Noble v Rappel
[2020] ACTMC 8
•15 April 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Noble v Rappel |
Citation: | [2020] ACTMC 8 |
Hearing Date(s): | 29 January 2020, 1 April 2020 |
DecisionDate: | 15 April 2020 |
Before: | Magistrate Stewart |
Decision: | See [27]–[28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – consecutive sentence – assault corrections officer |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 Crimes (Sentencing) Act 2005 (ACT) s 72 Corrections Management Act2007 (ACT) s 155 |
Cases Cited: | Burgoyne v Dixon [2004] NTSC 37 Davis (Unreported, NSW CCA, 4 February 1994) Hodgson v Frame & Spies [2006] ACTSC 82 R v NO (No2) [2018] ACTSC 73 The Queen v Rappel [2019] ACTCA 11 The Queen v TA [2004] ACTSC 274 |
Parties: | Michael John Noble (Informant) Marcus Rappel (Defendant) |
Representation: | Counsel Ms Jamieson-Williams (Crown) Mr Bevan (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Bevan & Co Lawyers (Defendant) | |
File Number(s): | CC 8944 of 2019 |
MAGISTRATE STEWART:
FACTS
On 23 June 2018 the defendant was a sentenced prisoner at the Alexander Maconochie Centre (AMC).
He was involved in an altercation with another prisoner and suffered a laceration to his forehead.
The defendant became impatient during treatment by an AMC nurse and moved away to make himself a cup of coffee. The defendant was holding a bloody bandage to his forehead.
The complainant, an ACT Corrections Officer, followed the defendant and advised him that coffee would be available to him after his medical treatment was completed.
The defendant turned and struck the complainant with his bandaged fist. The force of the strike knocked the complainant off balance. The strike caused immediate pain to the complainant’s left cheek and blood transfer from the bandage to the officer’s face.
The defendant continued to lunge at the complainant who had then covered his face. Other officers became involved and the defendant was restrained, had his medical treatment finalised and was returned to his cell.
OBJECTIVE SERIOUSNESS
The maximum penalty for s26 of the Crimes Act 1900 (ACT), common assault is two years imprisonment.
No injury arising from blood transfer is alleged, but one would expect that the transfer of biological fluid to the face of the complainant inspired in him a real fear of disease transfer.
The assault was unprovoked and followed up with further unsuccessful strikes.
The assault involved an actual application of force that caused pain to a vulnerable area of the body.
The assault occurred in circumstances where the complainant was lawfully fulfilling his role as a corrections officer. Whilst the defendant remained untreated, or partially treated and bleeding, he remained a health risk to himself and others at the AMC. The risk of disease transfer through fresh biological fluid and open skin injuries is obvious and, in my view, a matter of which judicial notice may be taken.
Corrections officers have a right to safety in the workplace. Assaults upon them should be treated seriously by the courts and general and specific deterrence are relevant. Davis (Unreported, NSW CCA 4 February 1994) per Wood J, Burgoyne v Dixon [2004] NTSC 37 per Thomas J, The Queen v TA [2004] ACTSC 274 Connolly J and Hodgson v Frame & Spies [2006] ACTSC 82 Connolly J are all authorities for such a position. This type of sentence must send a message to the defendant and other prisoners that the court will not tolerate or condone violence against corrections officers.
I assess the objective seriousness as being above the median range, but well below the most serious category of offending.
CONSIDERATION OF PENALTY
A plea of guilty was entered at a very early stage. Even though it was a potentially strong prosecution case, I will afford the defendant a 25% discount for the saving to the community and utilitarian value of that plea.
The defendant is presently serving a considerable head sentence and non-parole period for other offences of violence. He is presently eligible for parole on 28 February 2044. He will then be 69 years of age. He has not re-offended since this offence and I think that he is now well aware that each sentence he now receives is extending his non-parole period to the point where he will be quite aged when released or may not live to see release.
There is a NSW Sentencing Assessment Report for this offence – it notes that the defendant declined the opportunity to take part in the report. The defendant disputes this. He does not get extra punishment for this absence of evidence.
The defendant’s mother gave evidence on the last occasion. She has high hopes for his rehabilitation and voiced genuine concern that the defendant will die in custody. Importantly, she sees good in him and expressed a strong view about him having committed a terrible crime but still possessing positive attributes to his character.
I think that the court has every reason to be guarded about the prospects of rehabilitation of the defendant. One thing that the court does know from that limited report is that members of his family visit him regularly – perhaps less now that he has been moved to NSW. This fact of these visits and the evidence called in this proceeding serve to indicate that there is a glimmer of hope for his rehabilitation.
CONSECUTIVE UPON PRESENT SENTENCE
S 72 of the Crimes (Sentencing) Act 2005 specifically sets out what is to occur when a corrections officer is the subject of the offence causing harm or threat to cause harm. The effect is, that unless special circumstances apply, the court must not direct that a sentence be served concurrently or partly concurrently with the existing sentence:
72 Concurrent and consecutive sentences – offences while in custody or unlawfully absent
(1)This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a)an offence committed while the offender was in lawful custody;
(b)an offence committed while the offender was unlawfully absent from a correctional centre or other place during the term of the offender’s sentence of imprisonment;
(c)an offence involving an escape from lawful custody.
(2)In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3)The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4)Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.
In the case of Davis cited above His Honour Justice Wood of the NSW Supreme Court set out very succinctly why sentences of this type should be consecutive upon the sentence already being served:
“The maintenance of discipline within corrective institutions is a matter of very great importance…It is a consequence of that fact that sentences for offenders involving attacks on prison officers in the execution of their duty must involve, as a significant component, both personal and general deterrence, saving special circumstances such that sentences in my view should be accumulated upon any sentence already being served, otherwise the sentence loses any sting with personal deterrence.”
It is clear that moving the defendant to Goulburn has reduced the capacity of his family to visit him. But again, I do not know what the family visit situation will be when this sentence takes effect. Regardless, there is authority to the effect that the defendant has put himself and his family in this situation by his own offending and re-offending. See for example R v NO (No2) [2018] ACTSC 73 per Penfold J.
The Defendant has submitted through Mr Bevan that he is no longer in the ACT Corrections System and therefore his imprisonment is not subject to the Human Rights Act. That may be so at the present time – but at the time this sentence takes effect he will be aged 69 years and it may well be that he is back in the ACT system as a quiet older man awaiting release. The Court hopes so.
I find that there are no special circumstances that arise to allow for a concurrent or partially concurrent sentencing approach.
S155 CORECTIONS MANAGEMENT ACT 2007
The police facts state that no disciplinary action was taken at the AMC, however the defendant was moved to the Goulburn correctional facility in NSW after this offending.
The prosecution submits that there is no evidence of this move being disciplinary action and so S155 of the Corrections Management Act 2007 has no role to play.
There has been no application for a stay of proceedings pursuant to there having been disciplinary action imposed for this assault. In my view it has not been established that any disciplinary action was taken. This was the second assault that the defendant was involved in at the AMC – it is unsurprising that he was moved to a different correctional facility for non-disciplinary reasons.
CONSIDERATION
Every day of the defendant’s life will be precious at the age of 69 and that is when this sentence will take effect. I have taken all of the oral and written submissions of the parties, the evidence and the relevant sentencing and other legislation into account. I think that given all of that and my remarks above and considering totality (as I have decided that the sentence must be consecutive), an appropriate start point for the offending is eight months. That is a hefty sentence for a single punch. I reduce that by 25% for the plea leaving the defendant with a six month sentence to be added consecutively to his present head sentence. Following from the non-parole ratio set by the Court of Appeal in The Queen v Rappel [2019] ACTCA 11, I fix a corresponding increase in the defendant’s single non-parole period of three months. It will then be up to parole authorities in whatever form they take in 2044 to consider whether the defendant should be paroled.
SENTENCE
The orders of the Court are:
(a) The charge is proved and a conviction is recorded.
(b) Mr Rappel is sentenced to six months imprisonment commencing 28 April 2053 and expiring on 27 October 2053.
(c) The single non parole period for his prior sentences and for this additional sentence now expires on 27 May 2044 – a three month increase.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgement of his Honour Magistrate Stewart. Associate: Kefilina Faupula Date: 15 April 2020 |
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