for a young offender close to the age of 18 who commits serious offending, these statutory provisions continue to apply: LB v The Queen [2016] ACTCA 6 at [24]; R v TL [2017] ACTCA 18 at [40]; MT v The Queen [2021] ACTCA 26;17 ACTLR 22 at [55].
73․Clearly in the present case the offender was old enough to be driving and beyond the capacity of his mother to control, yet young enough to engage in the foolish, impulsive and dangerous activities that he did. His prospects of rehabilitation appear to be good. Significantly, he retains the support of his family.
74․Although the offender’s submissions placed much emphasis upon the significance of rehabilitation and the desirability of him doing that in the community, the prosecution correctly pointed out that the legislature has used very specific words in s 133C which retain the court’s discretion as to the weight to be attributed to rehabilitation. The requirement to have “particular regard” to the common law principle of individualised justice does not detract from that discretion. Consistently with the terms of the statute rehabilitation is obviously a very significant sentencing consideration for minors who commit crimes. However, it remains one purpose of sentencing amongst the range of purposes set out in s 7. Ultimately each relevant purpose of sentencing must be given some weight and the balance between those purposes is a matter of intuitive synthesis.
75․Each of the purposes of sentencing in s 7 of the Crimes (Sentencing) Act are relevant. Denunciation of the conduct, specific and general deterrence, recognition of harm done to the victims and to the community are all important sentencing considerations. Plainly for a young person such as the offender, rehabilitation is a very significant consideration.
76․I have had regard to the sentences for aggravated robbery and culpable driving causing death said by the prosecution to be comparable, but only found them to be of the most general assistance in determining a pattern of sentencing for those offences.
77․The property damage offence is to be taken into account under pt 4.4 of the Crimes (Sentencing) Act. The principles to be applied are set out in R v Campbell [2010] ACTCA 20 at [46]-[50]. However, that must be done in the context of the sentence imposed on K, the co-offender, having regard to questions of parity. The property damage was also taken into account in relation to his sentence on the charge of aggravated robbery. It must be observed that having regard to the gravity of the offending, the sentences imposed on the co-offender were very lenient. K came to the court having committed some previous offences. The lenient disposition reflected an available approach having regard to the fact that the offender was a minor with a limited criminal history and the desirability of promoting the rehabilitation of the offender.
78․Having regard to the lenient sentences imposed upon K in relation to the first series of offences and the absence of any significant distinguishing feature between the offenders, the individual and aggregate sentence imposed on the offender will be the same as that imposed upon K, notwithstanding that one of the offences is different. These sentences incorporate the discount applicable for the plea of guilty. The starting points are 20 percent above the sentences imposed. The order in which the sentences of imprisonment are imposed will allow the sentences to be fully suspended, as was the case with K.
79․In relation to each of the two charges of culpable driving causing death, the starting point will be a sentence of imprisonment of three years. Such sentences involve a very significant degree of leniency which arises from the emphasis given in the Crimes (Sentencing) Act to the promotion of rehabilitation and the imposition of the shortest possible appropriate sentence. Each sentence will be reduced by 25 percent on account of the plea of guilty so that it is a sentence of 27 months’ imprisonment. In my view it is appropriate that there be a degree of cumulation in order to recognise the fact that although the act of driving was a single act, the consequences of that driving were made substantially worse by the presence and death of more than one victim. The extent of cumulation is limited by considerations of totality. The second of the charges of culpable driving causing death will be cumulative as to 12 months upon the first charge.
80․On the charge of failing to stop and render assistance the starting point is a sentence of four months’ imprisonment, reduced to three months on account of the plea of guilty. It will be cumulative as to one month on the previous sentence.
81․Having regard to the fact that the offending in the two series of offences was entirely separate, there is no basis for any concurrency between the sentences for the different series. Further, in my view totality does not require the introduction of concurrency between the sentences for the different series.
82․This gives an aggregate sentence for the second series of 40 months’ or three years and four months’ imprisonment. The additional six months’ imprisonment for the first series results in a total sentence of 46 months or three years and 10 months. The personal circumstances of the offender and the desirability of him having a significant period subject to supervision in the community indicate that a longer period subject to supervision is appropriate. Having regard to the fact that the court is precluded from setting a non-parole period: Crimes (Sentencing) Act s 133G(3), 24 months’ imprisonment prior to the suspension of the sentences is appropriate.
83․The charge of being an unaccompanied learner driver is a fine only offence. The offender will be fined $200 and allowed no time to pay.
84․The fact that the offender was on conditional liberty as a result of the good behaviour orders imposed by the Magistrates Court on 10 August 2022 when he committed the second series of offences has been taken into account in the assessment of the objective seriousness of those offences. Having regard to that fact and the substantial sentence of imprisonment imposed on that series of offences, it is appropriate to deal with the breaches of the good behaviour order by taking no further action pursuant to s 108(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT).
85․Although documentation relevant to the making of a reparation order was included in the prosecution tender bundle, no written or oral submissions were made in support of making such an order. That fact and the fact that the offender will remain in custody without any significant income for a substantial period indicate that no reparation order should be made.
86․Automatic periods of disqualification apply as a result of the operation of s 62 of the Road Transport (General) Act 1999 (ACT). No application was made for the court to order a longer period than would apply pursuant to that section and it is not appropriate to do so.
Orders
87․The orders of the Court are as follows:
1.On the charge of culpable driving causing the death of Susi Kopysiewicz (CH 2022/1180), the offender is convicted and sentenced to 27 months’ imprisonment commencing on 13 September 2022 and ending on 12 December 2024.
2.On the charge of culpable driving causing the death of Claire Sankey (CH 2022/1181), the offender is convicted and sentenced to 27 months’ imprisonment commencing on 13 September 2023 and ending on 12 December 2025.
3.On the charge of failing to render assistance (CH 2022/1185), the offender is convicted and sentenced to three months’ imprisonment commencing on 13 October 2025 and ending on 12 January 2026.
4.On the charge of attempted theft (CH 2022/1058), the offender is convicted and sentenced to three months’ imprisonment commencing on 13 January 2026 and ending on 12 April 2026.
5.On the charge of possess knife in a public place without reasonable excuse (CH 2022/1059), the offender is convicted and sentenced to one month imprisonment commencing on 13 January 2026 and ending on 12 February 2026.
6.On the charge of aggravated robbery (CH 2022/101), and having taken into account the charge of property damage (SCCAN 2022/81) the offender is convicted and sentenced to five months’ imprisonment commencing on 13 February 2026 and ending on 12 July 2026.
7.Those sentences of imprisonment are to be suspended after the offender has served 24 months’ imprisonment upon entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for 22 months with the additional condition that during the period of the order or such shorter period as determined by the Director-General he be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person.
8.On the charge of being an unaccompanied learner driver (CH 2022/1184), the offender is convicted and fined $200 with no time to pay.
9.In relation to the breach of the good behaviour orders imposed on charges CH 2022/426, CH 2022/105 and CH 2022/91, pursuant to s 108(2)(a) of the Crimes (Sentence Administration) Act 2005, the court takes no further action.
10.The application for a reparation order is dismissed.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 24 July 2023 |
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