J Kirk v Craig Meyboom
[2019] ACTMC 19
•21 June 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
J Kirk v Craig Meyboom
Citation:
[2019] ACTMC 19
Hearing Date(s):
21 March 2019, 18 April 2019, 30 May 2019
Decision Date:
21 June 2019
Before:
Special Magistrate Hunter OAM
Decision:
See [75] to [121]
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on person 10 to 16 years – plea of guilty – history of similar offending – sentencing considerations - imprisonment – non-parole period – totality
Legislation Cited:
Crimes Act 1900
Crimes (Sentencing) Act 2005
Cases Cited:
Afiouny v The Queen [2017] NSWCCA 23
Barbaro v The Queen [2014] HCA 2
Bugmy v The Queen (1990) 169 CLR 525
Deakin v The Queen (1984) 11 A Crim R 88
Director of Public Prosecutions v. Bulfin (unreported, Court of Appeal, 17th April 1998)
Drayton v The Queen [2013] ACTCA 44
Heard v The Queen [2015] ACTCA 6
Henry v The Queen [2019] ACTCA 5
Inge v The Queen (1999) 199 CLR 295
Johnson v The Queen (2004) 78 ALJR 616
Lowe v The Queen (1984) 154 CLR 606
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R. v. Chan (1994) 76 A.Crim.R.
R v Meyboom [2013] SCC 17
R v Toumo’ua [2017] ACTCA 9
R v VZ [1998] VSCA 32
Taylor v R [2014] ACTCA 9
TheQueen v Meyboom [2012] ACTCA 48
Parties:
J Kirk (Informant)
Craig Meyboom (defendant)
Representation:
Counsel
Ms Janackovic (Informant)
Mr Jorgensen (Defendant)
Solicitors
ACT Director of Public Prosecutions (Informant)
Legal Aid ACT (Defendant)
File Number(s):
CC11918 of 2019
SPECIAL MAGISTRATE HUNTER
CC2018/11918
1. The defendant is charged with one charge of an act of indecency in the presence of a person under 16 years being 12 years, pursuant to section 61(2) of the Crimes Act 1900.
Facts
2. Approximately 8:15 AM Tuesday, 25 September 2018, CG, aged 12 years left her address in Gordon to walk to her school at Lanyon high school.
3. CG walks that route every day and has done so for some weeks. On the day in question, CG had her school uniform on consisting of a jumper with a school logo and navy blue shorts.
4. While she was walking along Lewis Luxton Avenue in Gordon, she passed a bus stop on her right hand side in front of number 9 Lewis Luxton Avenue. CG saw a male person now known to be the defendant. He was sitting on a small chair located on his front porch outside of his residence at 2/9 Lewis Luxton Avenue Gordon. He was consuming a cigarette. CG said she saw the defendant every day on her walk to school.
5. Unit 2 has a clear view of the street. It is distinguished by a small porch with large iron artwork attached to the wall.
6. CG noticed on 25 September 2018 that the defendant was sitting at the front of his premises in the chair having a cigarette watching her. CG said good morning and the defendant replied “Hi”.
7. CG continued her normal walk to school. CG was able to describe the defendant as being between 45 and 50 years of age bulky with broad shoulders, big legs and not very tall. He looked dirty and ashy with short messy hair, a light beard with only a few hairs. He was wearing grey coloured track pants and a really dark grey colour jumper. CG has seen the defendant wearing these items each day when she walks past.
8. Approximately 8.30am CG was walking past a loading dock at the Lanyon marketplace near the car wash located on Norman Lindsay Street. At this point CG observe the defendant walking about 23 meters in front of her. At that point she did not recognise him as the defendant.
9. CG noticed the person look back over his shoulder at her a couple of times. Both CG and the defendant crossed Norman Lindsay Street onto the bike path. The defendant was approximately 8 meters in front of CG at this time. CG began to feel uncomfortable about the defendant and she tried walking slower to put space between themselves.
10. CG looked down at her mobile phone and kept walking along the bike path. The defendant was walking in front of her. CG saw her friend D and two other children a short distance ahead on a bridge which crosses over the stormwater drain. CG then saw the defendant ahead of her stop and turn around but did not think much of it. She began looking down on her mobile phone and when she looked up again she saw the defendant right in front of her with his pants down. At this point CG recognised the male as a defendant being the person she walked past each morning.
11. CG saw the defendant with his penis at the front of his pants. She described it as small, floppy with splotchy white skin and a lot of dark-coloured pubic hair. She described his testicles are really hairy and it did not appear as if he looked after himself.
12. The defendant then said CG “You’re pretty”. This made CG nervous and she was not sure what to say. CG said “Thank you, you’re pretty too”. The defendant then said “Can I have a hug?” CG said “Oh no thanks I have to get to school”.
13. CG saw one of her male friend and two other female friends about 3 meters behind and to the right of the defendant. Seeing her friends CG power walked towards them. When CG looked over her shoulder back at the defendant she saw him fiddling with himself with his right index finger as if he was pointing to it.
14. CG and the other girls walked over the bridge to where the boys were standing. CG told her friend D what happened. D stated to her that he saw what happened and had seen the defendant’s penis as well.
15. They all arrived at Lanyon High School and CG disclosed what happened to the staff at the school office.
16. At approximately 11.55am CG participated in an evidence in chief interview, providing an account of what happened. Police accompanied CG to the area where the incident occurred and identified where the defendant had been sitting on multiple occasions at his address of 2/9 Lewis Luxton Avenue, Gordon.
17. The Police attended at that address and conversed with the defendant. They recognised him from earlier dealings. They made observations similar to the description CG gave of the perpetrator. The defendant was placed under arrest. The defendant participated in a recorded interview but made no admissions.
Sentence
18. I note that the defendant was on parole the time of this offence for offences of a similar nature. The defendant was remanded in custody on 25 September 2018. On 20 November 2018 the defendant pleaded not guilty to this offence. There was consent to the jurisdiction given on 29 January 2019.
19. The defendant was remanded in custody until 21 March 2019 for hearing of this matter which had been listed over a period of two days. On the day of the hearing the defendant appeared before me and entered a plea of guilty. I ordered a pre-sentence report and refused bail on this matter. The defendant was remanded in custody.
20. I exhibited a statement of facts which had been prepared by the prosecutor and accepted by the defence counsel. I also exhibited a criminal history, an updated pre-sentence report, a victim impact statement from the victim CG and a victim impact statement from her father. I had exhibited before me a presentence report. I observed and had exhibited before me CCTV footage of the incident. I also had exhibited before me a forensic mental health assessment report as well as a psychiatric treatment order in respect to the defendant.
21. I also exhibited a case statement in relation to the offences for which the defendant was serving a term of imprisonment and for which he was on parole at the time of this offence.
22. The defendant entered a plea of guilty at the very last opportunity on the day the matter was listed for hearing. I note that CG and the other witnesses were not required to give evidence as a result of the plea of guilt. However it was a very strong prosecution case and the plea of guilt had limited utility.
23. To some extent I accept that it may reflect some remorse although it is very limited in my view. Therefore I will give him 10% discount for his plea of guilt.
Antecedents
24. I note that the defendant has a significant criminal history. At the time of the offence he was on parole for several offences including theft, assault occasioning actual bodily harm, aggravated robbery with an offensive weapon, three acts of indecency on a person under 16 years, and two counts common assault, two counts sexual intercourse without consent, a theft and a breach of an order.
25. I also note that in 2000 he was convicted of four counts of armed robbery, one count of attempted armed robbery, two counts of robbery, one count of arson, one count of escape custody and one count of handling stolen property. I also note the defendant has an extensive criminal history from 1990 through to 1993 as well as other offences as an adult. I also note he has a significant history of violence and dishonesty offences in New South Wales. To say that his criminal antecedents is appalling is an understatement.
26. At present he is serving a term of imprisonment which commenced in 2007 with a head sentence of seven years and six month and a non-parole period of five years which dated from 22 November 2006. The defendant was then convicted of sexual intercourse without consent, acts of indecency, common assault in 2011 and sentenced by Chief Justice Higgins to a head sentence of seven years and six months dating from 22 November 2011. The Chief Justice imposed a non-parole period of five years.
27. In 2014 he was sentenced to 6 years imprisonment commencing 22 November 2012 for aggravated robbery. His existing non-parole period was extended to a non-parole period of eight years commencing on the 22 November 2006.
28. In 2016 he was convicted of assault occasioning actual bodily harm and was sentenced to a total term of 12 months imprisonment which was to commence from 22 November 2018 with the sentence to end on the 21 May 2019. A non-parole period of eight years was set to start from 22 November 2006 an end on 21 November 2014.
29. In 2019 he was convicted of robbery and sentenced to a term of 12 months imprisonment to commence on 21 October 2021 and to conclude on 20 October 2022. A non-parole period of nine years commencing on 22 November 2006 was imposed with a non-parole period to conclude on 21 November 2015. I note his non-parole period was cancelled on 16 November 2018 after committing these offences
30. Therefore the defendant is currently serving a term of full-time imprisonment with an expiry date of 20 October 2022.
31. I note that the maximum penalty for this offence 10 years imprisonment.
Personal Characteristics
32. I had exhibited before me a pre-sentence report dated the 21 February 2019 in relation to the robbery offence. I note that in his prior contact with corrections on 25 March 2011 he was convicted of five sexual offences, two assaults and was in breach of good behaviour order and sentenced to imprisonment for seven years and six months. On 21 January 2014 the Sentence Administration Board released the defendant on parole.
33. His parole order was again cancelled on 10 June 2014. The defendant was again released to parole on 9 December 2014. The defendant’s parole order was cancelled on 31 May 2016 due to the commission of further offences and the use of illicit substances.
34. The defendant was again released on parole on 2 November 2016. During July 2017 he successfully completed the adult sex offender program and transitioned to the maintenance phase of the group program. The Sentence Administration Board issued several warnings to the defendant due to his illicit substance use and on 16 November 2018 his parole order was cancelled. The defendant has remained in custody since 16 November 2018 as a sentenced prisoner. I note that he is at present eligible for parole.
35. His relevant background information is referred to in the presentence report. He was born in the ACT and is the eldest of five children. He stated that when he was 8 his parents separated and he remained with his mother. His mother commenced a relationship with another man when he was 9 and at 14 he entered the foster care system, youth justice and then juvenile detention.
36. The defendant cited relationship difficulties with his mother and stepfather before leaving the family home. He has since described his relationship with his mother and father as supportive since 2015.
37. The defendant commenced an intimate relationship with his partner during 2015 and prior to the current offences. He shares an ACT housing house with her. He was her nominated carer at the time of the offence. The defendant is welcome to that home after he is released from custody.
38. The defendant reported no involvement with any organised activity. During his release on parole period cannabis was detected in his urine indicating an involvement with antisocial acquaintances and drug taking behaviour.
39. In terms of education the defendant completed year 9 and has held several entry-level positions within the cleaning, trolley and building industries. The significant periods of imprisonment have adversely affected his employment history.
40. The defendant reported a history of contact with mental health services throughout his life and he is medicated for a diagnosed mental health condition. He has engaged with mental health services during his time in custody and acknowledge that prior to the commission of the current offences he had discontinued his prescribed medication.
41. The defendant has a history of substance abuse which commenced with cannabis at age 14 years and heroin use from 18 years, although he has denied use of this substance for 10 years. When he was 30 he commenced using methamphetamine. The defendant had a regular binge drinking culture from 16 years of age although has reduced his consumption in the last 10 years.
42. In an updated pre-sentence report in relation to the charge before the court, the author reports in relation to the attitude to the current offence the defendant provided a version of the offence which was not consistent with the statement of facts. He has avoided responsibility for the harm he has caused to the victim. It is obvious that he shows little remorse for his offending behaviour.
43. It is the opinion of the author of the report that until the defendant commits to treatments and interventions to address his attitude and orientation towards offending behaviour, substance abuse, mental health and lack of pro social activities and his anti-social associates he will remain as a medium to high risk of reoffending on the ACT community.
Victim Impact Statements
44. I received a Victim Impact Statement from CG. It is clear from that statement this offence has had a significant effect on CG. CG indicated that by the commission of this offence, the defendant took away her safety and her human rights and cause her much anxiety and stress as a result of the offending behaviour. She suffers from feelings of someone watching her at times. She does not go out for walks by herself because she is scared someone will follow her. She judges people because of what the defendant has done to her. She feels unsafe now when she is outside. Clearly this has had a marked effect on her.
45. I also received a victim impact statement from CG’s father. He described CG as a genuine caring and friendly person who was bubbly, confident and a pleasant person. That has changed since these offences. Her father notes she has become timid and anxious and certainly not carefree, innocent and bubbly as she was prior to the incident.
46. It appears that CG’s self-confidence and assuredness has been taken from her. CG has not walked to school since this incident and her parents now have to accommodate her by dropping her off to school and picking up as she is too uncomfortable and fearful to walk even with friends. This has impacted in her ability to engage with her friends from school. Her father has observed a consistent level of fear within CG as a direct result of the offence.
47. Her father has had to check physically under her bed and cupboards to show there is no one watching as a result of the incident. It has removed her innocence. Mentally and physically there has been a significant impact upon CG because of this incident.
Defence Submissions
48. Defence counsel submitted that whilst the defendant he was in custody a Psychiatric Treatment Order was made because of a deterioration of his schizophrenia.
49. Defence counsel submitted that the defendant has spent from 25 September 2018 to 16 November 2018 in custody in relation to these matters.
50. In terms of the Verdins principles, there was no submission that I should take those principles into account as a causative factor in the offending because his psychiatric condition was not directly related to the offending behaviour.
51. I note that he was admitted to a Dhulwa (the prison psychiatric wing) for one month and the Psychiatric Treatment Order has now expired. I note that the defendant is on medication for his condition.
52. The defence counsel submitted that I must sentence the defendant and then consider the head sentence and also reset the non-parole period. Defence counsel submitted that there are totality issues involved in that exercise.
53. Defence counsel submitted in relation to the offence that the act of indecency was at the low end of objective seriousness, there was no involvement with physical contact and the exposure was brief.
54. It was also recognised that the defendant has a long history of offending and particularly a tendency to commit like offences. Defence counsel submitted that full-time custody is appropriate given the Section 10 Crimes (Sentencing) Act 2005 threshold has been reached, however I must take into account the term already served.
55. It was noted that the defendant has completed the sex offender program [but I opined that it did not seem to help him very much given he has committed a further offence].
56. Defence counsel submitted that he has stable housing once he is released. [However again that did not seem to stop him from committing a further offence]. Defence counsel submitted the defendant is part of the detention exit community program which facilitates prisoners exiting detention. It was acknowledged that he was attending this program when he reoffended.
57. It was recognised that he has served significant periods in custody but also once he was out he has spent some time without reoffending. Defence counsel submitted that I should determine the appropriate length of sentence and consider the plea of guilt albeit that it was given on the day of the hearing. It was submitted that I should impose the sentence, set a new non-parole period and that I could either leave it unchanged or add a period and calculate that non parole period from 2006. I note he is eligible for parole at present given his non parole period expired on 21 November 2015
Prosecution submissions
58. I received submissions from the prosecutor who submitted that a lengthy term of custody should be imposed, taking into account the 52 days he spent in custody on this matter, and then make that sentence cumulative on the sentence he is already serving.
Offence
59. The prosecutor submitted that the offence was not at the lower end of the scale citing that this type of behaviour can cover a whole range of acts and it was the prosecutor’s view that looking at the circumstances objectively the conduct was mid-range of offending. That was said to be because he approached her with his penis out and asked her for physical contact whilst his penis and testicles were exposed from his pants. Further, it was objectively serious because it was compounded by her age and the fact that he had followed her in his motor-vehicle after she had said good morning to him as passed his house. The prosecutor submitted that it falls at the mid-range given her age and the premeditation involved. The prosecutor submitted it would have been more serious had she been of younger years, given the offence range between 10 and 16 years, however she was only 12 at the time of the offence.
60. The moral culpability of the defendant was high because this was not a spontaneous or opportunistic act, it was premeditated and predatory and the only reason he followed her was for his self-gratification. It is plain that on the CCTV footage he parks his car and follows her to an area which was somewhat secluded where he could expose himself to her. Then he asks for physical contact while his penis and testicles are exposed.
61. Further the defendant was not deterred by the risk of public discovery given there were other children around and it was in broad daylight on a bike path.
62. The prosecutor submitted the defendant was on conditional liberty at the time of the offending. The prosecutor further submitted that the Victim Impact Statement clearly shows the impact upon CG and that she now suffers from some form of post trauma and has been very much affected by his actions. It is clear that she had a premature loss of innocence as can be seen from the victim impact statement.
Plea
63. In terms of a discount for the defendants plea of guilt, the prosecutor submitted that it should be minimal given the child was at court on the day to give evidence and it was only as a result of his late plea that she, whilst being at court, was not required to give her evidence.
Remorse
64. There was clearly no remorse shown by the defendant. That is reflected in the updated pre-sentence report dated 12 April 2019. The Crown had a very strong circumstantial case.
Criminal History
65. In terms of the defendant’s criminal history it is clearly not out of character for him to commit this type of offence and it is consistent behaviour given he has committed these types of acts over a significant period of time. I was referred to the circumstances of the 2006 offending where he was loitering, which is similar to the offence before the court presently.
66. Given his significant criminal history for like type of offences there should be very little if any leniency given. The prosecutor submitted that there is minimal prospects of his rehabilitation, given he has been committing offences since 1990 and he has an appalling criminal history and has served significant periods of time in custody.
67. The prosecutor further submitted that he has been given opportunities to rehabilitate himself on prior occasions. Many of his offences were committed whilst he was on parole. It was submitted that conditional release did not stop him from committing offences.
68. The prosecutor submitted that I should be wary of the real risk of recidivism for this defendant. It is noted that he completed the sexual offenders program but it did not stop him from reoffending. He sought out the victim clearly for his own sexual gratification. The prosecutor noted he had a partner that was at home yet this did not deter him either. The defendant appears to not accept or understand the harm that he causes to his victims.
69. The prosecutor submitted that he does have some mental health issues and that can be taken into account in his general subjective features. However there is no correlation between the offending behaviour and his mental illness. His mental illness does not reduce his moral culpability and therefore the Verdins principles should not be considered.
70. The prosecutor submitted that there is no evidence to indicate that he was under the influence of illicit substances at the time. The Prosecutor further submitted that given his history of sexual offending he is a medium to high risk of reoffending.
71. The prosecutor submitted that specific deterrence and protection of the community are prominent factor in sentencing this defendant. Further there must be a recognition of the harm to the victims and the community generally, punishment and denunciation of this type of offending is paramount.
72. In terms of rehabilitation, given the criminal history of the defendant and his poor attempts at rehabilitation over a significant period of time his prospects of rehabilitation are exceedingly poor and it should not be prominent in sentencing this defendant.
73. The prosecutor submitted that at the time of his prior sexual offending he had not completed the sex offender program, however, he has now completed that program and that did not stop him from further offending whilst he was on parole.
74. I note that pursuant to section 71 (2) of the Crimes (Sentencing) Act I must set a non-parole period. The prosecutor submitted that the usual setting of that non-parole period is between 50% and 70% however given he has very little if any prospects of rehabilitation that could be increased.
Decision
75. I have taken into account the following factors:
76. The maximum penalty for this offences is 10 years imprisonment.
77. The defendant pleaded guilty at the hearing of the matter when it was called on.
78. There appears to be little remorse for his offending behaviour.
79. The Crown case was a very strong case against the defendant.
80. The defendant has significant criminal history of like offences.
81. The defendant has completed a sex offender program but has committed this fresh offence since completing it.
82. The objective seriousness of the offences is at the mid-range in my view, particular given that it was not spontaneous or opportunistic. The defendant clearly had in mind to commit an offence of a sexual nature with this victim and followed her in his vehicle for the very purpose of doing so. I am satisfied he did so for his own sexual gratification and no other reason.
83. Whilst I accept that there was no actual touching, the defendant did invite the victim to hug him whilst he had his penis and testicles exposed. His behaviour was disgusting.
84. The impact the offending behaviour has had upon the victim and her family.
85. The fact that the offending took place whilst the defendant was on parole.
86. His prospects of rehabilitation are extremely limited. The defendant has taken no steps to minimise any risk of him reoffending in this way or any other way for that matter.
87. I have taken into account the need for condign punishment to deter this defendant from committing further offences of this nature.
88. I have also taken into account the need for denunciation of this type of offending behaviour and protection of the community against this type of offending behaviour. In my view that is a significant factor particularly in relation to this defendant.
89. There is also a need for general deterrence as well and I have taken that into account.
90. I have taken into account all the matters that I have referred to. I have also read the decision of TheQueen v Meyboom [2012] ACTCA 48, a Court of Criminal Appeal decision, in relation to an appeal against sentence on the prior sexual offences.
91. That was a severity appeal where the Crown appealed against the inadequacy of sentence as being manifestly inadequate. The Court of Criminal Appeal dismissed the appeal as there was no appealable error, although I note they stated that they would have given a higher sentence for the offences.
92. I also note that it was noted that the defendant had an underlying paraphilia and was therefore recommended for the sex offender program. It was considered that he was at high risk of reoffending and despite having completed the program that was born out with this offence.
93. I also note that the court stated that having a history of similar offending increases the objective seriousness of the offence and renders them a worse a version of the offence. That is compounded by the fact he was on parole when he committed this offence.
94. I also note he had his parole cancelled on three occasions throughout the last 12 years.
Consideration
95. Nothing but a term of full-time imprisonment is appropriate for this offence. As I have already said, the Sentence Administration Board cancelled the defendant’s parole order on 16 November 2018, noting that he had his parole cancelled in June 2014 and again after being released in December 2014 his was cancelled on 31 May 2016.
96. I note that he is currently serving a term of imprisonment which will conclude on 20 October 2022. I note also that he was on parole when he committed this offence for which I am sentencing him today.
Totality
97. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served, concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616.
98. The question of the totality and the existing sentences of imprisonment must also be addressed. The totality principle is applied where an offender is serving an existing sentence, and is sentenced by a second court: Millv The Queen at 66.
99. I have taken into account those principle enunciated by the High Court when determining whether there should be any concurrency of the sentence I am to impose with the existing sentence.
100. Having considered the authorities I have referred to and those principles, it is my view there should be no accumulation with the existing sentence. This offence was committed some 3 months after the commission of his last offence and whilst he was on parole. That offence had no common features and was of an entirely different nature.
101. I note the maximum penalty for this offence is 10 years imprisonment. I have calculated what I consider to be the appropriate sentence for this offence taking into account the objective and subjective features I have already referred to.
102. Upon sentencing the defendant for this offence given he is currently serving a term of imprisonment for other offences, I must then calculate a head sentence and then consider whether I should set a non-parole period. I consider that a non-parole period should be set.
103. I note the authorities in relation to the setting a term of imprisonment for the primary offence and then recalculating the non-parole period.
104. In setting that new non-parole period I have considered what was said in Henry v The Queen [2019] ACTCA 5, which sets out the criteria a sentencing court is required to consider in relation to the setting of a non-parole period. The court referred to Callaway JA in R v VZ [1998] VSCA 32 where his honour said;
I put to one side cases where a non-parole period is inappropriate. In other cases, it is apparent from the authorities to which I have just referred that a non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one third or one quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element: see, for example, Bugmy v. R. at p.538 and R. v. Chan (1994) 76 A.Crim.R. 252 at p.255. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period: see, for example, Power v. R. at p.628 and Director of Public Prosecutions v. Bulfin (unreported, Court of Appeal, 17th April 1998). The third, which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration. The present offences called for condign punishment and general deterrence was a relevant sentencing objective, but it was common ground, and his Honour found, that the applicant was unlikely to offend again. He added that no question of specific deterrence arose for consideration. The offences had first come to light in 1981 but the evidence at that stage was insufficient to warrant a prosecution. That may explain why the applicant had not re-offended but it did not detract objectively from his prospects of rehabilitation. Assuming that a head sentence of eight years' imprisonment was appropriate, I consider that a non-parole period of six-and-a-half years was manifestly excessive in all the circumstances of this case.
105. Further, the court referring to Taylor v R [2014] ACTCA 9 (Murrell CJ, Refshauge and Penfold JJ agreeing) confirm the proper approach to fixing a non-parole period at [18] – [19] where they said:
18. Part 5.2 of the Sentencing Act concerns the fixing of non-parole periods but leaves the assessment of an appropriate length of non-parole period to the sentencing judge.
19. The proper approach to fixing a non-parole period is well established and can be summarised as follows.
1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
106. The Court went on to emphasise that non parole periods are not to be assessed on a mathematical basis on the usual norm or ratio. The Court considered that rehabilitation should be given significant weight in determining a non-parole period. The Court considered that all relevant matters should be taken into account. Those relevant matters include the penal element, specific and general deterrence and prospects for rehabilitation.
107. In Heard v The Queen [2015] ACTCA 6, the Court emphasised that non-parole periods are not to be assessed mathematically by reference to any normal or usual ratio to the head sentence. The Court emphasised that an offender’s prospects of rehabilitation will be given significant weight in the determination of a non-parole period [my emphasis].
108. This would depend on the circumstances of the particular case by taking into account all the considerations which are relevant to the setting of the head sentence, however that weight will differ because of the relevant circumstances of the particular offender.
109. The authorities clearly state that any ratio of a non-parole period to the total sentence does not determine the appropriateness of the non-parole period. Many factors are considered such as whether the defendant has a criminal history, whether they have served terms of imprisonment whether they have been on parole and have successfully or unsuccessfully completed that parole.
110. The authorities also confirm that deterrence in relation to committing further criminal offences is an important aspect when determining a non-parole period.
111. It is also clear from the authorities that when setting an unusual non-parole period reasons must be given. It is clear also that the fixing of a non-parole period is very much a consideration in respect to the prisoner’s rehabilitation prospects. That is the important aspect of why non-parole period are fixed.
112. In R v Toumo’au [2017] ACTCA 9 the Court said the putative relationship of the sentence should be emphasised in both the head sentence and in the minimum term to be served. Further the court also considered that the need for rehabilitation must be balanced against the requirement that the severity of a sentence be appropriate in the individual case.
113. I note that the defendant has had his parole order cancelled three times in recent history. Each time for committing further offences. I also note that he was breached for consuming illicit substances. I note that the defendant has not undertaken any rehabilitation courses to mitigate against risk of reoffending either.
114. I have referred to and considered the sentencing remark from Murrell CJ in R v Meyboom [2013] SCC 17 where her honour refers to her reasoning in relation to the setting of a non-parole period for Mr Meyboom. Her Honour noted at paragraph 23:
Two of the important sentencing purposes to be considered, particularly in relation to the imposition of non-parole period, are the inter-related considerations of protection of the community and the offender's prospects of rehabilitation [my emphasis]. The situation in this regard is not clear-cut [my emphasis]. The offence occurred within two months of release to parole in relation to matters of a similar nature. On the other hand, that release to parole occurred nine years ago. The offender has demonstrated excellent conduct in prison. He has been responsible and helpful within the prison environment. He accepts that he needs strict supervision upon release. He acknowledges that he needs support but, on the other hand, he is somewhat resistant to suggestions from others and prefers to follow his own advice in relation to what may be appropriate treatment. He has, however, assumed some responsibility in that regard and he has identified support that will be available to him when he returns to the community. First, support is available because the offender can be accommodated with his father and his father's wife in a stable and law-abiding family environment, albeit one in which there is the potential for conflict. The second basis of support that the offender has identified in the community is the Canberra Men's Centre. He is to be commended for taking a proactive approach in this regard.
115. It is clear from the offender’s criminal history, having been convicted of several serious offences since her Honour sentenced the defendant in 2014, that the issue is now clear cut. The defendant continues to re-offend and in this instance in a like manner despite having completed the sex offender program and serving a considerable time in prison.
116. I have taken into account all of the matters I have referred to. I also taken into account the sentences he is presently serving. Given that the defendant is serving terms of imprisonment I am required to consider the principles of totality when deciding his sentence as I have indicated above. I have considered the authorities in that regard and adopted those principles in coming to the conclusion I have.
117. I have taken into account that he has been serving terms of imprisonment commencing from 22 November 2006. I have taken into account that his current term is due to expire on 20 October 2022.
118. In respect to charge 2018/11918, I sentence the defendant to 18 months imprisonment. That is to be backdated by 52 days to take into account the time already served on this offence. The sentence is to commence on 29 August 2022 and to end on the 28 February 2024. That is a head sentence of 17 years, 3 months and 6 days to commence 22 November 2006. I set a non-parole period of 14 years to commence 22 November 2006 and to end 21 November 2020.
119. I note that the non-parole period as a percentage is 82% of the head sentence. I have set this higher than usual non parole term because of the failure of the defendant to take steps on parole to rehabilitate himself. There is no evidence that he will do so in the future when released on parole. Particularly given the defendant has continued to offend whilst admitted to parole in the past. The defendant was still using illicit substances and continued to commit offences whilst on parole.
120. Punishment is reflected in setting a higher than usual non parole period. Rehabilitation has not featured highly in my decision given his past offending whilst on parole, his attitude to the offending and his lack of motivation to rehabilitate himself.
121. Protection of the community, punishment, denunciation and specific deterrence featured highly in my consideration of an appropriate head sentence and non-parole period.
I certify that the preceding 121 numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Special Magistrate Hunter OAM.
Associate: Elinor Knaggs
Date: 21 June 2019
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