Pikula-Carroll v The Queen
[2022] ACTCA 12
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Pikula-Carroll v The Queen |
Citation: | [2022] ACTCA 12 |
Hearing Date: | 10 November 2021 |
DecisionDate: | 25 March 2022 |
Before: | Mossop and Banks-Smith JJ, McWilliam AJ |
Decision: | See [59] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – murder by joint commission – appellant accompanied co‑offender who shot deceased through his front door at the commencement of aggravated burglary – whether the Crown had proved that appellant knew gun was loaded – it had not – resentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 33(1)(w) |
Cases Cited: | Brown v The Queen [2020] VSCA 212; 62 VR 491 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Verdins [2007] VSCA 102; 16 VR 269 |
Parties: | Jason Pikula-Carroll ( Appellant) The Queen ( Respondent) |
Representation: | Counsel F Purnell SC ( Appellant) K McCann ( Respondent) |
| Solicitors Bevan & Co Lawyers ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 48 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 1 December 2020 Case Title: R v Pikula-Carroll (No 2) Citation: [2020] ACTSC 347 |
THE COURT:
Introduction
The appellant, Jason Pikula-Carroll, has appealed against sentences imposed by Burns J (the primary judge) on 1 December 2020: see R v Pikula-Carroll (No 2) [2020] ACTSC 347 (Reasons). The sentences imposed arose out of two incidents involving aggravated burglaries that occurred on 22 September 2016 and 3 November 2016. Tragically, the incident on 3 November 2016 resulted in the death of Mr Eden Waugh, who was shot in the chest by the appellant’s co-offender, Peter Forster-Jones. Mr Forster-Jones discharged a shotgun through the door of Mr Waugh’s unit and Mr Waugh suffered fatal wounds to his heart and lung.
The appellant was sentenced on six counts. The first four counts related to the aggravated burglary that occurred on 22 September 2016. The aggregate sentence for those offences was eight years. The fifth and sixth counts related to the aggravated burglary that occurred on 3 November 2016. A sentence of 20 years was imposed for count 5, a charge of murder, and a sentence of eight years was imposed for count 6, a charge of aggravated robbery. The aggregate sentence relating to the events on 3 November 2016 was 22 years and six months. The overall aggregate sentence was 30 years’ imprisonment with a non-parole period of 18 years.
The sentences imposed are summarised in the following table.
Count
Sentence
Cumulation
Count 1: aggravated burglary
Six years
Count 2: assault occasioning actual bodily harm (Mr Waugh)
Three years
One year
Count 3: assault occasioning actual bodily harm (Mr Cajina)
18 months
Six months
Count 4: assault occasioning actual bodily harm (Mr Baxter)
One year
Six months
Count 5: murder
20 years
19 years and six months
Count 6: aggravated burglary
Eight years
Two years and six months
Aggregate sentence
30 years
Non-parole period
18 years
The charges of assault occasioning actual bodily harm were rolled up charges incorporating all of the assaults upon each of the three identified victims: Mr Waugh, Mr Cajina and Mr Baxter.
The facts
The facts were largely agreed and set out in a Statements of Facts to which there was no objection. The primary judge found the facts as follows.
22 September 2016
13.Eden Waugh and Ms Barr were partners and had been in an on-again-off-again relationship for approximately five years.
14.They resided in a third floor unit in a complex in Watson in the ACT. They were both involved in selling heroin and methylamphetamine from the unit. Their unit was a regular place drug users would visit to purchase or use illicit drugs. David Baxter stayed in the second bedroom of the unit in Watson from about the end of September 2015 until early October 2016. Jamie-Lee Weaver is a friend of Mr Baxter. Jairo Cajina was a friend of Mr Waugh's and would occasionally stay at the unit. Mr Baxter, Ms Weaver and Mr Cajina were present at the unit when the offences of 22 September 2016 occurred.
15.At approximately 5:10 am on 22 September 2016, an associate of yours attended the unit in Watson to purchase heroin. He knocked loudly on the door a number of times and called out Mr Waugh's name. No-one responded. After a period of time, a male visitor to the house appeared at the door and threatened your associate with a knife.
16.Between 5:52 am and 6:09 am you and Mr Waugh exchanged text messages about this altercation at the unit. You stated that you were angry as a knife had been pulled on your associate, to whom you referred as your “little brother”, and stated that you wanted an apology, the money back and to sort out the issue with the male visitor “man to man”.
17.Shortly before 7:30 am on 22 September 2016, you and your two co-offenders, Peter Forster-Jones and Phouthakone Sikounnabouth arrived at the Watson unit and went to the front door. You were armed with a sawn-off double barrel shotgun. Mr Forster-Jones was armed with a machete and Mr Sikounnabouth was armed with a metal pole or bat. Inside the unit were Mr Waugh, Ms Barr, Mr Baxter, Ms Weaver and Mr Cajina. Mr Baxter and Ms Weaver were together in the second bedroom. You knocked on the front door and Ms Barr opened it. You and your two co-offenders then entered the unit. Ms Barr grabbed her bag and ran out the door.
18.Outside the unit Ms Barr contacted her friend for help. Ms Barr’s friend then contacted police to inform them of the home invasion. You told Mr Waugh to sit on the couch which he did. You then gratuitously struck him to the head with the butt of the shotgun leaving a laceration. You and your co-offenders demanded drugs and money from Mr Waugh. Mr Forster-Jones raised the machete to strike Mr Waugh and Mr Waugh raised his arm to shield himself. The machete struck Mr Waugh's right wrist leaving a deep laceration with his dorsal tendons exposed through the wound.
19.You and your two co-offenders broke down Mr Waugh's bedroom door to look for drugs and money. Mr Waugh said that he did not have anything and kept apologising and calling out for help. Mr Forster-Jones struck Mr Cajina to the head with the machete. Mr Cajina jumped out a window to escape sustaining fractures to the L2 and L4 vertebrae of his lumbar spine. He also sustained lacerations to his scalp from being struck with the machete and multiple lacerations to his hands. Mr Baxter and Ms Weaver were in the second bedroom while this was going on. You barged into that bedroom and demanded your money or your drugs. Mr Baxter stood up quickly and shouted.
20.By now you were in possession of the machete and you struck Mr Baxter in the head with it, leaving him with a laceration over his left eye. You ransacked the room saying, “[w]here's our cash?” Mr Forster-Jones then entered the room and handed you the shotgun while you handed him the machete. You then struck Mr Baxter to the forehead with the shotgun before waving it in the air. You also pointed it at him. You and your two co-offenders then left the unit carrying your weapons. You got into a parked car before driving away. Police attended the unit and, to some extent, Mr Waugh co-operated with them in their investigation of these offences.
21.You gave evidence at the sentence hearing that you went to the unit at Watson on the morning of 22 September 2016 to “fix [your] relationship” with Mr Waugh. If by use of the phrase “fix [your] relationship” you intended to suggest that you had not gone to the unit with the intention of threatening the occupants and engaging in violence, I do not accept your evidence. You gave evidence that weapons were taken with you and your co‑offenders as a means of protecting yourselves. This is not consistent with what occurred when you entered the unit. None of the occupants of the unit offered you any violence and, in fact, Mr Waugh sat down on the couch as directed by you before you struck him with the butt of the shotgun and Mr Forster-Jones struck him with the machete.
22.Mr Waugh was helpless, unarmed and compliant and yet both you and Mr Forster-Jones viciously attacked him. When you went into the second bedroom, you were not attacked by Mr Baxter, but you nevertheless struck him with the machete. There is no evidence that Mr Cajina behaved aggressively towards you or your co-offenders or failed to comply with your directions and yet Mr Forster-Jones struck him with the machete. The evidence clearly establishes that you and your co-offenders went to the unit armed with weapons and with the intention of acting aggressively and inflicting injuries or wounds on the occupants. This was intended to be retribution for the treatment of your associate earlier that day. In your evidence, you agreed that it was your idea to go to the Watson unit on that occasion.
Objective seriousness
23.In assessing the objective seriousness of the offence of aggravated burglary, I take into account that the offence involved both forms of statutory aggravation, being that it was committed in company and with all of the offenders possessing offensive weapons. The offending was pre-meditated, and the purpose of the offending was to punish the occupants of the unit for the incident that had occurred earlier that day involving your associate. You were the instigator of this offence.
24.I do not take into account the fact that a number of people were injured during the course of this offence because that fact is taken into account with regard to the offences of assault occasioning actual bodily harm. While not falling within the category of the worst type of such offences, the present offence of aggravated burglary is certainly towards the top of the range of objective seriousness of such offences. You personally inflicted some of the injuries which are the subject of the charges of assault occasioning actual bodily harm and your co-offender, Mr Forster-Jones, inflicted the remainder of the injuries.
25.With regard to the injuries inflicted by Mr Forster-Jones, you are culpable because they were inflicted in accordance with an agreement between yourself and Mr Forster-Jones. By virtue of the provisions of s 45A of the Criminal Code, you are culpable with regard to the offences committed by Mr Forster-Jones. The injury inflicted on Mr Waugh's arm was particularly serious. It required him to be hospitalised and to undergo corrective surgery on his dorsal tendon. This injury is towards the top of the range of injuries that would fall within the description of actual bodily harm. He was also struck to the head with the butt of the shotgun causing a laceration. Offensive weapons were used. The offence occurred in the victim's own home. At the time of the offence, the victim was particularly vulnerable because he was unarmed and seated on a lounge. I would assess this offence of assault occasioning actual bodily harm as towards the top of the range of such offences.
26.The injuries sustained by Mr Cajina were also particularly serious. His actions in jumping out of the third floor window speak of the terror which you and your co-offender intentionally inflicted upon him. This offence also falls towards the top of the range of such offences.
27.The injury sustained by Mr Baxter was not as serious as those sustained by the other victims, but it was not trivial. This offence falls in the mid-range of such offences.
28.
While the offences of assault occasioning actual bodily harm were clearly
pre-meditated, I do not take them into account in sentencing you for these offences. The element of premeditation attending these offences is subsumed in sentencing for the offence of aggravated burglary and to take premeditation into account for the offences of assault occasioning actual bodily harm would be to inflict a punishment on you twice for the same conduct.
3 November 2016
29.At about 7:40 pm on 3 November 2016, you, together with Mr Forster-Jones and Mr Sikounnabouth returned to the Watson unit in a silver Toyota Corolla. Mr Sikounnabouth waited in the car while you and Mr Forster-Jones went up to the unit. Forster-Jones was armed with a 12 gauge sawn-off shotgun and was carrying a bag with a machete inside. The gun was the same gun procured by you and used in the aggravated burglary on 22 September 2016. Mr Forster-Jones was dressed in black, wearing a hoodie, gloves and a balaclava to cover his face. You were armed with a crowbar and dressed in lighter coloured clothing, wearing a hoodie, gloves and a balaclava to cover your face.
30.The front screen door and the front wooden door of the unit were both locked. You and your co-offender knocked on the front door and attempted to force entry into the unit. You shook open the screen door and then started kicking the locked wooden door. Mr Waugh and Ms Barr were both inside the unit at the time, attempting to keep the door closed to prevent you from entering the unit.
31.Mr Waugh was kneeling on the floor holding the door. Mr Forster-Jones fired a single shot through the wooden front door at close range below the door handle. The projectile penetrated through the wooden door and entered the left side of Mr Waugh's chest causing fatal injuries to his heart and lung. Prior to this shot being fired, Ms Barr had used her mobile phone to call 000. The call commenced at just after 7:45 pm and recorded for about four and a half minutes. The shot can be heard in the recording as can you and your co-offender demanding heroin.
32.After shooting through the front door, Mr Forster-Jones put the shotgun away in the bag that he was carrying and took the machete from the bag. You and he then forced the front door open and entered the unit. You demanded heroin before grabbing Ms Barr by her shirt and pushing her to the ground. She was grabbed by the shirt and hair and dragged along the floor.
33.You took her handbag in which there was about $200 cash and the mobile phone that she had commenced the 000 call from. That call remained connected when you left the unit and got back into the Toyota Corolla. Your conversations with your co-offenders were recorded for a period while you were in the car.
34.In your evidence before me you said that you did not know that the shotgun which Mr Forster-Jones was carrying was loaded before he discharged it and that when you had the conversations in the car after the event you did not know that Mr Waugh was dead.
35.The 000 recording satisfies me that both of these assertions are untrue. Inside the vehicle you are the first to speak. Obviously speaking to Mr Forster-Jones you said “[y]ou're a gangster. You're a fucking gangster”. Shortly after that statement, Mr Forster‑Jones said, “I fucking killed a cunt, bro” to which you replied “I know”. I accept as accurate the Crown's submission that your tone of voice when making these statements can be described as jubilant. There is nothing in the 000 recording suggestive of surprise on your part that the shotgun had been fired either immediately after it was fired or during the period in which your conversations with your co-offenders in the car were recorded.
36.After the gun was fired, you simply continued with the task of breaking through the front door of the unit. When you forcibly entered the unit, you were confronted with Mr Waugh's body lying on the ground. In your evidence, you said that you did not know at that point that Mr Waugh had been shot. I do not accept that evidence. It is simply incredible that knowing that a gun had been discharged into the door at close range and that there were occupants of the unit on the other side of the door trying to bar your entry, it never occurred to you that the person lying on the ground inside the door may have been shot.
37.Neither you nor Mr Forster-Jones took any steps to ensure that Mr Waugh did not get up and interfere with you as you searched the unit for drugs and money. On 22 September 2016, one of the first things that you did on entering the unit was to attack and subdue Mr Waugh even though he was compliant with your demands. The fact that you ignored his presence after you entered the unit on 3 November 2016 speaks of your belief that he presented no threat to you or your plans because you knew he had been shot. When you got back to the car and Mr Forster-Jones said, “I fucking killed a cunt, bro” your response was “I know”.
38.You expressed no surprise at the proposition that Mr Waugh had been shot or that the shotgun was loaded or that Mr Waugh was dead. You expressed no remorse for the shooting or concern for Mr Waugh. You lauded Mr Forster-Jones for his actions and did so at a time when, in your own words, you knew that he had killed Mr Waugh. Your evidence that you said what you did in the car because you were concerned for your own safety is simply not credible.
39.You gave evidence that you were highly intoxicated on a mixture of heroin and methamphetamine on 3 November 2016 when you committed these offences. I am not persuaded that this is the truth. Much of what you said during your evidence was directed towards minimising your culpability. You were not so impaired by any intoxicating substance as to impede your ability to force entry into the unit and to engage in a search of the unit for drugs and money. There is no indication in the recording of the 000 call that you were significantly impaired by any intoxicating substance. I am satisfied on the standard of beyond reasonable doubt that you were aware that the shotgun was loaded on 3 November 2016 when you and Mr Forster-Jones approached the unit.
40.The Crown suggested that the reason that you and Mr Forster-Jones wore balaclavas on 3 November 2016 was that you went to the unit intending to inflict serious injury on Mr Waugh and that you did not want to reveal your identities. I am not satisfied to the requisite standard that you went to the unit intending to either kill Mr Waugh or to personally inflict serious injury on him. By 3 November 2016, you were aware that Mr Waugh, although a member of the criminal underworld as a drug dealer, was willing to co-operate with the police in prosecuting you for the offences on 22 September 2016. This would explain the fact that you chose to disguise your appearance on 3 November 2016 whereas you had not done so on 22 September 2016.
41.I am also satisfied beyond reasonable doubt, for the reasons that I have given, that you contemplated that the shotgun may be discharged during the anticipated aggravated robbery on 3 November 2016. This is consistent with your plea of guilty to the charge of murder. The basis of the charge of murder against you was that you and Mr Forster‑Jones were part of an agreement to commit an offence, being an agreement to commit the offence of aggravated robbery and in the course of carrying out that agreement the offence of murder was committed.
42.Proof of the offence of murder in this way is permitted by s 45A of the Criminal Code. By virtue of your plea of guilty, you accepted that you were reckless about the commission of the offence of murder by Mr Forster-Jones. In that regard, see s 45A(3). Recklessness, for the purpose of this provision, is a reference to the common law test of recklessness. I am satisfied that you were aware of the possibility that Mr Forster-Jones may commit the offence of murder in one of the forms that that offence may be committed in the course of carrying out the agreement to commit the offence of aggravated robbery.
43.The offence of murder is found in s 12 of the Crimes Act. The offence may be committed in one of three ways. Firstly, by causing the death of another person while intending to cause the death of any person. Secondly, by causing the death of another person with reckless indifference to the probability of causing the death of another person. Thirdly, by causing the death of another person while intending to cause serious harm to any person.
44.Your co-offender, Mr Forster-Jones, pleaded guilty to the offence of murder and came to be sentenced on the basis that he had committed the offence in the second way I referred to, that is by acting with reckless indifference to the probability of causing death to a person.
45.Section 45A(3) of the Criminal Code focusses on the mental processes of the person who did not commit the actual crime but was party to an agreement to commit a crime in the course of which the actual crime was committed. Section 12 of the Crimes Act, on the other hand, addresses the mental processes of the person who actually commits the crime. Knowledge of the mental processes or intention of Mr Forster-Jones should not necessarily be imputed to you. I will proceed on the basis that you were aware of the possibility that Mr Forster-Jones may cause the death of another person while he was intending to cause serious harm to another person during the course of the proposed aggravated robbery, including causing serious harm by discharging the shotgun.
46.It is probable that the decision to commit the offences on 3 November 2016 was a decision arrived at jointly by you and your co-offenders. I have no doubt that part of the motive for committing the offences on 3 November 2016 was to deter Mr Waugh from further co-operating with police in the investigation of the offences of 22 September 2016. This was a motive which all three of you possessed.
Objective seriousness
47.In assessing the objective gravity of the offence of murder to which you have pleaded guilty, I take into account a number of circumstances. Firstly, the offence involved the use of an offensive weapon, being a shotgun. Secondly, the offence was committed in company. It is an aggravating circumstance of the offence that it was committed, at least in part, with a view to deter Mr Waugh from co-operating with the police investigating the crimes you committed on 22 September 2016. I also take into account that the offence of murder occurred in the course of another offence, being a robbery. It is also relevant to observe that the offence occurred in the victim's own home and was an instance of repeated offending against the same victim. The offence was cowardly in that it was committed against an unsuspecting and unarmed victim.
48.Mr Waugh could not have anticipated that the shotgun would be discharged through the front door. While the offence of murder itself cannot be described as being planned or premeditated, the proposed offence of aggravated robbery during which the murder occurred was both planned and premeditated. In your case, at least, you were aware of the possibility that Mr Forster-Jones may cause the death of another person in the course of committing the offence of aggravated robbery. While you did not pull the trigger, there is little difference in moral culpability between yourself and Forster-Jones for the offence of murder.
49.Turning to the offence of aggravated robbery, I take into account that this offence occurred in circumstances of extreme callousness. It was submitted by the Crown that you stepped over the body of Mr Waugh after he had been shot to commit this offence. You disputed the suggestion that you stepped over his body. To my mind, nothing much turns upon this dispute. It is clear that at the least you walked past the body of Mr Waugh in order to commit the offence and showed no concern for him. The offence of aggravated robbery involved the use of actual violence and occurred in the victim's own home.
50.Both statutory elements of aggravation were present as the offence was committed in company and both you and your co-offender possessed offensive weapons. The robbery was premeditated. The weapons used, being a loaded shotgun and a machete, were capable of inflicting lethal injury. While not falling within the category of worst offences of aggravated robbery, this particular offence is in the upper range.
Subjective circumstances of the appellant
The subjective circumstances of the appellant were described by the primary judge as follows:
54.A report dated 1 October 2020 from Ms Leesa Morris, a forensic psychologist, was tendered at your sentence hearing. She assessed you at the Alexander Maconochie Centre (AMC) on 21 September 2020.
55.You provided her with a history of childhood trauma and of substance abuse commencing at a relatively early age. I would infer that the circumstances of your childhood fed into your commencing substance abuse at an early age.
56.Ms Morris considered that you met the criteria for diagnosis of Post-Traumatic Stress Disorder and three severe substance use disorders. She believed that as a result of your childhood trauma and substance abuse your ability to develop emotional maturity has been affected. This has impacted on your understanding of yourself and your ability to interact with the world around you. She assessed you as being at medium to high risk of re-offending, but this could be reduced through appropriate interventions.
57.Ms Morris does not describe a clear causal connection between your Post-Traumatic Stress Disorder and the commission of the present offences. It would appear that, at best, the connection is indirect in that your Post-Traumatic Stress Disorder fed into the development of your addiction, particularly to heroin. The evidence does not support a reduction in your moral culpability for these offences by reason of any mental health condition. I will take Ms Morris' opinions into account as part of your subjective circumstances, but there is nothing in her report which would warrant a significant reduction in sentence.
58.You are currently 25 years old although you were 21 years old at the time of these offences. You had no convictions recorded against you at the time that you committed these offences. After you committed the offences on 3 November 2016, you committed a further offence of aggravated breaking and entering in New South Wales for which you were sentenced to a term of imprisonment in the Queanbeyan District Court on 9 February 2018. You were sentenced to terms of imprisonment commencing on 4 November 2016 and expiring on 3 April 2019 with a non-parole period concluding on 3 April 2018. As I understand it, when you were released from custody in New South Wales you were immediately extradited in custody to the ACT and you have remained in custody since that time.
59.A Pre-Sentence Report stated that you have been in custody at the AMC since 16 March 2019. It is reported that you have been subject to numerous disciplinary actions and warnings for poor behaviour. In your evidence before me, you disputed the allegations raised by the Crown about your conduct in the AMC. As the Crown led no evidence to support the allegations that you have been involved in disciplinary offences in the AMC, I propose to ignore those allegations.
60.The Report states that you are an Aboriginal man but your mother gave evidence that you identified as Tongan. You have one sibling and 11 step or half-siblings, many of whom are involved in the criminal justice system. Your parents separated when you were young. You were exposed to drug and alcohol use and domestic violence during your childhood, mostly when you visited your father on weekends. Undoubtedly, you continue to feel the effects of your childhood to the present day.
61.You completed your education to Year 10 in the ACT. You completed Year 11 but you did not complete it according to the Pre-Sentence Report. Your mother gave evidence that while completing Year 10, you commenced an apprenticeship in plumbing. You apparently had to abandon that apprenticeship when your employer suffered an injury. You left school to take up a chef's apprenticeship, but you injured your back in the course of that employment. You subsequently received compensation amounting to approximately $80,000 of which you gave half to your mother and some to your step‑brothers. You were unable to return to work as a chef. You told the author of the Pre-Sentence Report that you spent the remainder of the compensation money on purchasing a car and illicit drugs.
62.You told the author of the Report that after your workplace injury in 2014 you developed an addiction to the pain relief medication you were prescribed. Your mother gave evidence of a similar nature. You told the author of the Report that this addiction to prescription medication was a major contributing factor in the significant increase in your use of heroin and methylamphetamine around that time.
63.Your mother testified that after your back injury you enrolled at Reid CIT, but you were subsequently arrested for offences in New South Wales of which you were ultimately acquitted. At that time, however, you lost your Working With Vulnerable People card. This had an impact on you because you had been working as a volunteer since 2010 with the Canberra Attention Deficit Disorder Support Group and the loss of the card meant that you could no longer continue in that endeavour. Your mother stated that about this time you began associating with your co-offenders and you lost touch with your pro-social football friends.
64.On the balance of probabilities, I accept that you commenced alcohol and drug abuse at a relatively early age because of your childhood experiences. Your substance abuse escalated after your back injury. Clearly, your abuse of illicit drugs played a role in the present offences and in particular your desire to obtain illicit drugs to feed your addiction. The fact that you were addicted from an early age and that your addiction was exacerbated through the use of prescription medication after your back injury are matters that shall be taken into account as mitigatory. I do note, however, that the desire to obtain illicit drugs was not the only motive for these offences. The seriousness of the present offending, however, means that the degree to which the circumstances that I have referred to can mitigate the appropriate sentence is limited.
65.It is in your favour that you have commenced opioid replacement therapy in the AMC. You have also recommenced anti-depressant medication. You have completed the First Steps Alcohol and Drug program and the SMART Recovery program in the AMC. When you were initially remanded in the AMC, at least one of your step-brothers was also being held there. Your mother gave evidence that your step-brothers are a bad influence on you. Certainly it appears that since your step-brother has left the AMC your behaviour has improved.
66.The Co-ordinating Chaplain at the AMC has provided a reference speaking of your positive behaviour in custody and I note that on 15 October 2020 you received a medium security classification within that institution.
67.Section 33(1)(w) of the Crimes (Sentencing) Act requires me to have regard to any demonstration of remorse. You have expressed remorse to your mother, the author of the Pre-Sentence Report, Ms Morris and to the Court. You have expressed remorse to the victims and their family. It is not easy to gauge whether your expressions of remorse are genuine or are simply calculated to obtain a more lenient sentence.
68.In my opinion, your expressions of remorse must be approached with great caution. One of the hallmarks of true remorse is utter frankness and I am satisfied that you have been less than frank in the evidence which you gave. Much of the evidence was directed towards minimising your responsibility particularly for the offence of murder. As I have said, you showed no remorse immediately after you committed the offences on 3 November 2016 and you apparently continued to feel no remorse the next morning when you committed an aggravated break and enter at Jerrabomberra in New South Wales.
69.There appears to have been very little by way of remorse expressed or demonstrated prior to you pleading guilty to these charges. On balance, I accept that you feel some remorse for your actions, but this is mixed with regret for yourself for the position that you are now in. I would assess your prospects for rehabilitation as fair.
Grounds of appeal
In order that the appellant’s grounds of appeal be consistent with the submissions actually advanced in support of the appeal at the hearing, the Court directed that an Amended Notice of Appeal be filed following the hearing. The grounds of appeal will be described in more detail when addressing each of them, but they raised the following issues:
i.Parity with the sentence imposed upon the co-offender, Mr Forster-Jones, having regard to certain asserted differences in circumstances.
ii.Factual errors in relation to whether the appellant knew that the gun was loaded and the appellant was highly intoxicated.
iii.That the sentences were manifestly excessive.
iv.That the primary judge erred in failing to apply the principles in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins).
v.That there was a factual error in finding that the appellant identified as being Tongan as opposed to Aboriginal.
Ground (i): Parity
This ground of appeal was (omitting detailed particulars) as follows:
i.Burns J erred in applying the parity principles as objectively there was a justifiable sense of grievance on the part of the appellant because there was a demonstrated disparity in the following areas between the sentences imposed upon both the appellant and Forster-Jones that should have resulted in the appellant receiving a lesser sentence than Forster-Jones:
a. Mental state at the time of offending
…
b. Remorse
…
c. Culpability
…
d. Roles of Forster-Jones and the appellant
…
e. Different subjectives
…
f. Prior submissions on point
…
The principle of parity is the sentencing principle that offenders who are party to the same offending should not be sentenced in a way which is so different as to create a justifiable sense of grievance on the part of the offender receiving the heavier sentence or give the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606. Where there are substantial differences in the subjective circumstances of such offenders, or their role in the offending, then the sentences imposed should reflect that difference. The rationale for the principle is that of equal justice: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [28]. The principle “acknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with different subjective circumstances that must be taken into account”: R v Nicholas; R v Palmer [2019] ACTCA 36 at [99]. The principle only applies to offenders charged as parties to the same crime or charged with different offences arising out of the same criminal activity: Green at [29]-[30].
10. Although both Mr Forster-Jones and Mr Sikounnabouth were involved in the offending, it is Mr Forster-Jones who is the most relevant co-offender for parity purposes because he was also charged with murder. Mr Forster-Jones was initially sentenced to an aggregate sentence of 40 years, 5 months and 23 days’ imprisonment: R v Forster-Jones (No 2) [2019] ACTSC 286. An appeal to the Court of Appeal was allowed and he was resentenced to an aggregate sentence of 30 years with a non-parole period of 18 years: Forster-Jones v The Queen [2020] ACTCA 31 (Forster-Jones). One difference in the charges faced by Mr Forster-Jones was that the individual assaults or wounding upon the victims were charged separately rather than rolled up. As a consequence, Mr Forster‑Jones faced a greater number of charges. The sentences imposed upon him on appeal are summarised in the following table.
Count
Sentence
Cumulation
Count 1: aggravated burglary
Six years
Count 2: assault occasioning actual bodily harm (laceration to Waugh’s head)
Two years
Nil
Count 3: wounding (wound to Waugh’s arm)
Two years
One year
Count 4: assault occasioning actual bodily harm (wound to Cajina’s head)
One year
Nil
Count 5: inflict actual bodily harm (Cajina’s injuries as a result of jumping)
One year
Six months
Count 6: assault occasioning actual bodily harm (Baxter’s head injury)
One year
Six months
Count 7: murder
20 years
19 years and six months
Count 9: aggravated robbery
Eight years
Two years and six months
Aggregate sentence
30 years
Non-parole period
18 years
11. The total sentence imposed upon Mr Forster-Jones was the same as that subsequently imposed upon the appellant. The aggregate sentence imposed on Mr Forster-Jones in relation to the aggravated burglary on 22 September 2016 was eight years. The aggregate sentence imposed on both the appellant and Mr Forster-Jones in relation to the events on 3 November 2016 was 22 years and six months. Thus, notwithstanding the different number of charges, the sentence imposed upon the appellant was very similar to that imposed upon Mr Forster-Jones.
12. It is important to note that the identical sentences for murder imposed on each of the offenders were based upon different starting points. The Court of Appeal applied a discount of 5 percent in relation to the murder charge: Forster-Jones at [72]. That meant that the starting point for the sentence of 20 years’ imprisonment imposed on the murder charge was a sentence of approximately 21 years. On the other hand, the primary judge allowed a discount of 10 percent on the murder charge: Reasons at [12]. That meant that the starting point for the murder sentence was approximately 22 years. This numerical starting point was not referred to by the primary judge although he did refer to the fact that the discount for Mr Forster-Jones was only 5 percent as opposed to 10 percent for the appellant. In concluding that he should sentence the appellant to similar terms as imposed upon Mr Forster-Jones, the primary judge reasoned as follows:
75.Both you and Mr Forster-Jones had similar roles in the September 2016 home invasion. Both of you were in your early 20s at the time that you committed these offences. You had no prior criminal history and Forster-Jones had a minor one. You both came from similar backgrounds. You both entered late pleas of guilty. Both of you had developed illicit drug use habits in your teens. Although Forster-Jones discharged the shotgun on 3 November 2016, you were the person who had originally sourced the shotgun and your moral culpability for the offence of murder is similar to that of Forster-Jones.
76.Unlike Forster-Jones, you were on bail at the time of these offences in relation to an alleged home invasion in New South Wales. This is a significant aggravating feature calling for greater punishment. In addition, you were the driving force behind the offences on 22 September 2016. Balancing all relevant factors, I propose sentencing you to similar terms of imprisonment for the individual offences to those imposed upon Mr Forster-Jones by the Court of Appeal with a similar degree of concurrency and accumulation.
13. It should be noted that in the quoted passage, his Honour made particular reference to the appellant being on bail at the time of the offending.
14. His Honour then referred to the different number of charges faced by Mr Forster-Jones and indicated that he would impose effectively the same sentence as had been imposed by the Court of Appeal in relation to Mr Waugh and Mr Cajina.
15. As the appellant’s submissions were directed to a discrete series of issues relevant to parity, it is convenient to address the issue of parity in the same way.
(a) Mental state
16. The appellant points to what was said in Forster-Jones at [62], where the Court of Appeal recorded that counsel for Mr Forster-Jones had disavowed any suggestion that the findings of the psychologist or psychiatrist were capable of reducing his moral culpability. The submission was made, however, that Mr Forster-Jones might find his time in custody harder than would otherwise be the case.
17. That is said to contrast with the position of the appellant. The report of Ms Morris identified that at the time of the offending, the appellant would have met the criteria for complex Post‑Traumatic Stress Disorder (PTSD) and three severe substance use disorders. It also identified that he had “experienced unstable emotional, behavioural and cognitive patterns since his mid-adolescence and these continue to impact him” and that he presented as “a psychologically confused young man who has some difficulty distinguishing between his ideal life circumstances and his reality and abilities”. Finally, reference was made to the following statement in Ms Morris’s report:
Mr Pikula-Carroll has exhibited symptoms of complex posttraumatic stress disorder since his adolescence and this has impacted his psychological functioning, interpersonal skills and capacity to cope with life stressors. In response to his emotional distress, Mr Pikula‑Carroll began to use substances and reports three substance use disorders at the time of his arrest.
18. The submissions by counsel for the appellant were to the effect that the identified mental health conditions warranted a reduction in the assessment of the appellant’s moral culpability. He pointed to the decisions of the Victorian Court of Appeal in Verdins and Brown v The Queen [2020] VSCA 212; 62 VR 491.
19. The primary judge addressed the issue of the appellant’s mental health at [57] of the Reasons as follows:
57.Ms Morris does not describe a clear causal connection between your Post-Traumatic Stress Disorder and the commission of the present offences. It would appear that, at best, the connection is indirect in that your Post-Traumatic Stress Disorder fed into the development of your addiction, particularly to heroin. The evidence does not support a reduction in your moral culpability for these offences by reason of any mental health condition. I will take Ms Morris' opinions into account as part of your subjective circumstances, but there is nothing in her report which would warrant a significant reduction in sentence.
20. The primary judge’s conclusion, expressed in this passage, was correct. The first of the six principles identified in Verdins at [32] recognises that impaired mental functioning may reduce the moral culpability of the offending conduct. This requires that there be a causal link between the mental health condition and the offending. If there is no such causal link, then the conclusion that moral culpability was reduced could not be reached. The evidence before the primary judge did not demonstrate that there was any direct causal link between the mental health condition and moral culpability. The position of the appellant was therefore not relevantly different from the position identified in the Court of Appeal’s decision in Forster-Jones at [61]-[63].
(b) Remorse
21. In relation to remorse, the primary judge dealt with this issue at [67]-[69] of the Reasons which are set out above at [6].
22. The appellant drew attention to the reasons of the Court of Appeal in Forster-Jones at [68]‑[71]. In that case, the Court of Appeal made reference to statements that Mr Forster‑Jones had made to a psychologist and a psychiatrist. The Court of Appeal noted (at [69]) that expressions of remorse may have been the product of the appellant’s belief that he would get a lower sentence if he said he was sorry. The Court noted that he did not give evidence at his sentence hearing. It referred to statements made in recordings obtained by police which reflected a degree of remorse and an attempt to deal with that remorse through a justification of his conduct. The conclusion reached by the Court (at [71]) was: “Thus, whilst we accept that the appellant is remorseful, that is qualified by the appellant’s self-justification for what he did.”
23. Counsel for the appellant pointed to the oral evidence that the appellant gave at the sentencing hearing, which involved a complete acceptance of his responsibility for the incident on 22 September 2016 and the position adopted in relation to 3 November 2016 involving a denial that he knew that the shotgun possessed by Mr Forster-Jones was loaded. Counsel for the appellant pointed to:
(a)the letters written by the appellant to the primary judge and the parents and partner of the deceased at a time when he did not have any legal advice;
(b)the statements of remorse made to the psychologist, Ms Morris; and
(c)the record of his victim empathy in the pre-sentence report.
24. Counsel submitted that it was very clear that the expressions of remorse on the part of the appellant were genuine. That contrasted with the approach taken by the primary judge, which was to approach expressions of remorse “with great caution”: Reasons at [68]. In assessing the weight to be given to the statements of remorse, the primary judge was at a significant advantage compared to the Court of Appeal as a result of having seen and heard the appellant give oral evidence at the sentencing hearing. The appellant has not demonstrated any error in the conclusion that the primary judge reached.
25. Some of the submissions made on behalf of the appellant suggested that the primary judge made an error of law by treating s 33(1)(w) of the Crimes (Sentencing) Act 2005 (ACT) (“whether the offender has demonstrated remorse”) as limited in a temporal manner to the period immediately after the commission of the offences and the next day. That temporal limitation was said to be reflected in the statement by his Honour: “As I have said, you showed no remorse immediately after you committed the offences on 3 November 2016 and you apparently continued to feel no remorse the next morning when you committed an aggravated break and enter at Jerrabomberra in New South Wales”: Reasons [68]. The primary judge did not make any legal error. The primary judge was simply pointing out that there was no remorse in that period. He reached no conclusion as a matter of law about when remorse must exist, nor does any error of law underlie the approach that his Honour took. His Honour was perfectly entitled to have regard to the absence of remorse in the period following the offending as a part of his overall assessment as to whether or not the appellant had “demonstrated remorse” for the purposes of s 33(1)(w) of the Crimes (Sentencing) Act.
(c) Culpability and (f) Prior submissions on point
26. These two matters can be dealt with together as the “Prior submissions on point” were directed to the issue of culpability.
27. Counsel for the appellant submitted that the two most important aspects of the Statement of Facts were that the appellant and Mr Forster-Jones attended the deceased’s premises in order to scare him out of cooperating with police investigations relating to the September home invasion and to obtain drugs but that the appellant did not intend to kill or murder the deceased. That is said to contrast with the position of Mr Forster-Jones, which involved a plea of guilty on the basis that he fired through the door with reckless indifference to human life and had attended the premises knowing that the shotgun was loaded and being prepared to discharge it during the commission of the criminal act.
28. Any question of parity must be addressed once the relevant facts are found. It is only then that similarities or differences in the objective or subjective circumstances can be properly considered. This issue must be deferred until the claim of specific factual error raised by ground (ii) is addressed.
(d) Roles of Forster-Jones and the appellant
29. In relation to the incident on 22 September 2016, the appellant identified that Mr Forster‑Jones was the most violent and caused the greatest physical injury but that it was the appellant’s idea to undertake the burglary. In relation to the murder, the appellant submitted that having regard to the basis upon which Mr Forster-Jones was convicted (acting with reckless indifference to human life) as opposed to the basis upon which the appellant pleaded guilty (an offence committed in the course of carrying out the agreement to commit an aggravated burglary) there was a proven disparity that warranted a lesser sentence than that imposed on Mr Forster-Jones.
30. The approach taken by his Honour set out at [76] of the Reasons quoted at [12] above was that having regard to all relevant considerations it was appropriate to impose similar sentences upon the appellant as had been imposed on Mr Forster-Jones by the Court of Appeal.
31. Like the issue of culpability, this ground needs to be assessed in the context of the challenge to the findings of fact in ground (ii).
(e) Different subjectives
32. Counsel for the appellant submitted that the fact that the appellant identified as Aboriginal distinguished him from Mr Forster-Jones.
33. This overlaps with ground (v) which is dealt with below. For the reasons given below, the conclusion reached by his Honour that the appellant identified as Tongan was a factual error. However, that factual error is not of significance in relation to parity. The submission put by the appellant was difficult to understand. On the one hand, emphasis was placed upon his Aboriginality as distinct from the difficult circumstances of his upbringing. Yet it was recognised by reference to the statement of the majority in Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [53] that “To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity”.
34. The circumstances in which Mr Forster-Jones grew up were set out in the Court of Appeal’s reasons at [53]-[59]. His Honour was correct in identifying (at [75] of the Reasons) that both offenders came from similar backgrounds and both had developed illicit drug use habits in their teens. His Honour’s assessment appears to be correct. No issue of unjustified disparity arises from Aboriginality per se or the other aspects of the appellant’s personal circumstances.
Conclusion on parity
35. Except in relation to the issues addressed in ground (ii) below, the claim that parity required any different sentence to be imposed, or a different aggregate sentence, is not made out. The issue of culpability arising from the fact that Mr Forster-Jones discharged the weapon and the issue concerning the state of the appellant’s knowledge of the weapon being loaded can be addressed at ground (ii).
Ground (ii): Burns J erred in his factual findings by accepting that the 000 call established:
(a) The appellant knew the gun was loaded
(b) The appellant was not highly intoxicated on 3 November 2016
36. The findings by the primary judge in relation to whether or not the appellant knew that the gun was loaded and the appellant’s state of intoxication at the time of the offending were at [34]-[39] of the Reasons. The principal basis upon which the primary judge appears to have rejected the evidence that the appellant did not know that the shotgun was loaded before it was discharged appears to have been the content of the 000 recording which is referred to at [35] of the Reasons. His Honour referred to what was said, the appellant’s tone of voice being “jubilant” and the absence of anything suggesting that the appellant was surprised that the shotgun had been fired. At [36] and [37] of the Reasons, the primary judge addressed matters relevant to the contention that the appellant did not know that Mr Waugh was dead. At [38], the primary judge returns to what can be heard on the audio, in particular the lack of surprise at the shotgun being loaded. At [39], the primary judge addressed the evidence that the appellant was highly intoxicated at the time. This was something which might have cast light upon the appellant’s ability to perceive whether or not the gun was loaded. The primary judge referred to his impression of the appellant’s evidence as being directed towards minimising his culpability. He also referred to:
(a)the inconsistency between that evidence and the capacity demonstrated on the day of the incident to force entry into the unit and search it for drugs and money; and
(b)the absence of any indication on the 000 call of significant impairment.
37. Given that the plea of guilty did not necessarily involve an admission that the appellant knew, prior to its discharge, that the gun was loaded, if knowledge of its loaded state was to be a matter taken into account on sentencing, it was a matter which needed to be proved beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 at [31].
38. The evidence did not establish beyond reasonable doubt that the appellant knew that the gun was loaded. It had been originally sourced by the appellant prior to the September home invasion. It had been present at the September home invasion and used to strike Mr Waugh and Mr Baxter. The evidence did not establish where it was stored between the incidents. The evidence did not establish any conversation about its likely use prior to or on 3 November 2016. The evidence did not establish any observations of it being loaded. The 000 call did not record anything that proved knowledge that it could be discharged prior to it being discharged. His Honour was correct to identify that nothing on the audio of the 000 call indicated surprise at its discharge during the incident.
39. The appellant gave evidence that he was not aware that the gun was loaded. He gave evidence that his denial that he knew that it was loaded was the reason for his failure to plead guilty at an earlier stage. His mother gave evidence that that is what he had told her. The appellant also gave evidence that he had never seen ammunition for the weapon. Even if the evidence of the appellant and his statements to his mother are not accepted, the evidence relied on by the Crown does not exclude beyond reasonable doubt the possibility that he lacked positive knowledge or belief that the weapon was loaded when the offenders approached the front door. The alternative hypothesis was that he knew that it was possible that it was loaded and hence that it was possible that it might be used during the course of the home invasion. That alternative hypothesis is not excluded beyond reasonable doubt. Therefore, this aspect of the ground of appeal is made out.
40. The other issue raised by this ground of appeal is the appellant’s state of intoxication. The appellant gave evidence as follows:
On 3 November had you taken any drugs before you went to Eden’s unit?---Yes.
And what had you taken on that occasion?---Methamphetamine.
Did you have any heroin then?---Oh, so maybe a point or two.
Later in his evidence:
All right. How would you describe yourself in terms of the levels of intoxication or of being affected by alcohol or drugs as at the time of these offences on 3 November?---Highly intoxicated.
42. The appellant’s submissions did not make it clear why this was an issue of significance. It certainly could have been an issue influencing the conclusion reached about whether the appellant knew that the shotgun was loaded. The submission made to the primary judge was that the fact that the appellant was under the influence at the time was a mitigating factor.
43. The findings of the primary judge are at [39] of the Reasons. His Honour found that the appellant’s evidence that he was “highly intoxicated” was not the truth. This conclusion was one which was open to his Honour. His Honour had the benefit of seeing and hearing the appellant give evidence. It was open to his Honour to conclude that what was said was not the truth and was directed towards minimising the appellant’s culpability. Even if his Honour had fallen into error, that is not of significance in relation to knowledge of the loading of the gun because that issue has been found in favour of the appellant. So far as any other use of intoxication was concerned, it is difficult to see how voluntary intoxication of a regular illicit drug user with a mix of heroin and methamphetamine would be in any way mitigatory for offending such as this. It might help explain the offending, but it would not reduce the offender’s culpability. This aspect of the ground of appeal is not made out.
iii. The sentences were manifestly excessive
44. The appellant relied upon each of the other grounds in order to establish manifest excess. Having regard to the conclusion that one aspect of ground (ii) is made out, it is not necessary to address this submission further.
iv. Burns J erred in not applying Verdins
45. As ultimately put, the appellant relied upon items 1 and 5 in the list provided in Verdins at [32]:
32.Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
(Footnote omitted)
46. As pointed out earlier, in the absence of evidence providing a causal link between the appellant’s mental health condition and his conduct on the day, the claim for the application of item 1 of the Verdins principles must be rejected.
47. Item 5 involves the contention that the appellant’s mental health condition at the date of sentencing or its foreseeable recurrence may mean that a given sentence will weigh more heavily on the appellant than it would on a person of normal health. The conclusion of the primary judge was that he would take Ms Morris’s opinions into account as part of his subjective circumstances “but there is nothing in her report which would warrant a significant reduction in sentence”: Reasons at [57]. There is nothing wrong with that conclusion. Ms Morris could have been, but was not, specifically asked whether the appellant’s mental health would mean that a given sentence would weigh more heavily upon him than a person in normal health. Ms Morris does not express a conclusion that the appellant would be affected in that way. Her conclusion that he exhibited symptoms of complex PTSD is not sufficient to compel a conclusion that a sentence of imprisonment would weigh more heavily upon him than a person without that condition. His Honour quite correctly took account of the evidence in relation to the appellant’s mental health as part of his subjective circumstances. The appellant has established no error in the manner in which the primary judge addressed the issue of mental health.
v. Burns J erred in finding that, contrary to the pre-sentence report that stated the appellant was Aboriginal and the evidence given by the appellant's mother, that his mother had given evidence that the appellant identified as Tongan (para 60 in reasons for sentence)
48. The pre-sentence report provided:
[The appellant] is an Aboriginal man, born in Queanbeyan, New South Wales.
…
[The appellant] advised that he had very little education or connection with his Aboriginal culture during his upbringing. He reported that since entering the AMC he has engaged with the Indigenous Liaison Officer and has registered to attend the Aboriginal art class.
49. The evidence given by the appellant’s mother is recorded in the transcript of the sentencing hearing as follows:
And do you classify yourself or see yourself as an Aboriginal person?---Yes, I do. I’m an active member of my community.
And Jason is your son?---Jason is my son.
And he identifies as an Aboriginal person?---That’s true.
Jason’s father came to the marriage with you with some other children?---Yes, that’s true.
How many other children?---Seven.
And they see themselves as Tongans?---Yes, they do.
50. The finding by the primary judge was (Reasons at [60]):
The Report states you are an Aboriginal man but your mother gave evidence that you identified as Tongan.
51. His Honour appears to have understood the evidence given by the appellant’s mother as indicating that all of the children in the blended family considered themselves to be Tongan, whereas the evidence was that it was the children that the appellant’s father brought to the marriage who identified as Tongan. His Honour therefore erred in reaching the conclusion that he did.
52. However, this is a conclusion which lacked significance. No submission was made that indicated that Aboriginality per se or, indeed, identifying as Tongan, was a matter of significance for the purposes of sentencing. The principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) reflect the significance of social disadvantage no matter what ethnicity the person is. What was significant was the evidence of substantive difficulties in the appellant’s upbringing which were principally disclosed in the report of Ms Morris and the pre-sentence report.
53. The appellant submitted that the primary judge had failed to adequately consider the principles in Bugmy in light of the deprived background disclosed by the evidence. This submission, which is distinct from any question of Aboriginality per se, must also be rejected. The primary judge appropriately described the difficulties present in the appellant’s upbringing including his parents’ separation, his exposure to drug and alcohol use and domestic violence during his childhood and the involvement of his siblings in the criminal justice system. His Honour recorded at [60], consistently with the decision in Bugmy: “Undoubtedly, you continue to feel the effects of your childhood to the present day.” This ground of appeal is not made out.
Resentence
54. Having regard to the error identified above in relation to the appellant’s knowledge that the gun was loaded, it is necessary to resentence the appellant. That exercise must take into account the appellant’s lack of positive knowledge that the shotgun was loaded and the closely related issue of the respective roles of Mr Forster-Jones and the appellant in the murder.
55. While the error in relation to knowledge that the gun was loaded directly affected only the sentence for murder, it is necessary to resentence the appellant generally unless the court is satisfied upon its own independent exercise of discretion that no different sentences should be imposed: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35].
56. In this case, having independently exercised the sentencing discretion, I am satisfied that each of the sentences imposed were appropriate except that for the sentence of murder.
57. The distinguishing features of Mr Forster-Jones’s position was that he pulled the trigger and knew that the gun was loaded. Plainly enough, the appellant did not pull the trigger. As pointed out in the primary judge’s reasons, Mr Forster-Jones was sentenced on the basis of reckless indifference to human life. In contrast, the appellant was sentenced on the basis that he recognised the possibility that Mr Forster-Jones may commit the offence of murder in the course of carrying out the agreement to commit the offence of aggravated robbery. For that purpose, the appellant must have known that there was a risk that the gun was loaded.
58. Unlike Mr Forster-Jones, the appellant was on conditional liberty at the time of the murder as a result of being on bail for an earlier alleged burglary. Having regard to the sentence imposed upon Mr Forster-Jones which involved a starting point of approximately 21 years, the appropriate sentence to be imposed upon the appellant has a starting point of 19 years. With a 10 percent discount for the plea of guilty, that gives a sentence of 17 years. It is otherwise appropriate to maintain the relationship of concurrency and accumulation as between the sentences that was imposed by the primary judge. The result of this is that only the sentence for murder and the subsequent sentence for aggravated robbery need to be set aside and resentenced. This gives an aggregate sentence of 27 years. The non‑parole period needs to be amended in light of the change in the head sentence, however the proportional relationship between non‑parole period and head sentence of approximately 60 percent is appropriate and will be maintained. This will give a non-parole period of 16 years and two months.
Orders
59. The orders of the Court are:
1. Appeal allowed.
2. The sentence imposed on count 5 (CC2017/6415), murder, is amended so that it is a sentence of imprisonment of 17 years commencing on 16 September 2026 and ending on 15 September 2043.
3. The sentence imposed on count 6 (SCANN2020/33), aggravated burglary, is amended so that it is a sentence of imprisonment of eight years starting on 16 March 2038 and ending on 15 March 2046.
4. The non-parole period is amended so that it is a period of 16 years and two months commencing on 16 March 2019 and ending on 15 May 2035.
5. The sentences imposed on 1 December 2020 are otherwise confirmed.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Banks-Smith and Acting Justice McWilliam. Associate: Date: 25 March 2022 |
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