DPP v Mena
[2023] ACTSC 80
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Mena |
Citation: | [2023] ACTSC 80 |
Hearing Dates: | 6 and 11 April 2023 |
DecisionDate: | 14 April 2023 |
Before: | Mossop J |
Decision: | See [38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted murder – aggravated burglary – discharging loaded arm so as to cause another person reasonable apprehension for his or her safety – offending occurred in company – offender shot victim twice from close range – intention to kill not premeditated – attempted murder and aggravated burglary in mid-range of objective seriousness – no acceptance of responsibility or remorse – young offender – guarded prospects of rehabilitation – sentences of imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of good behaviour orders as a condition of suspended sentences of imprisonment – good behaviour orders cancelled – suspended sentences imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110(2)(a) Crimes Act 1900 (ACT), ss 12, 27(3)(d) Criminal Code 2002 (ACT), ss 44, 312 |
Cases Cited: | R v Mena [2018] ACTSC 92 R v Mena (No 2) [2020] ACTSC 351 |
Parties: | Director of Public Prosecutions Sugimatatihuna Bernard Gabriel Mena ( Offender) |
Representation: | Counsel T Hickey ( DPP) S Howell ( Offender) |
| Solicitors Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 206 of 2021 SCC 303 of 2017 |
MOSSOP J:
Introduction
Sugimatatihuna Bernard Gabriel Mena was found guilty by a jury of one count of attempted murder (contrary to s 12 of the Crimes Act 1900 (ACT), by virtue of s 44 of the Criminal Code 2002 (ACT)), one count of aggravated burglary (contrary to s 312 of the Criminal Code) and one count of unlawfully discharging a loaded arm so as to cause another person reasonable apprehension for his or her safety (contrary to s 27(3)(d) of the Crimes Act). The maximum penalty for attempted murder is life imprisonment. The maximum penalty for aggravated burglary is 20 years’ imprisonment or a fine of $320,000 or both. The maximum penalty for unlawfully discharging a loaded arm is 10 years’ imprisonment.
The offending also puts him in breach of five good behaviour orders. Three of those were associated with suspended sentences of imprisonment.
Facts
For the purposes of sentencing, it is necessary to find the facts and do so in a manner which is consistent with the verdicts of the jury. It is not necessary to name the victims of the offending one of whom is subject to a suppression order. They will be referred to as Mr A and Ms B.
During the evening of 10 March 2021 Mr A was acting as the driver for Ms B who was supplying illicit drugs around Canberra. At 8pm Rebecca Parlov, Mr Mena and another man were in each other’s company in Bonner near Mr Mena’s house. At 8:43pm Ms Parlov enquired of Ms B if she had any methamphetamine. Arrangements were made for Bradley Roberts to collect that drug. Ultimately sometime after 3am Ms B and Mr A met Mr Roberts in a car park outside Woolworths at Bonner. Ms B supplied Mr Roberts with the methamphetamine. Mr A had a conversation with Mr Roberts and asked whether he was the person who had called him a paedophile. Mr A threatened to fight Mr Roberts. Although the evidence as to precisely what was said varied, Mr Roberts replied by saying something like “we’ll go get Sugi and that and we’ll come back and whack you”. Over the next two hours messages were exchanged between Ms Parlov and Ms B and Mr Roberts and Ms B. It was very clear that Ms Parlov and Mr Roberts wished to meet with Ms B and, it can be inferred, Mr A.
Mr A and Ms B ended up at Ms B’s house.
At about 5:34am on 11 March 2021, Ms Parlov made a Facebook call to Ms B. At the time Ms B was at her home in Spence with Mr A. The call was put on speaker. Ms Parlov wanted to know where Ms B and Mr A were. Ms B heard a car stop outside. Ms Parlov said that she needed to speak to Mr A. Ms Parlov told Mr A to walk outside the house. Ms Parlov said something to the effect that she did not want to do it inside Ms B’s house.
Ms Parlov then started banging on the front door of the house asking to be let in. She said words to the effect of “open the fucking door, we are coming in anyway.” Ms B then opened the door. Ms Parlov “shoved past” Ms B as she walked past her and went straight up to Mr A. She was wearing gloves. Mr Roberts also entered Ms B’s house and was standing off to the side next to a chest of drawers. Mr A grabbed a knife and stepped away from Ms Parlov. Ms Parlov said words to the effect of “are you going to pull a knife on a girl?”. Mr A observed that Roberts was “backing up” Ms Parlov until he saw the knife. Mr A anticipated from Mr Roberts’ body language that Mr Roberts was going to rush up on to him until he saw the knife.
At about this time Mr Mena, who was wearing a mask, came through the front door. After he entered the house, he pulled out a sawn-off .22 calibre rifle from his waistband and shot Mr A. The bullet hit Mr A’s stomach, just above his belly button. Mr Mena then fumbled with the gun as he reloaded. He then raised the gun, pointed it at Mr A’s face and fired a second shot. The bullet hit Mr A’s jaw. Both shots were fired at close range. One of them was fired from no more than 3 m from Mr A. After the second shot was fired the three offenders fled the scene.
At about 6:18am Mr A admitted himself to Calvary Hospital in Bruce with gunshot wounds. He was dropped off at the emergency department carpark in an orange Toyota Corolla. Mr A was triaged as a category 1 patient (an immediate life‑threatening condition). He was initially assessed as having a wound with swelling to his left cheek, a severely comminuted fracture to the left jaw, a wound to his upper abdomen and two wounds to his left forearm. Medical staff noted a change in his voice and decided to place him in an induced coma. He was intubated and placed on a ventilator. He underwent a CT scan which reported multiple metallic foreign bodies lying both superficially and deep in his jaw. His left carotid artery was in close proximity to a major metallic foreign body. He also had a single metallic foreign body lodged in his abdominal wall.
Mr A was transferred by helicopter to the Canberra Hospital. He underwent multiple surgeries to explore, washout, debride and remove fragmented pieces of the bullets from his jaw, neck and abdomen. He also underwent plastic surgery on his left forearm, including the repair of one of the flexor muscles in the forearm which was injured. On 14 March Mr A underwent further surgery to repair the fractured bones in his jaw. This required the internal fixation of plates, screws, wires and rods which will remain in place permanently.
Mr A awoke from his induced coma on 18 March 2021. He was discharged from hospital on 19 March 2021.
Victim impact
Mr A provided a victim impact statement. Unsurprisingly, this indicates that the incident has affected him both physically, mentally and emotionally. He suffers anxiety as a result of the hearing of the allegations about him. He suffers from symptoms of post‑traumatic stress disorder, reliving the moment of the shooting. He suffers ongoing consequences of the wounds inflicted by Mr Mena. He suffers pain in his face, ongoing infections, scars on his face and numbness down the side of his face. Whenever he looks at himself he is constantly reminded of the moment of the shooting again. He has difficulty with chewing and opening his mouth. He is required to take medication for anxiety, PTSD, depression, pain and inflammation. He finds it very difficult to hold down a labouring job as loud noises cause his anxiety to flare up.
These impacts are largely attributable to the shooting itself as opposed to the burglary. They are certainly within the range of consequences that one would expect from conduct such as the shooting committed by Mr Mena. They must be recognised in the sentence that is imposed.
Objective seriousness
The attempted murder was committed with a .22 calibre firearm. The injuries sustained were serious and, having regard to the lodgement of a bullet fragment near Mr A’s left carotid artery, it was extremely fortunate that they were not fatal. The lack of detailed explanation of the background to the offending, in particular what motivated the offenders to confront Mr A over the undeserved and unparticularised allegations about him being a paedophile means that it is not possible to conclude beyond reasonable doubt that Mr Mena had an intention to kill him prior to attending the premises. He is to be sentenced on the basis that the actual intention to kill was not premeditated, notwithstanding Mr Mena clearly contemplated the possibility of the use of the firearm when attending the premises. While the attempted murder was not premeditated, the offending more generally was premeditated in that it involved bringing the firearm, entry into the premises with it loaded and carrying additional ammunition. Mr Mena was wearing a mask. The offence is in the mid‑range of objective seriousness for an attempted murder.
So far as the aggravated burglary is concerned, that occurred in the early hours of the morning, in a residential house and involved three people entering the house in company. No damage was caused during the entry to the house. The agreement of the offenders was to enter the premises and commit an offence involving causing harm to Mr A. The offenders contended that it had not been proved beyond reasonable doubt that actual infliction of violence had been agreed to prior to entry onto the premises. Rather, they submitted that it was a reasonably open possibility that their agreement was to assault Mr A by putting him in fear of immediate violence rather than through actual physical harm.
The matters in favour of a conclusion that there was an agreement to actually physically harm Mr A included that:
(a)During the meeting with Mr Roberts in Bonner each contemplated a physical confrontation.
(b)During that meeting Mr Roberts indicated that he would get Mr Mena for the purposes of a physical confrontation.
(c)Mr A understood, having regard to the background and what he observed, that he was about to be physically attacked by Mr Roberts immediately prior to Mr Mena entering the house.
(d)Mr A was in fact physically attacked by Mr Mena.
However, I am not satisfied beyond reasonable doubt that the agreement between the offenders extended to the infliction of actual physical violence. There remains a reasonable possibility that he was to be put in fear of such violence. One possible way which, consistent with the known facts, this might have occurred is through the discharge of a firearm in proximity to Mr A. One impediment to reaching a conclusion beyond reasonable doubt as to an agreement to inflict actual physical harm is that the overall motivation for the offending remains obscure. There appear to have been allegations that Mr A was a paedophile but where these allegations came from or why the offenders took on the role of vigilantes in relation to them was not disclosed by the evidence. It occurred in the context of drug use and drug dealing. As a consequence, it is difficult to reach any secure conclusion about the motivation to confront or assault Mr A. While I think that it is likely that actual physical violence was contemplated, it is not possible to rule out the reasonable possibility that the agreement was for some form of dramatic act instilling fear in Mr A but not involving actual physical harm.
So far as Mr Mena was concerned, given that he actually inflicted physical violence upon Mr A, an alternative basis for his liability is via direct liability rather than through joint commission. That would depend upon him having an intention to inflict actual physical violence upon Mr A at the point when he entered the premises. Once again, while it is likely that he had that intention at the point when he entered the premises a short time after the other offenders, I cannot make that finding beyond reasonable doubt. As indicated earlier, the overall reason for the offender’s concern about the allegations against Mr A is not explained by the evidence. I accept Mr A’s evidence that Mr Mena said “something about being a kiddie fiddler” prior to shooting him. The fact that Mr Mena suffered sexual abuse as a child provides a possible motivation to inflict violence upon Mr A. However, Mr A’s evidence was also that the gun was only pulled out after Mr Mena had entered the premises, consistent with an intention to actually use it only being formed after entry into the premises. As a consequence, the potential for direct liability does not provide a basis for differentiating the position of Mr Mena from the other offenders.
The result is that for each of the offenders the aggravated burglary is in the mid-range of objective seriousness for an aggravated burglary. The culpability of each offender in relation to the aggravated burglary is similar.
Subjective circumstances
Mr Mena is 24 years old. His mother is an Australian and served for many years in the Australian Navy. His father is Papua New Guinean and from the Mortlock Islands (also known as Takuu Atoll), a remote group of islands off the coast of Bougainville. Between the ages of 18 months and four years he lived with his father and paternal relatives on the Mortlock Islands. When he was four his parents divorced and he was picked up by his mother and brought back to Australia. He does not have any contact with his father. He lived in Cairns, Nowra and then Canberra when growing up. He was sexually molested as a child. He was physically abused, in particular by his older sister who was diagnosed with borderline personality disorder. He came to Canberra as a 10-year-old. He did not finish Year 10. By the age of 13 he was hanging around with older people and got into trouble with drugs. His methamphetamine use was worst when he was 17 and 19 years old. He suffers from attention deficit hyperactivity disorder (ADHD) which was only diagnosed relatively recently. He also suffers from post‑traumatic stress disorder. He had previously been diagnosed with bipolar disorder or schizophrenia related to drug use. He has attempted suicide on a number of occasions.
The report of Vanessa Quigley, clinical psychologist, indicates that he has significant impairments in aspects of his executive functioning including planning, judgment and decision making and with his ability to anticipate consequences and learn from his behaviour. He struggles to manage his impulses and his capacity to regulate and control his behaviour is underdeveloped. She recommends that he receive ongoing pharmacological treatment for his ADHD as well as review of the previous diagnoses of bipolar disorder and schizophrenia. She then recommends psychological treatment for 12 to 24 months. Ideally this would be undertaken at the same time as drug and alcohol counselling.
She expressed the opinion that imprisonment would be of great hardship to him because he “would be unable to access appropriate treatment while incarcerated”.
While in custody he has been the subject of behaviour warnings and disciplinary action on multiple occasions.
Criminal history
The offender’s relevant criminal history commences in 2017 when he was 18 years old. It involves some serious incidents involving offences of personal violence interspersed with driving offences. In 2017 he committed the offence of forcible confinement and was given a suspended sentence of imprisonment of three months. In 2017 he also committed the offences of aggravated burglary, assault occasioning actual bodily harm and reckless infliction of grievous bodily harm. That offending led to an aggregate sentence of 31 months’ imprisonment suspended after 10 months: R v Mena [2018] ACTSC 92. That sentence was imposed in February 2018. He breached the good behaviour order associated with the suspension of the sentence and was ultimately given suspended terms of six months imprisonment in December 2020: R v Mena (No 2) [2020] ACTSC 351. Notwithstanding that the good behaviour order associated with these sentences was only six months, he committed the current offences three months later.
In January 2020 he committed the offence of driving with a prescribed drug in his oral fluid and was given a 12-month good behaviour order commencing 12 February 2021. He breached that only a month later by committing the current offences.
On 12 February 2020 he committed the offence of failing to provide an oral fluid sample in circumstances where he had taken methamphetamine. He was given a two‑month suspended sentence subject to a good behaviour order of 12 months. This good behaviour order was breached by the current offending which occurred one month after it had been entered into.
On 15 February 2020 he committed the offences of possessing a prohibited substance (heroin) and trafficking in methamphetamine. The latter led to a sentence of imprisonment of seven months and 10 days from 23 March 2021 until 1 November 2021.
Time in custody
Mr Mena has been in custody since 23 March 2021. However, seven months and 10 days of that up to and including 1 November 2021 was served as the sentence for trafficking in a controlled drug other than cannabis. The 528 days from 2 November 2021 up to and including 13 April 2023 during which he was refused bail and remanded in custody is solely attributable to the current offending and will be reflected in a backdated sentence. This gives a backdate date of 2 November 2021.
Consideration
Notwithstanding his introduction to drug use as a child, the offender has been given significant opportunities as an adult to avoid further offending conduct. I gave him such an opportunity when I sentenced him in 2018. He was given a further opportunity by the suspended sentence on the drug driving charge just before the current offending. It is unfortunate that he has fallen back in with his antisocial associates in Canberra and associated drug use. The capacity in future for him to avoid offending is likely to be dependent upon getting treatment for his mental health conditions and avoiding antisocial associates. He does not appear to be particularly motivated to rehabilitate himself. His behaviour in custody has been noted as involving adverse incidents and poor conduct. He has not taken responsibility for his current offending or expressed any remorse. His prospects of rehabilitation must, at this stage, appear to be guarded.
Counsel for the offender made the submission that Mr Mena was not an appropriate vehicle for general deterrence because of his deprived background and complex mental health conditions which materially contributed to his offending. While I accept that he had a disrupted upbringing which must be taken into account and that he suffered from underlying deficits which are likely to have a causal connection to the offending, those factors pull in both directions in relation to the appropriate sentence. While they make him a less suitable vehicle for general deterrence, they also indicate the need for specific deterrence and protection of the community. The need for protection of the community is illustrated by Mr Mena’s criminal history which indicates that he has not been deterred from offending conduct by sentences imposed in the past.
The fact of his mental health conditions is also relevant to his prospects of rehabilitation. I do not accept the evidence of Ms Quigley that he will not receive adequate treatment for his mental health in prison. He will have access to medical treatment equivalent to that available in the community. Whether or not the risk to the community caused by his impulsiveness and lack of judgment is reduced will depend upon his preparedness to have his conditions treated, in the first instance, by medication and to maintain that medication use when released into the community. The prospect of that occurring cannot readily be assessed at this stage.
The prosecution provided a table of sentences for the offence of attempted murder. These included sentences from Queensland and Victoria as well as the Australian Capital Territory. They demonstrated a wide range of sentences from 16 years down to seven years. Nominal terms fixed for persons found not guilty by way of mental impairment were as low as three years’ imprisonment.
So far as the attempted murder is concerned, in my view, the appropriate sentence is eight years’ imprisonment. The offence of discharging a loaded arm arises out of the same conduct which gives rise to the charge of attempted murder. The appropriate sentence is one of 18 months’ imprisonment, but this sentence will be entirely concurrent with the sentence for the charge of attempted murder. The sentence for the aggravated burglary is three years and three months. The sentences will be concurrent except for one year. That is because of the close association between the offending on the one hand, and the need to reflect the additional offending involved in the burglary on the other.
The two suspended sentences of imprisonment arising from the resentence in 2020 will each be imposed. That is because the offender has clearly not made use of the opportunity given to him by those sentences and instead has continued very serious offending. There will be a modest degree of cumulation having regard to the fact that the original sentences incorporated a degree of cumulation and it is appropriate to reflect that, to an extent, when the suspended sentences are imposed. The degree of cumulation will be two months but the sentences will otherwise be concurrent.
The suspended sentence of two months imposed as a result of the offence of failing to provide an oral fluid sample will be imposed. That will be cumulative upon the other sentences imposed today.
Having regard to the other custodial sentences that will be imposed, the breached good behaviour orders which were not associated with suspended sentences of imprisonment will be addressed under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) by taking no further action.
This gives an aggregate sentence of imprisonment of nine years and 10 months. The non-parole period will be five years and five months which is approximately 55 percent of the head sentence. Putting the non-parole period at the lower end of the usual range reflects the fact that Mr Mena is still a relatively young man and, depending upon the treatment of his mental health, his behaviour in custody and any evidence of a commitment to rehabilitation, it may be appropriate to give him the benefit of a longer period in the community on parole. I emphasise the contingent nature of this approach. Obviously, his behaviour in custody so far has not been promising but there is the potential for that to change over time.
Orders
The orders of the Court are:
1.In relation to the breach of the good behaviour order imposed on CC2017/11250 (recklessly inflict grievous bodily harm) as a condition of the suspension of the sentence of imprisonment, pursuant to s 110(2)(a) of the Crimes (Sentence Administration) Act 2005, the good behaviour order is cancelled and the sentence of six months’ imprisonment is imposed, commencing on 2 November 2021 and ending on 1 May 2022.
2.In relation to the breach of the good behaviour order imposed on CC2017/11248 (aggravated burglary) as a condition of the suspension of the sentence of imprisonment, pursuant to s 110(2)(a) of the Crimes (Sentence Administration) Act 2005, the good behaviour order is cancelled and the sentence of six months’ imprisonment is imposed, commencing on 2 January 2022 and ending on 1 July 2022.
3.In relation to the breach of the good behaviour orders imposed on CC2020/507 and CC2017/11249, pursuant to s 108(2)(a) of the Crimes (Sentence Administration) Act 2005, no further action is taken.
4.In relation to the breach of the good behaviour order imposed on CC2020/2222 (failure to provide an oral fluid sample), as a condition of the suspension of the sentence of imprisonment, pursuant to s 110(2)(a) of the Crimes (Sentence Administration) Act 2005, the good behaviour order is cancelled and the sentence of two months’ imprisonment is imposed commencing on 2 July 2022 and ending on 1 September 2022.
5.On the count of attempted murder (CC2021/3928), the offender is convicted and sentenced to imprisonment for eight years commencing on 2 September 2022 and ending on 1 September 2030.
6.On the count of discharging a loaded arm so as to cause another person reasonable apprehension for his or her safety (CC2021/3153), the offender is convicted and sentenced to imprisonment for 18 months commencing on 2 September 2022 and ending on 1 March 2024.
7.On the count of aggravated burglary (CC2021/3926), the offender is convicted and sentenced to imprisonment for three years and three months commencing on 2 June 2028 and ending on 1 September 2031.
8.The non-parole period of five years and five months commences on 2 November 2021 and ends on 1 April 2027.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 21 April 2023 |
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