M C-N (a pseudonym) v The Queen
[2023] ACTCA 21
•27 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | M C-N (a pseudonym) v The Queen | ||
| Citation: | [2023] ACTCA 21 | ||
| Hearing Dates: | 27 February 2023; 17 March 2023 | ||
| Decision Date: | 17 May 2023 | ||
| Before: | McCallum CJ, Loukas-Karlsson, Charlesworth JJ | ||
| Decision: |
|
2022 be set aside and substituted with the orders in (2)-
(10) below.
(2) The good behaviour order made in CH2019/903 is cancelled and the appellant is to serve a term of imprisonment of three months and 22 days to date from and including 26 August 2021 to 17 December 2021. (3) The good behaviour order made in CH2020/494 is cancelled and the appellant is to serve a term of imprisonment of two months to date from 26 August 2021 to 25 October 2021. (4) In relation to the aggravated armed robbery committed on 22 May 2021 (CC2022/351), the appellant is sentenced to a term of imprisonment of 18 months to date from 18 December 2021 and ending on 17 June 2023. (5) In relation to the drive motor vehicle without consent (CC2022/352), the appellant is sentenced to a term of imprisonment of three months to date from 18 March 2023 to 17 June 2023. (6) In relation count 1 of the indictment (CH2020/733), the appellant is sentenced to a term of imprisonment of 15 months to date from 18 June 2023 to 17 September 2024. (7) In relation to count 2 of the indictment (CH2020/734), the appellant is sentenced to a term of imprisonment of 6 months to date from 18 March 2024 to 17 September 2024. (8) In relation to count 3 of the indictment (CH2020/735), the appellant is sentenced to a term of imprisonment of one month to date from 18 August 2024 to 17 September 2024. (9) Subject to order (10), pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), any term of imprisonment yet to be served as at 25 May 2023 be suspended from that date. (10) Pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), the appellant sign an undertaking to comply with the good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 25 May 2023 to 17 September 2024 with a probation condition to accept supervision by the Commissioner of ACT Corrective Services or their 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 obeying any reasonable direction to undertake rehabilitation.
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – Where self-represented appellant alleged manifest excess – where appeal determined on a different ground – where the sentencing judge made an error in imposing a suspended sentence – whether the error enlivened the Kentwell principles – where the error causes the sentence to miscarry – where the sentencing | ||
| discretion must be exercised afresh | |||
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re- sentencing – aggravated burglary – drive motor vehicle without consent – damage property – theft – where the offender was at conditional liberty – where the offending was serious – youth sentencing principles – application of Bugmy | |||
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12, 13, 64, 133B, 133C, 133G Criminal Appeal Act 1912 (NSW) s 6(3) Supreme Court Act 1933 (ACT) Pt 2A; s 37O | ||
| Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 47; 252 CLR 601 R v MC [2020] ACTSC 128 R v Ralston [2020] ACTCA 47; 285 A Crim R 159 | ||
| R v Toumo’ua [2017] ACTCA 9 | |||
| R v Warne; R v M C-N (No 2) [2022] ACTSC 128 | |||
| Parties: | M C-N (a pseudonym) (Appellant) The Queen (Respondent) | ||
| Representation: | Counsel | ||
| Self-represented (27 February 2023); J Cooper (17 March 2023) (Appellant) T Hickey (Respondent) | |||
| Solicitors | |||
| Aboriginal Legal Service NSW/ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |||
| File Number: | ACTCA 33 of 2022 | ||
| Decision under appeal: |
|
Territory
Before: Walmsley AJ Date of Decision: 1 June 2022 Case Title: R v Warne; R v M C-N (No 2) Citation: [2022] ACTSC 128
THE COURT:
Introduction
1. On 3 September 2020 the appellant committed a serious home invasion in the company of
others. He was tried and found guilty by a jury of three offences arising out of that incident
(Home Invasion Offences).
2. The commission of the Home Invasion Offences put the appellant in breach of the
conditions of two suspended sentences previously imposed upon him for separate
aggravated robberies committed on 12 September 2019 (2019 Robbery Offences) as
follows:
(a) a sentence of 12 months imprisonment imposed by Elkaim J on 9 June 2020 to commence on 3 October 2019: R v MC [2020] ACTSC 128;
(b) a separate suspended sentence of two months imprisonment imposed by the Magistrates Court of the ACT on 6 July 2020 upon the appellant entering a six
month good behaviour bond.
3. At the time that the sentence in [2(a)] was imposed, the appellant had served eight months
and one week in custody in relation to the associated offence. The remainder of the 12
month term (three months and 22 days) was suspended, subject to an 18 month good
behaviour order.
4. On 22 May 2021, whilst on bail for the Home Invasion Offences and whilst he remained
subject to the good behaviour order made by Elkaim J, the appellant stole a car from a
driver at knifepoint. He was convicted of one count of aggravated armed robbery and one
count of drive motor vehicle without consent (2021 Robbery Offences).
5. The appellant turned 18 on 11 October 2020. He was a minor at the time of the 2019
Robbery Offences and the Home Invasion Offences but had turned 18 at the time of the
2021 Robbery Offences.
6. On 1 June 2022 the appellant was sentenced in relation to the Home Invasion Offences
and the 2021 Robbery Offences: R v Warne; R v M C-N (No 2) [2022] ACTSC 128. In
addition, the appellant had breached the good behaviour orders relating to his earlier
offences. The good behaviour orders were revoked and he was required to serve the
previously suspended sentences.
7. As at the date of sentencing, the appellant had served 117 days in custody in relation to
the Home Invasion Offences and 162 days in custody awaiting trial on unrelated charges.
At first instance, as on this appeal, it was agreed that the appellant should be sentenced
on the basis that he had already served 279 days in custody. The sentencing judge imposed sentences of imprisonment backdated to commence on 26 August 2021 (279
days prior to the date of sentencing) expressed as follows:
1. I cancel the good behaviour order imposed on CH2020/494 and sentence the offender
to a term of 12 months’ imprisonment to date from 26 August 2021 to 25 August 2022.
2. I cancel the good behaviour bond imposed on CH2019/903 and sentence the
offender to a term of two months’ imprisonment to date from 26 August 2021 to 25
October 2021.
3. In relation to the aggravated robbery and car offence which occurred on 22 May 2021
(CC2022/351), the offender is convicted and sentenced to a term of imprisonment of
two years to date from 26 February 2022 to 25 February 2024.
4. In relation to the drive motor vehicle without consent (CC2022/352), the offender is
convicted and sentenced to a term of imprisonment of six months to date from 26
August 2023 to 25 February 2024.
5. In relation to count 1 on the indictment, the offender is convicted and sentenced to a
term of imprisonment of 20 months to date from 26 July 2023 to 25 March 2025.
6. In relation to count 2 on the indictment, the offender is convicted and sentenced to a
term of imprisonment of nine months to date from 26 June 2024 to 25 March 2025.
7. In relation to count 3 on the indictment, the offender is convicted and sentenced to a
term of imprisonment of one month to date from 26 February 2023 to 25 March 2025.
8. The total sentence is 3 years and 7 months, from 26 August 2021 to 25 March 2025.
9. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), I make a suspended
sentence order suspending the sentence on 25 August 2023 after the offender has
served two years.
10. Pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), I make a good behaviour order for the period during which the sentence is suspended. As part of the good
behaviour order, I impose a supervision condition whereby the offender must comply
with all reasonable requirements of the Director-General for the period of the suspended
sentence.
11. Under s 19 of the Crimes (Sentencing) Act 2005 (ACT), I make a reparation order that the offender pay into court $320 for locksmith services incurred by Mr Kille.
The hearing
8. The appellant was self-represented at the hearing of the appeal. His sole ground of appeal
was that the total sentence was manifestly excessive. The appellant did not prepare written
submissions in support of that ground. His oral submissions were based largely on an
assertion that he was not guilty of the Home Invasion Offences. The appellant’s
submissions were not, in themselves, sufficient to persuade the Court that the total
sentence should be set aside on the ground of manifest excess.
9. The appeal will nonetheless be allowed on a different basis.
10. Where it is identified that a judge has made an error of law in sentencing an individual, a
court on appeal has a duty to re-exercise the sentencing discretion. In Kentwell v The
Queen [2014] HCA 47; 252 CLR 601 French CJ, Hayne, Bell and Keane JJ said at [42]:
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit.
(Citations omitted.)
11. In this case, the Crown’s submissions identified multiple errors on the part of the sentencing
judge. However, it was submitted that they were minor errors in expression and calculation
and were therefore capable of amendment without enlivening the principle in Kentwell.
12. Three errors required consideration.
13. First, the order in (7) referred to a one-month sentence expressed to commence on
26 February 2023 and to end on 25 March 2025. The reference to 26 February 2023 in
that order is an obvious slip. It should read 26 February 2025. A slip of that kind does not
engage the principle in Kentwell.
14. Second, the orders in (1) and (2) mistakenly swapped the action numbers for the
proceedings in which the two suspended sentences relating to the 2019 Robbery Offences
were imposed. That error may also be properly characterised as a slip.
15. The third error was more problematic.
16. Having cancelled the good behaviour bonds, the sentencing judge imposed the sentence
of 12 months imprisonment that had previously been imposed by Elkaim J, expressing that
sentence to commence on 26 August 2021. The appellant ought to have been ordered to
serve only the unserved portion of the prior sentence, being three months and 22 days.
17. At the sentencing hearing the sentencing judge expressed an intention that there be a “high
degree” of concurrency between the previously imposed sentences and the new
sentences. However, the effect of sentencing the appellant to a term of imprisonment for
12 months rather than three months and 22 days is that the precise degree of concurrency
his Honour might otherwise have ordered cannot be identified.
18. To address that error this Court would be doing more than to correct a mere error in
expression or arithmetic. It would be necessary to evaluate the appropriate degree of
concurrency between the unserved portion of the sentence imposed by Elkaim J and the
remaining sentences.
19. For that reason, it was concluded that the error was of a kind that caused the discretion to
miscarry. On the basis of the principle in Kentwell, this Court should now re-sentence the
appellant.
20. That conclusion was made known to the parties in the course of the hearing. Both parties
were afforded an opportunity to file additional submissions and to adduce further evidence
for the purposes of re-sentencing.
Principles
21. The provisions governing appeals to this Court are found in Pt 2A of the Supreme Court
Act 1933 (ACT). Section 37O(1) in Pt 2A specifies the Court’s powers “in relation to the
order appealed from”. In a celebration of convoluted drafting, the term “order” is defined in
the dictionary of the Act to include “a judgment”, while the term “judgment” is defined to
include “an order or sentence”. The effect is that the general powers specified in s 37O(1)
apply to appeals against sentence. Those powers relevantly include power “to confirm,
reverse or amend the order”.
22. Separately, s 37O(7) deals specifically with appeals against sentence (whether by the
prosecution or defendant), providing that the Court of Appeal’s powers in such an appeal
include the following powers:
(a) to increase or decrease the sentence;
(b) to substitute a different sentence.
23. As already noted, the decision of the High Court in Kentwell holds that, when the appellate
court finds specific error in a sentencing decision of the kind identified in House v The King
[1936] HCA 40; 55 CLR 499, it follows that the sentencing discretion has miscarried and it
is the duty of the appellate court to exercise the discretion afresh. Although Kentwell was
an appeal from the New South Wales Court of Criminal Appeal, where a different statutory
regime applies (under which the Court is required to form an opinion as to whether “some
other sentence, whether more or less severe is warranted in law and should have been
passed”: s 6(3) of the Criminal Appeal Act 1912 (NSW)), the principle in Kentwell has been
adopted in the Territory, requiring that this Court “should re-sentence by exercising the
sentencing discretion afresh, rather than merely confirming the original sentence on the
basis that it fell within the available range”: R v Toumo’ua [2017] ACTCA 9 at [12].
24. That is one of the examples of the approach to interpretation considered in R v Ralston
[2020] ACTCA 47; 285 A Crim R 159, where Murrell CJ and Mossop J noted that,
notwithstanding the generality of the Territory’s appeal provisions, “courts over time have
been willing to graft onto those provisions principles relevant to the exercise of jurisdiction
in particular contexts”, even where the principles in question have been “derived in different
statutory contexts, where the statutory language provides more guidance than that
applicable in the Territory”: at [43]. In acknowledging that historical approach, their
Honours sounded a note of caution against putting an impermissible judicial gloss on the
statute for which there is no textual foundation.
25. Whether the Kentwell principle should be grafted onto the Territory’s appellate provisions,
particularly having regard to the broad powers conferred by s 37O(1) to “confirm, reverse
or amend” a sentence, does not appear to have been contested in Toumo’ua and was not
explored in the present appeal. It need not be decided here. In light of the nature of the
error we have identified, which cannot be unwound, and the conclusion we have reached
in exercising our discretion afresh, which produces a lesser sentence than was imposed at
first instance, it is appropriate in this case to re-sentence the appellant.
26. In the case of an adult offender, the Court may impose a sentence for one or more of the
purposes specified in s 7(1) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act),
namely:
(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community.
27. As s 7(2) of the Sentencing Act makes clear, nothing in the order in which those purposes
appear implies that any one of them must be given greater weight than another.
28. A court may sentence an offender to imprisonment, for all or part of the term of the
sentence, if the court is satisfied, having considered possible alternatives, that no other
penalty is appropriate: Sentencing Act, s 10.
29. If a court sentences an offender to imprisonment the Court may make an order suspending
all or part of the sentence of imprisonment: Sentencing Act, s 12(2). If such an order is
made, the court must also make a good behaviour order for the period during which the
sentence is suspended or for any longer period that the court considers
appropriate: Sentencing Act, s 12(3).
Sentencing a young offender
30. Chapter 8A of the Sentencing Act outlines the principles that a court must consider in
sentencing a young offender. Relevantly, a young offender is defined as a person who has been found guilty of an offence and was under 18 years of age when the offence was
committed: Sentencing Act, s 133B.
31. In sentencing a young offender, a court must consider the purpose of promoting the
rehabilitation of that offender and may give more weight to that purpose than it gives to the
other sentencing purposes stated in s 7(1): Sentencing Act, s 133C(1). The Court must
also have regard to the common law principle of individualised justice: Sentencing Act,
s 133C(2).
32. A sentence of imprisonment on a young offender “must be a last resort and for the shortest
appropriate term”: Sentencing Act, s 133G(2). The Sentencing Act contains no provision
for the mandatory setting of a non-parole period for a sentence of imprisonment imposed
on a young offender: Sentencing Act, s 64(2). A court must consider making a sentence
consisting of both a sentence of imprisonment and a good behaviour order with a
supervision condition: Sentencing Act, s 133G(3).
33. The appellant was a young offender at the time of the Home Invasion Offences and thus
attracts the considerations in s 133C of the Sentencing Act. Given that the appellant was
only 18 years and seven months of age at the time of the 2021 Robbery Offences, we also
consider that the principles in s 133C of the Sentencing Act should also be given weight in
our assessment of the sentences considered as a whole.
An offender’s background
34. An offender’s “deprived” background may also mitigate the sentence that would otherwise
be appropriate, including because it may inform the assessment of the offender’s moral
culpability: Bugmy v The Queen [2013] HCA 37; 249 CLR 571. In assessing an offender’s
background, a court will consider, amongst other things, an offender’s exposure to extreme
violence, alcohol and drug abuse at a young age, as well as the offender’s familial support
and cultural connections.
35. However, an offender’s “deprived” background may also inform the Court’s assessment of
the other purposes of sentencing including the protection of the public. In Bugmy,
French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ explained that:
44. Because the effects of profound childhood deprivation do not diminish with the passage
of time and repeated offending, it is right to speak of giving "full weight" to an offender's
deprived background in every sentencing decision. However, this is not to suggest, as
the appellant's submissions were apt to do, that an offender's deprived background has
the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to
the conflicting purposes of punishment is what makes the exercise of the discretion so
difficult. 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.
45. The point was made by Gleeson CJ in Engert in the context of explaining the
significance of an offenders’ mental condition in sentencing:
A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
(Citations omitted.)
The offences
36. In relation to the Home Invasion Offences, the sentencing judge summarised the objective
facts at [3]-[5] and [10]-[30]. We respectfully adopt that summary. The offences were
objectively serious and had terrible and lasting impacts on the occupant of the home and
her children.
37. The sentencing judge also assessed the appellant’s role in the offending. His Honour
concluded that the appellant was influenced by a co-offender and principal instigator
(Mr Andy), and that he joined spontaneously without planning. The sentencing judge
accepted the Crown’s submission that he was a “misguided teenage boy, just along for the
ride” (at [36]), and that he had “no interest other than to follow [another person] along” (at
[30]). We agree with that assessment.
38. The objective circumstances were otherwise summarised as follows:
3. Count 1 averred they each entered or remained in a building, namely [REDACTED], as trespassers, with an intent to commit an offence involving causing damage to property and which was punishable by imprisonment for five years or longer, in company with one another and an unknown person and at the time they had offensive weapons with them. The offence carries a maximum sentence of 20 years or a fine of up to $300,000 or both.
4. Count 2 averred they caused damage to property belonging to someone else, namely Jacqueline Brown, intending to cause damage or being reckless about causing damage to that property or any other property belonging to someone else. The maximum sentence for the offence is 10 years imprisonment or $150,000 or both.
5. Count 3 averred the dishonest appropriation of property, namely a white Xbox One S gaming console and a glass smoking implement, belonging to Jacqueline Brown, with the intention of permanently depriving her of the property.
…
10. The trial matters concern what must for the victims have been an extremely frightening home invasion. On 3 September 2020 each of these offenders, with two other people,
one of whom was Mr Andy, the other whose name is not known, went to the victims’
home. The occupant, Ms Jacqueline Brown, was at home with her two children, aged one and seven years. She was in the kitchen when she heard a repeated smashing noise at the front door. She looked down the hallway and saw four people standing near her front door, three of whom were holding either a stick or a baseball bat. The glass panel beside the front door had been smashed. One of the intruders wore a face covering.
11. As is clear from their verdicts, the jury found beyond reasonable doubt that Mr Warne and Mr C-N had been two of the intruders. A significant Crown witness was the said Mr
Andy, who had been the first one of the group to enter the house. He later pleaded
guilty and as appears below, he received a significant reduction for his assistance.
12. When the men broke in, Ms Brown told her elder child to run out the back. Ms Brown took hold of her younger child and she also ran outside.
13. The intruders screamed abuse and damaged property, including walls, a tv and a toilet seat. Food was removed from the refrigerator and thrown about the kitchen floor. The trial photographs show a great deal of damage throughout the house.
14. Some of the intruders followed Ms Brown out the back of her house. One of them threw a stick at her.
15. The intruders then left. As they did so, one of them stole an Xbox gaming console and
a glass bong.
.…
17. Police later seized the baseball bats and hammer. DNA on a baseball bat matched that of Mr Andy.
39. The 2021 Robbery Offences occurred on 22 May 2021. The sentencing judge briefly
summarised the offence at [7]. The appellant and two others approached Mr Adam Kille
and a friend who were sitting in Mr Kille’s Jeep Wrangler. The appellant produced a knife,
demanded the keys and told them to leave the vehicle. The appellant drove off in the
vehicle and on the following day the vehicle was damaged when it collided with a cement
bus stop.
Subjective considerations
40. As we have mentioned, the appellant turned 18 on 11 October 2020. He has an extensive
history of criminal offending as a juvenile.
41. Before the sentencing judge, the appellant’s deprived childhood was the subject of a
psychologist’s report. The sentencing judge made the following remarks of that report:
60. In evidence was a psychological report from Vanessa Edwige. It shows the offender has a sad history of neglect, growing up in violence, observing his
mother throw knives at his father, and later stabbing his father. As a child, he was
often left with people he did not know when his mother was at her most troubled.
He would sleep with a knife next to his pillow in case someone touched him. His
father would also be in and out of gaol when he was young. He went into care at 11.
His father, who died in 2019, was part of the Stolen Generation.
61. The offender started smoking marijuana at 12.
62. He experienced considerable racism at school. His impoverished upbringing had a causal relationship with his current state, according to Ms Edwige.
63. She also says he meets the criteria for unspecified trauma and stressor related disorder and would have at the time of his offending.
64. Further, she concludes his conduct is a direct result of the childhood trauma.
Consideration
42. With respect to the Home Invasion Offences the appellant’s moral culpability must be
assessed in light of his immaturity, the influence of at least one of the other offenders and
his deprived and violent childhood. We place considerably more weight on those
circumstances than that apparently afforded by the sentencing judge.
43. The sentence should reflect the circumstance that the appellant is not a person who has
nil prospects of rehabilitation. His past offending is explained in part by his social isolation
and youth. Terms of imprisonment at this time of his life may only serve to make it more
difficult for him to pursue opportunities for rehabilitation within the community rather than
in prison.
44. However, it cannot be overlooked that the Home Invasion Offences occurred whilst the
appellant was subject to two good behaviour orders. Those orders and the time already
spent in custody did not have any salutary effect. There should be some time served in
prison with respect to the Home Invasion Offences to reflect that circumstance and to
reflect the degree of harm suffered by the victims of those serious offences.
45. The circumstances of the 2021 Robbery Offences make it appropriate that the appellant
serve a further term of imprisonment. It is particularly concerning that the offences
occurred whilst the appellant was on bail with respect to the Home Invasion Offences and
whilst one of the good behaviour orders remained in force. Unlike the Home Invasion
Offences, the circumstances do not have the feature of the appellant being influenced by
older persons. He had turned 18 at the time of the offending and the remaining good
behaviour order then in place was not sufficient to prevent the commission of a further
offence involving a weapon and threat of violence. The offending had a significant
psychological impact on the victims.
46. In respect of these more recent offences, the purpose of protecting the community from
the appellant is to be afforded more weight, notwithstanding his youth. The strong
countervailing considerations make the sentencing process more difficult, but it is
nonetheless plain that a substantial period in custody is warranted. The purpose of
protecting the community may otherwise be served by further good behaviour orders, thus affording the appellant another opportunity to address the causes of his offending with
appropriate community support.
47. It is appropriate to apply a 25% discount with respect to those sentences in light of the
appellant’s guilty pleas. The sentences set out below should be understood as
incorporating that discount.
48. The appellant appears to have very few positive role models in the community. He has the
support of an older friend who has offered him accommodation and employment upon his
release from prison. However, the supporter is himself a person who has a criminal history
and who will soon be sentenced in circumstances giving rise to a real likelihood that he will
be again be imprisoned. The supporter told the Court that should he be imprisoned, he
would permit the appellant to stay in the home that he owns. The Court knows very little
about the circumstances of that accommodation. The appellant’s prospects of finding
gainful employment should his supporter be imprisoned are also uncertain.
49. The appellant has engaged in some positive rehabilitative activities whilst in prison,
however it remains that his prospects of re-offending are very high. He has an interest in
music writing and production and has positive aspirations in that regard. However, on the
limited material before us, there do not appear to be any correctional programs to directly
assist him to pursue that interest more formally in a rehabilitation context.
50. The appellant has expressed a genuine desire to establish a relationship with his two-year-
old daughter upon his release and so intends to remain in Canberra for that purpose. He
appears to have re-established some connection with family members who live in regional
New South Wales, but the degree of emotional and practical support they may provide to
him is unclear.
51. The appellant has received an unspecified sum as compensation for a personal injury, but
cannot access that money whilst in prison. He expresses a desire to apply the money to
establish a better life. He has a psychological treatment plan and it is plainly preferable
that he pursue that plan whilst positively engaged in the community. It is appropriate that
new good behaviour orders be expressed in a way that maximises the support he may be
provided by correctional services with a view to ensuring that the treatment plan is
implemented.
52. Considered together, the facts and circumstances warrant that a considerable portion of
the newly imposed sentences be suspended, notwithstanding that the appellant has
previously breached the conditions of his prior release. The accompanying good behaviour
orders should be expressed to remain in force for until the conclusion of the sentence to
prolong the appellant’s access to support services and maximise his prospects of
rehabilitation.
Orders
53. For those reasons, there will be the following orders:
(1) The orders in (1)-(10) of the sentence imposed on 1 June 2022 be set aside and substituted with the orders in (2)-(10) below. (2) The good behaviour order made in CH2019/903 is cancelled and the appellant is to serve a term of imprisonment of three months and 22 days to date from and including 26 August 2021 to 17 December 2021. (3) The good behaviour order made in CH2020/494 is cancelled and the appellant is to serve a term of imprisonment of two months to date from 26 August 2021 to 25 October 2021. (4) In relation to the aggravated armed robbery committed on 22 May 2021 (CC2022/351), the appellant is sentenced to a term of imprisonment of 18 months to date from 18 December 2021 and ending on 17 June 2023. (5) In relation to the drive motor vehicle without consent (CC2022/352), the appellant is sentenced to a term of imprisonment of three months to date from 18 March 2023 to 17 June 2023. (6) In relation count 1 of the indictment (CH2020/733), the appellant is sentenced to a term of imprisonment of 15 months to date from 18 June 2023 to 17 September 2024. (7) In relation to count 2 of the indictment (CH2020/734), the appellant is sentenced to a term of imprisonment of 6 months to date from 18 March 2024 to 17 September 2024. (8) In relation to count 3 of the indictment (CH2020/735), the appellant is sentenced to a term of imprisonment of one month to date from 18 August 2024 to 17 September 2024. (9) Subject to order (10), pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), any term of imprisonment yet to be served as at 25 May 2023 be suspended from that date. (10) Pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), the appellant sign an undertaking to comply with the good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 25 May 2023 to 17 September 2024 with a probation condition to accept supervision by the Commissioner of ACT Corrective Services or their 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 obeying any reasonable direction to undertake rehabilitation. I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for the Court
Associate:
Date: 17 May 2023
3
6
5