DPP v Makoi (No 3)
[2023] ACTSC 337
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
DPP v Makoi (No 3)
Citation:
[2023] ACTSC 337
Hearing Date:
26 July 2023, 5 October 2023, 7 November 2023, 20 November 2023
Decision Date:
21 November 2023
Before:
Baker J
Decision:
See [98].
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – assault occasioning bodily harm – damage property – home invasion of a serious nature – offender has refugee background – moderate personality disorder and mental health concerns – protective factors in offender’s life supportive of rehabilitation – s 10 threshold crossed - whether Intensive Corrections Order appropriate in the circumstances– Intensive Corrections Order imposed.
Legislation Cited:
Crimes Act 1900 (ACT) s 24(1)
Crimes (Sentence Administration) Act 2005 (ACT) s 42Crimes (Sentencing) Act 2005 (ACT) ss 10(2), 11(5), 11(6), 33
Criminal Code 2002 (ACT) ss 45A, 312, 403
Cases Cited:
AB (a pseudonym) v R (No 3) [2019] NSWCCA 46
Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428
DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2) [2023] ACTSC 125
DPP v Fisher [2023] ACTSC 29
DPP v McConnell-Imbriotis [2023] ACTSC 25
Hogan v Hinch [2011] HCA 47; 243 CLR 506
Hogarth v The Queen [2012] VSCA 302; 37 VR 658
Ngata v R [2020] ACTCA 18
R v Catanzariti [2020] ACTSC 326
R v Elphick [2021] ACTSC 9
R v Hagen [2022] ACTSC 362; 374 FLR 260
R v Hancock [2021] ACTSC 52
R v KB [2017] ACTSC 344
R v Knight [2021] ACTSC 165
R v Lutze [2020] ACTSC 121
R v Minnis [2014] ACTSC 268
R v Pham [2015] HCA 39; 256 CLR 550
R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305
R v Verdins [2007] VSCA 102; 16 VR 240
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Parties:
Director of Public Prosecutions ( ACT DPP)
Kock-Kedhia Maker Makoi ( Offender)
Representation:
Counsel
T Hickey ( ACT DPP)
T Jackson ( Offender)
Solicitors
ACT DPP
Andrew Byrnes Law Group ( Offender)
File Numbers:
SCC 13 of 2022
SCC 14 of 2022
BAKER J:
Introduction
1․On 26 May 2023, I found the offender, Kock-Kedhia Maker Makoi, guilty of the following charges, which proceeded by way of judge-alone trial:
(a)Count 1: CC2021/6319 – Aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT), which attracts a maximum penalty of 2000 penalty units, imprisonment for 20 years, or both.
(b)Count 2: CC2022/588 – Assault occasioning actual bodily harm contrary to s 24(1) of the Crimes Act 1900 (ACT), which attracts a maximum penalty of imprisonment for five years.
(c)Count 3: CC2022/590 – Damage property contrary to s 403 of the Criminal Code 2002 (ACT), which attracts a maximum penalty of 1000 penalty units, imprisonment for 10 years or both.
2․Each of these counts were offences by way of joint commission by virtue of s 45A of the Criminal Code.
3․The offender now stands to be sentenced for these offences.
Background
The offences
4․The facts of the offending are set out in full in my judgment in DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2) [2023] ACTSC 125 (Conviction Judgment).
5․In brief, the offender, her four co-accused and the victim are part of the Sudanese community in Canberra. The victim and the offender had previously been close friends. In the months preceding June 2020, one of the co-accused (Ms Akim Dau) had been living with the victim in the victim’s apartment. However, following a falling out, the co-accused moved out of the victim’s apartment and moved into the offender’s house.
6․The prosecution alleged that the offending was perpetrated in response to an event which occurred on 21 June 2020, when the victim and three of her friends attended the offender’s house to drop off a backpack that belonged to Ms Dau. The victim did not stay at the offender’s house long. As the victim left the house, the backpack which the victim had returned was set alight: Conviction Judgment at [13].
7․The victim and her friends walked past the burning backpack, got into their car and drove away. Immediately after the victim drove away, the offender’s dog was found dead on the road outside the offender’s house. The offender called the police. When the police arrived, the offender blamed the victim and her friends for killing her dog. Police were also told that the victim and her friends were responsible for burning Ms Dau’s backpack. Ms Dau told police that her identification documents were in the backpack, but that she could not find those documents in the backpack’s burnt remains: Conviction Judgment at [15] – [17].
8․The prosecution alleged that shortly after 8:00pm on 22 June 2020, the day after this incident, the offender attended the victim’s apartment with the offender’s sister, Ms Dau, and two other friends (the four co-accused).
9․The victim gave evidence at trial that she was asleep at this time, having gone to bed at approximately 8:00pm. She said that she woke up to find the offender’s sister on top of her, pinning her hands down on the bed and “beating her up”: Conviction Judgment at [22]. The victim reported that the offender’s sister was angry and was accusing her of killing the offender’s dog.
10․The victim said that the offender then approached her and began striking her with a wine rack. The victim recalled that she was struck a number of times to her knees, legs and thighs: Conviction Judgment at [23]. She said that during the assault, she lost her vision for a few seconds and became dizzy and lightheaded: Conviction Judgment at [23].
11․The victim gave evidence that whilst she was being assaulted, Ms Dau came into the room and opened the cupboards, looking for her identification documents. The victim reported that she could hear things being shattered in the living room. She said that she heard female voices, including the voice of her friend, Achol Bol (who was sleeping in a different room of the apartment) saying “get off me”. The victim said that as the intruders were leaving her apartment, she recognised the remaining two co-accused (Achan Matot and Nyalat Matot) as being among the intruders.
12․The victim called police shortly afterwards. When the police arrived, they observed significant damage to the apartment, including broken furniture, broken glass and crockery and a damaged television: Conviction Judgment at [40]. Officers also noticed that the victim’s apartment smelt of petrol, which appeared to be emanating from the floor of the living room: Conviction Judgment at [41]. One officer gave evidence that he observed a “puddle” of liquid on the living room floor. However, the liquid on the floor was not tested, and whilst later analysis of a bottle of liquid that had been located in the living room was found to contain traces of petrol, that analysis was compromised because the bottle had not been properly stored prior to testing.
13․A challenging aspect of the offender’s trial concerned the evidence of the victim’s friend, Achol Bol, who was staying with the victim on the night of the offending. Ms Bol did not complete her evidence in support of the prosecution case. As described at [84] – [85] of the Conviction Judgment, shortly after her cross-examination began, Ms Bol was asked about inconsistencies between the evidence that she had given in her examination in chief, and the account that she gave to police on the evening of the offences. Ms Bol acknowledged that she understood that there were inconsistencies in her accounts, and then disconnected from the audio-visual link through which she was giving evidence. She was unable to be located by the prosecution and did not complete her evidence.
14․In view of the inconsistencies in Ms Bol’s evidence and her failure to complete giving evidence, I determined that no weight should be placed on Ms Bol’s evidence as given in court, or on the evidence given in her interview with police that was conducted on the evening of the offences: Conviction Judgment at [136].
15․I was also concerned about some aspects of the victim’s evidence. Whilst the victim’s evidence was plausible, supported by her immediate complaint to police at the time of the offence, and broadly accorded with the evidence of the police officers, there were aspects of her evidence that caused me concern. In particular, I did not accept the victim’s account of the circumstances surrounding the burning of Ms Dau’s bag: Conviction Judgment at [185]. In addition, whilst there was little opportunity for collusion between the victim and Ms Dau prior to the victim’s call to police, Ms Bol’s abrupt departure during the trial meant that the possibility of collusion could not be tested in cross-examination: Conviction Judgment at [185]. For these reasons, I approached the victim’s evidence with considerable caution, and carefully considered whether the evidence she gave in respect of each accused was supported by independent and reliable evidence: Conviction Judgment at [188].
16․The victim’s identification of the offender was supported by independent and reliable evidence from a neighbour, who saw six or seven women of “African appearance” leaving the victim’s apartment at the time of the offences. Importantly, the same neighbour gave evidence that she heard a female voice say “you killed my dog” and “I’m going to kill you”: Conviction Judgment at [48] – [52]. I was satisfied that these words were spoken by the offender, noting that the offender had told police the previous day that the victim was responsible for killing her dog: Conviction Judgment at [219] – [222].
17․In these circumstances, I was satisfied that the victim’s evidence that offender was a member of the group of people who inflicted injuries upon her and caused extensive damage to her property was sufficiently supported by other evidence for me to be satisfied of those matters beyond reasonable doubt: Conviction Judgment at [221], [222] and [289]. However, the victim’s evidence in respect of the remaining four co-accused was not similarly supported by independent and reliable evidence. In those circumstances, each of those co-accused received the benefit of my reasonable doubt concerning the credibility and reliability of the victim and were found not guilty: Conviction Judgment at [290].
Subjective circumstances
Sources
18․The subjective circumstances of the offender are summarised in a Pre-Sentence Report (PSR) dated 12 July 2023, prepared by ACT Corrective Services, and a psychological assessment of the offender dated 21 July 2023, prepared by a Forensic Psychologist, Ms Leesa Morris. The offender’s criminal history was also provided to the Court.
Personal background
19․The offender is currently 29 years of age. At the time of the offending, the offender was 25 years old.
20․The offender is Sudanese. She was raised in a refugee camp in Kenya before immigrating with her family to Australia in 2004. Her upbringing in the refugee camp was described by the PSR authors as “challenging”. The offender’s life in the refugee camp frequently exposed her to violence, particularly domestic violence. She was also exposed to the consequences of civil conflict in Kenya, and saw the bodies of people who had been violently killed. The offender continues to have distressing dreams related to her experiences in the refugee camp.
21․The offender reported that she had attempted suicide on one occasion by overdose when she was in year 11. She was admitted to hospital for four days as a result. She said that this suicide attempt was prompted by the behaviour of her uncle.
22․The offender generally has a positive relationship with her mother, who lives in Sydney with her brothers. The offender’s father did not immigrate to Australia and for much of the offender’s life his whereabouts were unknown. However, the offender resumed contact with him about two to three years ago. The offender has two sisters, one who lives in Canberra (a co-accused in the trial) and another who lives in Western Australia, the latter of which she reports having a positive relationship with.
23․The offender has two children, an elder daughter and a younger son, from two separate relationships. The offender reported that she suffered postnatal depression after the birth of her daughter. The offender also disclosed to the PSR authors that she was a victim of domestic violence by one of her partners (apparently the father of her son), and that this man is now serving a custodial sentence for domestic violence offending.
24․The offender’s son resides with her. The offender’s daughter resides with her father in Melbourne and the offender has some contact with her. Whilst the offender is known to Child and Youth Protection Services (CYPS), CYPS does not presently hold any current orders with respect to the offender’s children.
Employment and education
25․The offender completed High School education through to year 12.
26․The offender reported to the PSR authors that she had been working for a fencing company as a casual labourer. She also obtains financial assistance through Centrelink, particularly through single parent payments.
27․The PSR authors reported that the offender is also currently a full-time student at a Registered Training Organisation, where she is undertaking studies to obtain a Certificate in Criminal Psychology.
Ms Morris’ psychological report
28․Ms Leesa Morris, forensic psychologist, assessed the offender on 5 July 2023.
29․Ms Morris noted that the offender had reported volatility in her behaviour and her emotional responses to others, beginning in her adolescence. Ms Morris was of the view that the offender’s emotional and social functioning appeared to be underdeveloped.
30․Ms Morris considered that “taking a culturally sensitive view”, the offender met the criteria for a diagnosis of a “Moderate Personality Disorder”, using the International Classification of Diseases (11th edition, ICD-11). Ms Morris explained that this condition “denotes impulsivity and irresponsibility and lack of planning traits that impact emotion regulation, reality testing, executive function and behavioural reactivity”. Ms Morris considered that it was likely that the offender would have met the threshold for this diagnosis since the time she reached adulthood.
31․Ms Morris explained that this disorder is “generally fixed”, with “some reduction in symptoms” over an individual’s lifetime. She further advised that there is intervention available to assist with emotion regulation, but that this intervention amounts to “symptom management”. Ms Morris considered that the offender would benefit from Dialectical Behaviour Therapy and that she would also benefit from “further immersion in her culture from stronger persons who can wield some influence”.
32․Ms Morris expressed the view that the offender requires a moderate level of intervention to reduce her risk of violent recidivism. Ms Morris expressed some concern about the offender’s lack of insight into her psychological functioning and instability and how this may impact her risk of committing further offences involving violence. Ms Morris also noted that the offender appeared to have no realistic thoughts about professional paths and plans post-sentencing, and that there was “no indication that the offender was preparing herself for a further sentence of any kind”, reflecting her “apparent coping mechanism of ignoring facts that interrupt the reality she desires”. Ms Morris was of the view that the offender was likely to require assistance in complying with conditions due to this coping mechanism. However, Ms Morris also noted that the offender had expressed a “potential willingness to engage with prolonged rapport building and personality fit”, which she considered may provide an opportunity for effective intervention.
33․Ms Morris noted that the offender’s denial of the offending rendered it difficult to determine a direct link between the offending and her disorder. Nonetheless, Ms Morris considered that that the offender’s emotional and cognitive instability was a factor in the offending, and drew a direct connection between the offender’s background and her personality disorder, noting that:
In diagnosing a personality disorder, there is an expectation of interruption to a child’s sense of safety and predictability in the world. [The offender] notes exposure to significant trauma and a normalising of violence, death and loss in her formative years. There is little wonder that [the offender] demonstrates poor interpersonal relationships, identity formation, attachment systems, reality testing and emotional regulation.
Alcohol and drugs
34․The offender told Ms Morris that she started consuming alcohol at parties when she was 17 or 18 years old.
35․The offender identified the separation from her first partner (her daughter’s father) as a catalyst for an increase in alcohol consumption. The offender reported having been banned from liquor stores after being charged for driving under the influence of alcohol, at which point she reported ceasing her daily pattern of drinking.
36․The offender further disclosed to the PSR authors that her level of alcohol consumption had increased prior to the commission of the offences for which she is being sentenced. The offender has acknowledged the need for her to reduce her intake of alcohol in future. The offender confirmed to the PSR authors that she was then presently abstaining from alcohol consumption in accordance with her bail conditions.
37․The offender reported having engaged in minimal drug use, having consumed cannabis on one occasion as an adolescent and intermittently as an adult. She also said that she had previously consumed cocaine on two or three occasions.
Criminal history
38․The offender’s criminal history dates back to 2020. The prosecution accepted that the offender’s criminal history is “relatively minor”. The majority of the offender’s prior convictions are traffic offences (including driving whilst under the influence, unlicensed driving and refusing to provide a breath sample).
39․The offender’s criminal history includes three breaches of Good Behaviour Orders (GBO), which were imposed in August 2020, November 2021 and July 2022 respectively. No action was taken with respect to the first breach, and a further GBO was issued with respect to the second breach. I was not provided with any information in relation to the third breach.
40․Before the present offending, the most significant of the offender’s prior offences were two offences of escape from arrest or custody, the first of which occurred on 23 August 2020 and the second of which occurred on 9 July 2022.
41․I was not provided with any information concerning the facts giving rise to those offences, although I note that Ms Morris recorded that the 9 July 2022 offence concerned an occasion when the offender reported running to a neighbour’s house to avoid being breath tested. From the offender’s criminal history, it appears likely that those offences were committed in connection with offences of driving whilst under the influence and arose from arrests in those contexts. As the offender’s counsel submitted, the offender’s background may have contributed to the commission of these offences, in that the offender’s experiences in the refugee camp may have resulted in her making decisions to flee rather than to face authority. The penalties imposed for each escape offence suggest that each offence was of relatively low objective seriousness: the offender was sentenced to a GBO in respect of the first offence and was sentenced to 14 days’ imprisonment, which appears to have been served by the offender whilst she was on remand, in respect of the second offence.
42․The PSR indicates that the offender has engaged satisfactorily with her bail obligations in the period since she was granted bail for the present offences in August 2022.
Time served in respect of the present offences
43․The offender served 38 days in custody for a period between 9 July 2022 and 15 August 2022. Of those 38 days, the prosecution submits that 24 are referable to the present offending and should be taken into account in the present sentencing exercise.
44․The offender was arrested on 9 July 2022, and refused bail on 11 July 2022, for the present offences, and also in relation to a “fresh charge” of escape from arrest or custody.
45․The offender was subsequently sentenced for that “fresh charge” on 9 August 2022 to a period of 14 days imprisonment commencing on 19 May 2022. As those 14 days of imprisonment were taken into account by the court in sentencing the offender for the fresh charge, the remaining 24 days that the offender has served in custody are referable to the present offending and will therefore be taken into account in determining the sentence to be imposed.
Sentencing Considerations
Nature and circumstances of the offending, including loss, damage or injury and the effect of the offence on the victim (ss 33(1)(a), (e) and (f) of the Crimes (Sentencing) Act)
The offender’s role in the offending
46․In the present case, the offender was convicted of each offence by way of joint commission. As I observed in R v Hagen [2022] ACTSC 362; 374 FLR 260 at 264 [27]:
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].
47․However, the task of assessing the role of the offender in these sentencing proceedings is complicated by the same difficulties which arose in the Conviction Judgment.
48․As outlined above, in the Conviction Judgment, I approached the victim’s evidence with caution and carefully considered whether her evidence of the alleged offences was supported by independent and reliable evidence. I concluded that the victim’s evidence that the offender was a member of the group of persons who assaulted her and damaged her property was supported by independent and reliable evidence, and in particular, by the neighbour’s evidence of what she saw and heard on the night in question. However, the victim’s evidence concerning the involvement of the other accused was not supported by independent and reliable evidence. As noted above, those other co-accused received the benefit of my reasonable doubt concerning the victim’s credibility and reliability.
49․As I explained at the conclusion of my conviction judgment, the different outcomes in respect of each of the accused was a consequence of the “heavy onus of proof which lies on the prosecution”: Conviction Judgment at [288]. That heavy onus remains on the prosecution in these sentencing proceedings in respect of any findings of aggravation: R v Olbrich [1999] HCA 54; 199 CLR 270, 293-293
50․Accordingly, I have approached fact finding in these sentencing proceedings on the same basis as I approached the findings of fact in my Conviction Judgment. As indicated in my Conviction Judgment, I am satisfied that the offender was a party to an agreement to commit an aggravated burglary, to assault the victim and to damage her property. As the victim’s evidence as to the precise role played by the offender was not directly supported by independent and reliable evidence, I am not satisfied beyond reasonable doubt that it was the offender herself who inflicted the injuries sustained or who damaged the victim’s property.
51․However, as I have stated, the neighbour gave evidence that, on leaving the apartment, the offender proclaimed “this is not over”, we’ll be back”, “you killed my dog” and “I’m going to kill you” (Conviction Judgment at [48] – [49]). For the reasons given in my conviction judgment, I accept this evidence. I am satisfied beyond reasonable doubt that the offender’s role in each of the offences was not insignificant or peripheral. Even accepting that there is a doubt as to whether the offender herself physically assaulted the victim or damaged her property, I have no doubt that the offender was at the very least present and actively encouraging those who did.
52․I will now turn to consider the nature and circumstances of each of the individual offences.
Aggravated burglary
53․I have taken into account the following matters in assessing the nature and circumstances of the aggravated burglary in the present case (see R v Elphick [2021] ACTSC 9 at [113]):
(i)The offence was committed in the victim’s home, where she was entitled to feel safe and secure.
(ii)The offence occurred at night, which, in the case of a burglary of residential premises, is more serious than offending which occurs during the day.
(iii)As the prosecutor submitted and the offender’s counsel accepted, the offending would have been a terrifying experience for the victim and her friend.
(iv)The offender was in the company of a number of other people at the time of the commission of the offences. Whilst the precise number of offenders cannot be determined, on the basis of all of the evidence, including the neighbour’s evidence, I accept that there were more than three offenders.
(v)I am satisfied beyond reasonable doubt that the offending was committed with a degree of premeditation, although there was no evidence of significant planning.
(vi)Gratuitous damage was occasioned to the victim’s personal belongings and the victim was assaulted during the burglary. I note that this conduct is the subject of separate charges, and I will be careful not to “double count” these features of the offending, in particular, when I turn to consider the accumulation of the sentences for the separate offences.
(vii)In view of the neighbour’s evidence, I am satisfied that the offender’s motive for the offending was, at least in part, a reprisal for the victim’s perceived role in causing the death of her dog. This motive does not operate to mitigate the seriousness of the offending. Rather taking the law into one’s own hands and exacting punishment for what the offender perceived had occurred is an aggravating feature of the present offending: R v Kourpanidis [2021] ACTSC 112 at [39]; R v Speechley [2012] NSWCCA 130 at [110]-[112] per Johnson J; Sorensen v R [2016] NSWCCA 54 AT [110]-[112] per Ward JA.
(viii)For the reasons outlined above, whilst I am not satisfied beyond reasonable doubt of the precise role played by the offender, I am satisfied beyond reasonable doubt that the offender’s role was not insignificant or peripheral.
54․I am not satisfied beyond reasonable doubt that the entry occurred via the breaking of a locked door. Police did not observe any evidence of a forced entry. The last person to leave the apartment prior to the offending was Ms Achieu Bol (Ms Achol Bol’s sister), who did not give evidence at the trial. There is a possibility that Ms Achieu Bol left the door to the apartment unlocked when she left earlier in the evening.
55․Nor am I satisfied beyond reasonable doubt that the offence was aggravated by the offenders having brought petrol to the victim’s apartment. Even if it be accepted that the prosecution proved beyond reasonable doubt that the petrol was brought into the apartment by one the offenders, there is no evidence that the offender brought the petrol herself to the apartment, or that she was aware that another offender may have brought petrol to the apartment, or even the possibility that that may occur.
56․The prosecutor submitted that a further matter of aggravation was that the victim was asleep and vulnerable at the time that the offenders entered her apartment: s 33(1)(gb) of the Crimes (Sentencing) Act 2005 (ACT). The evidence that the victim was asleep is that of the victim and Ms Bol. It was not supported by any other independent and reliable evidence. In these circumstances, I have not taken the evidence of the victim that she was asleep into account in assessing the nature and circumstances of the offending.
Assault occasioning actual bodily harm and damage property
57․The offences of assault occasioning actual bodily harm and damage property were also relatively serious examples of those forms of offending.
58․As outlined above, whilst I am not satisfied beyond reasonable doubt of the precise role played by the offender, I am satisfied beyond reasonable doubt that the offender’s role in the offences was not insignificant or peripheral.
59․I have taken into account that the assault and the damage to property occurred in the victim’s home, where she was entitled to feel secure. I have taken into account that the motivation for the offending was as described above, that is, that the offences constituted a deliberate attack on the victim in response to her perceived role in causing the death of the offender’s dog. The offending involved some degree of premeditation, namely the infliction of physical harm as retaliation for that perceived wrong.
60․In respect of the offence of assault occasioning actual bodily harm, I have taken into account the injuries sustained by the victim, namely bruising and swelling to her eye, temple and foot. There is no evidence that any of these injuries are permanent. The victim did not provide a Victim Impact Statement. However, given the nature of the offending and the injuries sustained, I accept that the victim would have suffered a degree of emotional distress as a result of these injuries.
61․As to the offence of damage property, I have taken into account the evidence in the police photographs and body-worn footage, which depicts significant damage to the victim’s apartment, including broken furniture, broken mirrors, broken tables, crockery and a damaged television. Whilst there is no evidence before me as to the value of that damage, I accept that the cost of replacing the goods would have been significant to the victim.
Remorse (s 33(1)(w) of the Crimes (Sentencing) Act)
62․The offender has not demonstrated any remorse for the offending and does not take any responsibility for the offending. The offender continues to deny her involvement in the incident and each offence.
The probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants (s 33(1)(o) of the Crimes (Sentencing) Act)
63․As Ms Morris observed, any sentence of imprisonment would have an impact on the mental health of the offender’s children, particularly if the offender’s son were moved into interstate and into his Aunt’s care. Whilst this factor does not necessarily result in the imposition of a lower sentence (Ngata v R [2020] ACTCA 18 at [43]), it is a matter which may be considered when determining the appropriate sentence to be imposed, and I have taken this into account.
Current sentencing practice (s 33(1)(za) of the Crimes (Sentencing) Act)
64․At the sentencing hearing, the prosecution provided a table of comparative cases for the offences of aggravated burglary, assault occasioning actual bodily harm, damage property, and aggravated robbery. That table included the decisions in R v Hagen, DPP v Fisher [2023] ACTSC 29, R v Catanzariti [2020] ACTSC 326, R v Knight [2021] ACTSC 165, R v Lutze [2020] ACTSC 121 and R v Minnis [2014] ACTSC 268. Other relevant decisions include R v Baldini (No 2) [2014] ACTSC 163, R v Lau [2020] ACTSC 120, R v Pikula [2022] ACTSC 219, R v Folauhola [2020] ACTSC 341, R v Elson [2020] ACTSC 264, and R v NQ [2019] ACTSC 275. A table of those decisions is annexed to this judgment (Annexure A). As indicated in that table, sentences imposed for aggravated burglaries range from Intensive Correction Orders (ICO) through to substantial periods of imprisonment.
65․I have had regard to these decisions, as required by s 33(1)(za) of the Crimes (Sentencing) Act. However, I have also borne in mind that caution needs to be exercised regarding the use of previous sentences. In particular, I bear in mind that current sentencing practices illustrate, but do not define, the possible range of sentences available; and they do not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 444-445 [51]-[53]) and R v Pham [2015] HCA 39; 256 CLR 550 at 560 [29]. Rather, “what is important are the unifying principles which such sentences reveal and reflect”: Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58 at 74 [41]. Where, as here, an offender’s mental illness or background has a significant impact upon each purpose of sentencing (see further at [76] below), particular care must be taken in comparing sentences where those sentencing purposes are not so affected.
Submissions
66․The prosecutor and counsel for the accused each provided detailed oral submissions at the sentencing hearing.
67․In his oral submissions, the prosecutor accepted that it was open to the Court to impose a sentence other than full time imprisonment. The prosecutor submitted that if such a sentence were to be imposed, a level of “intensive intervention” would be required to reduce the offender’s risk of re-offending.
68․The offender’s counsel also submitted that an ICO would be an available sentencing alternative. However, the offender’s counsel further urged me to consider deferring a sentence or imposing a suspended sentence. He submitted that the benefit of a suspended sentence order is that it would allow the court to “craft specific conditions” for the offender, and that breaches of a suspended sentence would be “more easily remediable” in comparison to a breach of an ICO.
Consideration
69․As the Victorian Court of Appeal held in Hogarth v R [2012] VSCA 302; 37 VR 658 at 659 [1]), a burglary of a victim in their home is a serious form of offending:
Home invasion is a particularly nasty form of criminal conduct. Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders – acting in anger and often fuelled by alcohol – is itself a terrifying experience for the householders, irrespective of what may occur after entry.
See similarly R v Hancock [2021] ACTSC 52 at [1]; R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 at [117].
70․The present offending was particularly serious. It involved an intrusion into the victim’s home at night. The offender was a part of a group of people who inflicted actual bodily harm upon the victim and caused significant damage to her property. There is a real need for general deterrence, specific deterrence and denunciation in respect of each of the offences committed.
71․For the reasons outlined above, I cannot be satisfied of the offender’s precise role in this burglary beyond reasonable doubt. Nor can I be satisfied beyond reasonable doubt that it was the offender herself who physically assaulted the victim, or who damaged the victim’s property. However, I am satisfied beyond reasonable doubt that the offender’s role in each of the offences was not insignificant or peripheral. The offences were motivated in large part by a desire to impose retribution for the victim’s perceived role in causing the death of the offender’s dog.
72․The offender’s counsel properly conceded that the s 10(2) threshold for imprisonment is crossed. I agree. In view of the seriousness of the offending, no sentence other than imprisonment could be contemplated.
73․Generally, offences of aggravated burglary will usually require the imposition of a sentence of full-time imprisonment: R v Sheather [2021] ACTSC 290 at [52], R v Catanzariti at [60]. However, in exceptional cases, the purposes of sentencing may be most appropriately achieved by a sentence that does not involve full-time imprisonment. In my view, this is such a case.
74․The offences were committed, at least in part, as a reprisal for the perceived role of the victim in causing the death of the offender’s dog. This motive does not mitigate the objective seriousness of the offending. Indeed, as noted at [53] above, such reprisal is an aggravating feature of the offending. Unless justice is administered to diffuse reprisal attacks between parties perceived to have been wronged by the other, “retributive justice” will lead to “a never-ending cycle of crime”: AB (a pseudonym) v R (No 2) [2019] NSWCCA 46 at [105].
75․However, the offender’s background and her mental illness provide some context for this motivation. In particular, the offender’s personality disorder is associated with poor emotional regulation and executive function. Seen in this context, it is clear that there is a connection between the offending and the offender’s mental illness.
76․Further, as Ms Morris observed, “there is little wonder” that the offender suffers from a moderate personality disorder, having been exposed to significant trauma and the normalisation of violence during her formative years in refugee camps in Kenya. I am satisfied that there is a link between this background, the offender’s mental condition, and the offending. In accordance with the decisions in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 and R v Verdins [2007] VSCA 102; 16 VR 240, I have concluded that the offender’s moral culpability for her offending is reduced, and accordingly, that the need for punishment, denunciation and general deterrence is somewhat reduced in the offender’s case.
77․Of course, whilst a reduction of an offender’s moral culpability may reduce the weight to be given to punishment, denunciation and deterrence, those very matters which gave rise to the reduction of moral culpability (for example, an inability to reason about the effects of violence) may at the same time increase the need for the protection of the victim, protection of the broader community and specific deterrence: see Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 and Bugmy at 595 [44] – [45].
78․However, a reduction in sentence as a result of diminished moral culpability will not be offset by the need to protect the community in every case. In determining the appropriate sentence to be imposed, it is necessary to carefully consider how each of the purposes of sentencing apply in all of the circumstances. Protection of the community will not always be achieved by a sentence of full-time imprisonment. Where full-time imprisonment will sever an offender’s prosocial factors (such as their employment, education and connection to family), such imprisonment may ultimately increase, rather than reduce, the risk that the offender poses to the community. As courts have frequently emphasised, rehabilitation, if it can be achieved, will be the most durable guarantee of community protection: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 538-539 [32].
79․This is not to say that rehabilitation is the only factor to be considered. Where an offender has engaged in serious offending, the need for denunciation, punishment and general deterrence may mean that no sentence other than a sentence of full-time imprisonment is appropriate. But where, as here, the offender’s background and/or mental illness has mitigated his or her moral culpability such that the need for denunciation, punishment and general deterrence has been reduced, there may be scope for greater weight to be given to the need for effective rehabilitation in determining the appropriate sentence to be imposed.
80․In the present case, the offender has been diagnosed with a Moderate Personality Disorder. Ms Morris states that this is condition is permanent. However, I do not consider that the fact that treatment will largely involve “symptom management” (rather than a cure of the condition) means that the offender’s prospects of rehabilitation are poor. Ms Morris concluded that intervention is able to assist with the offender’s emotion regulation. As the present offending stemmed, in large part, from the offender’s failure to regulate her emotional response when she believed her dog to have been killed by the victim, intervention in this area will be likely to have a positive impact upon the offender’s rehabilitation, and would also reduce her prospects of reoffending.
81․As the prosecutor accepted, the offender’s criminal history is “relatively minimal”. The present offending is the first time that she has been involved in an offence that involves violence. Whilst she has breached some GBOs in the past, she has more recently been compliant with her bail conditions. She has been assessed by ACT Corrective Services as being suitable for the imposition of an ICO. She has not previously been subject to the more intensive supervision that is available under an ICO.
82․In all of the circumstances, I consider that the purposes of sentencing are most appropriately met by the imposition of an ICO.
83․As noted above, the offender’s counsel urged me to consider imposing a deferred sentence or a suspended sentence rather than an ICO. I do not agree that a deferred sentence is appropriate. As the prosecutor frankly submitted, in the present case, a deferred sentence would be “pointless”: if it is appropriate for an alternative sentence to full-time imprisonment to be imposed (taking into account all of the relevant purposes of sentencing), that sentence should be imposed at this time. This is not a case where the offender has proposed, or begun, a course of rehabilitation, where it may be of assistance to the court to see the results of that rehabilitation before determining the sentence to be imposed: cf DPP v McConnell-Imbriotis [2023] ACTSC 25 and DPP v Welsh [2023] ACTSC 209.
84․Nor do I consider that a suspended sentence would be appropriate. A suspended sentence is a more lenient sentence than an ICO. In my view, denunciation, punishment and protection of the community will be best met through the imposition of conditions, such as a curfew condition, which are expressly provided for by statute in respect of ICOs.
85․The offender is on the verge of turning 30. She is a mother of two young children, one of whom is in her full-time care. In determining the appropriate penalty to be imposed, I have had regard to the psychological effect of separating a young child from their parent (and vice versa): R v UG [2020] ACTCA 8 at [60]; HJ v R [2014] NSWCCA 21 at [76].
86․The present offending is serious and of a very different character to her previous offending, which was largely committed in connection with traffic offences. In short, the offender is at a point where she must make a decision about the future course of her life. For the reasons outlined above, I am satisfied that, with support, she has reasonable prospects of rehabilitation, and that those prospects will be best advanced if she is afforded an opportunity to engage in rehabilitation in the community, where she can continue to care for her child and engage in paid employment.
87․However, the Court must impose a sentence which recognises the seriousness of the offender’s conduct and the harm which she caused, and which serves as a sufficient deterrent, both to the offender and to others. For these reasons, I do not propose to impose a sentence where breaches of conditions are more “easily remediable”. The offender must understand that the response to any breach of the ICO will be swift, and that any breach of the ICO is highly likely to result in her immediate imprisonment.
88․The sentence that I propose to impose for the aggravated burglary is imprisonment for a period of three years and nine months. I have reduced this sentence by 24 days to take into account the time served in custody referenced at paragraph [45] above, such that the operative sentence will be a term of 3 years, 8 months and 7 days. I propose to impose sentences of imprisonment of one year for the offences of assault occasioning actual bodily harm and damage property. In the sentence that I will impose for the aggravated burglary, I have taken into account the damage that was occasioned to the victim’s property and the injuries inflicted upon her. Taking into account principles of totality, I have determined that the sentences for all three offences will be entirely concurrent.
89․I propose to order that each of those sentences be served by way of an ICO. I note that this will result in an ICO for the offence of aggravated burglary which is for a period longer than two years. As required by s 11(3) of the Crimes (Sentencing) Act, and as outlined above, I have carefully considered the level of harm to the victim and the community caused by the offence; whether the offender poses a risk to one or more people or the community; and the offender’s culpability for the offence having regard to all the circumstances. Having considered these matters, I am satisfied that it is appropriate for an ICO to be imposed for a period of more than two years.
90․The conditions that I will impose include conditions requiring the offender to engage in psychological counselling and drug and alcohol programs, as well as prohibiting her from consuming alcohol or other illicit substances.
91․I will also impose an order prohibiting the offender from contacting, approaching, threatening or harassing the victim or Ms Bol. I am satisfied that such a condition is necessary to assist “the offender to manage things that may make the offender more likely to commit further offences (including a relevant offence) if not managed”: s 23(1)(b)(iii) of the Crimes (Sentencing) Act.
92․As recommended by the PSR authors, I will also impose a curfew condition for three months, extendable at the direction of ACT Corrective Services (not longer than the total sentence imposed): s 58 of the Crimes (Sentence Administration) Act 2005 (ACT).
93․The PSR authors also recommended the imposition of a condition prohibiting the offender from associating with the “co-offenders”, excluding her sister. Of course, I have found the co-accused not guilty of the offending. In circumstances where the co-accused were found not guilty of the offending, and there has been no indication of any criminality involving the offender and the co-accused in the three years since the alleged events, I do not consider it appropriate to make this condition.
Postscript
94․The present sentence was due to be handed down on 21 September 2023; however, as a result of an administrative oversight, it became necessary for the sentence to be adjourned to 5 October 2023. On 5 October 2023, I was informed that the offender had been the victim of an arson on her home, and had been moved into temporary accommodation provided by ACT Housing. In these circumstances, the offender’s counsel and the prosecutor agreed that it was necessary for the proceedings to be adjourned for a month, to enable more permanent accommodation to be sourced, and for ACT Corrective Services to assess the suitability of that accommodation for the purposes of an ICO.
95․The matter came back before me on 6 November 2023. On that occasion, ACT Corrective Services had not yet had an opportunity to provide a supplementary PSR, and the proceedings were adjourned to 20 November 2023 enable that report to be received.
96․On 15 November 2023, ACT Corrective Services provided the Court with a further PSR, in which the authors noted that there was “some concerning information raised in the Home Assessment collateral checks”, but that this information did “not affect the suitability of the accommodation should [the offender] be subject to an ICO”.
97․In short, the offender’s housing arrangements are less stable now than when these reasons were first prepared. However, in my view, the fact that the offender’s housing arrangements have become less stable as a result of her becoming the victim of an arson should not deprive of her of the opportunity for rehabilitation which I was previously prepared to afford. The prosecutor accepted that an ICO remained an available sentencing alternative in all of the circumstances.
Orders
98․The orders of the Court are:
(1)For the offence of aggravated burglary (CC2021/6319), you are convicted. I sentence you to a term of imprisonment of three years, eight months and 7 days, commencing on 21 November 2023 and expiring on 27 July 2027.
(2)For the offence of assault occasioning actual bodily harm (CC2022/588), you are convicted. I sentence you to a term of imprisonment of one year, commencing on 21 November 2023 and expiring on 20 November 2024.
(3)For the offence of damaging property (CC2022/590), you are convicted. I sentence you to a term of imprisonment of one year, commencing on 21 November 2023 and expiring on 20 November 2024.
(4)I order that those sentences be served by way of Intensive Correction Orders subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional conditions under ss 11(5)(c), 11(5)(e), 11(6) of the Crimes (Sentencing) Act 2005 (ACT):
(i)That you not consume any alcohol or other illicit substances;
(ii)That you not contact, approach, threaten or harass Achol Bol or Achol Garang or cause any other person to contact, approach, threaten or harass Achol Bol or Achol Garang in person or by phone, phone application or any social media platform;
(iii)That you engage in drug and alcohol programs as directed by ACT Corrective Services;
(iv)That you engage in psychological counselling as directed by ACT Corrective Services;
(v)That you reside as directed by ACT Corrective Services;
(vi)That you remain at your place of residence between 9:00pm and 6:00am daily for the first three months of this Intensive Correction Order, unless there is a medical emergency, and following that time until ACT Corrective Services directs otherwise via a signed notice.
(5)I dismiss the transferred charge of common assault (CAN 593/2022).
I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker.
Associate:
Date: 21 November 2023
ANNEXURE A
| Case Name | Charges | Plea | Objective Factors | Subjective Circumstances | Sentence imposed |
| R v Hagen [2022] ACTSC 362 | 1x aggravated burglary (s 45A) 1x AOABH | Yes 10% discount | · Victim seriously assaulted (including with a lighter · Early in the morning · Residential premises · Offence committed by offender “ransacking” victims bedroom · Not spontaneous but involved some degree of premeditation · Co-offenders/in company · Moderately serious | · Stable employment · Minor traffic matters on criminal record – of no · History of drug use · History of family violence · Limited access to prosocial influences · Alcohol abuse | Aggravated burglary – 1y month imprisonment AOABH – 2 yrs 2 weeks imprisonment |
| DPP v Fisher [2023] ACTSC 29 | 1x aggravated burglary 1x damage property 1x common assault | Yes PG following CCC If not for PG sentence overall aggregate would have been 28 mo (NPP 14 mo) | · Home invasion · Gained entry by throwing bicycle through window · Two people inside and asleep at the time · Co-offenders/in company | · Considerable criminal history of violent offences · Indigenous offender · History of sexual abuse · Significant mental health issues · Reliant on disability support services | Aggravated burglary – 18 mo imprisonment Damage property – 12 mo imprisonment Common assault – 3 mo imprisonment Aggregate – 2 years (NPP 1 year) |
| R v Catanzariti [2020] ACTSC 326 | 1x aggravated burglary (s 45A) 1x unlawful confinement 1x theft (s 45A) | Yes PG entered late (on first day of trial) Discount of no more than 10 per cent afforded | · Relatively serious · Residential premises · Occurred in evening when occupants likely to be present · Motivated by retribution for a perceived theft · Some degree of planning/premeditation – offenders brough n implement to force open a door | · 22 at time of offending · No adult convictions/criminal history · Positive prospects of rehabilitation · Domestic family violence perpetrated against offender · Anxiety and depression · Alcohol and substance abuse | Aggravated burglary – 21 mo and 21 days imprisonment |
| R v Knight [2021] ACTSC 165 | 1x aggravated burglary 1x assault occasioning actual bodily harm | Early PG Prior to committal in MC entered PG to agg burg and common assault PG to AOABH at first opportunity Entitled to 25 per cent discount | · Offender central participant in burglary · Entry to premises with intent to cause or threaten harm · Agg burg at M=mid-range objective seriousness · Offender punched victim in ribs and back of head · AOABH at low-mid range for type of offending | · Prior convictions for traffic and drug and alcohol offences · Expressed remorse · Good prospects of rehabilitation · Positive upbringing · History of problematic gaming issues · Historical problematic alcohol consumption and illicit substance use · Assessed as suitable for ICO | Aggravated burglary – 11 mo 7 days (served by way of ICO) AOABH - $800 fine, 50 hours community service, 12 mo GBO with supervision |
| R v Lutze [2020] ACTSC 121 | 1x aggravated burglary (s 45A) 1x aggravated robbery (s 45A) | No (Guilty finding after judge alone trial) | · Opportunistic · Lower range offences · Residential premises · “Brandished” screwdriver · Threatened victim with screwdriver · Forced open garage door · Struggle over ownership of a backpack | · Criminal history, not significant) · Expressed some degree of remorse · Reasonable prospects of rehabilitation where offender addresses mental health issues, drug and alcohol abuse · Mother is prosocial influence · Completed year 10 high school · Significant alcohol use | Aggregate – 4 yrs (NPP 2 yrs) |
| R v Minnis [2014] ACTSC 268 | 1x aggravated burglary 2x assault occasioning actual bodily harm | No (Guilty finding after trial) | · Very serious · Violent home invasion · Significant degree premeditation · Occurred at 4am – residents likely to be at home and asleep · AOABH objectively serious – significant number of strikes (10cm laceration, left frontal skull fracture, haematoma, bruising) | · 29 years old at time of offending · Minor criminal history · Unclear whether remorse displayed · “Reason to hope” rehabilitation can be achieved · Used drugs sine 16 years old · Some engagement with drug and alcohol treatment in custody · Homeless at time of offending · Reliant on disability support pension | Aggravated burglary – 5 yrs imprisonment AOABH – 2 yrs imprisonment AOABH – 2 yrs 6 mo imprisonment Aggregate – 6 yrs imprisonment |
| R v Baldini (No 2) [2014] ACTSC 163 | 1x Aggravated burglary 1x Assault occasioning actual bodily harm | Yes PG in Magistrates Court | · Both offences of a serious nature · Would ordinarily result in imprisonment · Concealed identity · Violent offending · Victim sustained fractured nose | · Stable employment · Minor traffic matters on criminal record – of no relevance · Engaged well with supervision process · Stable accommodation · Willingness to engage with counselling treatment · Abstinence from cannabis and methamphetamine for a year · 20 years old at time of offending | Aggravated burglary – two years imprisonment (without PG, 2 yrs 9 mo imprisonment) AOABH – 18 month imprisonment (without PG, 2 yrs imprisonment to be cumulative as to at least 8 mo on agg burg) Suspended for three years upon offending undertaking to comply with good behaviour obligation |
| R v Lau [2020] ACTSC 120 | 1x aggravated burglary (s 45A) 1x aggravated robbery (s 45A) | No Found guilty by judge alone trial | · Opportunistic offending · No significant degree of any real planning or premeditation · Lower range offending for agg burg · Weapon used for agg robbery · Mid range offending for aggravated burglary | · Lengthy criminal history · Prior convictions agg robbery, AOABH, theft, assault · 28 at time of offending · Poor compliance with previous community based orders · No contact with mother or sister · Stable accommodation · Has not secured long term employment · Commenced alcohol consumption age 13 · Commenced methamphetamine use at age 17 · Commenced heroin consumption age 27 | Aggravated robbery – 3 years 6 mo imprisonment Aggravated burglary – burglary – 2 years 6 mo NPP 3 years 4 mo |
| R v Pikula [2022] ACTSC 219 | 1x aggravated burglary 1x AOABH | Yes PG entered at CCC Utilitarian value assessed as correlating to 15 per cent discount | · Some degree of planning · In company · Carrying large knife · Damage caused to premises · Unprovoked attack | · Never employed · “At one stage” was taking a lot of illicit drugs · Schizophrenia and ADHD · Offence committed while on parole · Criminal history of break and enter and four assault convictions | Aggravated burglary -3 yrs 10 mo (from 4 yrs 6 mo) AOABH – 1 year 3 mo and 8 days (from 18 mo) NPP 2 yr 6 mo |
| R v Folauhola [2020] ACTSC 341 | 1x aggravated burglary (intent to commit an offence) 1x AOGBH 1x theft | Yes PG entered following CCC 15 per cent discount afforded (factored in to sentences) | · Residential premises · Forced door open · Damage to house · Offenders struck victim when he refused to give back · Injuries sustained by victim were significant · Subsequently required surgery | · Violent criminal history · Ongoing anger issues · Anti social peers/influences · Some protective factors · Pro-social support from mother · Offender expressed positive attitude towards bail supervision and willingness to make positive change in his life . | Aggravated burglary – 2 years imprisonment AOGBH – 2 years imprisonment (served by way of ICO) |
| R v Elson [2020] ACTSC 264 | 1x aggravated burglary 1x contravene FVO | Yes PG indicated during CCC (following committal) and formally entered after 20 per cent discount afforded | · Offending of a serious nature · Residential premises · Several attempts to enter house and damage house – eventually entered via window · Protracted attack · Degree of premeditation · presence of infant · offender stated intention to kill himself and victims | · 19 at time of offending · Very positive ICO assessment report · Offender spent 242 days in custody referable to offences · Difficult childhood and disadvantage · Alcohol and illicit drug abuse · Offender suitable for ICO – “very positive” · Significant prospects of rehabilitation · Mental health issues since childhood · Mixed attitude towards offending | Aggravated burglary – 21 months imprisonment Breach FVO – 10 months imprisonment (served by way of ICO) |
| R v NQ [2019] ACTSC 275 | 2x burglary (one count as an alternative to aggravated burglary) | No Found guilty by jury trial | · Lower end of objective serious but not bottom range · Duration for a few minutes · Yelling threats · Children present · No physical harm | · Offender suitable for an ICO · Stable upbringing · Supportive relationship with family · Full-time employment · Some associate involved in criminal activity · Used cannabis frequently · Moderate alcohol consumption (under influence at time of offending) · Accepted responsibility for offending and acknowledged impact · Two references in support of offender | 1x burglary – 12 mo GBO 1x burglary – 2 yr GBO |
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