DPP v JJ (No 2)
[2024] ACTSC 74
•22 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v JJ (No 2) |
Citation: | [2024] ACTSC 74 |
Hearing Date: | 12 and 15 March 2024 |
Decision Date: | 22 March 2024 |
Before: | McWilliam J |
Decision: | (1) Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order in respect of [JJ] is cancelled and the offender is resentenced for the offence of murder, contrary to s 12 of the Crimes Act 1900 (ACT), by joint commission pursuant to s 45A of the Criminal Code 2002 (ACT) (Criminal Code) (CH 1281/2011) as follows: (a) The offender is convicted and a term of imprisonment for 18 years (reduced from 20 years and 1 month on account of his guilty plea), is imposed, backdated to commence on 6 August 2011 and conclude on 5 August 2029. (b) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (Sentencing Act), the sentence is to be suspended on 26 November 2024. (c) Pursuant to s 13 of the Sentencing Act, a good behaviour order is made upon the offender signing or giving an undertaking to comply with the offender’s good behaviour obligations under the CSA Act for the period during which the sentence is suspended (26 November 2024 to 5 August 2029). (d) As part of the good behaviour order, the following conditions are imposed: (i) The core conditions pursuant to s 86 of the CSA Act; (ii) A supervision condition pursuant to ss 133U and 133W of the Sentencing Act, whereby the appellant must comply with all reasonable requirements of the Director-General, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation, for a period of three years (26 November 2024 to 25 November 2027) or such lesser period as is deemed appropriate by the Director-General or his/her delegate. (2) For the offence of aggravated robbery contrary to s 310 of the Criminal Code by joint commission pursuant to s 45A of the Criminal Code (CC 2022/7279): (a) The offender is sentenced to a term of imprisonment for 2 years and 4 months, to commence on 27 July 2022 and conclude on 26 November 2024. (b) Pursuant to s 65(4) of the Sentencing Act, the Court declines to set a nonparole period. (3) The Court NOTES: Consideration should be given to an education and training condition to be imposed as part of an amended good behaviour order pursuant to s 112 of the CSA Act, following consultation with the offender and identification of an appropriate and suitable course upon his release. |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – joint commission aggravated robbery – where offender on conditional liberty – whether suspended sentence should be imposed – application of young offender principles to original sentence for murder – limited sentencing options in respect of further offending – offender re-sentenced to promote rehabilitation and transition to community – term of imprisonment imposed for further offending without a non-parole period |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 86, 110, 110(2), 110(4) Crimes (Sentencing) Act 2005 (ACT) ch 8A, ss 7, 7(1), 10, 11, 12, 12A(1), 12A(9), 13, 33, 33(1)(a), 63, 64(2)(g), 65(2), 65(6), 133C, 133G(4), 133U, 133W Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A Crimes Act 1900 (ACT) s 12 Criminal Code 2002 (ACT) ss 45A, 310 |
Cases Cited: | Black v The Queen [2022] VSCA 125 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Deighan (No 2) [2023] ACTSC 295 DPP v Djerke (No 2) [2023] ACTSC 341 DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110 DPP v Parlov [2023] ACTSC 147 DPP v Trewartha [2023] ACTSC 13 Director of Public Prosecutions v Cooke [2007] NSWCA 2; 168 A Crim R 379 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Forster-Jones v The Queen [2020] ACTCA 31 Fusimalohi v The Queen [2012] ACTCA 49 Guy v Anderson [2013] ACTSC 5 Gyory v The Queen [2012] ACTCA 28 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Henderson v The King [2024] ACTCA 3 KR v R [2012] NSWCCA 32 LB v The Queen [2016] ACTCA 6 Laipato v The Queen [2020] ACTCA 35 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 R v Beniamini (No 2) [2017] ACTSC 32 R v Bennett [2017] ACTSC 104 R v Buckman (1988) 47 SASR 303 R v Curtis (No 2) [2016] ACTSC 34 R v Hagen [2022] ACTSC 362; 374 FLR 260 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v JB [1999] NSWCCA 93 R v JJ [2014] ACTSC 311 R v Kilic [2016] HCA 48; 259 CLR 256 R v Lindsay [2020] ACTCA 25 R v Miller [1995] 2 VR 348 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Mills [2005] NSWCCA 175; 154 A Crim R 40 R v Murray [2016] ACTSC 173 R v Ogilvie (No 2) [2016] ACTSC 265 R v RMW [2016] NSWCCA 211 R v Ridley [2014] ACTSC 382 R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 R v TL [2017] ACTCA 18 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 Saga v Reid [2010] ACTSC 59 Saipani v The Queen [2021] ACTCA 5; 288 A Crim R 191 Taylor v Bowden [2009] ACTSC 13 The Queen v JJ (Unreported, ACT Supreme Court, 8 October 2013) The Queen v PM (No 2) [2015] ACTSC 358 The Queen v Ruwhiu [2023] ACTCA 18 |
Parties: | Director of Public Prosecutions JJ ( Offender) |
Representation: | Counsel M Dyason (DPP) T Sharman ( Offender) |
| Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 296 of 2022 |
McWILLIAM J:
1․JJ is before the Court for sentence, having been found guilty on 3 November 2023, following a judge alone trial, of the offence of aggravated robbery (contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code), by means of joint commission under s 45A of the Criminal Code (with the judgment referred to in this published version of the reasons simply as “Judgment”).
2․The maximum penalty for the offence of aggravated robbery is 25 years’ imprisonment, a fine of $400,000 or both: s 310 of the Criminal Code.
3․The conduct for which the offender is being sentenced occurred on 5 July 2022. At the time the offence was committed, the offender was on conditional liberty. The offender had previously been sentenced for the offence of murder on 8 October 2013 by Refshauge J: The Queen v JJ (Unreported, ACT Supreme Court, 8 October 2013) (the initial sentence). The initial sentence was confirmed on 31 July 2014 following an appeal regarding a technical matter: R v JJ [2014] ACTSC 311.
4․The murder offence was committed with a co-offender on 4 August 2011. At the time, the offender was seventeen and the adult co-offender was twenty. The offender was thus a “young offender” under the Crimes(Sentencing) Act 2005 (ACT) (Sentencing Act), and cannot be named in respect of that offence, which means that he will not be identified in this sentence either.
5․The offender’s youth heavily influenced both the term and the structure of the sentence that was imposed by Refshauge J. A combination sentence was imposed with a term of imprisonment of 17 years, commencing on 6 August 2011 and concluding on 5 August 2028. The sentence was then partially suspended from 5 February 2022 (that is, after 10 and a half years had been served) on the condition that he give an undertaking to comply with the obligations of a good behaviour order (GBO).
6․This meant that at the time of the aggravated robbery in July 2022, the offender had been in the community for approximately 5 months and was still subject to the GBO obligations.
Time in Custody
7․The offender was arrested on 27 July 2022, was refused bail, and has been in custody since that date. As at the date of the delivery of this sentence, he has spent 605 days (1 year and almost 8 months) in custody, with that entire period being referable to the offence for which he is being sentenced.
Facts of the Offending on 5 July 2022
8․The aggravated robbery offence occurred shortly after 7pm at a residential property in Gilmore, which was the victim’s home.
9․The offender called the victim to see what she was doing and organised to go over to her house. The offender arrived with another female, Ms X. Both entered the victim’s house at her invitation. The offender was carrying a long firearm which he had concealed in an item of clothing. The victim did not see the firearm at that time.
10․A short time later, the female said that she had left something in her car and walked out of the house. A car then pulled up and Ms X was joined by three other people, two males and a female. Their identities were not disputed before the court. They will be referred to in the facts as Mr A, Ms B and Mr C. This was recorded on CCTV footage from three different cameras and the identity of those people was not in dispute.
11․They then all entered the victim’s home and joined the victim and the offender in the bedroom (meaning there were 5 other people in the victim’s bedroom).
12․The victim knew all the people who were let into the house by the female. The victim’s evidence was that she owed one of the males money and that he had called her to chase up the repayment. She had deliberately ignored those calls.
13․When that male entered the room that night, he yelled at the victim, “I’ve always been good to you, and you fucking ignore me”. The male and the second female then physically assaulted the complainant.
14․The assault itself consisted of Mr A and Ms B repeatedly punching the victim in the face and body a number of times, and Ms B also grabbing the victim’s hair and ripping it from her head. At one point, the punch resulted in the victim receiving a cut above her eye. Another blow to the victim pushed back one of her front teeth.
15․When the assault started, the offender revealed the firearm and sat across from the victim with the gun lying across his lap during the entirety of the assault, which lasted for approximately nine minutes.
16․When the victim looked across to the offender for help during the assault, he looked back at her without any expression. The offender had said nothing during the assault until the point, when the victim started bleeding from the cut on her eye, at which point the offender said, “that’s savage”.
17․Ms B emptied the victim’s handbag on the bedroom floor. Either Ms B or Mr A then stole the complainant’s property (being the complainant’s phone and house keys).
18․The offender did not directly assault the complainant, nor did the offender take the complainant’s property. However, on the findings of the Court (Judgment at [117]), he intentionally participated in an agreement to assault the complainant, and was reckless about the commission of the aggravated robbery in the course of carrying out the assault: Judgment at [138].
The Court’s sentencing task
19․The sentencing objectives are to be found in s 7 of the Sentencing Act. The Court must determine a sentence that is “adequate punishment” by way of a sentence that is “just and appropriate”. In fulfilling those objectives, the Court does so according to the common law principle of individualised justice, explained in MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 (MT) at [56] as follows:
The principle of individualised justice is central to all sentencing exercises; any sentencing court is required to impose a sentence that is just and appropriate in all the circumstances, including the circumstances personal to the offender.
20․I will return to MT later in these reasons as it was a case dealing with a young offender who committed murder when he was 17.
21․There are a number of mandatory relevant considerations set out in s 33 of the Sentencing Act and these have been incorporated into the reasons that follow, to the extent that they are applicable to the present offender’s circumstances.
Breach of the GBO: Should the Court impose the suspended sentence or resentence?
22․I have referred to the previous offending in the history above at the outset because it provides important context for the Court’s present task in sentencing this individual for the aggravated robbery offence. The first issue is what to do in respect of the breach of the good behaviour order, which upon conviction for the aggravated robbery (a matter that was not in doubt here) must be cancelled: s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act).
23․As submitted by the offender, the issue of the breach of the good behaviour order logically arises first as it influences what then follows, including totality considerations and the sentencing options that may or may not be available with regard to the aggravated robbery offence, depending on whether the offender is serving an existing sentence for murder.
Applicable legislation and principles
24․The power being exercised is contained in s 110, the relevant parts of which are as follows:
110 Cancellation of good behaviour order with suspended sentence order
(1)This section applies if—
(a)an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and
(b)a court is satisfied the offender has breached any of the offender’s good behaviour obligations.
(2)The court must cancel the good behaviour order and either—
(a)impose the suspended sentence imposed for the offence; or
(b)re-sentence the offender for the offence.
...
(4)The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.
25․Various factors were outlined by Refshauge J in R v Curtis (No 2) [2016] ACTSC 34 (Curtis) at [18], In determining the appropriate response to the breach of a GBO in any given case including:
... the proportion of the term of the Good Behaviour Orderthat had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
26․Other factors brought to the Court’s attention by counsel for the prosecution that I accept may inform the exercise of the discretion are:
(a)the actual facts of the matter for which the offender was first sentenced: see R v Beniamini (No 2) [2017] ACTSC 32 (Beniamini) at [52]-[53];
(b)whether the breach indicates an intention to disregard the obligation to be of good behaviour;
(c)whether the offender has received any warnings with respect to breaches;
(d)the level of understanding of the offender of his obligations under the terms of the order and the consequences of the breach: see The Queen v PM (No 2) [2015] ACTSC 358 at [20]-[22]; and
(e)the nature of judicial and community resources previously devoted to the offender: see R v Bennett [2017] ACTSC 104 at [11].
27․There is no presumption in favour of imposing the original sentence that had been suspended: Guy v Anderson [2013] ACTSC 5 (Anderson) at [83]-[87]. However, there are many statements by courts across multiple jurisdictions of the principle that generally a breach of the conditions of a good behaviour orderor the like following the suspension of a sentence will result in the offender serving the sentence that was suspended: see, for example, R v Buckman (1987) 47 SASR 303 at 304; Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 at 386; Taylor v Bowden [2009] ACTSC 13 at [36]; Saga v Reid [2010] ACTSC 59 at [99]–[101], all of which were cited by Refshauge J in Anderson at [87].
28․One of the objects of the Sentencing Act in s 6 is to promote respect for the law and the maintenance of a just and safe society. The statements of sentencing judges to which I have referred reflect that underlying objective. As submitted by the prosecution, the imposition of a suspended sentence upon breach prevents the justice system, and specifically the suspended sentence regime created by the Sentencing Act, from falling into disrepute.
29․If the court does not enforce the statutory regime by imposing the suspended sentence (or otherwise re-sentence the offender in a manner that properly reflects the breach), then the incentive to comply with good behaviour obligations might be reduced, which in turn, may cause the community to perceive that this regime is a ‘toothless tiger’. The former risks the maintenance of a safe society; the latter reduces respect for the law.
30․Accordingly, the Court needs to speak clearly and send a message to the community and the offender, and anyone else who may be contemplating breaching their obligations under orders of the court, that people who breach the trust that the justice system places in them in a serious way “will be dealt with swiftly and seriously to reflect that breach of trust”, to adopt the words of the prosecutor.
31․For the same reason, if the Court determines resentencing is the most appropriate course, the Court ought ordinarily impose a more severe sentence, because the breach of good behaviour ordershows that the trust reposed in the offender has been eroded: R v Ogilvie (No 2) [2016] ACTSC 265 at [30]. All relevant sentencing factors are to be taken into account, as required by s 110(4) of the CSA Act (and see Beniamini at [52]) and one of those factors is the aggravating feature of offending while on conditional liberty.
32․Here, the breach here was serious. In DPP v Deighan (No 2) [2023] ACTSC 295, Norrish AJ stated that an aggravating factor is that the offence was committed while the offender was on conditional liberty. His Honour considered at [93] whether the breach of conditional liberty represented:
…a betrayal of opportunity for rehabilitation offered by (conditional liberty)”: see R v Tran [1999] NSWCCA 109 at [15]. There are degrees of seriousness of breaches of conditional liberty. For example, offences committed whilst on parole for sentences imposed for like offending may properly be regarded as the most serious examples of breaches of conditional liberty.
33․The nature of the offence that constitutes the breach was serious and the conduct was similar to the original offending in that it involved a robbery, a weapon and violence. Both of those matters are discussed further below.
34․I accept the prosecution’s submission that only a small proportion of the GBO had been served without breach. There have been rehabilitative efforts made, but it appears that these primarily occurred after the offender was returned to custody. The imposition of the suspended sentence would not be disproportionate to the breach.
35․If these considerations were signs, they would all point to the Court imposing the balance of the sentence, save for two matters which, in my view, are of sufficient weight as to be determinative of the choice to resentence.
36․The first is the protection of the community, which is a statutory objective and sentencing purpose: s 7 of the Sentencing Act. Save for that relatively brief period in the community up to the time of his arrest, the 30-year-old man who is being sentenced today has spent more than 12 years in custody. Imposing the remainder of the sentence of 6 and a half years will see him serve 17 years in custody and then released without any support or ability to supervise him whatsoever. He will be institutionalised, having spent literally half his life and all of his adult life, living and communicating with offenders in custody. From the perspective of the community that he would then freely join having served his time, it is far preferable that there be a degree of oversight and management of that transition.
37․The prosecutor submitted that this might be achieved by imposing the sentence for aggravated robbery consecutively upon the existing sentence. I am not attracted to that course for three reasons.
38․The first is totality considerations, a matter to which I will return at the end of these reasons.
39․The second is that in order to take proper account of the time that he has already spent in custody referable to the further offence, as well as impose a sentence that achieves parity and consistency with sentencing practice (also discussed separately below), the length of time that the offender would then serve under supervision following expiry of the full term for the murder offence would only be a matter of months. It would be insufficient, in my view, to ensure an effective, supervised, transition to general society.
40․The third reason is that the sentence that I am dealing with is one that was imposed applying the young offender provisions in Chapter 8A of the Sentencing Act, under which the court must consider promoting the rehabilitation of a young offender and may give it more weight than any other purpose outlined in s 7(1) of the Sentencing Act: s 133C of the Sentencing Act. Refshauge J did give rehabilitation more weight. The underlying purpose of the initial sentence and the objectives of Chapter 8A would plainly not be promoted by the young offender serving the full term of imprisonment.
41․I will therefore resentence. Consistently with what has been described (in Gyory v R [2012] ACTCA 28 at [10]) as the prosecution’s “obligation” in circumstances of resentencing, the prosecution has provided the relevant material to enable the Court to engage in the re-resentencing task in the same way as if it was sentencing the offender on conviction for the offence, applying s 110(4) of the Sentencing Administration Act.
Nature and circumstances of the offences (s 33(1)(a) of the Sentencing Act)
Applicable principles
42․The evaluation of the nature and circumstances of the offence is “objective” in the sense that the Court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Subjective considerations, or matters personal to the offender, are separate considerations which the Court considers pursuant to other provisions in s 33 of the Sentencing Act.
43․The sentence which the court imposes must then be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].
44․The prosecution submitted that care must be taken to give sufficiently clear and detailed reasons demonstrating that the objective seriousness of an offence has been considered and assessed, relying on Forster-Jones v The Queen [2020] ACTCA 31 (Forster-Jones) at [29]-[30]:
29. Assessment of the objective gravity of any offence is a fundamental part of determining the appropriate sentence for that offence: see eg R v Cage [2006] NSWCCA 304 at [17], R v Campbell [2014] NSWCCA 102 at [27] and R v Van Ryn [2016] NSWCCA 1 (Van Ryn) at [135].
30. Not only must sentencing judges make such an assessment, but it must be apparent from their sentencing judgments that that is what they have done: see eg Van Ryn at [141]. A failure to do so will mean that the sentencing process has miscarried. It is not enough to simply recite the facts on which any particular count is based: Van Ryn at [137].
45․The concern raised by the prosecution was that an approach which identifies relevant factors in assessing objective seriousness, without saying anything about where the offending sits on the spectrum of offending, might be in tension with comments made by the High Court in R v Kilic [2016] HCA 48; 259 CLR 256 (Kilic) at [19] (discussed below).
46․There is a degree of flexibility in how the judicial officer demonstrates, in reasons on sentence, that the gravity of the conduct has been assessed. On occasion, as the prosecution submitted, it can be convenient to refer to conduct using legal shorthand descriptions such as conduct falling on the “low, mid, or upper” range of such offences. Nothing that follows should be taken as an indication to the contrary.
47․However, it is not necessary, as part of the assessment itself, to explicitly place the conduct by reference to a label or a range: Miller at [22]. Indeed, using such terms without more has been described as “generally unhelpful” because it “invites a simplistic approach to sentencing”: Laipato v The Queen [2020] ACTCA 35 at [156].
48․The same observation was made in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24] (emphasis added):
…references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
49․The emphasised words used in the extract above implicitly drew a distinction between what occurs in the Territory and other jurisdictions. The prosecution here submitted that in other jurisdictions, sentencing judges continue to record where any given matter falls on the spectrum for such offending. Attention was drawn to cases such as R v RMW [2016] NSWCCA 211 at [53]-[57] and R v Mills [2005] NSWCCA 175; 154 A Crim 40 at [39], where it was stated that what was required was a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order.
50․It is important to recognise that other jurisdictions may have very different statutory regimes which make it necessary to engage with the concept of a “range” of seriousness. In NSW, for example, s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) creates standard non-parole periods by reference to an offence that is “in the middle of the range of seriousness” taking into account “only objective factors affecting the relative seriousness of the offence”. The statutory regime in the Territory does not have standard non-parole periods.
51․The prosecution submitted that, following Kilic at [19], a consideration of where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious remains part of the assessment in the Territory. I do not disagree with that position. However, the context in which that statement was made is important, because when read in context, it can be seen that the High Court was not actually endorsing the placement of the objective gravity of the conduct in isolation from the facts of the particular offender. The High Court was discussing, and cautioning against, the use of the label “the worst category”, stating at [18]-[20] (emphasis added, references omitted):
18. What is meant by an offence falling within the "worst category" of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the "worst category", it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence.
19. Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty − as the offending was agreed to be here − a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being "within the worst category". It is a practice which should be avoided.
20. There is also another reason to avoid use of the expression "the worst category" of an offence. Not infrequently where an offence does not warrant the maximum prescribed penalty, a sentencing judge may observe in the course of his or her sentencing remarks that, although the offence is a serious, or perhaps particularly serious, instance of the offence, it is not within the "worst category". To do so is not inaccurate and it may be thought a convenient form of legal shorthand. But lay persons are unlikely to be familiar with the legal signification of the expression and, as a result, might wrongly take it to mean that the judge has underestimated the seriousness or effects of the offence. In order to avoid difficulties of that kind, sentencing judges should avoid using the expression "worst category" and instead, in those cases where it is relevant to do so, state in full whether the offence is or is not so grave as to warrant the maximum prescribed penalty.
52․What the High Court was saying is that labelling conduct as objectively being in the “worst category” should be avoided because the maximum penalty for an offence is one that takes into account both the nature of the crime and the circumstances of the offender. The sentencing judge is bound to assess not just the gravity of the crime, but the facts about the particular offender, and work out whether “the case” is of the worst type.
53․The vice in using short-hand labels was explained by the High Court in the context of one particular form of words, but the reasoning applies equally to other labels of a range. Describing conduct as “high”, “medium”, “towards the upper end of the low range” and so forth provides a convenient indicator, through legal shorthand, that some form of assessment of the conduct’s gravity has been performed. It is well appreciated that it may be attractive to use such labels at various points in the reasoning process, as a means of explaining or summarising particular outcomes. As the authorities referred to above make clear, neither the use of a label nor its absence is an error by itself.
54․However, if used as bare labels, the placement of an offence on the hypothetical spectrum can be meaningless and problematic. That is because of the inherent uncertainty in describing “the range” or “the spectrum” and the multifaceted assessment of gravity in terms of the various features that may be considered relevant.
55․By way of example, the offence of aggravated robbery covers both threats of force and the use of an offensive weapon. The brandishing of a butter knife in taking $5,000 from a person might be described as low range, but the holding of the same knife to a person’s throat to extract $50 might well be considered more serious. Describing the taking of $5,000 as low range and the taking of $50 as towards the medium range without more does not make sense. It is the inclusion of those additional features that more fully discloses the matters that were material to the assessment of gravity. Conversely, explaining the features of an offence that have been taken into account does assist with transparency of assessment, such that wrapping the conduct up and giving it a shorthand label may not then add anything.
56․As another example, describing conduct that constitutes murder on a spectrum which includes a label of “low range” may risk the confusion of the kind discussed in Kilic, if not offense, to lay persons.
57․The point is that there is a difference between reciting the facts of an offence and considering the features of the conduct that are relevant to its gravity. Applying the principle referred to in Kilic and adhering to the obligation on sentencing to assess the gravity of the offending does not necessarily mean that the sentencing judge must either label the conduct or place the conduct in isolation on a hypothetical spectrum. No part of s 33(1)(a) of the Sentencing Act uses the words “objective seriousness” or “range”. What may be taken from cases such as Kilic, Forster-Jones, Toumo’ua and Miller is really that labels are permissible, providing they are properly understood from the context and not a bare replacement for the assessment of gravity itself. Where their use may be a source of confusion, they will be unhelpful and should therefore be avoided.
58․With those principles in mind, it remains to assess each of the offences.
Aggravated Robbery on 5 July 2022
59․The facts of the aggravated robbery and its maximum penalty have already been set out above. The parties accepted the persuasiveness (in terms of objective seriousness but not as to appropriate length of sentence) of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 in this jurisdiction. In Hall v The Queen; Barker v The Queen [2017] ACTCA 16 the Court of Appeal stated at [49]-[51]:
49. The guideline judgment of the New South Wales Court of Appeal in R v Henry (1999) 46 NSWLR 346, while not binding on this Court, is persuasive. In that case, the Court described a category of aggravated armed robbery cases with the following features at [162]:
(a) young offenderwith little or no criminal history;
(b) weapon like a knife capable of killing or inflicting serious injury;
(c) limited degree of planning;
(d) limited, if any, actual violence but a real threat thereof;
(e) victim in a vulnerable position such as a shop keeper or taxi driver;
(f) small amount taken;
(g) plea of guilty, the significance of which is limited by a strong Crown case.
50. In R v Henry, the Court of Appeal considered that an offence in that category should generally attract a sentence of between four and five years imprisonment. It may be noted that, like the ACT, the maximum sentence for aggravated armed robbery in New South Wales is 25 years imprisonment.
51. The category of case described in R v Henry involves a young offenderwith no or little criminal history. ...
60․Here, the offender’s age and criminal history are given separate consideration below. I have not referred to the offender being on conditional liberty at the time because a separate penalty will be imposed on the breach.
61․As to the other features, the weapon that was involved was a firearm (Judgment at [127]) which is capable of inflicting serious injury, although it is unknown whether the weapon was loaded at the time. It may be taken into account as the element of aggravation (s 310(a) of the Criminal Code) was the fact that the robbery was committed in company: Judgment at [126].
62․There was a degree of planning as evidenced by the fact that the weapon was taken to the victim’s house, the offender contacted the victim on the evening of the offending to arrange the meeting at her house, and the arrival of the three other persons at the victim’s house 5 to 10 minutes after the offender arrived at the location and at the point when Ms X had gone outside, who then proceeded to bring the co-offenders into the victim’s house.
63․The violence inflicted upon the victim was significant. It involved multiple persons punching her multiple times to the head and body for between five and nine minutes. The violence resulted in bruising to the upper body, bleeding from a split above the eyebrow and one of the victim’s front teeth being pushed back.
64․The victim was in her bedroom at a place where she was entitled to feel safe, essentially trapped by the group of offenders. I accept the prosecution’s submission that the victim was in a position of vulnerability.
65․The property taken was small, namely the victim’s phone and her house key.
66․By its nature, this was a very serious offence. However, part of the circumstances includes the offender’s role in the offending. In R v Hagen [2022] ACTSC 362; 374 FLR 260 (Hagen) at [27], Baker J stated:
The offender is liable for the assault occasioning actual bodily harm by joint commission. Although the offender is liable for the actions of the other participants, when sentencing the offender it is necessary to draw distinctions between the roles and culpability of each of the individual offenders: KR v R [2012] NSWCCA 32 per Latham J (Whealey JA and Harrison J agreeing) at [19] - [22]; Burrows v R [2017] NSWCCA 45 at [37].In this respect, the offender did not herself participate in the assault. At the time of the assault, she was ransacking the victim’s bedroom. Accordingly, in respect of the offence of assault occasioning actual bodily harm, she has less culpability than her co-offenders.
67․The offender’s culpability is less than that of the two co-offenders who directly engaged in the acts of violence against the victim. However, the offender was the person who revealed the weapon and possessed the firearm during the incident.
Murder on 4 August 2011
68․The statement of agreed facts that was before Refshauge J for the initial sentence was also before the Court and has been taken into account. The victim arrived in Canberra City from Melbourne in the early hours of the morning. There were no taxis, so he rang his mum from the Jolimont Centre bus station and told her he would start walking home to Gungahlin. In a catastrophic example of a sliding doors moment for the victim, he crossed over to the Braddon side and started walking home along Northbourne Avenue in the meantime, in the hope that he would meet his mother driving down from Gungahlin. Unbeknownst to him, the offender and the co-offender were in a unit in Forbes Street, Turner. Just minutes later, drug- and alcohol-fuelled, they left the unit to go out and commit a robbery to get some money, arming themselves for that purpose with a baseball bat and a machete, each wearing gloves. They too crossed to the Braddon side of Northbourne Avenue. They came across the victim shortly afterwards.
69․The nature and circumstances of what occurred next is detailed in the agreed facts, which I have read and considered with a view to assessing the nature and circumstances of the offending and its objective seriousness. Dispassionate assessment in sentencing does not mean that the harrowing nature of the conduct that occurred next is lost on the court. The conduct of the offender and the co-offender itself was nothing short of horrific, involving senseless violence to such a degree that I am concerned not to unnecessarily re-traumatise the victim’s family, in particular, in having the facts repeated again in a judgment many years later.
70․Dealing first with the murder, the sentence is punishable by imprisonment for life. Although that sentence cannot be imposed here because the offender was a young offender at the time of the offence pursuant to s 133G(4) of the Sentencing Act, that maximum penalty for the offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].
71․I respectfully adopt the considered words of Refshauge J in the initial sentence in describing the seriousness of the offence of murder itself. His Honour said:
…this is a most serious offence. Indeed, there is none more serious. In considering an appropriate penalty for an offence of murder, the courts recognise the starting point is that it involves a felonious taking of a human life: R v Kilmore (Unreported, Court of Criminal Appeal of NSW, Sheller, JA, McInerney and Hulme JJ, 13 August 1998) applying R v Low (1991) 57 A Crim R 8 at 18-9. The sanctity of human life is, of course, of great significance: Wilson v The Queen (1992) 174 CLR 313 at 342. The law recognises, without specific evidence, the value which the community places on human life; that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402; R v MacDonald (Unreported, Court of Criminal Appeal of NSW, Gleeson CJ, Kirby P and Hunt CJ at CL, 12 December 1995) at 8, R v Previtera (1997) 94 A Crim R 76 at 86.
72․In this instance, the attack on the victim was entirely unprovoked.
73․The conduct involved the use of weapons and extreme violence. The weapons themselves were capable of inflicting significant harm. The machete was described by Refshauge J as a “fearsome and life threatening weapon”.
74․The injuries that resulted are contained in a summary of the post-mortem examination of the victim, contained in the original sentence by Refshauge J, which I respectfully adopt without repeating them. The injuries were extensive, particularly to the victim’s head and hands. The cause of death was determined to be due to the extensive crush and incised injuries to the victim’s head.
75․However, it is not always the case that an offence involving an intent to kill is more serious than one involving an intent to inflict grievous bodily harm which resulted in death. It depends on the nature of the actual acts of the offender which played a part in the death of the victim: R v JB [1999] NSWCCA 93 at [33], cited by Refshauge J in the initial reasons on sentence.
76․In that regard, the offender had no intention to kill and was not the initiator of the offence. The conduct was opportunistic, rather than pre-meditated.
Victim impact statement (s 33(1)(f) of the Sentencing Act)
77․For the murder, the impact on the victim was plainly catastrophic. An appreciation of the facts alone generates an excruciating sadness for the victim in the manner and fact of his death, and for his family.
78․In that regard, the family victim impact statements were referred to by Refshauge J in the initial sentence and I have taken into account what his Honour recorded as being equally applicable here at [71]-[72]:
71. I had victim impact statements from [the victim’s] mother and his partner. … They were important windows into the devastating and highly traumatic [effects] that the death of [the victim] has had for them. … They refer to the kind, caring, helpful, hard working and energetic person he was. His partner, it was unsurprising to hear, collapsed on hearing of his death, having to prepare for his funeral instead of their life together. She had to stop her studies and, of course, all her dreams and hopes were shattered.
72. [The victim’s] mother was equally affected. She wrote movingly of the future happiness to which they had looked forward and how these hopes and dreams were not dashed. She experienced an exacerbation of her pre-existing illness, and experienced long periods of grief and sadness. … It is impossible to summarise adequately the anguish and sense of loss that [the victim’s] family have felt and are feeling, and will continue to feel for many years to come.
79․For the aggravated robbery, no formal victim impact statement was before the Court. However, some aspects of the impact on the victim are known from the evidence that was given by her in the trial, which was accepted by the Court and which can be taken into account on sentence: see R v Miller [1995] 2 VR 348 at 354 applied in R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at [31]; and R v Ridley [2014] ACTSC 382 at [42]-[43].
80․The victim was obviously scared following the offence, as she spent considerable time attempting to barricade her front door before grabbing some clothing items and walking to her friends’ house. She was screaming and crying in the aftermath of the offending and went to hospital. At the police station, she described being in fear of being shot or stabbed. She had the inconvenience of having the locks changed on the house, which was done immediately following the offence.
Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)
81․The Court had before it a Pre-Sentence Report (PS Report) dated 28 February 2024. I have also had regard to the material insofar as it was referred to by Refshauge J in the initial sentence.
Family background
82․The offender has three half-sisters. There is a detailed history of significant childhood disadvantage, with a history of domestic violence prior to the offender’s parents separating when the offender was seven years of age. That is corroborated in a letter written by the offender’s mother, who reports that the offender’s father was a violent alcoholic.
83․Information as to the troubled family dynamics was before the court. Without detailing that history, the offender witnessed in his father ongoing excessive alcohol and drug consumption from an early age, along with violent behaviour growing up, which extended to regular contact after his parents separated.
84․The offender has a good relationship with his sisters and a letter from one of them was also before the Court. One of the offender’s sisters has visited him regularly while he has been in custody.
85․It is clear that the offender has strong support from his family. His mother has educated herself, achieving a diploma in community services, which was motivated at least in part by a desire to assist with her son being released from prison and re-integrating into society.
86․The offender is also in a two-year relationship with his partner. The offender reports that his partner is a pro-social support to him and this sentiment is supported by his sister.
Employment prospects
87․The offender completed a Year 10 level of education, but has not had any significant employment history due to his period of incarceration. While in custody, the offender has held positions of employment and that is to be commended. Certificates of completion of several training programs during custody were before the Court and he is obviously attempting to take positive steps to put himself in a position where he may undertake gainful employment upon his eventual release.
88․A real positive is the report provided by the case manager for the Solaris Therapeutic Community Program. It is worth recording here that the assessment of him is that he is a highly intelligent individual who has great potential in whatever field he chooses to apply himself. The case manager believes that the offender could achieve great things should engage in some form of academic pursuit in the future. The offender’s mother also reported that the offender was a “clever kid”, which gives support for an inference that he has capacity to achieve further education and consistent long-term employment, which would be a protective factor and help him to re-integrate in a pro-social way.
Alcohol and/or drug use
89․The offender’s most destructive illness is his drug and alcohol addiction. Alcohol use was reported from the age of 14, increasing to daily use before he was first in custody.
90․He has used drugs from the age of 13, which increased when he was around 16 years old. The offender also reported methamphetamine use and his mother has confirmed that he was introduced to ICE when he worked on the wharves in Sydney at the age of 16. The offender did achieve a period of abstinence whilst he was in the community, but relapsed upon losing his employment.
91․During his period of incarceration, the offender was subject to drug testing on three occasions, where he returned a positive result for amphetamines on one of those occasions. However, he has engaged in the Solaris Program with an expected completion date of 22 March 2024, which is today. The offender reports that this is the first time that he has engaged in any significant treatment for illicit substances and that he receives monthly Buvidal injections.
Medical, emotional and mental health
92․The offender has reported experiencing anxiety while in the community due to transitional issues after his extended time in custody. He has experienced low mood and acknowledged past trauma. ACT Health records provided in the preparation of the PS Report confirm a history of anxiety and depression.
93․The concerns about the offender’s mental health were corroborated by family members who report that when he was last in the community, despite their support, the offender quickly became lost and really struggled to reintegrate.
94․I accept that the offender requires long term support to address his mental health issues, especially with regard to his childhood trauma and his time in custody.
The application of the Bugmy principles
95․The parties addressed the Court on the operation of the principles relating to social disadvantage. There is no doubt on the evidence before the court, including the material referred to by Refshauge J in the earlier sentence, that the offender has accumulated social disadvantage, and that the principles articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy)at [40], [43]-[44] apply. Of significance for the present offending, the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [42], and at [44] the plurality ofthe High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) stated (emphasis added):
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
96․Bugmy was a decision handed down 6 days before the initial sentence for murder was imposed and was not referred to by Refshauge J. The evolution and understanding of the true and long-lasting effects of social disadvantage receives greater prominence today as a sentencing principle. As indicated above, such disadvantage impacts upon the moral culpability of the offender here, particularly with regard to the senseless violence that resulted in the murder offence.
97․I have taken the offender’s disadvantage into account not only in assessing moral culpability as somewhat mitigating in respect of the offending but in considering the additional support that may be required for this offender. I have done so on the basis that a strict causal connection between an offender’s background and the offending is not required: The Queen v Ruwhiu [2023] ACTCA 18 at [126]; Henderson v The King [2024] ACTCA 3 at [56], with each case affirming Hagen at [42]-[43].
98․In Hagen at [41], Baker J applied an approach taken by the Victorian Court of Appeal in cases such as Black v R[2022] VSCA 125 at [28]-[30] and DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110 at [45]-[46], which held that a strict causal nexus between the disadvantage and the offending did not need to be proven, but that there is a link between the lifelong damage that can result from childhood exposure to violence and the distortion of the person’s “view of the world around them and their understanding of social norms”.
Remorse (s 33(1)(w) of the Sentencing Act)
99․The offender’s view of the world around him and his understanding of social norms is in part revealed by his attitudes to the offending. In respect of the murder offence, the initial sentence refers to a letter tendered by the offender expressing regret for his actions and articulating the effect his actions had on the victim and the victim’s family, as well as his own family. Refshauge J accepted that the offender was remorseful. Although the statements were not sworn evidence and should thus be approached with caution, statements made by an offender are relevant to the sentencing exercise, especially if they show insight into the harm done to victims and amount to the offender taking responsibility for his or her actions: Fusimalohi v The Queen [2012] ACTCA 49 at [33] per Refshauge J.
100․However, although the offender expressed regret for his actions, at the time, he placed some of the blame on his co-offender. In the recent PS Report, it is recorded that the offender still denies being an active participant in each of the offences, but conceded he was present and did not attempt to intervene.
101․Words are the currency of the Court, and I will use them now primarily in an attempt to advance the offender’s thinking and his view of the world around him. Australia’s current Governor-General, the Honourable David Hurley has said, “the standard you walk past is the standard you accept.”
102․That idea is about taking personal responsibility, for the treatment of others, and (relevantly here) not standing by while someone is bashed, ultimately to death, or viciously punched in their bedroom. It is an idea that finds statutory force in the joint commission offence, which is the means by which the offender is guilty of both murder in 2013 and aggravated robbery now. The offender did not end his involvement and take all reasonable steps to prevent the conduct from being engaged in by other co-offenders.
103․The offender has stated that he felt angry (at himself) for putting himself in the position which led to his offending. That is a glimmer of insight.
104․The offender was also sorry he took a life and ruined the victim’s family. He was, and is, ashamed and embarrassed for ruining his own family, and now causing them more stress with the further offending. That statement does recognise that very serious offending impacts upon so many people and lives in addition to the immediate victims. Accordingly, I too accept that there is a degree of remorse that, with a bit more reflection following this sentence and further education, can be channelled into a life that he can be confident honours the life that he participated in taking away.
Plea of Guilty (ss 35 and 35A of the Sentencing Act)
105․In respect of the murder offence, the offender is entitled to a reduction in the sentence that would have been imposed on account of his guilty plea and the assistance he gave to the administration of justice with regard to the plea of his co-offender. As a matter of procedural fairness (given no party submitted differently) and of judicial comity, I will maintain the discretionary discount in approximately the same manner that was initially made by Refshauge J.
Criminal history (s 33(1)(m) of the Sentencing Act)
106․The offender’s criminal history was before the court. Prior to the murder offence, the offending was minimal and Refshauge J was of the view that the history did not seriously impact on the proceedings before his Honour. The position is obviously different now, in that there is relevant and very serious offending and it disentitles him to any leniency in respect of the aggravated robbery offence.
107․Specific deterrence is also a consideration. However, there comes a point when the length of time in custody means that objective has been met, such that additional time is ineffective as a specific deterrent. I consider that this offender is well past that point. Specific deterrence is now likely to be better achieved by the carrot rather than the stick. By that I mean addressing the risk of relapse in the community in terms of his drug addiction and focusing on training and education as a means of turning this offender away from anti-social behaviour and from associating with people who engage in such behaviour.
Current sentencing practice (s 33(1)(za) of the Sentencing Act)
108․Ensuring consistency in sentencing practice relates to the consistent application of relevant legal principles. Current sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [83].
109․The prosecution has helpfully provided a table of comparative cases to assist the Court with its sentencing task. Two authorities that I found of most assistance were: R v Murray [2016] ACTSC 173 (Murray) and DPP v Trewartha [2023] ACTSC 13 (Trewartha).
110․In Murray, the offender chased the victim and punched him multiple times on the back of the head. The aggravating feature was that it was in company. Another aggravating feature was that the co-offender was armed with a chair leg. There was a degree of planning associated but it was an unsophisticated operation. Murrell CJ described the conduct as a home invasion motivated by a desire for money and drugs. The victim was home alone at night. The offender was 21 at the time of the offence, had strong subjective factors arising from a disadvantaged background and youth and there was a degree of parity with the offender playing a lesser role in the conduct. A term of imprisonment of two years and three months was imposed, suspended after 6 months.
111․In Trewartha, the offender was 35 at the time of the offence, which was committed in the company of three other co-offenders. The offender was in possession of a weapon, namely a baseball bat, which was used in the course of the robbery. The offending involved the enforcement of a drug debt with actual violence inflicted. Again, there were comparable subjective factors, with drug use from age 16, a degree of remorse and reasonable prospects of rehabilitation. Parity considerations were also present, with co-offenders that had greater and lesser roles. The offender had served almost a year in custody. After a 10% discount for a plea of guilty, a term of imprisonment of 27 months (backdated) was imposed. The sentence was suspended after almost a year.
Parity
112․All of the co-offenders have been sentenced. This requires the court to give consideration to principles of parity in sentencing the offender here. In Saipaini v The Queen [2021] ACTCA 5; 288 A Crim R 191 at [56] the Court of Appeal explained the principle as follows:
The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 [Lowe] at 609:
“[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence....”
As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.
113․In the present case, there was evidence of the sentences relating to three co-offenders:
(a)Mr A pleaded guilty to aggravated robbery by joint commission. He was sentenced to a term of imprisonment for 3 years and 2 months, which was reduced to 2 years and 8 months on account of his plea and then suspended upon entry into a Drug and Alcohol Treatment Order.
(b)Ms B also pleaded guilty to aggravated robbery by joint commission. She was sentenced to 2 years and 4 months’ imprisonment (reduced from 3 years and 2 months on account of her guilty plea), which was then suspended upon entry into a Drug and Alcohol Treatment Order.
(c)Ms X pleaded guilty to a less serious charge, namely that of assault occasioning actual bodily harm by joint commission. The sentence imposed was 14 months’ imprisonment (following a 10% discount on account of her guilty plea), which was then suspended upon entry into a Good Behaviour Order for the remainder of the term of the sentence: [medium neutral citation redacted].
114․The prosecution helpfully included in the tender bundle the agreed facts for each charge, the criminal antecedents in respect of each offender and the reasons given upon sentence, which included other subjective features relevant to each sentence. There were a number of similarities in the subjective features of each offender, in broad terms of disadvantaged background and some criminal antecedents.
115․Having regard to the respective roles in offending, parity would see an appropriate sentence as being one that fell between that imposed with respect to Ms X and Ms B. It is also to be observed that in the case of Ms B, the manner in which such a sentence was to be served (by way of a drug and alcohol treatment order) was not available to this offender, because of the existing sentence for murder, and that he is subject to a sentencing order for another offence that on any view will be longer than 4 years: s 12A(1) of the Sentencing Act.
116․Taking into account that this offender did not plead guilty, comparing like with like, the parity considerations are with the terms that would have been imposed on each co-offender before pleas of guilty were taken into account.
Disposition
117․The sentencing exercise is complicated by the fact that the offender was under 18 when he committed the murder offence but was an adult when he committed the aggravated robbery offence.
118․That means for the aggravated robbery offence, the offender is sentenced as an adult offender, but for the murder offence, the young offender provisions in Chapter 8A of the Sentencing Act apply. That is so, even for a young offender close to the age of 18 who commits serious offending: LB v The Queen [2016] ACTCA 6 at [24]; R v TL [2017] ACTCA 18 at [39]-[40]; MT at [55].
119․The Court of Appeal decision in MT set out in detail (at [44]-[52]) the provisions in the Sentencing Act that apply to most offences, followed by how the general Sentencing Act regime is modified for young offenders, including the rationale for why the legislature excluded young offenders from the operation of non-parole provisions while promoting the use of a combined sentence (at [53]-[90]). I respectfully incorporate in these reasons the discussion of the statutory scheme and the principles there discussed.
120․I wish to draw out one matter of significance. For a young offender, there is no established practice as to the proportion of a sentence that should be imposed before the sentence is suspended. The following statement from MT at [88] is apt:
For both adult offenders and young offenders, the sentencing court must determine the unsuspended portion of the suspended sentence order by reference to relevant sentencing purposes, the objective seriousness of the offence and the offender’s subjective circumstances. However, as between adult offenders and young offenders, it is very likely that relevant sentencing purposes will be weighted differently. In the case of young offenders, there will be a greater emphasis on rehabilitation of the individual and less emphasis on community-focussed sentencing purposes such as general deterrence and denunciation. Further, in paying “particular regard” to “individualised justice”, it is likely that a court that is sentencing a young offender will attach greater weight to the offender’s subjective circumstances, particularly the circumstances that must be considered under s 133D.
121․The s 133D factors are the culpability for the offence having regard to the young offender’s maturity, the state of development and the past and present family circumstances of the young offender. I have given those factors greater weight with regard to the murder offence.
122․In MT, the sentence imposed for murder was 10 years, reduced from 12 years and six months, and was suspended after the offender had served four years and six months, or approximately 38 per cent of the total sentence. The Court of Appeal stated at [114]:
It must be deeply hurtful to the victims and their families that the horrific incident which caused their shocking losses has afforded the appellant opportunities for educational and personal development that will enable him to lead a more productive adult life when released. However, the criminal justice system is not a vehicle for retribution. Especially in the case of young offenders, it should, where possible, be a vehicle for rehabilitation, an outcome that benefits both the individual offender and the broader community. The present case demonstrates the capacity of young offenders to rehabilitate.
123․Those sentiments resonate strongly here.
124․It is also relevant to repeat some of the observations and remarks made by Refshauge J in respect of the initial sentence for murder. His Honour stated that the case was “a tragedy for all who have been touched by it”. When referring to the victim impact statements that were before the court, his Honour stated:
No sentence that this court could impose will ever make good the loss that they have suffered. I acknowledge the grief and distress of the family of [the victim], and I express on behalf of the community, its sympathy and compassion for them.
125․It need hardly be said that no amount of time that the offender will serve in prison will rebuild what has been shattered. Under s 133G(4) of the Sentencing Act, the court must not sentence the young offender to imprisonment for life. But whatever the number, the years of a prison term can in no way reflect the value of the life of the deceased victim. The Court’s task is not to embark on such futility, but instead to deal with sentencing the offender in a way that brings the offender to account, acknowledges the awfulness of the offence, and looks to the future for the offender and to managing his integration with the community.
Terms of imprisonment must be imposed
126․There is no dispute that a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. With regard to the murder offence, Refshauge J stated in the initial sentence:
The attack on [the victim] was unprovoked, cowardly, brutal, indescribably vicious, and of course, ultimately deadly. As such, no other sentence than a lengthy period of full-time custody is required.
127․I agree with that statement. Further, while the aggravated robbery offence is far below the murder offence in its objective seriousness, it nevertheless remains a very serious example of the offending. Thus, it was not contested that, sentences of imprisonment for each offence must be imposed, for reasons of general deterrence and due to their respective gravity.
Applying the principle of individualised justice to the term and structure
128․In terms of the length and structure of the sentence to be imposed, there are a number of difficulties created by the fact that this offender, and his offending, straddles both young offender and ordinary offence provisions in the Sentencing Act.
129․Integration and protecting the community from re-offending is of considerable concern here. The offender has had one squandered opportunity. When released on a suspended sentence, he relapsed into taking methamphetamines and the further offending occurred. On the one hand, that may prompt the question of how the offender could be so reckless or foolish as to risk re-incarceration by accompanying other people in conducting what became a violent robbery, having faced the consequences of doing exactly the same thing with another person more than a decade ago, with devastating results.
130․On the other hand, the further offending is a red flag as to an offender who may already be institutionalised, who may have had some success in custody in abstaining from drugs but who found that quickly evaporated when he was at liberty, and who did not have the supports in place to properly transition him into living in the community for the first time in his adult life.
131․I therefore agree with counsel for the offender that supports upon the offender’s release from custody are really important to guide him into the next phase of his life.
132․Options that focus on rehabilitation and staggered reintegration (such as an intensive corrections order, a drug and alcohol treatment order, or a non-parole period) are not available, either because they are not available for the offence of murder (s 12A(9) of the Sentencing Act), or the length of the sentence to be imposed makes the option unavailable (s 11(3) of the Sentencing Act), or because they are not able to be imposed on young offenders (s 64(2)(g) of the Sentencing Act).
133․With regard to the murder offence, the court must consider a combination sentence consisting of a sentence of imprisonment and a good behaviour order with a supervision condition: s 133G(3) of the Sentencing Act. As this is a resentence for breach, to reflect the principles guiding the exercise of the discretion in that regard (to which I have earlier referred), the sentence for the murder offence will be more severe in length than that initially imposed, but maintain a focus on the flexibility provided by a combination sentence that includes a significant component of partial suspension, with a view to this offender obtaining a high degree of supervision and support initially, which is then able to taper towards the end of his sentence.
134․For the aggravated robbery offence, a non-parole period is available if the term of imprisonment imposed is 1 year or longer, and must be set, even if the sentence is partly suspended: ss 65(2) and 65(6) of the Sentencing Act. Absent the availability of a drug and alcohol treatment order, the best way to achieve rehabilitation (in my view) would have been through parole support.
135․However, the setting of a non-parole period will give rise to a different problem. Under s 31(2) of the Sentencing Act, the Court cannot set the start of any GBO on a day when the offender may be either serving a period of full-time detention or may be on parole. (That means, the offender cannot be serving the suspended part of his sentence at the same time as being eligible for, or on parole.)
136․As far as I could discern from the intricate statutory scheme, there are two ways in which that problem may be solved:
(a)Fully suspend the sentence for aggravated robbery, which would bring it within the definition of an “excluded sentence”: s 64 of the Sentencing Act; or
(b)Decline to set a nonparole period in sentencing the offender, if the Court considers that it would be inappropriate to set such a period, having regard to the nature of the offence and the offender’s antecedents: s 65(4) of the Sentencing Act.
137․The first of those alternatives would be somewhat inconsistent with the principles of parity and of the sentence properly reflecting the gravity of the offence. That really leaves only the second alternative. I therefore decline to set a nonparole period at all, because of the nature of the offender’s antecedents, being the statutory constraints surrounding the murder offence.
138․I have set these difficulties out for transparency, lest the course taken be perceived as manipulating a sentence so as to avoid the limitations of the Sentencing Act. On the contrary, with the assistance of counsel, I have endeavoured to work within those constraints. I note that similar courses of crafting sentences to meet the circumstances of particular cases have been taken when the judicial officer is satisfied that the structure ultimately imposed achieves the appropriate sentencing outcome: DPP v Parlov [2023] ACTSC 147 at [46]-[47]; DPP v Djerke (No 2) [2023] ACTSC 341 at [35]-[36].
139․Finally, I have mentioned totality considerations (as to which, see O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26]) as a reason why I would not make the term of imprisonment imposed for the aggravated robbery offence cumulative upon the murder offence. By way of explanation for that view, in applying the totality principles, a court may take into account prior custody in respect of unrelated offending: Mill v The Queen (1988) 166 CLR 59, 62-63. When account is taken of the fact that the offender has been in custody almost continuously since 2011, to make the aggravated robbery offence totally or largely consecutive upon the murder offence would make the overall sentence crushing, particularly as I am increasing the term of the murder sentence due to the previous breach of the initial sentence.
140․I also consider that total concurrency for the two offences is still able to comprehend the overall criminality due to the length of those sentences, and avoids any perception that the offender is being punished twice for the breach, due to the nature of the breach being the further offending for which the offender is being punished. While the consequences are separate, the conduct overlaps.
Orders
141․For the above reasons, the following orders are made:
| (1) Pursuant to s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act), the good behaviour order in respect of [JJ] is cancelled and the offender is resentenced for the offence of murder, contrary to s 12 of the Crimes Act 1900 (ACT), by joint commission pursuant to s 45A of the Criminal Code 2002 (ACT) (Criminal Code) (CH 1281/2011) as follows: (a) The offender is convicted and a term of imprisonment for 18 years (reduced from 20 years and 1 month on account of his guilty plea), is imposed, backdated to commence on 6 August 2011 and conclude on 5 August 2029. (b) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence is to be suspended on 26 November 2024. (c) Pursuant to s 13 of the Sentencing Act, a good behaviour order is made upon the offender signing or giving an undertaking to comply with the offender’s good behaviour obligations under the CSA Act for the period during which the sentence is suspended (26 November 2024 to 5 August 2029). (d) As part of the good behaviour order, the following conditions are imposed: (i) The core conditions pursuant to s 86 of the CSA Act; (ii) A supervision condition pursuant to ss 133U and 133W of the Sentencing Act, whereby the appellant must comply with all reasonable requirements of the Director-General, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation, for a period of three years (26 November 2024 to 25 November 2027) or such lesser period as is deemed appropriate by the Director-General or his/her delegate. (2) For the offence of aggravated robbery contrary to s 310 of the Criminal Code by joint commission pursuant to s 45A of the Criminal Code (CC 2022/2729): (a) The offender is sentenced to a term of imprisonment for 2 years and 4 months, to commence on 27 July 2022 and conclude on 26 November 2024. (b) Pursuant to s 65(4) of the Sentencing Act the Court declines to set a nonparole period. |
| (3) THE COURT NOTES: Consideration should be given to an education and training condition to be imposed as part of an amended good behaviour order pursuant to s 112 of the CSA Act, following consultation with the offender and identification of an appropriate and suitable course upon his release. |
| I certify that the preceding one hundred and forty-one [141] numbered paragraphs are a true copy of the reasons for sentence of her Honour, Justice McWilliam. Associate: Date: |
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