DPP v Stewart
[2023] ACTSC 252
•11 September 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Stewart |
Citation: | [2023] ACTSC 252 |
Hearing Dates: | 17 July 2023, 31 August 2023 |
Decision Date: | 11 September 2023 |
Before: | McWilliam J |
Decision: | See [132]-[133] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence –damage property – unregistered firearm – prohibited weapon – forgery – guilty pleas – where strength of prosecution case was overwhelming but assisted by admissions – whether Bugmy principles apply – where significant period spent in custody before sentence – risk of deportation due to visa cancellation – where prospects of reform dependent on drug and alcohol rehabilitation – whether Drug and Alcohol Treatment Order should be made |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33, 35, 36, 57, 63, 64, 80O, 80W, 80Y, 80Z, 80ZA Crimes (Sentence Administration) Act 2005 (ACT) s 85 Criminal Code 2002 (ACT) ss 346, 347, 403, 703, 713 Firearms Act 1996 (ACT) s 177(2)(a) Migration Act 1958 (Cth) s 501 Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | Allouch v The Queen [2018] VSCA 244 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 Cranfield v The Queen [2018] ACTCA 3 DPP v Calhoun (a pseudonym) [2023] ACTSC 189 DPP v Rohrlach [2023] ACTSC 166 DPP v Stasinos [2023] ACTSC 179 Islam v The Queen [2014] ACTCA 2 Laipato v The Queen [2020] ACTCA 35 Lloyd v The Queen [2022] NSWCCA 18 Mahanay v Phelan [2023] ACTSC 162 Markarian v R [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Monfries v R [2014] ACTCA 46 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Neal v The Queen (1982) 149 CLR 305 Ngata v The Queen [2020] ACTCA 18 O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Atai (No 2) [2021] ACTSC 272 R v Brown [2015] ACTSC 65 R v Bugmy [2013] HCA 37; 249 CLR 571 R v Bulliman (Unreported, NSWCCA, Gleeson CJ, Hunt CJ at CL and Abadee J, 25 Feb 1993) R v Campbell [2010] ACTCA 20 R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 R v Cichacz [2022] ACTSC 28 R v Crawford (No 1) [2020] ACTSC 245 R v Deng [2022] ACTSC 143 R v Featherstone [2019] ACTSC 218 R v Garay (No 4) [2022] ACTSC 138 R v GBD [2018] QCA 340; 342 FLR 244 R v Kilic [2016] HCA 48; 259 CLR 256 R v Leka [2017] SASCFC 77 R v Lindsay [2020] ACTCA 25 R v McCallum [2020] ACTSC 15 R v Miller [2019] ACTCA 25 R v Mitchell [2016] ACTSC 85 R v Moore [2012] NSWCCA 3 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Parker [2020] ACTSC 38 R v Pearce [2018] ACTSC 140 R v Rosewarne [2021] ACTSC 217 R v Slattery [2021] ACTSC 154 R v Snowden [2022] ACTSC 186 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Zanatta [2014] ACTSC 338 The Queen v Ruwhiu [2023] ACTCA 18 Veen v The Queen (No 2) (1988) 164 CLR 465 Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 |
Texts Cited: | Bugmy Bar Book Committee, ‘Childhood Exposure to Domestic & Family Violence” in The Bar Book Project (Sydney, NSW, The Public Defenders, 2019) |
Parties: | Director of Public Prosecutions Euan Graham Thomas Stewart ( Offender) |
Representation: | Counsel L Crocker ( DPP) J McGuire ( Offender) |
| Solicitors ACT Director of Public Prosecutions Paul Edmonds & Associates ( Offender) | |
File Number: | SCC 28 of 2023 |
McWILLIAM J:
1․Mr Euan Stewart has pleaded guilty to the following offences:
Count
Charge Number
Offence
Maximum Sentence
1
CC2022/639
Damaging property, contrary to s 403 of the Criminal Code 2002 (ACT) (Criminal Code)
1,000 penalty units, imprisonment for 10 years or both
2
CC2022/10816
Forgery, contrary to s 346 of the Criminal Code
1,000 penalty units, imprisonment for 10 years or both
3
CC2022/10817
Forgery, contrary to s 346 of the Criminal Code
1,000 penalty units, imprisonment for 10 years or both
4
CC2022/10818
Forgery, contrary to s 346 of the Criminal Code
1,000 penalty units, imprisonment for 10 years or both
5
CC2022/10819
Forgery, contrary to s 346 of the Criminal Code
1,000 penalty units, imprisonment for 10 years or both
6
CC2022/10820
Forgery, contrary to s 346 of the Criminal Code
1,000 penalty units, imprisonment for 10 years or both
7
CC2022/10821
Forgery, contrary to s 346 of the Criminal Code
1,000 penalty units, imprisonment for 10 years or both
8
CC2022/10822
Possessing a prohibited unregistered firearm, contrary to s 177(2)(a) of the Firearms Act 1996 (ACT)
1,000 penalty units, imprisonment for 10 years or both
9
CC2022/10823
Possessing a prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (Prohibited Weapons Act)
500 penalty units, imprisonment for 5 years or both
Additional Offences
2․An issue arose during the sentencing hearing on 17 July 2023, where it became apparent that the offences to which the offender had pleaded guilty involved the making of a false document contrary to s 346 of the Criminal Code (being medical certificates), but the agreed facts inextricably dealt also with the use of those false documents, which is a separate offence under s 347 of the Criminal Code.
3․The Prosecution and the offender then consented to dealing with the issue via Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
4․Pursuant to s 57 of the Sentencing Act, the offender now requests that a further five separate offences be taken into account, each for the use of a false document, contrary to s 347 of the Criminal Code. The “principal offence” to which they attach (necessary for the operation of Part 4.4) is CC2022/10816, being the first in time of the forgery offences.
5․None of the offences of using a false document are the subject of formal charges. However, the Court’s jurisdiction under Part 4.4 of the Sentencing Act applies to other offences “allegedly” committed by the offender. Under s 57(5), the Court is taken to have jurisdiction to make a sentence-related order for an additional offence even if the jurisdiction may only be exercised with the offender’s consent.
6․Here, the offender confirmed that he did consent to each additional offence being taken into account in relation to the principal offence. Section 57(1) of the Sentencing Act requires that the Court must first ask the offender whether the offender wants to take the additional offences into account. This occurred when the sentencing hearing resumed on 31 August 2023.
7․Each of those five alleged offences carries a maximum penalty of 1,000 penalty units, imprisonment for 10 years, or both. I will refer to these offences as the “Additional Offences”.
The Court’s sentencing task
8․I discussed the Court’s sentencing task and the applicable authorities in DPP v Rohrlach [2023] ACTSC 166 at [18]-[23]. Essentially the focus of the Court’s task is to sentence according to the principle of individualised justice, determining what is “adequate punishment” by way of a sentence that is “just and appropriate” for the particular offender.
9․It involves balancing the different sentencing objectives in s 7 of the Sentencing Act in all the circumstances, giving consideration to the offender’s personal circumstances. Of equal importance among the objectives (s 7(2) of the Sentencing Act) are the objectives of general and specific deterrence, protection of the community, promotion of the offender’s rehabilitation, making the offender accountable for his actions, denouncing the conduct of the offender and recognising the harm done to the victims of the crime and the community.
10․The Court’s sentencing task here was made significantly easier by the helpful written and oral submissions provided by Mr McGuire for the offender and Mr Crocker for the Director of Public Prosecutions (the Prosecution). I have endeavoured to capture their various arguments in what follows below, without repeating the detail of each submission.
Facts of the offending
11․The facts of the offending are agreed and summarised below.
Damaging property offence
12․About 1:30pm on 22 November 2021, the offender entered the Centrelink branch in Greenway. He identified himself and was served by a worker in an interview cubicle. An issue arose with a payment query, causing a delay as it had to be addressed by someone outside the office.
13․The offender became aggressive. He shouted that Centrelink had ruined his life and his relationship. At about 2:30pm, he punched a monitor mounted on the wall of the interview cubicle causing the back panel to fall out.
14․The offender went to leave. He approached the front entrance sliding door, which was made of glass, and kicked one of the panes twice. The glass shattered. He then left the building. The incident was caught on CCTV and reported to police. The damage to the glass door constitutes the first offence of damaging property.
15․On 11 January 2022 at 7:45am, police attended the offender’s home address. They observed that he matched the physical description of the man on the CCTV.
Forgery offences
16․These six offences are all referrable to the making of six forged medical certificates the offender provided to the ACT Magistrates Court and the ACT Civil and Administrative Tribunal (ACAT), purportedly signed by a number of general practitioners (GP) who worked at a medical practice in Phillip. As outlined above, the use of these forged documents constitutes the offending for the purposes of the Additional Offences.
17․On 2 February 2022, the offender had matters listed for sentence in the Magistrates Court. The offender wrote to the Court advising that he was ill and that he would provide a medical certificate. At 12:29pm, he sent through an email attaching a medical certificate dated 2 February 2022, purportedly signed by a GP from the medical practice in Phillip. That practice later confirmed that the certificate was not genuine. This constitutes the first forgery offence (CC2022/10816).
18․On 16 June 2022, the offender failed to attend sentencing for his matters in the Magistrates Court and a warrant was issued for his arrest.
19․On 17 June 2022, the offender emailed the Magistrates Court to explain and apologise for his absence. He attached two medical certificates dated 25 April 2022 and 2 June 2022, purportedly signed by a GP from the medical practice in Phillip. That practice later confirmed that the certificates were not genuine. This constitutes the second and third forgery offences (CC2022/10817 and CC2022/10818).
20․On 10 October 2022, the offender’s sister emailed the Magistrates Court enclosing a medical certificate in respect of the offender dated 7 October 2022, purportedly signed by a GP from the medical practice in Phillip. That practice later confirmed that the certificate was not genuine. This constitutes the fourth forgery offence (CC2022/10819).
21․On 11 October 2022, the offender had matters listed for sentence in the Magistrates Court at 2:15pm. At 1:01pm, the offender emailed the Magistrates Court with a medical certificate dated 11 October 2022, purportedly signed by a GP from the medical practice in Phillip. The offender explained it was an updated certificate from the 7 October one. That practice later confirmed that the certificate was not genuine. This constitutes the fifth forgery offence (CC2022/10820).
22․On 26 October 2022, the offender had matters listed for sentence in the Magistrates Court at 2:15pm. Early that morning, the wife of the offender provided the Court a medical certificate in respect of the offender dated 24 October 2022, purportedly signed by a GP from the medical practice in Phillip. That practice later confirmed that the certificate was not genuine. The wife explained that he had severe and ongoing health issues. The offender did not appear on that day and a warrant was issued for his arrest.
23․The offender was also involved in a matter in the ACAT. The offender resided in affordable rental housing provided by the St Vincent de Paul Society. The offender failed to pay numerous rental payments. An application was made by the provider, seeking termination of the residential tenancy agreement. The application was listed for hearing on 23 June 2022. The offender did not appear at the hearing, and payment orders were made in his absence. On 19 October 2022 an application was filed by the housing provider in respect of the non-payment of the payment orders.
24․On 26 October 2022, ACAT sent a listing notice for hearing to the offender advising him that a hearing date had been set on 3 November 2022. In response to this, the offender provided to ACAT the forged medical certificate dated 24 October 2022 asking for a postponement of the hearing. It was confirmed later that this was the same certificate provided that day to the Magistrates Court, and was a false document. This constitutes the sixth forgery offence (CC2022/10821).
25․On 28 October 2022, ACAT advised the offender that the matter had been adjourned until 10 November 2022.
26․There were patent errors on the certificates. The medical practice’s name was not correctly listed. The sentences were poorly written with spelling errors (including the misspelling of the address of the practice). There was also shading behind the sentences which suggested that they had been altered.
27․The forged nature of the medical certificates was confirmed when police contacted (on two occasions on 19 October 2022 and 28 October 2022) the medical centre in Phillip named on each certificate. The medical centre confirmed that the offender had not been a patient there since 13 January 2021, and none of those certificates were genuine.
28․On 3 November 2022, the police were granted a search warrant to search the offender and his residence. The search warrant was executed on 4 November 2022.
29․During the execution of the search warrant, the offender participated in a record of interview and admitted to police forging at least one of the medical certificates. He stated that he was avoiding court in the fear of being deported back to Scotland as he is not a permanent resident of Australia. He agreed all six forged certificates were similar in appearance and showed the police some of the tools he had used to create them. While being questioned at this time, the offender said words to the effect of: “If I do forgery it’s for my own benefit, not to rip someone off”. The offender was arrested for forgery offences on the same day, 4 November 2022.
Possession of a prohibited unregistered firearm
30․During the execution of the search warrant on 4 November 2022, the police located inside or behind the bedhead of the offender’s bed an imitation pistol, confirmed to be a copy of a 6mm Air Soft M1911 pistol.
Possession of a prohibited weapon
31․During the execution of the search warrant, the police located a prohibited extendable baton on the loungeroom floor next to the couch.
The Additional Offences and the approach to be taken on sentence
32․The facts constituting the Additional Offences are, in the case of five of the false medical certificates that were created, the use of those false documents by the offender, with him knowing that they were false. Such use occurred on 2 February 2022, 17 June 2022, 11 October 2022 and twice on 26 October 2022 (with the document presented to the Magistrates Court and then to ACAT).
33․As to how the Additional Offences are to be taken into account, in the reasoning that follows, I have applied R v Campbell [2010] ACTCA 20, where the Court of Appeal stated at [46]-[50] (emphasis added):
46.Section 57(3) of the Sentencing Act further provides that any penalty imposed for the offence for which Ms Campbell appeared for sentence cannot exceed the maximum penalty for that offence, notwithstanding that the additional offences are taken into account.
47.Spigelman CJ has explained how a court is to take such offences into account in R v Barton [2001] NSWCCA 63; (2001) 121 A Crim R 185 where (at 195 [64]) his Honour said:
The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.
48.This is, obviously, constrained by s 57(3) of the Sentencing Act and by other relevant principles of sentencing, such as the principle of totality set out in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.
49.When taking these offences into account, it is not necessary for the court to indicate precisely what effect the taking of them into account has on the sentence that is imposed.
50.When s 57(3) of the Sentencing Act speaks of taking the offences into account, it means taking them into account in the same way as other matters are taken into account for the purpose of sentence. No doubt it will generally have the result of increasing the sentence about to be imposed. It may, in some cases, have the result of altering the nature of that sentence. But apart from those considerations, the additional offences will no doubt be taken into account as part of the sentencing process in assessing the character of the offender and the prospects of rehabilitation. What is clear, of course, is that the offender is not to be sentenced for the additional offences. There may be occasions when it is appropriate for a judge to refer to the effect which [the judge] gives to additional offences taken into account in that way, but it is not obligatory for [the judge] to do so.
Objective seriousness (s 33(1)(a) of the Sentencing Act)
34․A consideration of the nature and circumstances of the offence calls attention to the objective seriousness of the conduct in question. The sentence ultimately imposed must be proportional to the objective seriousness of the offence. An offender’s subjective features, while important, “cannot justify the imposition of a sentence [that] does not adequately reflect the objective seriousness of the offending behaviour”: R v Miller [2019] ACTCA 25 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].
35․The approach is to consider 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: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
36․The evaluation is “objective”, in that the Court disregards 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].
37․The subjective features (being the aspects of the offending personal to the offender) and the after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
38․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v R [2005] HCA 25; 228 CLR 357 at [31].
39․The court is obliged to consider the factors bearing upon the objective seriousness of each offence, although not to explicitly specify whether a particular offence falls into the low, mid or upper range of such offences: Miller at [22]. It has been said that when any offence is placed on a spectrum of seriousness that extends from low range through mid-range to high range, the placement invites a simplistic approach to sentencing that may be generally unhelpful, such that it is preferable to articulate the factors that inform the character of an offence’s objective seriousness: Laipato v The Queen [2020] ACTCA 35 at [156].
Damage Property
40․In relation to the offence of damaging property, the maximum penalty is 10 years’ imprisonment or $160,000 or both. I have taken into account the circumstances in which the damage occurred (including motive or intent) and the amount of damage caused. Such features were discussed by Murrell CJ in R v Rosewarne [2021] ACTSC 217 (Rosewarne) at [120] as including:
(a)The motive for the damage or theft; for example, whether damage was malicious or occurred to facilitate a burglary; and
(b)The extent or value of the damage.
41․Here, the motive for the damage was simply an impulsive reaction to the offender’s frustration at Centrelink. That is, while the offence was intentional, it was not planned, and not for any particular gain, other than perhaps to exit the building. The extent or value of the damage to the glass in the door was not specified in the evidence. Bearing in mind the scale and cost of items that might be damaged within this offence, the objective seriousness is low.
Forgery Offences
42․The features of the offending bearing upon the objective seriousness of each of the forgery offences of creating a false document are similar in nature to those identified in the offences of perjury or perverting the course of justice. As submitted by the prosecution, they are similar in the context of this type of forgery offence because they involve the Court being dishonestly misled.
43․In R v Zanatta [2014] ACTSC 338 at [10], in dealing with the offence of aggravated perjury, Murrell CJ stated that any offence of this nature is serious as it strikes at the heart of the justice system. Those words were echoed by Burns J in R v Brown [2015] ACTSC 65 at [8] in relation to a single offence of perjury. His Honour went on to state that such offences “will quite commonly, if not ordinarily, involve the imposition, not only of a conviction, but also a term of imprisonment. The motive for giving false evidence before a court will usually be irrelevant to the sentencing process, in the sense that it will not usually be a significant mitigating factor.”
44․The statements in the authorities in the Territory are consistent with what the NSW Court of Criminal Appeal stated in R v Bulliman (Unreported, NSWCCA, Gleeson CJ, Hunt CJ at CL and Abadee J, 25 Feb 1993):
False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for the making of false statements on oath and whatever be the circumstances in which the offence or offences are committed.
The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case.
45․It is nevertheless important to recognise the different ‘yardstick’ applicable, in that forgery carries a maximum penalty of 10 years’ imprisonment, whereas perjury and perverting the course of justice (ss 703 and 713 of the Criminal Code) each have a maximum penalty of 7 years’ imprisonment.
46․A case that the Prosecution relied upon and which I consider has some similarities in terms of objective seriousness of conduct is R v Moore [2012] NSWCCA 3, where an offender used a fraudulent letter in an attempt to vary his bail conditions. Although the facts arose in a different jurisdiction, the case is apt in terms of explaining features that may inform the objective seriousness of conduct of this type.
47․The sentencing remarks of the primary judge were repeated on appeal at [25] without criticism:
The offence for which [the offender] is facing sentence is a serious offence. It is an offence attracting a maximum penalty of 14 years imprisonment in recognition of the importance of protecting the integrity of our criminal justice system.
…
[The conduct falls] towards the lower end of the scale constructed for like offences…because it did not involve the threatening of a witness or the interference with a juror or judicial officer. It was an attempt by him to influence the outcome of a bail application in his favour, something which probably could have been done without the need to go to the lengths that he did. It was an act, however, which clearly involved premeditation and planning and worse still the involvement of an otherwise innocent person to produce the document for him. It is an offence warranting a penalty to reflect the need for general deterrence, not only to this offender, but to deter others who might be of a like mind.
48․Drawing on these authorities, I have taken into account the following features:
(a)The amount of money or personal gain involved. Here, there was no money relevantly involved, but there was personal gain in avoiding court, or civil proceedings in the ACAT where he was facing eviction. The personal gain allowed the offender to remain in the community when he otherwise may have been arrested for non-attendance.
(b)The length of time over which the offences were committed. The forgery offences have been separately charged. They are therefore to be considered as isolated single events of creation.
(c)The degree of planning and sophistication. There was a degree of planning but on the face of the documents, no sophistication and when the medical certificates are read with any degree of scrutiny, it was easily detectable that the documents created were not genuine.
(d)The circumstances in which the document was created. There is no evidence that anyone else was co-opted in the creation of each false document. The medical certificates were not given on oath and were not created in the context of giving evidence at a trial or a sentence hearing.
(e)Any accompanying breach of trust. The Prosecution fairly submitted that because the offences in question were of the creation of the document and not its use, the objective seriousness is to be assessed on the basis of the offender’s intention to breach the trust of the Court or Tribunal, as opposed to any actual breach of trust realised by the use of each medical certificate. Nevertheless, the circumstances involved the broader context of court proceedings, and the intended breach of trust remains that of the Court’s trust, in particular, the reliance the justice system places on those coming before it to provide honest information.
49․The objective seriousness of each offence thus remains significant because of the circumstances in which each false medical certificate was created, where the offender was interacting with the justice system. However, the single occurrence for each offence and lack of sophistication mean that the level of objective seriousness is reduced.
Possession of an unregistered firearm and possession of a prohibited weapon
50․The conduct constituting each of these two offences is of a similar nature and similar objective seriousness, in that it involved possession, not use, and the item possessed was unlawful either because it was prohibited or unregistered. Possession is a less serious breach of the Prohibited Weapons Act than use: see R v Pearce [2018] ACTSC 140 at [14].
51․The parties submitted (and I accept) that the considerations relevant to cases dealing with unlicensed firearms are also referable to the assessment of the objective seriousness for the two offences under consideration here. Applying R v Mitchell [2016] ACTSC 85 (Mitchell) at [85], the following features may be relevant to assessing the objective seriousness of possession of an unregistered firearm:
(c)the number of firearms;
(d)the number of firearms that were prohibited or were pistols;
(e)the nature and type of the firearms;
(f)the purpose of the possession of the firearms;
(g)the location of the property and the security under which the firearms were kept;
(h)the length of time during which the firearms were in the offender’s possession; and
(i)the circumstances in which they came into his possession.
52․Here, there was one firearm. While not secured by lock and key, there was a degree of relative security in which the firearm was kept, in the sense that it was hidden in a private residence and stored in a bedhead. That is relevant because it speaks against matters that may otherwise have been of concern, such as a child being able to easily access the item.
53․As to the nature of the firearm itself, as the parties submitted, the real danger of the firearm was restricted to its appearance. The offender submitted that this was a single airsoft firearm which was at some time able to fire an airsoft pellet, but with no evidence of its current ability to do so and therefore the risk it posed. The facts do not give the details of the length of time or circumstances in which the firearm came to be possessed.
54․Separately, in assessing the objective seriousness of an offence of possessing a prohibited weapon, I apply R v McCallum [2020] ACTSC 15 (McCallum) which outlined the relevant factors at [25]:
In assessing the objective seriousness of such an offence, relevant factors include the nature of the prohibited weaponand the circumstances in which it was possessed. These factors may inform the danger or potential danger to the public associated with the particular offence.
55․In relation to the nature of the weapon, the Court has regard to the other weapons covered by the same offence: see R v Cichacz [2022] ACTSC 28 (Cichacz) at [10]. They are listed in sch 1, pt 1.2 of the Prohibited Weapons Act. The range of prohibited weapons extends to bombs, missiles, flame throwers and grenades. A baton is considerably less serious in nature in terms of the danger it inherently posed.
56․As to the circumstances of possession, the weapon was located within the offender’s private residence (rather than being carried in a public place). By reference to the locations in which the items were discovered, the inference may be drawn that the purpose for which each was possessed was for defensive personal protection.
57․In McCallum, the offender was also involved in drug trafficking. Murrell CJ observed at [26]:
In this case, the offender was a drug dealer and the items were located in his vehicle (as were a number of items associated with drug dealing). The possession of the weapons by the offender, who was engaged in drug dealing, posed a serious risk to the public and added to the objective seriousness of the offence.
58․I have referred to that case by way of contrast rather than similarity. The facts here do not speak of any particular intended use associated with drug dealing.
59․Taking into account the nature and the surrounding circumstances of each of the prohibited weapon and unregistered firearm and having articulated the features relevant to the assessment for these offences, it is clear that they are towards the lower range of objective seriousness.
The offender’s custodial status
60․As at the date of sentence, the offender has spent 165 days in custody referrable to these offences. That will be taken into account in the sentence to be imposed: s 63 of the Sentencing Act.
61․Although this time in custody is a factor recognised in the imposition of the sentence, a Drug and Alcohol Treatment Order (DATO) is in contemplation for the present offending. Under s 12A of the Sentencing Act, time previously spent in custody cannot be recognised through the method of backdating a sentence. That section requires that the sentence of imprisonment that is the subject of a drug and alcohol treatment order be “fully” suspended when making a DATO: see McCallum at [81]; R v Parker [2020] ACTSC 38 at [25]-[33]; and R v Crawford (No 1) [2020] ACTSC 245 at [109]-[111].
62․However, the section only applies to the sentence of imprisonment that is the subject of the DATO. In cases where the Court is sentencing for multiple offences, as is the case here, it does not prevent the separation of offences for sentence, with a DATO attaching to some offences and not others. I will return to this matter when dealing with the appropriate sentence below.
Quasi-imprisonment – the approach to previous residential rehabilitation
63․There are situations where quasi-imprisonment may also justify the backdating of a sentence: see for example, Islam v The Queen [2014] ACTCA 2 at [22] which involved a period of immigration detention.
64․During the period when the offender was not in custody, he was bailed to attend a rehabilitation programme in NSW. The offender submitted that the Court should treat that period of time consistently with the approach taken in R v Slattery [2021] ACTSC 154 at [102]-[107]. There, Refshauge J referred to any voluntary treatment for a condition that may have contributed to an offence as being a matter that the Court is required to consider under s 33(1)(t) of the Sentencing Act. His Honour took the period spent in residential rehabilitation into account in moderating the sentence. However, his Honour did not treat the period as quasi-imprisonment, which may have warranted taking account of the time spent by extending the backdating of any sentence to the period of residential drug rehabilitation.
65․I will take the same approach here, which relieves the Court of entering into the debate about whether the conditions under which the particular programme pursued by the offender even met what might have been considered quasi-imprisonment.
Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)
66․The Court had before it a Pre-Sentence Report (PSR) dated 8 February 2023. There were also a number of Drug and Alcohol Sentencing List (DASL) Eligibility Assessments and Suitability Assessments, provided by ACT Corrections and Canberra Health Services. The most recent of these was an amended DASL Suitability Assessment dated 7 July 2023. Much of the information as to the offender’s subjective circumstances is taken from that material.
Family circumstances and relationships
67․The offender is 35 years old. He was born in Scotland and raised there by his father until age 13. The offender described his father as a “violent alcoholic”, reporting that he was subject to family violence and abuse from his father whilst in his care. His father had led him to believe from age three that his mother was deceased. However, that transpired not to be true, and he later relocated to live with his mother in Australia at age 13.
68․Soon after his arrival in Darwin in Australia he was taken into the care of a child protection service, due to his involvement with petty crime. He resided in a youth refuge in Sydney until age 18. He has not been back to Scotland since he departed and has no connections to family or community there.
69․His mother had previously reported a child that came to her who had been subject to both physical and mental abuse. She stated that he had struggled with complex mental health issues, impacted by illicit substance use as a coping tool, until 2019, when he engaged in Schema therapy and counselling for the first time. His mother now resides in Tasmania. There were conflicting reports about whether he has maintained current contact with her.
70․The offender reported that he is currently single. He has had several significant partner relationships resulting in five children, currently aged between five and 17 years of age. He remains in contact with his children and considers himself close with them. He reports that he is studying a Bachelor of Child Psychology remotely so that he can better understand himself and his children. He has reported a history of post-traumatic stress disorder, anxiety and depression, due to the circumstances of his upbringing. He receives ongoing prescribed pharmaceutical treatment for his anxiety and depression.
71․The parties addressed the Court on the operation of the Bugmy principles. In R v Bugmy [2013] HCA 37; 249 CLR 571 (Bugmy), the plurality in the High Court said at [41] that in “any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.” The plurality went on to recognise at [43] and [44]:
43.… The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience.
…
44.…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.
72․In The Queen v Ruwhiu [2023] ACTCA 18 (Ruwhiu), Baker J (with whom Rangiah J agreed) stated at [126]:
The concept of moral culpability refers to an offender’s ‘moral blameworthiness’ for an offence: Paterson v R [2021] NSWCCA 273 at [29], per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing). An offender will be less morally blameworthy for an offence where their disadvantaged background in some way ‘explains’, is connected with, or otherwise sheds light on the offending. For the reasons I stated in R v Hagen [2022] ACTSC 362 at [42] – [43], a reduction in moral culpability does not require a strict causal connection between an offender’s disadvantaged background and the offending. However, where there is a strong causal connection (such as was the case in Bugmy (No 2)), an offender’s moral culpability may be “substantially reduced”: Bugmy (No 2) at [44].
73․The Prosecution submitted that the evidence before the Court here was insufficient to make the Bugmy principles applicable, in the sense that the “material” did not permit the Court to make a finding that would mitigate the moral culpability of the offending in question (s 33(1)(i) of the Sentencing Act). The Prosecution was also critical of the lack of detail in terms of the frequency, severity of duration of the abuse suffered, and how that has impacted upon the offender in the past or now. The submission is understandable, as the material raising the issue was general and came primarily from the offender himself and previous reports from his mother. However, for this offender, there are obvious difficulties in obtaining material about a child who grew up in Scotland, was very young when the abuse occurred and now has no connection to that place.
74․In addition, concerns about re-traumatisation mean that such material may need to be gathered carefully and often from other sources, rather than simply putting the offender in the witness box to specifically recount details of what his father did to him when he was in his care in Scotland.
75․I note that although much is self-reported, there was some other evidence. None of it was challenged and it can be relied on in this Court: Lloyd v The Queen [2022] NSWCCA 18 at [45]. The same approach was taken by Refshauge AJ in relation to similar material of childhood disadvantage in R v Deng [2022] ACTSC 143 at [154]. Although that decision was later overturned on appeal for a different reason, the Court of Appeal held that the Bugmy principles remained applicable and were taken into account on resentence: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [110].
76․The material that was before the Court was sufficient to establish (on the balance of probabilities) the offender’s background and history as described above. The offender’s mother gave a history corroborating the offender’s reported background and his mental condition arising from it. These are matters which must be considered (s 33(1)(m)). In Bugmy, in a separate judgment (concurring with the conclusion in the joint reasons for judgment) Gageler J cited the statement of sentencing principle by Brennan J in Neal v The Queen (1982) 149 CLR 305 at 326 that the weight to be afforded to the effects of social deprivation in an offender’s youth and background is in each case for individual assessment. The approach I have taken is to apply the Bugmy principles but accept that the weight to be given to the material before the Court is reduced.
77․Individual life experience and common sense also remain permitted to be brought to the material before the Court on the sentencing task. Having read the material and noting that the present PSR relied upon and summarised a more detailed PSR provided in 2021, I am satisfied that the offender’s upbringing was one marred by fear, violence and most significantly, instability. As described by Baker J in Ruwhiu, I consider it sheds light on the particular offending here. The offender never had a safe and stable parental environment, and this is likely to have impacted on his lack of emotional regulation and decision-making. Such impacts are well documented: Bugmy Bar Book Committee, ‘Childhood Exposure to Domestic & Family Violence” in The Bar Book Project (Sydney, NSW, The Public Defenders, 2019) at 4-8.
78․In the present case, in my view the offender’s background is connected with this most recent offending. He was frustrated with a Centrelink process which was delaying a payment and lashed out at a door that was in his immediate path of exit, which is clearly demonstrative of an inability to keep his frustration in check. He was then faced with a court process where the maximum penalty he was facing was 10 years in prison. In fear of deportation, he made a series of bad decisions involving dishonest and criminal conduct. That conduct was most regretful in terms of the consequences it had for increasing the risk of deportation. Had he chosen to simply attend the Magistrates Court to deal with the conduct and attend ACAT to put his position to the Tribunal, he would obviously have been in a better position than he is now.
79․I emphasise that the offender’s social deprivation and historical family violence does not excuse the offending itself, but as indicated, I have given it some weight in reducing the offender’s moral culpability, particularly for the damage to the glass door. Ultimately, this consideration has not had a great impact in reducing the overall length of penalty to be imposed. It plays a greater role in working out the type of sentence appropriate for this particular offender.
Employment prospects
80․The offender is not without intelligence, skills and employment prospects. He has provided a number of certificates to the Court as to short courses he has undertaken to improve his position and prospects in the hospitality industry. He appears to have base level construction skills and is obviously undertaking university study as noted above. This is a man who, notwithstanding his family circumstances when he was growing up, still has hope and ambition for a better life than that which he is currently living.
Alcohol and drug use
81․Unsurprisingly, substance abuse has played a significant role in the offender’s life. He reports that he commenced drinking in his teens, which progressed to regular drug use. He first used cannabis at age 15, regular use of which progressed into adulthood. He commenced taking methamphetamine at around 17 years old. He was using both drugs daily when he was arrested for the present offending. He reports use of other drugs including heroine and cocaine commencing in his mid-twenties, but no recent use of those drugs.
82․The offender has had some periods of abstinence, including some engagement with drug and alcohol rehabilitation programs. Most recently, the offender was bailed to attended the Wayback Rehabilitation Centre in NSW, but he was reportedly discharged on 4 May 2023 for smoking cannabis. However, since returning to custody in May 2023, he has managed to refrain from taking illicit substances and he contends that he still focused on his rehabilitation path. I accept that to be the case, but I am satisfied that the inability to refrain from smoking cannabis this year confirms the offender is presently dependent on drugs (s 12A(2)(i) of the Sentencing Act).
83․The offender attributes his drug use squarely to his most recent offending. He says that his drug use caused him to have a massive error in judgement in engaging in the forgery. The Prosecution submitted little weight can be attached to the assertion. However, when that assertion is taken with the offender’s pattern of offending and other offences in the offender’s criminal history (discussed separately below), I accept that position. I am satisfied drug use played an ongoing substantial role in the offender’s behaviour and specifically in the commission of the forgery offences, in terms of the effect drug use had on his personal decision-making, including his ability and willingness to turn up to Court or the Tribunal in the first place, which was a catalyst for the forgery offences (s 12A(2)(ii) of the Sentencing Act).
Living circumstances
84․There was evidence before the Court as to the offender’s proposed living circumstances. This is important in circumstances where a DATO is in contemplation. While the first component of such a sentence frequently involves residential rehabilitation, the second and third components involve the offender reintegrating into the community. The Court must be satisfied that the offender will live in the ACT for the term of the sentence except as directed by the Court (s 12A(2)(a)(iii) of the Sentencing Act).
85․The suitability assessment informed the Court of a possible residential accommodation option in MacGregor with a friend and her mother. They have corroborated this, with the mother providing a statement to the Court, confirming the accommodation arrangements and her consent. For the purpose of considering whether to impose a DATO below, I have accepted the proffered accommodation as being available to the offender. However, I make it clear that the proposed residence has yet to be assessed and this will be a matter entirely left to the discretion of the Drug and Alcohol Treatment Team through their usual assessment processes with the assistance of Corrective Services, if and when the occasion arises. It may be that he will be required to make an application for public housing in due course.
Plea of guilty (s 33(1)(j) of the Sentencing Act)
86․Mr Stewart pleaded guilty to these offences before a brief was served in the Magistrates Court. Where a custodial sentence is in contemplation, as it is here, the Court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act.
87․The applicable discount for a guilty plea is a question of discretion (see Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]). It is necessary to consider the particular circumstances in which the plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act.
88․As discussed in cases such as Monfries v R [2014] ACTCA 46 (Monfries) at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49], utilitarian value is a primary consideration, as seen through:
(a)section 35(2)(b) of the Sentencing Act, which requires the Court to take into account when the offender pleaded guilty, or indicated an intention to plead guilty; and
(b)section 35(5), which provides that the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
89․In Monfries, Murrell CJ referred at [47] to the importance of the timing of a plea to the assessment of an appropriate discount. Here, the guilty pleas were at a very early stage. They have saved the preparation of a prosecution brief, court time and costs, and further indicate a willingness to facilitate the administration of justice. The utilitarian value of the pleas is at its highest.
90․However, the Court must also consider whether the prosecution’s case was “overwhelmingly strong” in respect of each plea of guilty. The following principles apply:
(a)If the Court considers the Prosecution’s case was overwhelmingly strong, s 35(4) of the Sentencing Act is enlivened and the Court “must not make any significant reduction for the fact that the offender pleaded guilty”, although this does not preclude the giving of a limited discount for the guilty plea, nor does it preclude a discount for other factors: R v Newby [2022] ACTCA 20; 367 FLR 122 (Newby) at [49].
(b)If the Court does not form the view that the case was “overwhelmingly” strong, the strength of the Prosecution case becomes irrelevant to the exercise of the Court’s discretion in applying any discount for a plea of guilty: Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 at [47].
(c)Overwhelming means (Newby at [31]): “so great as to render opposition useless”. In context, it suggests that an acquittal is realistically unlikely and calls for “a practical assessment of the reality of the situations”. It does not mean “so high a hurdle that it can never be met”.
(d)Where the Prosecution argues for the application of s 35(4), or it is the subject of a specific submission, the Court is required to address the issue and give a clear and express explanation of the reasons for the conclusion expressed: Newby at [39]-[43].
(e)In assessing whether the strength of the case was overwhelming, the Court may take into account admissions, as they form part of the evidence upon which an assessment of the Prosecution case must be made: R v Snowden [2022] ACTSC 186 (Snowden) at [44], citing R v Garay (No 4) [2022] ACTSC 138 at [114].
(f)If the Court finds that the Prosecution’s case was overwhelmingly strong, the Court will be required to grapple with what constitutes a “significant reduction”, which may vary from case to case. It may be relevant to consider the significance of a reduction by reference to the percentage by which the sentence is to be reduced, or, where the head sentence is a long one, the period of the reduction: Snowden at [47], cited in DPP v Draper (a pseudonym) [2023] ACTSC 109 at [35].
(g)Although the making of admissions may impact upon the conclusion reached as to whether a particular case is overwhelming, they may separately be taken into account in assessing the offender’s willingness to facilitate the course of justice, which reflects upon his remorse, contrition and likelihood of reoffending: Snowden at [48].
91․Here, the Prosecution argued that the case for the offence of damaging property was overwhelming in circumstances where the offender had identified himself to Centrelink staff prior to seeking to leave the office and kicking the glass door down, with the entire offence captured on CCTV. I accept that the case meets that threshold. As this is the least serious of the offences for which the offender is being sentenced and any sentence of imprisonment is commensurably shorter, I will take a percentage approach and apply a discount of 9%. For clarity, I do not consider such a percentage to be a “significant reduction” in the circumstances of this offence.
92․In respect of the possession of the prohibited unregistered weapon and prohibited firearm offences, although no admissions were made, given the location in which they were found - being in the offender’s bed head and the lounge room floor of the offender’s residence - an acquittal on possession would have been realistically unlikely, and accordingly, the case for each of those offences was also “overwhelming”. Again, I will apply a discount of 9% to each offence.
93․The Prosecution also argued that in respect of the cases for the creation of a false document, given the direct admission in relation to one of the offences, the indirect admission (“If I do forgery it’s for my own benefit, not to rip someone off”) and the electronic evidence obtained in relation to the others, the Court should also consider each of those cases to be overwhelmingly strong. The offender submitted that there was less evidence as to how the documents were made than how they were used, so that there was utility in the early pleas of guilty.
94․I consider that the Prosecution case for each of the forgery offences was compelling, in light of the admissions the offender made and the evidence obtained during the search warrant, to the point of the strength of the case being overwhelming and thus meeting the statutory threshold for the application of s 35(4).
95․Accordingly, despite the very early nature of the offender’s pleas of guilty which would have entitled him in my view to a 25% discount for each offence, the operation of s 35(4) means that the offender is not entitled to any “significant discount” in respect of any of the offences by reason of the guilty plea alone. I will reduce the penalty I would have imposed for each offence by 5% on account of the offender’s guilty pleas for the forgery offences, but this exercise of discretion must be read in conjunction with what follows in relation to the application of s 36 of the Sentencing Act.
The operation of s 36 in circumstances where admissions are made
96․Section 36 of the Sentencing Act permits the court to impose a lesser penalty, (including a shorter non-parole period) on the offender than it would otherwise have imposed in circumstances where the offender assisted law enforcement authorities in preventing, detecting or investigating the offence. The considerations that apply have been discussed in Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 at [67]-[71], with primacy given to the public interest of promoting willing cooperation. The Court of Appeal later stated at [84] that the awarding of any discount under s 36 is discretionary, with the onus on the offender to show that there should be a discount.
97․In DPP v Calhoun (a pseudonym) [2023] ACTSC 189, Mossop J was dealing with a plea of guilty where admissions had been made in respect of a series of offences. His Honour referred (at [64]) to the decision in Snowden at [44] before stating:
The effect of s 35(4) would be to deny the offender a discount on account of the plea of guilty because of the strength of the prosecution case in circumstances where the strength of that case arose from voluntary admissions made by the offender. This would appear to be an outcome which was unfair and reflected no real sentencing purpose. However s 35(4) must be read along with s 36 which permits a lesser penalty to be imposed where the offender has assisted in investigating the offence or assisted in a proceeding in relation to the offence. That must include the making of admissions that assist in the investigation or prosecution of the case against the offender. Nothing in the considerations in s 36(3) indicate that assistance in this form is not within the contemplation of the section. In circumstances where the offender would have been entitled to a reduction of 25 percent under s 35 but for the making of admissions that assisted the prosecution case, it is appropriate that he receive that discount by a combination of ss 35 and 36 of the Crimes (Sentencing) Act. Therefore the second series of offences will be subject to a 25 percent reduction.
98․Here, the offender made admissions in relation to the forgery offences. Without the admissions, there were arguments that may have been made or further investigations may have been required in order to arrive at the point where the strength of the crown case was overwhelming. As I consider that those admissions provided significant assistance in the police’s investigation, it is appropriate to apply an additional discount of 20%, meaning that by a combination of ss 35 and 36 of the Sentencing Act, a combined discount of 25% will be applied in respect of each of the forgery offences.
99․In deference to the submissions of the offender, and for completeness, it should be recorded that if the strength of the case for the Prosecution in respect of the forgery offences had not been considered overwhelming, a 25% discount would have been applied under s 35, but no additional discount would have then been applied in respect of s 36.
Victim impact statement (ss 33(1)(f) of the Sentencing Act)
100․There were no victim impact statements to be taken into account here.
Remorse (s 33(1)(w) of the Sentencing Act)
101․The PSR records that the offender has taken full responsibility for his offending and while not speaking individually about the offences, he did not seek to minimise his conduct or to blame others for his predicament.
Criminal history (s 33(1)(m) of the Sentencing Act)
102․The offender has a history of driving, minor theft, drug and common assault offences. More significantly, he has convictions for forgery by joint commission that are both recent and relevant to the offending here. I have taken the history into account in the manner described in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. The offender’s prior criminal history does not mean that a longer sentence is to be imposed, but it speaks against leniency when compared with someone who comes to be sentenced as a person of prior good character.
103․The antecedents also create a real tension in balancing the sentencing objectives. A somewhat reduced moral culpability for a disadvantaged background may result in less weight to be given to punishment or denunciation. However, this conflicts with an increased need for specific deterrence in light of the relevant and recent offending.
104․Added to this, the offender was on bail at the time of the forgery offences, which is a further matter of aggravation.
105․What is also able to be gleaned from the offender’s criminal history is confirmation that there is an underlying drug and alcohol abuse problem. Unless that is addressed, there is a real concern that this criminal history will be repeated.
Current sentencing practice (s 33(1)(za) of the Sentencing Act)
106․I have taken into account a number of cases by way of comparison to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].
107․For the damage property offence, I have had regard to cases such as Rosewarne, R v Featherstone [2019] ACTSC 218 and DPP v Stasinos [2023] ACTSC 179.
108․For the unregistered firearm offence, Featherstone and Mitchell provide some guidance, along with Mahanay v Phelan [2023] ACTSC 162.
109․For the offence of possession of a prohibited weapon, it has been sufficient to consider Cichacz and McCallum.
110․For the forgery cases, for reasons given above in relation to assessing objective seriousness, the Prosecution and the offender did not rely on any established sentencing pattern. Indeed, the Prosecution was reluctant to make any submissions about an available range, in order not to offend the principle explained in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [38]-[39]. I have taken into account the offender’s previous sentence imposed in the Magistrates Court, of one year’s imprisonment for a forgery offence of a similar nature.
The offender’s prospect of Deportation
111․The Court must take into account whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender: s 33(1)(r) of the Sentencing Act. The offender has five children in Australia, with whom he is in contact. The court must also take into account the probable effect that any sentence or order under consideration would have on the offender’s family or dependants: s 33(1)(o) of the Sentencing Act.
112․Separately, as I have said above, when the Court is considering making a DATO, the Court must first be satisfied that the offender is going to remain in the ACT for the duration of the order: s 12A(2)(a)(iii) of the Sentencing Act.
113․The offender is at risk of being deported if an overall sentence of greater than 12 months in aggregate is imposed. Section 501(3A)(a)(i) of the Migration Act 1958 (Cth) (Migration Act) provides that the Minister must cancel a visa if the Minister is satisfied that the person does not pass the character test because of a substantial criminal record.
114․A “substantial criminal record” is defined in s 501(7)(c) to include a term of “imprisonment” of 12 months or more, or concurrently imposed terms of imprisonment which, had they been imposed cumulatively, would have been 12 months or greater in aggregate.
115․Imprisonment can include not only fulltime punitive detention, but a sentence where the Court orders participation in a residential drug rehabilitation scheme: s 501(9) of the Migration Act. I was therefore concerned that if I found it appropriate to order a DATO, which requires the primary offence to which it attaches to be of at least 12 months’ duration, that would immediately place the offender at risk of deportation and the DATO would not be able to be implemented as anticipated.
116․The approach to this issue has recently been considered in Ruwhiu by Loukas-Karlsson J (with whom Rangiah J agreed) at [82]-[90]. To paraphrase the statements set out in that passage:
(a)The prospect of deportation can be taken into account as a relevant mitigating factor, but not in a way designed to circumvent migration laws: Ruwhiu at [82], citing Ngata v The Queen [2020] ACTCA 18 (Ngata) at [46]-[47].
(b)The Court may take into account the burden that the prospects of deportation would impose on an offender’s term of imprisonment, in terms of hardship to third parties and in considering the experience of imprisonment for an offender who knows they are likely to be deported at the end of serving their term: Ruwhiu at [85]; Ngata at [46]-[47].
(c)The mandatory nature of visa cancellation in s 501(3A) of the Migration Act establishes the necessary evidentiary threshold without further evidence being required to prove the likelihood of deportation: Ruwhiu at [90], citing R v Atai (No 2) [2021] ACTSC 272 at [25]; Allouch v The Queen [2018] VSCA 244 at [40]-[42]; R v GBD [2018] QCA 340; 342 FLR 244 at [14], [51]-[54] and R v Leka [2017] SASCFC 77 at [20]-[23], [30].
117․Accordingly, here, a sentence of imprisonment of more than 12 months is likely to have further consequences for the offender in exposing him to the risk of deportation and at the very least, the need to make representations to the Minister under s 501CA(3)(b) of the Migration Act. However, the Prosecution was able to discuss the possibility with Australian Border Force as to the timing of those consequences and was able to inform the Court that if a DATO were made, it is not the case that the offender is likely to be taken into immigration detention prior to the completion of any DATO made. I have proceeded on that basis in deciding what sentence is just and appropriate punishment for this offender.
Disposition
118․It was not disputed here that a sentence of imprisonment is the only appropriate sentence with respect to the forgery offences. The length of the term of imprisonment for the first forgery offence is greater than the others in recognition of the Additional Offences attaching to that offence.
119․In respect of the damage property, firearm or prohibited weapon offences, the offender is unable to pay a fine in respect of any of the offences. He was assessed as not suitable for community service due to his unaddressed substance dependency issues. I considered a good behaviour order, but it is not appropriate for a variety of reasons. First, on balance, it does not properly reflect the gravity of those offences. Second, although conditions can be attached, without the necessary supports in place, I have no confidence that the offender would be able to comply with the conditions given his history of non-compliance with other good behaviour orders imposed.
120․The Prosecution submitted, and I accept, that although it is a sentence of last resort, the only appropriate sentence to be imposed in respect of each of the offences is a term of imprisonment. The offender was assessed as unsuitable for an Intensive Correction Order due to the illicit drug use, his personal circumstances being likely to impact upon his ability to comply with its stringent conditions and his substantial non-compliance with court orders in the past. I accept that assessment.
Totality considerations
121․The principles to be applied when sentencing an offender for multiple offences are summarised in O’Brien v The Queen [2015] ACTCA 47 at [26] as follows:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623–624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
122․I accept the submissions on behalf of the offender and the Prosecution that a substantial measure of concurrency is appropriate for the forgery offences, to avoid double punishment for the commission of offences with common elements: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40]. Here, the Prosecution accepted that to some extent, the offending was an ongoing course of conduct which ought properly be reflected in the overall sentence.
123․Otherwise, the sentence to be imposed is structured to achieve a full recognition of the time already served, by making that time referable to the offences of damage property, possession of an unregistered firearm and possession of a prohibited weapon. They are separate offences and it is appropriate they be served consecutively.
124․That allows the forgery sentences to commence from the date of the sentence. The express design in doing so is to permit those offences to be fully suspended in the event that a DATO is made, thus complying with the requirements of s 12A of the Sentencing Act.
Should a DATO be made?
125․Following argument, counsel for the offender ultimately submitted that disposition by way of a DATO is the appropriate outcome, having regard to the correlation between the offender’s drug use and his offending.
126․I accept that the offender’s motivation to engage in rehabilitation is genuine, and note that has been the case on all previous occasions when he has been before this Court dealing with his bail and for sentence.
127․What remains for consideration are the matters set out in s 80O of the Sentencing Act, and the objects of making a treatment order. They include:
(a)facilitating the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime;
(b)reducing the offender’s dependency on alcohol or a controlled drug;
(c)reducing the health risks associated with such dependency;
(d)assisting the offender’s integration into the community; and
(e)promoting community safety by reducing re-offending.
128․It is worth repeating for the benefit of the offender that a DATO is not a “soft option” on a sentence. It obviously does not involve the deprivation of liberty necessitated by a full-time custodial sentence. However, it is intensive, requires commitment and hard work to succeed, and often participants find the process more difficult than a term of imprisonment.
129․Such an order is only made after a careful assessment process and it is highly relevant here that other terms of full-time imprisonment in the past have not resulted in the offender successfully refraining from criminal behaviour, due to his addiction issues. Without serious, intensive, Court supervised, intervention, the offender is likely to be in and out of prison for the rest of his life. The successful rehabilitation of this offender is therefore fundamental to reducing his risk of re-offending and that is how I consider ultimately the community would be best protected.
130․The length of these reasons may be indicative of the number of considerations and relative complexity involved in reaching a conclusion about what is adequate punishment for this offender. However, when the objectives in s 80O above are applied to this offender, making a DATO becomes the clear and obvious choice.
131․It is not necessary to set a non-parole period because the making of a DATO means that the sentence becomes an “excluded sentence of imprisonment” under s 64 of the Sentencing Act.
Orders
132․The Court imposes the following sentence:
(1)For the offence of damaging property, contrary to s 403 of the Criminal Code 2002 (ACT) (CC2022/639), the offender is convicted and sentenced to two months’ imprisonment, reduced from 67 days on account of the guilty plea, and backdated to commence on 30 March 2023 and conclude on 29 May 2023.
(2)For the offence of possessing a prohibited unregistered firearm, contrary to s 177(2)(a) of the Firearms Act 1996 (ACT) (CC2022/10822), the offender is convicted and sentenced to two months’ imprisonment, reduced from 67 days on account of the guilty plea, and backdated to commence on 30 May 2023 and conclude on 29 July 2023.
(3)For the offence of possessing a prohibited weapon, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CC2022/10823), the offender is convicted and sentenced to 1 month and 12 days’ imprisonment, reduced from 48 days on account of the guilty plea, and backdated to commence on 30 July 2023 and conclude on 10 September 2023.
(4)For the first offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10816), the offender is convicted and sentenced to 12 months’ imprisonment, reduced from 1 year and 4 months’ imprisonment on account of his guilty plea, to commence on 11 September 2023 and conclude on 10 September 2024.
(5)For the second offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10817), the offender is convicted and sentenced to 10 months’ imprisonment, reduced from 13 months and 11 days’ imprisonment on account of his guilty plea, to commence on 11 February 2024 and conclude on 10 December 2024.
(6)For the third offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10818), the offender is convicted and sentenced to 10 months’ imprisonment, reduced from 13 months and 11 days’ imprisonment on account of his guilty plea, to commence on 11 April 2024 and conclude on 10 February 2025.
(7)For the fourth offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10819), the offender is convicted and sentenced to 10 months’ imprisonment, reduced from 13 months and 11 days’ imprisonment on account of his guilty plea, to commence on 11 June 2024 and conclude on 10 April 2025.
(8)For the fifth offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10820), the offender is convicted and sentenced to 10 months’ imprisonment, reduced from 13 months and 11 days’ imprisonment on account of his guilty plea, to commence on 11 August 2024 and conclude on 10 June 2025.
(9)For the sixth offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10821), the offender is convicted and sentenced to 10 months’ imprisonment, reduced from 13 months and 11 days’ imprisonment on account of his guilty plea, to commence on 11 October 2024 and conclude on 10 August 2025.
(10)The total sentence is for 2 years, 4 months and 12 days.
Drug and Alcohol Treatment Order
133․Having regard to requirements of s 12A(2) of the Crimes (Sentencing) Act 2005 (ACT), which are satisfied, I impose the following sentence:
(1)A Drug and Alcohol Treatment Order (Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) is made for Euan Graham Thomas Stewart in respect of the primary offence of forgery contrary to s 346 of the Criminal Code (CC2022/10816), of which he has been convicted and for which he has been sentenced to 12 months’ imprisonment.
(2)That Order is extended to the following offences for which Mr Stewart has been convicted and for which he has been sentenced, which are associated offences for the primary offence:
(a)The sentence of 10 months’ imprisonment for the second offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10817),
(b)The sentence of 10 months’ imprisonment for the third offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10818),
(c)The sentence of 10 months’ imprisonment for the fourth offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10819),
(d)The sentence of 10 months’ imprisonment for the fifth offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10820), and
(e)The sentence of 10 months’ imprisonment for the sixth offence of forgery, contrary to s 346 of the Criminal Code (CC2022/10821).
(3)The convictions and sentences imposed for the primary and associated offences are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.
(4)The Drug and Alcohol Treatment Order is for 1 year and 11 months, to commence on 11 September 2023 and conclude on 10 August 2025.
(5)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order is for 1 year and 6 months, to commence on 11 September 2023 and conclude on 10 March 2025.
(6)The Custodial Part of the Order for the primary and associated offences is hereby fully suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today 11 September 2023, until 10 August 2025.
(7)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT) Euan Graham Thomas Stewart is required to sign an undertaking to comply with the Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 11 March 2025, until the end of the total sentence, 10 August 2025, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment.
(8)For the treatment and supervision part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y and s 80Z(2)(f)-(g) of the Crimes (Sentencing) Act 2005 (ACT) are imposed;
(b)Mr Stewart is to travel to Canberra Recovery Services and admit himself to the residential drug rehabilitation program at that facility by 3:00pm today, 11 September 2023;
(c)Mr Stewart is directed to complete the residential drug rehabilitation program at Canberra Recovery Services, to not leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
(d)Should Mr Stewart leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed;
(e)Mr Stewart is to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;
(f)Mr Stewart is not to return a positive test sample under alcohol and drug testing; and
(g)Mr Stewart is to comply with any directions of the Court from time to time about attendance at Court either in person or by electronic means.
(9)Mr Stewart is directed to appear in Court on Friday 15 September 2023 at 12:30pm in person or by electronic means as appropriate.
(10)I direct that written notice of the order, together with a copy of the order, is to be given to the offender.
| I certify that the preceding one hundred and thirty-three [133] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: 11 September 2023 |
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