Nathan Etheredge v Chaka Freeman
[2022] ACTMC 11
•20 May 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nathan Etheredge v Chaka Freeman |
Citation: | [2022] ACTMC 11 |
Hearing Date: | 31 March 2022 |
DecisionDate: | 20 May 2022 |
Before: | Special Magistrate Hopkins Elders: D. Ritchie R. Longford Court Co-ordinator M. Abel |
Decision: | See [65] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Galambany Court – Circle Sentencing – damage property – offence committed while in custody – grief and loss – parental incarceration – Bugmy principles |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 63, 64, 72 Criminal Code 2002 (ACT) s 403 |
Cases Cited: | Biddle v Gatherer [2021] ACTSC 236 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Hogan v Hinch [2011] HCA; 243 CLR 506 Horan v O’Brien [2021] ACTSC 323 Hoskins v R [2021] NSWCCA 169 Ingrey v R [2016] NSWCCA 31 Owen Patterson v Wendy Brookman [2021] ACTMC 16 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v BS-X [2021] ACTSC 160 R v Mills [1998] 4 VR 235 R v Rappel [2019] ACTCA 11 R v Steen [2015] ACTSC 259 |
Texts Cited: Parties: | Bugmy Bar Book, Incarceration of a Parent or Caregiver (November 2019) Edwige, V and Gray, P, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021) Nathan Etheredge (Informant) Chaka Freeman (Defendant) |
Representation: | Counsel L Knobel (Informant) T Cobden (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Defendant) | |
File Number: | CC 6658 of 2021 |
SPECIAL MAGISTRATE HOPKINS:
This is a sentencing decision of the Galambany Court. The Galambany Court is a specialised circle sentencing court, within the ACT Magistrates Court, established to provide a culturally relevant and restorative sentencing process for Aboriginal and Torres Strait Islander people who have pleaded guilty to an offence. In the language of the Ngunnawal people, Galambany means ‘we all, including you’. The capacity of the Galambany Court to achieve its objectives depends upon the dedication, commitment and wisdom of Elders, who sit and exercise First Nations authority in the Court, with the permission of Ngunnawal and Ngambri Traditional Owners of the land, upon which the Court sits.
Court proceedings take place in a circle. Words are spoken, listened to, and heard in the Circle. Though the law applied to those who are sentenced in the Circle is the same as in a standard courtroom, the process is different. This process enhances understanding. I have explained the process in detail in the decision of Owen Patterson v Wendy Brookman [2021] ACTMC 16.
The delivery of this decision is also different. It is written to be spoken directly to you, Chaka. I acknowledge you as a proud Wiradjuri and Gamilaraay/Kamilaroi man.
You are currently serving a sentence of two years' imprisonment, imposed upon you on 21 January 2021 for dishonesty and driving offences. That sentence commenced on 3 June 2020 and expires on 2 June 2022. A non-parole period of 15 months was set. That period expired on 2 September 2021. Your application for parole was denied, resulting in you being required to serve the full two-year term of imprisonment.
A significant reason for parole being denied was the fact that on 17 November 2020 you committed an offence of damaging property whilst in lawful custody at the Alexander Maconochie Centre (AMC). This is the offence for which you are being sentenced today.
Damaging property is an offence against s 403 Criminal Code 2002 (ACT), with a maximum penalty of 10 years’ imprisonment.
There was a substantial delay in proceedings for this offence being initiated. A summons was sworn on 4 August 2021, with your first appearance being 20 September 2021, 10 months after the offence was committed. The reason for this delay was not explained. Subsequently, you had difficulty obtaining and then communicating with your legal representation. As I understand it, this was because you were imprisoned interstate, in New South Wales (NSW), first at the Goulburn Correctional Centre and then in Parklea Correctional Centre. This has caused you significant confusion and distress.
Having pleaded guilty, you came before the Galambany Court on 31 March 2022. Ordinarily, this would have meant you sitting in the Circle to speak with the Elders. Unfortunately, due to you being imprisoned in NSW, you appeared via audio-visual link. Despite this challenge, you engaged in the conversation with honesty, insight and emotion.
Your lawyer asked the Court to impose a sentence that would see you released on 2 June 2022, with any further term of imprisonment to be suspended, upon you entering into a good behaviour order. The Elders recommended this course. For reasons that I will set out, I have decided that, although a significant sentence of imprisonment must be imposed, it is appropriate to suspend that term from 2 June 2022.
The Offence
10.At 11.50 am on Tuesday 17 November 2020, you were directed to return to your cell from an exercise yard for the lunch lock-in. You refused, as a protest for not being able to attend National Aborigines and Islanders Day Observance Committee (NAIDOC) celebrations.
11.As you explained to the Elders, you had been looking forward to the NAIDOC event for about two weeks. It had been organised by one of the Aboriginal employees of the AMC. The NAIDOC event had additional significance for you, because your aunt had passed away in the week prior and it was intended to be a ‘mourning service’ for her, attended by you and other First Nations detainees. You had gotten up in the morning, showered and dressed in your ‘nice clothes’, ready to be with your family. You were then told you could not attend, because of your involvement in an incident of property damage that had occurred in the ‘pod’ in which your cell was located. You told the Elders you were not involved in this incident and that you were never charged or subject to a disciplinary process relating to that incident.
12.Correctional officers decided to leave you in the exercise yard over the lunch period, rather than attempt to force you to return to your cell. The agreed facts establish that you were pacing around, making rude gestures and flashing your backside. There is no doubt you were upset.
13.Shortly after 12.30 pm, you began removing screws from gym equipment in the exercise yard and started throwing them at the internal windows and closed-circuit television (CCTV) cameras. Corrections officers’ attempts to negotiate with you failed. You continued to throw screws at the internal windows, causing eight to shatter. You used a metal ashtray and then a metal bar from the gym to repeatedly strike the shattered windows. You then climbed up the wall and destroyed two CCTV cameras.
14.Further negotiations with you were successful and, at 2.37 pm, you complied with directions and submitted to being handcuffed.
15.Your behaviour for about two hours was pretty much out of control. The damage you caused was very significant. The cost of repair and restoration was $26,864.95.
16.In response to questioning from the Elders about ‘going off’ as you did, you explained that you are not usually like that. You said you are usually a ‘happy, outgoing young fella’. That is the way you came across in your conversation with the Elders.
17.You explained your behaviour as an emotional reaction to being prevented from attending the NAIDOC mourning service. This does not excuse your conduct. However, the grief and loss you experienced and your distress at not being able to share that experience with family and other First Nations people at the pre-arranged event does provide an explanation. That explanation is relevant to your moral culpability and to the assessment of the objective seriousness of the offence.
18.As you explained to the Elders, on the night after the offence, when you were sitting in segregation, you thought about what you had done and were disappointed in your actions. You realised you had lost sight of the consequences. The consequences for the AMC financially and in terms of disruption were significant. The consequences for you were also significant.
19.It must be said that the pre-sentence report makes clear that your offence was not an isolated incident. The report refers to you displaying reckless, abusive behaviours towards staff and AMC property both before and after this offence, and being subject to seven disciplinary actions. This suggests that you experience ongoing challenges with impulse control and consequential thinking.
Subjective circumstances
20.The pre-sentence report also makes clear that you had a very difficult and disadvantaged childhood. This helps to explain where you find yourself today. The High Court in the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 has made clear that sentencing courts must give full weight to the impact of adverse childhood experience arising from disadvantage. This is to recognise that there are lines of force that shaped your life as a child that continue to impact you today, explaining, amongst other things, the challenges you have with impulse control, in the face of frustration: see, also, Hoskins v R [2021] NSWCCA 169 [56]-[59].
21.Though I do not have a full picture of your childhood and adolescent experience, I know that your father was imprisoned for seven years when you were three and that you and your siblings moved interstate to Queensland with your mother. Upon your father’s release, you returned to live with him. This was a difficult period for you. Clearly, your father had his own challenges. On your account, he was a hard man, but not abusive. It was during this time that, aged 12 or 13, [redacted]. You were exposed to the reality of incarceration from a young age and have found yourself living it: Ingrey v R [2016] NSWCCA 31. So often, disadvantage has this intergenerational aspect.
22.Research establishes that parental incarceration may have negative impacts on a child’s emotional, behavioural and psychological development. These can include problems with emotional regulation, depressive symptoms and a higher risk of developing substance abuse problems: see Bugmy Bar Book, Incarceration of a Parent or Caregiver (November 2019); R v BS-X [2021] ACTSC 160 at [63].
23.You commenced drinking alcohol when you were 11 while you were living with your father. Then, at age 15, after your father was incarcerated again and your grandmother had passed away, you turned to the use of cannabis and methamphetamine, to cope with feelings of depression. As you said to the pre-sentence report author, you felt like your grandmother was the only person who understood you. Grief and loss at her death hit you hard. It appears that your offending escalated in frequency and seriousness from this point.
24.Despite this, you completed your Year 10 certificate and were engaged in sporadic employment until 2018.
25.From 2018 until your imprisonment on 3 June 2020, your methamphetamine use increased, to the point where you did not work and instead engaged in criminal activity to support that use. It was this path that saw you sentenced to two years’ imprisonment. This is a lengthy term in an adult prison for someone then aged 20 to face.
26.Though disadvantage has shaped you, it does not define you. The Elders asked you about your strengths. Amongst other things, you said that you are the sort of person ‘who can walk into a room and light it up’. You explained that by this you meant you are able to change the mood in a room, to make people laugh. You said that you always try to be there for people, because you know what it is like to feel down.
27.It was also clear from your conversation with the Elders that you also see your parents and your relationship with them as strengths in your life. Upon your release, your father is happy for you to stay with him at his home in rural NSW for as long as you like.
28.You spoke with concern about the ill-health of each of your parents. It seems that your mother may be facing a struggle with cancer. Though you haven’t seen her face-to-face since you were 15, you want to be with her on the Gold Coast, where she lives, to support her.
29.I will return to your plans for release shortly. Ultimately, it will be up to you to build upon your strengths, so that you become the strongest line of force operating in your life, pointing you in a more positive direction. This is what you need. It is what your parents need. And it is what the community needs. You cannot do this alone. It will be a challenge for you, yet your more recent experience in prison in Parklea Correctional Centre suggests there is reason to be hopeful.
30.I will now turn to your experience in prison since you committed the offence for which you are to be sentenced.
Prison Transfer to NSW
31.You explained to the Elders that, immediately following the offence, you were placed in segregation at the AMC until 11 December 2020 (that is, about three weeks), after which you were transferred to Goulburn Correctional Centre. Whilst in prison in Goulburn, you spent a further three months in segregation, in what you referred to as ‘supermax’. There you were again subject to disciplinary action, as a consequence of your behaviour. Promisingly there were no disciplinary actions after 15 June 2021. You were subsequently moved to the Parklea Correctional Centre.
32.You have not been able to have face-to-face visits with family since 17 November 2020. You had enjoyed these prior to the offence. It appears that this has been, at least in part, a consequence of Covid-19 restrictions. Regardless, the absence of in-person visits from family for over a year-and-a-half is a weighty burden. As you explained to the Elders, this has meant that you have not had an opportunity to be with family, to mourn the death of your aunt.
33.The Elders expressed deep concern about you not having had an opportunity to express your grief. As Aunty Dulcie said, ‘it can well up inside you and let go in a way you don’t control’. It seems that this is exactly what happened at the time of your offending. She asked you what you can do to express your grief, if you can’t see family. You responded that you are now learning to deal with your upset and frustration through exercise. You said, ‘I jog in the yard … really fast and just burn myself out’.
Denial of Parole Application and Experience in Parklea Correctional Centre
34.The non-parole period for your current sentence expired on 2 September 2021. You became emotional, when you explained to the Elders that your parole application was ‘knocked back’ in early 2022 and that you lost your girlfriend as a result. I infer that the remaining term of six months’ imprisonment was too long for your relationship to endure.
35.You spoke honestly to the Elders about turning towards drugs within prison, as a way of dealing with your sadness at the separation from your partner and having to let go of the life you had planned to live with her. As you explained, this drug was ‘Buvidal’, or Buprenorphine. Buprenorphine is frequently prescribed for opioid addiction management. In your case, it was not prescribed, but illicitly obtained.
36.As you explained, sadness overwhelmed you and you resorted to the ‘quick fix’, despite knowing it was not ‘the right road to take’. As you later said, from your perspective, you had little alternative, because you were locked in a cell with your own thoughts and drug use was the only relief. The Elders again expressed concern about your capacity to deal with grief and loss and the need for you to develop alternative strategies, through counselling or other mentoring relationships.
37.Thankfully your outlook has improved in recent months. This coincided with, and was likely in part a consequence of, the development of your relationship with an Aboriginal employee of the Parklea Correctional Centre, who started a cultural mentoring program. It appears that he saw your leadership potential, quickly engaging you in supporting the program he had established. This engagement involved you mentoring other First Nations ‘brothers’ in the correctional centre, including those older than you. You explained that you were able to help other detainees calm down when they were upset.
38.Aunty Rose described your work as a mentor as an ‘honour’. She said you needed to grasp what your selection for this role says about you and your potential. I agree; the leadership capacity you are demonstrating offers great hope for you and for others you may support in the future, provided you get support and mentoring to learn strategies to help yourself make wise choices.
39.Strengthening your connection to community and culture in this way may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021); R v BS-X [81]-[82].
40.In fact, as you explained, at the time that you spoke with the Elders, you were working with fellow First Nations detainees to prepare a cultural dance performance for NAIDOC celebrations this year.
41.Along with your cultural mentoring work, you have further established your training and exercise routine, imagining a future in which you might be employed to support others to reach their personal training goals. This has been a goal for you for some time, leading you to complete a Certificate III in Fitness at TAFE when you were 17.
Release Plans and the Future
42.With an appreciation of your commitment to fitness, personal training and giving and receiving cultural mentoring, the Elders spoke with you about the work of the Indigenous Marathon Foundation. They saw in you the potential to join the ‘Warriors’ program and work with mentors and coaches, to establish a healthy lifestyle and train, first for a 10 km run around Uluru and then for a marathon in New York. You thought this possibility sounded ‘deadly’. Understandably, though, your first commitment upon release is to spend time with your father and mother, both of whom are in ill-health.
43.When you are released, you want to stay with your father for a couple of weeks, before moving to the Gold Coast, to be with your mother. You know that she has had scans of her chest that have revealed lumps. You are concerned about her facing a battle with cancer. She has told you not to worry, but you are worried.
44.From speaking with your mother, you understand that your half-brother’s father is prepared to offer you work in the construction industry on the Gold Coast. You haven’t thought far beyond this, but I imagine that you will spend significant time with both parents, depending on their circumstances and need for support.
45.Given your history of drug misuse, including whilst in detention, there are significant concerns about your capacity to resist the urge to resort to drugs, particularly methamphetamine, once you return to the community. You will face significant challenges re-engaging with society and finding stability. The Elders expressed concern that there may be more grief and loss ahead for you and that you will need to stay strong and develop alternative coping strategies, with the help of others.
46.You acknowledged that residential rehabilitation could be helpful for you. However, you said you just want to go home and be with family. It would be unrealistic to expect a young man, in your position, having served two years in prison, not to be motivated by a strong desire to reconnect with family, to offer support and receive support. These connections are crucial to your healing.
Sentencing Purposes
47.In sentencing you today, I am required to consider the purposes of sentencing set out in section 7 Crimes (Sentencing) Act 2005 (ACT).
48.You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused and your moral culpability, judged by reference to your experience of grief and loss at the time and also your history of childhood disadvantage: Bugmy v The Queen at [44].
49.Your sentence must deter you and others from offending, particularly from damaging property whilst in custody. General deterrence is important in your case: R v Rappel [2019] ACTCA 11 at [24]. There are also particular legislative provisions that apply to offences committed whilst in custody, which I will come back to.
50.The sentence must recognise the harm you caused and denounce the conduct you engaged in on 17 November 2020 in the exercise yard at the AMC. It is important that you understand that I am not denouncing you as a person. You are responsible for your offending on that day, but it does not define you.
51.Importantly, the sentence must be designed to promote your rehabilitation and protect the community. Though these purposes can conflict, ultimately, as stated by French CJ in Hogan v Hinch [2011] HCA; 243 CLR 506 at [32] ‘Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest’.
52.Given your youth, particular emphasis must be given to rehabilitation: R v Mills [1998] 4 VR 235 at 241-242.
Legislation Concerning Offences in Lawful Custody
53.You committed the offence of damaging property while you were in lawful custody. I have been assisted in considering the operation of statutory provisions that apply to such offending by a series of recent Supreme Court and Court of Appeal cases, including R v Rappel; Biddle v Gatherer [2021] ACTSC 236; 17 FLR 328; Horan v O’Brien [2021] ACTSC 323 and R v Winters [2022] ACTSC 42.
54.Because you committed the offence in lawful custody, s 64(2) of the Crimes (Sentencing) Act 2005 (ACT) prevents me from imposing a non-parole period for the offence. Given the length of the sentence I will impose and the fact that you are so close to the completion of your current sentence, I would not have set a non-parole period, even if I did have that power. However, I note that in other cases the absence of a power to set a non-parole period is likely to be counterproductive for community safety: see R v Winters at [34].
55.Section 72 of the Crimes (Sentencing) Act 2005 (ACT) further provides that, unless I give a direction to the contrary, the sentence imposed must be served consecutively. This means that, unless I direct otherwise, the sentence I impose must be served at the end of the sentence you are currently serving.
56.The purpose of s 72 is to ensure that ordinarily no leniency is to be afforded to those who offend while in custody: R v Rappel at [24]. However, because your offence did not involve you causing harm or threatening to cause harm to correctional officers, there is no requirement that you establish ‘special circumstances’ to justify a departure from the norm of total accumulation: R v Winters at [31].
57.In your case, I have decided that it is appropriate to make your sentence partially concurrent with the sentence you are currently serving. This is because the principle of totality ‘is not to be ignored despite the default statutory position’: R v Winters at [31]. Partial concurrency will be achieved by backdating your sentence to commence on 3 April 2022, in accordance with s 63 of the Crimes (Sentencing) Act 2005 (ACT).
58.Totality is of particular importance in your case because the denial of your parole application, which was one consequence of your offending, has meant that you have been required to serve the full two-year sentence originally imposed on you. Significant parts of that sentence have been served in segregation during the Covid-19 pandemic, preventing you having face-to-face contact with family or loved ones.
59.All this must be considered in ensuring the sentence imposed on you reflects the overall criminality of your offending. That sentence must also ‘hold out a proper measure of hope for, and encouragement to, rehabilitation and reform’ for you as a young man: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 341.
The Sentence
60.It was accepted that a sentence of imprisonment must be imposed. This must be so, having regard to the seriousness of the offence. However, ultimately, I have determined that the various purposes of sentencing can be achieved by suspending that sentence from the end of your current sentence, which is 2 June 2022. This is the approach that was recommended by the Elders.
61.Requiring you to spend further time in prison will not support your rehabilitation. Specific deterrence and a measure of community protection can be achieved by requiring you to be of good behaviour for a period of 12 months upon your release. This means that if you commit any offence within that period, the suspended term of imprisonment may be imposed on you. Specific deterrence is also achieved by recognising that your offending had significant consequences for you, in relation to the way you served your sentence and the denial of your parole application. These aspects also enable the achievement of general deterrence.
62.I have considered whether your rehabilitation and the protection of the community would be promoted by requiring you to be supervised by correctional services during the period of good behaviour. Ultimately, again with the benefit of a recommendation made by the Elders, I have decided that your release plans and intention to live between NSW and Queensland mean that supervision would be complicated and potentially counterproductive.
63.In the experience of the Elders and the Galambany Court, effective culturally appropriate support for those on good behaviour orders is often provided by Yeddung Mura. Yeddung Mura is an Aboriginal corporation that has been delivering services to First Nations people in the ACT region since 2008. Yeddung Mura means ‘good pathways’ in Ngunnawal. Through its programs and support services, Yeddung Mura aims to build strong families and strong communities. Although individual and group-based culturally appropriate and therapeutic support is delivered in the ACT to clients of Yeddung Mura, its employees are also able to provide support, connection and direction over the phone. Yeddung Mura, could, for example, facilitate your engagement with the Indigenous Marathon Foundation, if the future holds that path for you. For this reason, the Elders recommended that your good behaviour order contain a condition that you engage with Yeddung Mura. The extent of your engagement will be a matter for you.
Reparation
64.Finally, a reparation order is sought. I have a discretion whether or not to make that order. Given the large amount of money that is involved and your personal circumstances, making such an order may well hinder your rehabilitation: see R v Steen [2015] ACTSC 259 at [51]-[52]; Winters at [39]. For this reason, I will not make the order.
Orders
65.The sentence I impose is as follows:
a) You are convicted and sentenced to a term of imprisonment for 6 months, reduced from 8 months, because of your plea of guilty. The sentence is backdated to commence on 3 April 2022.
b) The sentence is suspended from 2 June 2022, upon you entering into a good behaviour order for 12 months on the condition that you engage with Yeddung Mura.
c) I decline to make an order for reparation.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Hopkins sitting with the Elders of the Galambany Court. Associate: A. Gallagher Date: 20 May 2022 |
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