DPP v Trewartha
[2023] ACTSC 13
•2 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Trewartha |
Citation: | [2023] ACTSC 13 |
Hearing Date: | 31 January 2023 |
DecisionDate: | 2 February 2023 |
Before: | Baker J |
Decision: | See [59] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – s 310 Criminal Code Act 2002 (ACT) – aggravated robbery – offence by joint commission – parity – Bugmy considerations – moderate level of objective seriousness – expression of remorse – reasonable prospects of rehabilitation |
Legislation Cited: | Criminal Code Act 2002 (ACT) Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentencing Administration) Act 2005 (ACT) Public Health Act 1997 (ACT) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 572 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Lowe v R (1984) 154 CLR 606; [1984] HCA 46 The Queen v Avery [2018] ACTSC 57 R v Haddara [2022] ACTSC 224 R v Hagen [2022] ACTSC 362 R v Hanson [2022] ACTSC 107 R v Millward [2012] NSWCCA 2 |
Parties: | The Queen (Crown) Jake Trewartha (Offender) |
Representation: | Counsel M Howe (Crown) D Berents (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Numbers: | SCC 31 of 2022; 32 of 2022 |
BAKER J
Introduction
On 23 August 2022, the offender, Jake John Trewartha, pleaded guilty to one count of aggravated robbery contrary to s 310 of the Criminal Code Act 2002 (ACT). The offence was an offence by way of joint commission by virtue of s 45 of the Criminal Code.
The offence carries a maximum penalty of a fine of $400,000, imprisonment for 25 years, or both.
Facts
The offending
The facts are agreed and set out in a Statement of Agreed Facts. In brief, on 23 and 24 August 2021, the offender’s co-offenders, Omar Haddara and Kyle Butkovic, attempted to call the victim multiple times and sent multiple text messages to the victim in relation to alleged drug debts.
On 24 or 25 August 2021, Mr Haddara told another co-offender, Jennifer Hanson, that the victim owed “them” some money. Ms Hanson told Mr Haddara to “leave it with [her]”.
On 25 August 2021, Ms Hanson contacted the victim via Instagram. The victim knew Ms Hanson through a mutual friend, but had only met her once or twice. The victim and Ms Hanson then exchanged messages on Instagram.
On 26 August 2021, Ms Hanson again messaged the victim and suggested that he come to her place. She suggested that he stay the night, as they would be drinking. The victim agreed, and Ms Hanson transferred $50 to the victim so that he could purchase alcohol for the evening.
Shortly after giving the victim her address, Ms Hanson telephoned Mr Butkovic and sent a text message asking “are you guys ready to come whenever from now[?]”.
The victim arrived at Ms Hanson’s house at approximately 6:30pm. The offender arrived at the house about an hour later with Mr Butkovic, Mr Haddara and a fourth unidentified male. When the males arrived, Ms Hanson went to her bedroom where she remained for the duration of the aggravated robbery.
Some of the four offenders were wearing masks and carrying weapons. The offender was not wearing a mask. The offender was carrying a wooden baseball bat. Mr Butkovic was holding a box-cutter style knife. The unidentified male was holding a black handled machete with a large blade.
Mr Haddara asked the victim “why have you been ignoring my texts?”. The four males then approached the victim in the loungeroom of the house. The victim attempted to leave through the back door, but the males grabbed the victim and pulled him back to the couch and held him down. One of the males said to the victim “do you know why we’re here? We need the money”.
The victim told the men that he had nearly $5 000 in his account. The males emptied the victim’s bag, saying words to the effect of “where’s your cash?”. The victim said that he did not have any cash, that all of his money was in his account, and that he would transfer it all to them. The victim thought that if he transferred the money to the men, they would not hurt him.
The victim used his mobile phone to make two transfers via PayID to Mr Butkovic, of $500 and $300 respectively. The victim tried to make a third transfer of $2 515.60, but it was unsuccessful. The unidentified male and the offender each struck the victim. The offender struck the victim with the baseball bat. As the offender went to strike the victim a second time, Mr Haddara pushed the offender and the victim put his hands up. As a result, the bat only “scraped” the victim’s head and arms. The victim tried to explain to the men that the cancelled transaction was not the result of him “fucking around” and that he thought that the transaction had been rejected because he had reached his daily limit.
The unidentified male then came out of the kitchen and threw something small and hard at the victim’s face, before striking the victim repeatedly to the head. The victim tried to protect his head by raising his hands. Mr Haddara pulled the unidentified male off the victim and said words to the effect of “stop”, “no more” and “we don’t want a home invasion”.
The victim then transferred $300 from his ING “Savings Maximiser” account to his “Orange Everyday account” (the Orange Everyday account was the account from which the victim had transferred money to Mr Butkovic). The victim also transferred $2,515.60 from the ING Everyday account to Mr Butkovic’s account. Mr Butkovic told the victim that he was permitted to keep $700 in his account for rent.
After the money was transferred, the offender and Mr Butkovic again assaulted the victim. The offender said words to the effect “lets just put him in the boot.” Mr Haddara again told them to stop, stating “no we can’t do that. We don’t want this to look like a home invasion.” Mr Haddara told the victim that “if it wasn’t for me you would have had your legs broken”.
In total, the offender struck the victim three times to the head with the baseball bat. The victim was also punched by the unidentified male multiple times in the face. The strikes with the baseball bat were not with full force, but the punches were. The victim did not attempt to fight back against the assaults.
The offender went to Ms Hanson’s room and said “we’re all done here”. Mr Haddara told the victim to get up and leave. Mr Haddara told the victim to get in his (the victim’s) car and leave. Mr Haddara also told the victim not to cancel the transactions, or to go to police or the hospital. The victim promised not to do those things.
After leaving Ms Hanson’s house, the victim immediately telephoned his ex-partner and told her that he had been “set up”, beaten and made to transfer money. The victim’s ex-partner drove him to hospital. Whilst in the car, the victim telephoned police and reported the incident. At hospital, the victim told police what had occurred in the course of the robbery.
As a result of the assault, the victim suffered bruising to the left upper eyelid, extending below the left eye onto the left cheek, bruising to right shoulder and to his thorax, as well as tenderness to the top of his head, his left eye, his forearms, upper chest and upper thoracic spine.
The following day, the victim advised his bank of the incident. The money the subject of the third transaction was returned to the victim, but the money that was the subject of the two earlier PayID transactions was never returned.
Subjective circumstances
The offender’s subjective circumstances are set out in a Pre-Sentence Report dated 24 January 2023.
The offender is 35 years old. He had a difficult childhood. His parents divorced when he was two years old. His mother used illicit substances and suffered from mental health issues. He witnessed physical and verbal domestic violence between his mother and her partners. He was required to be independent and responsible for himself from an early age.
Despite these difficulties, the offender established a good relationship with his father before his father passed away approximately three years ago. He maintains a good relationship with his mother, sister and brother. The offender’s mother and brother have provided written references to the Court in support of the offender in these proceedings.
The offender reported a history of drug and alcohol use from the age of 16 years. He used cannabis daily from age 17 years to 22 years. He also has a history of ecstasy and methamphetamine use.
The offender was abstinent from illicit substance use in the three years leading up to the current offence. The offender advised that the night before this offending he smoked methylamphetamine and identified this as directly influencing his offending. In a letter to the Court, the offender further explained that in the lead up to this offence, his former best friend of many years had stolen important property from him and threatened him and his family. The offender explained this betrayal had caused an emotional breakdown and resulted in drug use after years of abstinence.
The offender has an offer for employment with a production services company upon his release from custody. The offender’s employer is willing to factor any probation and parole commitments into the offender’s workload.
The offender agreed with the Statement of Facts and accepted responsibility for his offending behaviour. He demonstrated insight into the effect of his offending on the victim. He has expressed remorse for the offending, to Probation and Parole, to his mother and to his brother. As outlined further at [37] below, he has also expressed remorse for his offending in a letter provided to the Court.
Criminal history
The offender has a criminal history which includes several dishonesty and traffic offences. He has previously served periods of imprisonment and has previously breached good behaviour orders. The majority of the offender’s prior offences were committed between April 2011 and November 2014. As the prosecutor submitted, those offences are “consistent with a chaotic, probably drug fuelled lifestyle.” The offender has only one prior offence involving violence and other than the present offending and has not offended since 2014.
Time in custody
The offender has served 344 days in custody solely referable to the present offence (one day in the watch house on 7 October 2021 and 343 days on remand after his bail was revoked on 25 February 2022).
Sentencing considerations
Objective seriousness
The matters relevant to the objective seriousness of the offence are:
(i) Both aggravating factors were present: the offender was in the company of three other co-offenders and was in possession of a weapon, namely a baseball bat, which he used in the course of the robbery.
(ii) The offending involved the enforcement of a drug debt.
(iii) Actual violence was inflicted, resulting in injuries to the victim. However, as the prosecutor acknowledged, whilst actual violence was inflicted, the level of violence was not at the most serious end for offences of this nature. Importantly, the Statement of Agreed Facts records that the strikes with the baseball bat were “not with full force” and resulted in bruising and tenderness rather than more serious injuries. Nonetheless, the fear engendered in the victim was significant.
(iv) The offence was planned. The victim was lured to the house before the offenders arrived. There is no evidence that the offender was involved in the planning of the offence. Rather, his role was as the “muscle” in the offending.
(v) There is no evidence that the offender obtained any financial benefit from the offending. The money was transferred to Mr Butkovic’s account.
In all of the circumstances, I am of the view that the offending was a moderately serious example of this type of offence.
Bugmy considerations
The offender was exposed to violence and alcohol abuse at an early age. As the prosecutor properly accepted, this background of disadvantage gives rise to Bugmy considerations: Bugmy v The Queen [2013] HCA 37; 249 CLR 572 at [44].
The prosecutor submitted that that there was insufficient evidence to establish a direct causal connection between the offending and the offender’s disadvantaged background. However, he accepted that such a connection is not required in order for the Court to find that an offender’s moral culpability is reduced: R v Hagen [2022] ACTSC 362 at [44]. The prosecutor accepted that this offender’s disadvantaged background has had an “imprint” upon his moral development, such that he bears less moral responsibility than a person who had “normal” or “advantaged” background: R v Millward [2012] NSWCCA 2 at [69].
I find that the offender’s moral culpability is reduced to some extent by reason of his background. As Mr Berents, who appeared on behalf of the offender, submitted that the offender’s “early exposure to violence, drugs and antisocial behaviour is unfortunately materially related to the offender’s engagement in drug use at the time of the offending and his use of physical force and threats in his participation in the offence as a means of resolving disputes.”
Guilty plea
The offender entered a plea of guilty on 23 August 2022, which was after the offender had been committed for trial and after the Criminal Case Conference. As the prosecutor properly acknowledged, there is utilitarian value in this plea. I have afforded a discount of 10% for the plea of guilty: s 35 of the Crimes (Sentencing) Act 2005 (ACT).
Remorse and prospects of rehabilitation
The Pre-Sentence Report indicates that the offender has previously lapsed into drug and alcohol use on multiple occasions. Such occasions have previously led to the commission of offences. When on a good behaviour order in 2015, the offender missed many supervision appointments, but despite this, completed his order. He has also had lengthy periods without offending, which have coincided with lengthy periods of abstaining from illicit substances. Over the past year in custody, the offender has failed to follow staff instructions and attend his employment on occasions and has had one verbal warning for poor behaviour.
In a letter provided to the Court during the sentence proceedings, the offender expressed regret and remorse for his actions. He displayed insight into how his actions would have impacted the victim and the victim’s family. He explained that at the time of the offences, he was dealing with a betrayal by his best friend, who had stolen from him and threatened him and his family. The betrayal led to an emotional breakdown which in turn led him to drugs. He said that he was ashamed of himself and that he did not “want this to ever happen again”.
The offender also wrote about his progress since being in custody. He stated that he has not used drugs and has not been involved in any violence. He has gained a trusted job in the kitchen at the Alexander Maconochie Centre, and attained privileges for his good behaviour to live in the cottages and have rights to access more facilities within the prison. He has also completed the “Healthy Relationships” program. He states he is open to participating further counselling and programs in the community when released.
The offender has also demonstrated ability to retain employment and has a firm offer of employment with a production services company upon release. This employment will be integral in establishing the offender’s stability and financial means in the future.
In all of the circumstances, whilst there are some concerns that arise from the offender’s prior breaches of conditional liberty and his behaviour in custody, I agree with the prosecutor’s submission that the offender’s prospects of rehabilitation are reasonable.
Parity
Two of the offender’s co-offenders, Ms Hanson and Mr Haddara, have now been sentenced. The third co-offender, Mr Butkovic, has pleaded guilty but has not yet been sentenced.
Ms Hanson pleaded guilty to being “knowingly concerned” in the aggravated robbery. She was sentenced by Mossop J to a 16 month Intensive Corrections Order for her role in the offence: R v Hanson [2022] ACTSC 107. This sentence was imposed as a part of a larger sentencing exercise involving a number of other unrelated offences.
Mr Haddara was sentenced by Mossop J to a 31 month Intensive Corrections Order for his role in the offence: R v Haddara [2022] ACTSC 224. The prosecutor submitted that the sentence (both its length and the manner in which it is to be served) were lenient. However, the prosecution did not appeal against this sentence on the basis of manifest inadequacy and the prosecutor accepted that parity principles must apply in full to this sentence.
It is necessary for the Court to take into account parity principles in determining the appropriate sentence to be imposed. As Gibbs CJ (with whom Wilson J agreed) held in Lowe v R [1984] HCA 46; 154 CLR 606 at 609:
“[i]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”
See also Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28].
As the prosecutor submitted, Ms Hanson’s sentence provides little assistance given the different role that she played in the offending.
Mr Haddara was sentenced for the same offence as the offender. Both the prosecution and the offender’s counsel agreed that the sentence imposed on Mr Haddara is the most significant for parity purposes.
In accordance with parity principles, it is necessary for me to assess the similarities and differences in the objective circumstances and the subjective cases of the offender and Mr Haddara.
In respect of the objective circumstances, I have taken into account the following matters:
(i) Mr Haddara was involved in the instigation of the offences, whereas the offender’s involvement was as the “muscle” of the robbery. I note that Mossop J was not satisfied beyond reasonable doubt that Mr Haddara was the leader of the robbery, and did not sentence him on the basis that he was either a leader or a follower: Haddara at [33]. I am satisfied on the balance of probabilities that the offender was a follower and not a leader in the offending.
(ii) There is no evidence that either Mr Haddara or the offender received any financial benefit from the enforcement of the drug debt: Haddara at [33].
(iii) The offender was armed with a weapon, namely a baseball bat, whereas Mr Haddara was not carrying a weapon: Haddara at [30].
(iv) Mr Haddara took action to reduce the violence inflicted: Haddara at [30].
In respect of the subjective circumstances, I have taken into account the following matters:
(i) The offender’s background has resulted in a finding of reduced moral culpability. No such finding was made in respect of Mr Haddara (Haddara at [36]), who did not have the disadvantaged background of the offender.
(ii) Mr Haddara received a 15% discount for an early plea of guilty before a trial date was set, whereas the offender’s plea of guilty was entered after a trial date was set and attracts a somewhat lesser discount of 10%.
(iii) Mr Haddara and the offender both have prior criminal histories. Mr Haddara had not been sentenced to full time imprisonment before, whereas the offender has served a prior period of imprisonment.
(iv) Mr Haddara had spent one day in watch house custody in relation to the offence (Haddara at [51]). The offender has served 344 days in custody (comprised of 343 days bail refused and 1 day in watch house custody).
(v) Mr Haddara was found to have good prospects of rehabilitation (Haddara at [55]). The offender’s prospects of rehabilitation are reasonable.
Determination
Determination of the sentence to be imposed requires consideration of the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).
The nature of the offence is one that calls for a significant measure of general deterrence. As Mossop J held in sentencing Mr Haddara at [54]:
“The offending was serious offending. It involved the enforcement of drug debts. The extra-legal enforcement of such debts is a consequence of the illegal nature of the market for illicit drugs. It is dependent upon the assumed unwillingness of victims of such offending to involve the police. It is an area in which general deterrence is a very significant sentencing consideration”.
See also The Queen v Avery [2018] ACTSC 57 at [9], citing R v Le Clair; R v Yeboah [2016] ACTSC 126 at [62] (“People who engage in the drug trade cannot expect to live in their own subculture where they mete out punishment for failure to perform deals made in this illicit trade according to their respective strength”.)
However, for the reasons outlined above, I am satisfied that the offender’s moral culpability for the offence is reduced to some extent by reason of his disadvantaged background. For this reason, the need for general deterrence in respect of the offender is moderated to some degree, as is the need for punishment and denunciation. Nonetheless, there remains a need to recognise the harm done to the victim and the community, to ensure that the offender is held accountable for his actions, and to deter the offender from engaging in the same or similar offences.
The prosecution has provided the Court with comparative sentences for aggravated robbery: R v Apps (No 2) [2019] ACTSC 369; R v Evans; R v Reid [2020] ACTSC 169.
The application of parity principles is more significant to the present sentencing task than the guidance to be taken from these comparative cases. As outlined above, whilst the offender’s involvement in the offences was slightly higher than that of Mr Haddara (in that the offender had, and used a baseball bat, whereas Mr Haddara was unarmed and did not personally inflict physical violence on the victim), the offender’s moral culpability for the offence is reduced in comparison to Mr Haddara. Mr Haddara was sentenced to imprisonment for a period of two years and seven months (31 months). However, this sentence was ordered to be served by way of an Intensive Correction Order, which is a less onerous form of custody than full time imprisonment.
In addition, Mr Haddara had only served one day in watch house custody, whereas the offender has served 344 days in custody (one in the watch house and 343 days bail refused). This period of custody that the offender has served is important for a number of reasons. Not only must the sentence imposed take account of this pre-trial custody, the need for specific deterrence, denunciation and punishment have been addressed to some degree by this period in full-time custody. In addition, this period of full time custody has given the offender time to reflect on his offending and its connection with his mental health and drug use, as demonstrated by the offender’s letter to the Court.
The s 10 threshold has clearly been crossed. In all of the circumstances, I consider that the appropriate head sentence is a term of imprisonment slightly less than that imposed on Mr Haddara. The head sentence that I will impose will be one of imprisonment for 30 months, reduced to 27 months on account of the 10% discount for the offender’s plea of guilty.
In view of the form of the sentence that was imposed on Mr Haddara (namely an Intensive Correction Order) and my finding that the offender has reasonable prospects of rehabilitation, I consider that the offender would have a justifiable sense of grievance if the sentence to be imposed included any further period of full-time custody. Accordingly, I will order that the sentence of imprisonment be suspended from today. I note that this will leave a lengthy period of supervision which will facilitate the offender’s rehabilitation more appropriately than any further period of full-time imprisonment.
Before the Court is a transferred Magistrate’s Court charge (CC2021/10852) of failing to comply with direction without reasonable excuse contrary to s 120 (4) of the Public Health Act 1997 (ACT). The parties agree that this charge should be dismissed.
Orders
The orders of the Court are:
(1) On the charge of aggravated robbery (CC2021/10850), the offender is convicted and sentenced to imprisonment for 27 months, back dated to 24 February 2022 and ending on 23 May 2024.
(2) The sentence on the charge of aggravated robbery (CC2021/10850) is to be suspended from 2 February 2023, upon the offender undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period from the giving of the undertaking until 23 May 2024.
(3) In addition to the core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT) order (3) is subject to the following additional conditions:
(i) that the offender report to ACT corrections within 48 hours;
(ii) for the period of the good behaviour order, or such shorter period as determined by the Director-General, the offender be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation.
(4) I dismiss the transferred Magistrate’s Court charge (CC2021/10852) of failing to comply with direction without reasonable excuse contrary to s 120 (4) of the Public Health Act 1997 (ACT).
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 2 February 2023 |
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