Police v Reid
[2024] ACTMC 28
•12 December 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Reid |
Citation: | [2024] ACTMC 28 |
Hearing Dates: | 14 June 2024, 13 August 2024, 27 November 2024 |
Decision Date: | 12 December 2024 |
Before: | Magistrate Temby |
Decision: | See [132] |
Catchwords: | CRIMINAL LAW – SENTENCING – Family Violence (aggravated property damage) – trespass – fail to appear after bail undertaking |
Legislation Cited: | Crimes (Sentence Administration) Act 2005, ss 6, 7, 10, 33, 34B 65, 70, 71 |
Cases Cited: | R v Reid [2021] ACTSC 72 R v Tran [1999] NSWCCA 109 R v Carmody [2016] ACTSC 382 DPP v Reid (No 2) [2024] ACTSC 350 Field v R [2020] NSWCCA 105 Barbaro v The Queen [2012] VSCA 288 Georgopolous v The Queen [2010] NSWCCA 246 Markarian v R [2005] HCA 25 O’Brien v R [2015] ACTCA 47 R v Deng; Carberry v The King [2023] ACTCA 32 McCurley v Stirling [2024] ACTSC 41 Ursino v Read; Ursino v R [2005] ACTSC 106 |
Parties: | Christopher Anthony Jones (Informant 1st series) Nigel Legh Brookes (Informant 2nd series) Caleb Marcus Boxx (Informant 3rd series) Jason Adam Reid ( Defendant) |
Representation: | Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Defendant) |
File Numbers: | CC 6268 of 2023 CC 6269 of 2023 CC 7896 of 2023 CC 8544 of 2023 |
MAGISTRATE TEMBY:
Charges
1․The Defendant was charged with two offences of aggravated damage property, one offence of trespass and one offence of failing to appear after giving a bail undertaking. He pleaded guilty to each of those charges and a sentencing hearing was substantively conducted over 2 days, on 14 June 2024 and 27 November 2024.
Maximum penalties
2․The maximum penalties for these offences are:
(a)60 penalty units and/or 3 years’ imprisonment for the aggravated damage property offences;
(b)10 penalty units for the trespass offence (Commonwealth offence); and
(c)200 penalty units and/or two years’ imprisonment for the fail to appear offence.
3․The Defendant gave his consent to the property damage charges being dealt with summarily.
Burden of proof
4․In considering the matter, I note that:
(a)I must be satisfied beyond reasonable doubt of any fact which might be relied on in aggravation of the offence for which the Defendant is charged; and
(b)I must be satisfied on the balance of probabilities of any facts which I take into account in mitigation of the offences or in mitigation of the sentence.
Nature and circumstances of offending
Agreed facts
5․The key facts from the Statement of Facts, which are agreed between the parties are as set out below.
Family violence - relationship
6․The Defendant and the complainant had been in an on-and-off relationship since September 2021 and are family members for the purposes of the Family Violence Act 2016.
CC2023/6268 – Aggravated damage property
7․On 16 June 2023, the Defendant attended the complainant’s residence to collect items for his daughter. The Defendant and the complainant had had an argument over the previous couple of days and a further argument ensued on this occasion.
8․At one point, the Defendant was pacing back and forth between the lounge room and the kitchen area, yelling and swearing at the complainant. Once he had collected the items that he had come for, the complainant asked the Defendant to leave the residence. She said that he was no longer welcome there.
9․After the Defendant exited the residence, the complainant locked the screen door and walked away.
10․The Defendant was angered by the complainant locking the door. He threw a thermal cup through the front window adjacent to the front door, resulting in a hole in the window and the remaining parts of the window being fractured.
11․It was accepted by the parties that the Defendant was reckless in causing damage to the window, and that he did not intend to do so.
CC2023/6269 – Unlawful trespass
12․The Defendant left the property, but returned a short time later to take photographs of the damage.
13․The complainant came to the front door and informed the Defendant that she had called the police and that he had to leave her property.
14․The Defendant then left the property.
CC2023/7896 – Aggravated damage property
15․On 20 June 2023, the Defendant appeared before the Magistrates Court in relation to the above offences and bail conditions were imposed. These included conditions that the Defendant:
(a)Not assault, harass, threaten or intimidate the complainant;
(b)Not contact the complainant;
(c)Not be within 100 metres of the complainant.
16․Despite these conditions, the Defendant arranged with the complainant to meet on the evening of 27 June 2023. They met at a restaurant in Kingston and ordered takeaway food. The Defendant gave the complainant money to pay for the damage caused to her front window.
17․While waiting for their food, the Defendant and the complainant entered into another argument. The complainant walked back to her car and left.
18․While she was driving, she noticed the Defendant’s vehicle following her, without headlights on. The Defendant began to flash his vehicle lights at the complainant, so she pulled her car into a car park.
19․The Defendant followed her into the car park and got out of his car. He walked to the complainant’s car, where they continued to argue. The Defendant said that he wanted a mobile phone.
20․The complainant agreed to give the Defendant one of her old mobile phones. She had previously told the Defendant that it was not working and needed to be repaired, however, when the Defendant realised that the phone was not working, he became enraged. He went back to his vehicle and revved the engine loudly several times before parking across the rear of the complainant’s car, preventing her from leaving the car park.
21․The Defendant then got out of his vehicle and approached the complainant’s car once more. The complainant closed her car door and locked it, as she was afraid of the Defendant’s increasingly aggressive demeanour towards her.
22․The Defendant slammed his hands on the complainant’s car before punching the driver’s door window and side mirror with a closed fist. He then used his knee to hit the door and window, causing the window to shatter inwards and cover the complainant with glass. The Defendant’s actions also caused a large dent and damage to the door and driver side mirror.
23․The complainant suffered small cuts to the side of her neck and hands from the shattered glass and her ear felt sore.
24․When police arrived, they observed the complainant to be visibly shaken and in a highly emotional state. Her hands were trembling.
CC2023/8544 – Fail to appear after bail undertaking
25․On 11 July 2023, the Defendant appeared in the Magistrates Court and gave an undertaking to appear again on 1 August 2023. He failed to appear on that date and an arrest warrant was issued on 2 August 2023.
26․On 28 August 2023, the Defendant was located and arrested by police in Queensland following a routine traffic stop. On 29 August 2023, ACT police attended the Magistrates Court of Townsville and obtained an extradition order. He was flown back to the ACT the same day.
Objective seriousness
CC2023/6268 – Aggravated property damage
27․The objective seriousness of the 16 June 2023 property damage offence falls towards the lower end of the spectrum.
28․Clearly, the throwing of the cup involved the Defendant taking out his anger towards the complainant by damaging her property. The offending involved family violence, with the Defendant having yelled and sworn at the complainant and having become angry once the complainant asked the Defendant to leave her house and locked the door behind him. Family violence is, of course, unacceptable in any form and freedom from family violence is a human right.
29․The offending took place at the complainant’s house and, to some extent at least, reduced the security of her house. There is no evidence as to the cost of the damage, however, the cost of replacing a window is not insignificant and must have involved some inconvenience to the complainant.
30․Lessening the seriousness of the offence is the fact that the damage to the property was reckless, rather than intentional. The offending conduct is also mitigated by the fact that the Defendant paid, or at least contributed to, the cost of repair.
CC2023/6269 – Unlawful trespass
31․The objective seriousness of the unlawful trespass offence is at the lower end of the spectrum.
32․While the complainant had earlier told the Defendant that he was no longer welcome at her residence, the offending conduct only involved the Defendant coming onto her property to take a photograph of the damage that he had caused to the window. He told the authors of the Pre-Sentence Report that he had contacted a glazier to repair the broken window and had been asked to provide a photograph for a quote, which is why he returned to the complainant’s property. As already noted, he gave the complainant money to repair the window.
33․The Defendant did not enter the complainant’s house and appears to have left the complainant’s property once the complainant told him that he had to leave.
CC2023/7896 – Aggravated property damage
34․The 27 June 2023 property damage offence is a serious example of the offence. It falls above the middle of the spectrum.
35․The damage to the complainant’s property comprised the broken driver side window (which was, in fact, almost entirely smashed), and a large dent and damage to the driver’s door and mirror. There is no evidence as to the cost to repair the car, however repairing a car is, ordinarily, not an inexpensive exercise.
36․The Defendant submits that, like the damage to the complainant’s house window, he contributed to the cost of the repair of the car window. He submits that he gave the complainant $2,500. While he did not give any evidence supporting that submission, I accept that he did give money to the complainant that at least went some way towards the repair of the window and that provides some mitigation for the offending conduct.
37․Nevertheless, at a minimum, the complainant would have been required to endure the inconvenience of having her car repaired and may have incurred some associated costs.
38․Of significance in assessing the objective seriousness of the offence is the fact that the circumstances surrounding it involved multiple acts of family violence which caused the complainant fear and injury. The Defendant acted in an intimidating and aggressive manner towards the complainant by revving the engine of his car to demonstrate his anger towards her and exercising control over her by blocking her exit with his car. Having done so, he used physical violence by punching the driver’s door window whilst the complainant was sitting in the driver’s seat and kneeing the driver’s side door and window, causing the window to shatter and cover the complainant in glass. As noted above, the complainant suffered small cuts to the side of her neck and hands as a result.
39․The Defendant accepts that the incident would have been terrifying to the complainant and accepts that it is an aggravating factor that the complainant received injuries as a result of the window being broken. Although the Defendant is not to be sentenced for the offence of assault, the fact that the offence involved family violence, and the extent of that violence, is relevant as the Defendant is charged with the aggravated version of the damage property offence.
40․Like the first property damage offence, it is important to recognise that family violence in any form is unacceptable and that freedom from family violence is a human right. Also like the first property damage offence, the Defendant’s conduct involved the physical expression of his anger towards the complainant.
41․In contrast to the first property damage offence, however, this conduct was not reckless and it involved the Defendant intentionally damaging property that was not only in the immediate vicinity of the complainant, but property which the complainant had locked herself in, in order to protect herself from the Defendant. She was in a car with no capacity to get away from the Defendant. The conduct involved deliberate acts of physical violence and other threatening conduct that sought to control the complainant and caused the complainant to fear for her safety.
42․The Defendant submitted that the offending occurred in the context of relationship difficulties, however that is not mitigatory.
CC2023/8544 – Fail to appear after bail undertaking
43․The objective seriousness of this offence approaches the mid-range of the spectrum. While the appearance that the Defendant failed to attend was only the mention of his matters in the Magistrates Court, the Defendant had left the jurisdiction and extradition was required to return him to the ACT. This involved time, expense and the deployment of police officers who could otherwise have been engaged in policing work in the ACT.
44․The Defendant did not offer any explanation for his failure to appear to the authors of the Pre-Sentence Report. In submissions, he said that he expected to be remanded in custody for quite a while and wanted to spend as much time with his daughters as he could and get his affairs in order.
45․In my view, that explanation does not take away from the objective seriousness of the offence. It highlights that the Defendant chose to put his personal interests over the interests of justice.
Aggravating factor on sentence – conditional liberty
Conditional liberty
46․At the times the Defendant committed each of the present offences, he was subject to an Intensive Corrections Order (ICO) and a parole order.
47․The ICO commenced on 28 April 2021 and was to conclude 27 January 2025. It was imposed as an alternative to full-time custody for an aggregate sentence of imprisonment of 3 years and 9 months that was given to the Defendant for the offences of receiving stolen property, burglary, theft (x2) and joint commission minor theft: R v Reid [2021] ACTSC 72.
48․The offending conduct comprising the present charges took place a little over half-way into the ICO period. By the time of the present offences, the Defendant had not yet completed his sentences for the two theft convictions and had not yet commenced the sentence for the burglary conviction.
49․The parole order was made with respect to a 30 month sentence of imprisonment that was imposed on the Defendant in NSW for larceny, break and enter a house (x2), participate in criminal group and affray offences. The sentence commenced on 14 December 2021 and was to conclude on 13 June 2024.
50․A non-parole period of 9 months (expiring 13 September 2022) was fixed. He was granted parole from that date, before the parole order was registered in the ACT on 7 November 2022. The offending conduct took place less than half-way through the parole period.
51․At the time of the 27 June 2023 property damage offence and the 2 August 2023 fail to comply with bail undertaking offence, the Defendant was also subject to bail conditions. Of significance in relation to the 27 June 2023 property damage offence is the fact that not only was the Defendant on conditional liberty at the time, but his offending conduct breached a number of the conditions of his bail, being not to harass or intimidate the complainant, not to contact her and not to be within 100 metres of her. Those conditions were put in place to mitigate the risk of the Defendant re-offending and endangering the complainant’s safety and the Defendant agreed to those conditions in order to obtain his release from custody.
The need to avoid double punishment
52․It is an aggravating factor on sentence that the Defendant was on conditional liberty at the time of the offences. It is an aggravating feature because the Defendant has betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15].
53․However, care needs to be taken to avoid double punishment. As Refshauge J said in R v Carmody [2016] ACTSC 382 at [152], “there is a risk of double punishment if, while cancelling the Good Behaviour Order, I do not take care to ensure that the sentence I impose does not punish Mr Carmody twice by failing to take into account the fact of this cancellation”.
54․On 31 August 2023, the Sentence Administration Board cancelled both the parole order and the ICO.
55․He was required to serve the remainder of the sentence with respect to which the parole order was made (taking into account his parole time credit) in full-time custody. That was a period of 11 months and 16 days, expiring on 15 August 2024.
56․He was also placed in full-time custody with respect to the sentence which he was serving by ICO. The Sentence Administration Board ordered that the Defendant serve a period of imprisonment of 1 year and 16 days, expiring on 16 March 2025.
57․On 13 August 2024, on the basis of the agreed facts, I accepted the Defendant’s pleas of guilty and convicted the Defendant of the present charges. As required by s 65(4) of the Crimes (Sentence Administration) Act 2005, I committed the Defendant to the Supreme Court for it to consider whether to cancel the ICO.
58․On 1 November 2024, Taylor J cancelled the ICO and ordered the Defendant to serve the remainder of the sentence in full-time detention, to commence on 1 November 2024 and expire on 16 March 2025: DPP v Reid (No 2) [2024] ACTSC 350. Her Honour set a non-parole period commencing 28 April 2021 and expiring 27 July 2023.
59․In circumstances where, following the decisions of the Sentence Administration Board on 31 August 2023, the Defendant has remained in custody since that date, and in circumstances where, on 1 November 2024, Taylor J cancelled the ICO because of the commission of the present offences, I consider that taking account of the fact that the Defendant was on conditional liberty at the time of committing the present offences by reason of the ICO and parole order would amount to double punishment.
60․However, the fact that, at the time of the 27 June 2023 property damage offence and the 2 August 2023 failure to comply with bail undertaking offence, the Defendant was subject to bail conditions is an aggravating factor on sentence. As noted above, this is particularly so in circumstances where the 27 June 2023 property damage offence involved a contravention of bail conditions that were imposed in order to protect the complainant.
61․As Hoeben CJ at CL said in Field v R [2020] NSWCCA 105 at [87], quoting from a decision of Street CJ in R v Richards:
“… The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentences for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes “for free”. On the contrary, they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crime.”
Subjective circumstances
62․The Defendant is a 38 year old man with five children from two relationships. He described a stable and positive childhood.
63․The Defendant submitted that his life fell apart in 2020, leading to the offending which resulted in the significant sentences of imprisonment I have referred to earlier in these reasons. He submitted that he was dealing with relationship and business issues and used drugs to deal with a mental breakdown.
64․The Defendant told the authors of the Pre-Sentence Report the same information. He said that he commenced using methamphetamine to self-medicate the loss of his children and his business. He said that his use of methamphetamine had been inconsistent with his most recent partner (the complainant) and that he had last used methamphetamine in May 2023. Information available to the authors of the Pre-Sentence Report suggests that the Defendant may have underreported his drug use, however, and thus the extent of the Defendant’s drug use at the time of the present offences is unclear.
65․The Defendant made similar statements in a detailed letter he wrote to the Court prior to the hearing on 27 November 2024, as well as commenting on a range of other matters.
66․He said that, before 2020, he was married with children and the owner of a business employing seven staff. In 2020 and early 2021, he faced extreme hardship as COVID-19 and bushfires ruined his business, as a result of which he suffered some kind of a mental breakdown and turned to drug use and, having turned to drug use, surrounded himself with people who brought him into an environment of criminal activity.
67․The Defendant said that, as a result, he served time in prison and both his marriage and his businesses (including a second business that he started whilst on bail for the offences for which he was sentenced to an ICO) failed. His access to his children was limited, because he was either in custody or the conditions of his ICO prevented him from leaving the ACT. While his older children visited him in prison, his wife took his younger children interstate.
68․He said that the period during which he was not able to see (and often not speak to) his children was the most traumatic thing he had been through. He commented that the longer he is in custody, the further away he feels his children are getting from him. Nevertheless, he is optimistic about the future as he and his wife have committed to working together to co-parent the children on his release.
69․Whilst in custody, he has completed the EQUIPS Addictions, Foundations and Maintenance programs and is working through the SMART Recovery program. I note that there is evidence that the Defendant displayed a strong level of engagement in the EQUIPS program and that he is acting as a mentor to other detainees.
70․As noted above, whether the Defendant was usings drugs at the time of the present offences is unclear. However, even if drug use was not a contributing factor to the commission of those offences, the drug rehabilitation that the Defendant has engaged in is likely to reduce his general risk of re-offending given the significance of drug use to the commission of the earlier offences.
71․The Defendant wrote that he currently works in the Activities section and that he recently received a pay upgrade for exemplary work ethic. He said that he has been categorised as an “enhanced inmate” since becoming eligible for that status 11 months ago and has had no disciplinary issues. He also tendered statements of attainment with respect to various units of study completed whilst in custody, being ‘Prepare to work safely in the construction industry’, ‘Provide responsible service of alcohol’, ‘Provide cardiopulmonary resuscitation’, ‘Provide First Aid’ and ‘Participate in safe work practices’.
72․He is making plans for the future to ensure that he reintegrates into the community as effectively as possible. He said that he has been approved to live temporarily in a Justice Housing property on his release, after which he intends to obtain private rental accommodation. He said he has secured employment with a landscape business and also wishes to restart the business (a third business) he created when he was released on parole for the NSW offences (but which he had not developed prior to being returned to custody after having his parole revoked and ICO cancelled in August 2023). In submissions, the Defendant also stated that he has an interest in working in the renewable energy space.
73․He also intends to access counselling. He has done so whilst in custody, with Relationships Australia, and was placed on the waitlist for counselling with EveryMan in August 2024.
74․Ultimately, the Defendant wishes to get on with the rest of his life. In particular, he wishes to have the opportunity to be a present father for his children again. It appears that he has the support of his family and a strong commitment to achieving that goal.
Remorse and contrition
75․In Barbaro v The Queen [2012] VSCA 288, at [38], the court said that:
If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence …
76․On the first day of the sentencing hearing, the Defendant submitted that he is remorseful for his offending conduct, as evidenced by the fact that he paid for the damage he caused and by his guilty pleas.
77․I accept that both of these matters might indicate some remorse. However, a guilty plea is weak evidence of remorse (Georgopolous v The Queen [2010] NSWCCA 246) and the Defendant’s reimbursement of the damage he caused, as an indication of remorse, is undermined by two matters:
(a)first, he committed the second, and more serious, property damage offence after paying for the complainant’s damaged house window to be repaired (placing doubt on the genuineness of the Defendant’s remorse, or at least on the significance of his remorse as an indictor of a reduced likelihood of reoffending); and
(b)secondly, he told the authors of the Pre-Sentence Report that he broke the complainant’s car window because she had threatened to harm herself and claimed that he did not damage her vehicle. These statements are inconsistent with the statement of agreed facts and were not relied on at the sentencing hearing. As identified in the Pre-Sentence Report, this indicates a preparedness on the Defendant’s part to minimise responsibility for his actions, a preparedness that is emphasised by the Defendant’s claim to the authors of the Pre-Sentence Report that the complainant was affected by illicit substances at the time of the offence.
78․The Defendant is reported to have shown insight into his offending while participating in the Equips Foundation program in April 2024, however the factors that he acknowledged as contributing factors to his offending were work-life balance, unhealthy relationships and financial struggles. These factors may have contributed to how the Defendant felt at the time, but they do not acknowledge the Defendant’s personal responsibility for his conduct. In particular, the Defendant has not identified that he obviously had an issue with anger management at the time. Nor is there any indication that he appreciated the impact of the offending on the complainant.
79․There is an externalising of responsibility that emerges from the Defendant’s reflection on his conduct in this regard. That is also reflected in the Defendant’s letter to the Court, which focuses on the impact of financial stress on him, and on criminality befalling him when he turned to drugs, as explaining how he came to be where he is, and on the subsequent need for him to deal with what he describes as all the unfortunate scenarios thrown at him.
80․The failure of the Defendant’s first business may very well identify the point in time that his life went off the rails but, like the reflection he engaged in during his rehabilitation program, there is no acceptance of responsibility for the decisions that he then made and, in terms of his remorse and insight for the present offending, there is no recognition of the impact of his offending on the complainant. The letter is instead focused on the impact of custody on the Defendant, including on his business and on his capacity to see his children.
81․His reference to the complainant merely describes the struggle he had in assisting her with a drug addiction. That does not explain the Defendant’s conduct and, further, as the updated ICO assessment report identifies, while the Defendant claimed that the relationship had been marred due to the complainant’s drug use issues, information available to Corrective Services indicated that the Defendant was using drugs himself.
82․It is also noteworthy that, in his letter to the Court, his mention of the offences merely describes the offences with which he was charged, not the underlying conduct. He even attempts to distance himself from the nature of the conduct. After stating that he has always prided himself on leading by example when it comes to showing his daughters how they should be treated by a partner – with complete respect – he states that he is embarrassed to have ‘been put in the family violence category’.
83․In submissions, he pointed to the following passage from his letter as demonstrating his remorse:
I have learnt that self-deception usually follows something reprehensible or unwise that I have done and that by attempting to justify my actions to myself it becomes a very slippery psychological slope and when I make certain self deluded excuses and in a way trying to forgive myself for my actions, it inevitably turns out badly in the long run. I take full responsibly and know that I should have been better, made better decisions, reached out for help or walked away. But I didn’t and wasn’t and I am more than sorry to everyone in my life that has again been affected by my actions.
84․Again, the Defendant has not identified the problematic behaviour that he engaged in, in committing the offences, why he did engaged in that behaviour and what he has done and will do to avoid it happening again. There is also no engagement with the particular impact of his behaviour on the complainant.
85․I accept that the Defendant feels some remorse for his actions, although that remorse arises more from feeling that he let his daughters down than from any harm or hurt he caused the complainant. For the reasons I have explained, I do not consider that the Defendant has any real insight into his offending conduct.
86․Nevertheless, as I have noted earlier, I accept that the Defendant has a strong commitment to turning his life around and being present in his daughters’ lives. That commitment, in combination with a desire to avoid having to endure the hardships of prison again, is likely to provide a strong motivation to continue his rehabilitative efforts and not to re-offend.
Criminal history
87․The Defendant committed numerous offences between 2005 and 2021 and received substantial sentences of imprisonment in 2021, in both NSW and the ACT, as I have noted earlier in these reasons.
88․Of particular relevance to the present offences, the Defendant has been convicted of:
(a)Trespass and similar offences in 2021 (two offences) and 2020 (three offences);
(b)A destroy or damage property offence in 2020;
(c)Offences in a family violence context in 2014 (two offences); and
(d)Other offences of violence, being an assault occasioning actual bodily harm offence in 2014 and an affray offence in 2021.
89․There are no previous instances of the Defendant committing the offence of failing to comply with a bail undertaking. He is entitled to some leniency with respect to that offence.
90․I also note that there have been breaks in the Defendant’s offending. He committed offences in 2005, 2008, 2011 and 2014, before the more serious offences he committed in 2020 and 2021. This history both suggests that there is a risk of re-offending, but also that the Defendant is capable of rehabilitation.
Pleas of guilty
91․Paragraph 33(1)(j) of the Crimes (Sentencing) Act 2005 (Sentencing Act) requires the court to have regard to the Defendant’s pleas of guilty. Utilitarian value is the primary consideration and, in that respect, the timing of the plea is important.
92․The Defendant entered pleas of guilty to:
(a)CC2023/6268 (aggravated property damage) and CC2023/6269 (unlawful trespass) on 3 May 2024, at the fourteenth mention of the matter. The proceedings commenced on 20 June 2023 and the Defendant entered a plea of not guilty on 7 November 2023, at the seventh mention. He is entitled to a 15 per cent discount for his plea;
(b)CC2023/7896 (aggravated property damage) on 3 May 2024, at the eleventh mention of the matter. The proceedings commenced on 30 August 2023 and the Defendant entered a plea of not guilty on 7 November 2023, at the fourth mention of the matter. He is entitled to a 15 per cent discount for his plea;
(c)CC2023/8544 (fail to appear after bail undertaking) on 9 February 2024, at the seventh mention of the matter, having indicated a plea of guilty on 7 November 2023, at the fourth mention of the matter. He is entitled to a 25 per cent discount for his plea.
Statutory and other relevant considerations
93․In sentencing the Defendant, the court is required to take into account those matters set out in ss 33 and 34B (for the Family Violence offending) of the Sentencing Act that are relevant and known. I have referred to the relevant matters above.
94․The court is also required to have regard to the objects of the Sentencing Act as set out in section 6 and to the purposes of sentencing as set out in section 7.
Purposes of sentencing
95․In terms of the purposes of sentencing, general deterrence is the principal consideration for the unlawful trespass and fail to comply with bail undertaking charges. As Crispin J stated in Ursino v Read; Ursino v R [2005] ACTSC 106, at [12], referring to a decision of Magistrate Burns (as his Honour then was):
As his Honour observed, offences of failing to appear in answer to a bail undertaking are prevalent, and the commission of offences of that character put the community to the expense and inconvenience of having to locate and arrest the absconding defendant and bring him or her back to court. Furthermore, if alleged offenders were permitted, without significant penalty, to delay trials or sentencing proceedings by failing to answer their bail, confidence in the whole process could suffer and other alleged offenders might be encouraged to adopt a similar course. Hence, in the absence of any significant mitigating factor, custodial sentences should be expected for offences of this kind.
96․In terms of the property damage offences, specific deterrence is clearly important given that he committed two offences of the same kind, in similar circumstances (the breaking of glass that stood between him and the complainant when he was overcome by his anger towards her), with the second more serious than the first.
97․General deterrence is also important given that the offences involved family violence. There also needs to be some protection for the community and the Defendant should be made accountable for his actions. For the 27 June 2023 property damage offence, the sentence should reflect a denunciation of the Defendant’s conduct and recognise the harm done to the complainant.
98․The Defendant’s need for rehabilitation should be promoted, of course, to the extent that that is possible.
Sentencing principles
99․Ultimately, I must ensure that the Defendant is adequately punished in a way that is just and appropriate.
100․Three important considerations that are relevant to that exercise are:
(a)the need to have regard to the maximum penalties for the offences;
(b)whether a sentence of imprisonment is appropriate; and
(c)if a sentence of imprisonment is appropriate, whether the sentences of imprisonment should be made consecutive or concurrent.
Attention to be given to maximum penalties
101․Careful attention to the maximum penalties for the offences is required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick (Markarian v R [2005] HCA 25).
102․I have had regard to the maximum penalties for the charged offences, which are set out at the beginning of these reasons.
Section 10 threshold
103․Pursuant to s10(2) of the Sentencing Act, the court may only sentence the Defendant to imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
104․Having considered all the sentencing options:
(a)I am satisfied that there is no appropriate alternative to imprisonment with respect to the 27 June 2023 property damage offence and the fail to appear after bail undertaking offence. In the context of the seriousness of the offences, I do not consider that the purposes of sentencing would be adequately met if a sentence other than one of imprisonment were imposed with respect to these offences;
(b)I am not satisfied that there is no appropriate alternative to imprisonment with respect to the 16 June 2023 property damage offence. I do not consider that the objective seriousness of this offence warrants a term of imprisonment.
105․The unlawful trespass offence is a fine only offence.
Sentencing for multiple offences
106․Sections 70 and 71 of the Sentencing Act provide that the sentences I impose for the present offending must be served concurrently (with each other and with the Defendant’s existing sentences of imprisonment) unless the court directs that they be served consecutively (or partly concurrently and partly consecutively).
107․The principles relevant to the approach to be taken in this respect are set out in O’Brien v R [2015] ACTCA 47, at [26]:
(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623-624.
(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight [2005] NSWCCA 253; (2005) 155 A Crim 252 at [112]; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18].
(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].
108․I am also mindful of the comments of the Court of Appeal in R v Deng; Carberry v The King [2023] ACTCA 32 at [92]:
A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result of accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length) R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17].
109․In McCurley v Stirling [2024] ACTSC 41, McWilliam J also referred to R v MAK, at [103] stating:
The following passage from R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16] is apt here:
The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence …
Decision
110․Having regard to all of the matters that I have discussed, I have determined that the appropriate punishment in this case is:
(a)for the first offence of aggravated destroy or cause damage to property (CC2023/6268) a fine of $850, reduced from $1,000 for the Defendant’s guilty plea;
(b)for the offence of unlawful trespass (CC2023/6269) a fine of $300, reduced from $350 for the Defendant’s guilty plea;
(c)for the second offence of aggravated destroy or cause damage to property (CC2023/7896) a sentence of imprisonment of 5 months, reduced from 6 months for the Defendant’s guilty plea;
(d)for the offence of fail to appear after bail undertaking (CC2023/8544) a sentence of imprisonment of 1 month and 15 days, reduced from 2 months for the Defendant’s guilty plea.
Sentences of imprisonment to be made consecutive
111․The two offences for which the Defendant will receive a sentence of imprisonment involve clearly distinct offending. It is offending of a different kind committed on different days. Further, the aggregate sentence of 6 months and 15 days (taking into account the guilty pleas) is appropriate for the totality of the criminal behaviour for which the Defendant is to be sentenced for those two offences. The sentences should thus be made consecutive.
112․Similarly, the present offending is distinct, both in terms of the nature and timing of the offending, from the offences for which the Defendant is presently imprisoned, being the offences which were the subject of the now-cancelled ICO (the existing sentence) (which are summarised in paragraphs 7 to 12 of R v Reid). I am also of the view that the aggregate sentence (being 4 years and 5 months) is appropriate for the totality of criminal behaviour engaged in by the Defendant and that the new sentence should be made consecutive on the existing sentences.
113․I do not consider that making the sentences of imprisonment for the present offences consecutive on the Defendant’s existing sentences will produce a result that is crushing in the sense identified in R v Deng, or otherwise too severe, even though I accept that the severity of a sentence is not simply the product of a linear relationship.
114․The Defendant is strongly committed to his future and I do not consider that the addition of a further 6 months and 15 days to his head sentence would induce a sense of hopelessness or destroy the Defendant’s prospects of rehabilitation.
115․In reaching this view, I have considered not just the aggregate of the sentences, but also the time the Defendant has spent in custody, given that these parts of the Defendant’s sentences are more onerous than the parts of the sentences the Defendant has spent in the community and the Defendant has clearly found it difficulty to be in prison, away from his children.
116․In considering the time that the Defendant has spent in custody, I have had regard to the sentences imposed in NSW, given that the NSW offences and the offences for which he was sentenced to an ICO in the ACT were committed in close proximity to each other and given the short period of time between the Defendant being granted parole for the NSW sentences and being returned to custody as a result of the revocation of his parole and the cancellation of the ICO by the Sentence Administration Board. The Defendant also submitted that there was similarity in the offending conduct between the ACT and NSW offences.
117․The Defendant has spent approximately 2 years in custody since December 2021. This is comprised of 9 months prior to being granted parole for the NSW offences in September 2022 and over 15 months since the cancellation of his parole and ICO on 31 August 2023. The Defendant was in the community between 13 September 2022 and 31 August 2023.
118․The time the Defendant has spent in custody is not insignificant but I do not consider that the addition of a further 6 months and 15 days (beyond the further 3 months that the Defendant is liable to serve under the existing sentence) would induce a sense of hopelessness or destroy the Defendant’s prospects of rehabilitation. This is particularly so in circumstances where the granting of parole in the near future is a realistic (if not likely) possibility.
119․For reasons which are set out below, the non-parole period I impose will mean that the Defendant is immediately eligible for parole. While the Defendant submitted that it was possible that he may never be granted parole, that is an unlikely scenario given the Defendant’s good record in custody (in terms of his status, employment performance and commitment to rehabilitation). I note that the Defendant himself evidently considers that he has reasonable prospects of being granted parole given the enquiries he has already made regarding employment and accommodation.
120․Having regard to the above matters, I have decided to make the further sentence of imprisonment consecutive on the existing sentence, subject to an adjustment for the period that the Defendant has spent in custody in relation to the present offences.
121․Under section 63 of the Sentencing Act, the court must take into account the period during which the Defendant has already been held in custody in relation to the offences. The parties agree that the Defendant spent 6 days in custody in relation to the present offences.
122․The further sentence of imprisonment will therefore be made concurrent with the existing sentence by a period of 6 days to take into account the time that the Defendant has spent in custody referable to the present offending. The further sentence will commence on 10 March 2025 and expire on 24 September 2025.
123․The total effective term is therefore 28 April 2021 to 24 September 2025.
Non-parole period (for sentences of imprisonment of 12 months or longer)
124․Under s 65 of the Sentencing Act the court must set a non-parole period for sentences of imprisonment of 12 months or more, and identify when the non-parole period starts and ends. As the Defendant is already serving a sentence of imprisonment, s 66 requires the Court to set a new non-parole period.
125․Section 65 applies as if the Court had sentenced the Defendant to imprisonment for a term equal to the total terms of the existing sentence and the further term of imprisonment (s 66(2)). The imposition of the further term of imprisonment automatically cancels the existing non-parole period (s 66(3)).
126․A non-parole period must be fixed having regard to all the purposes of sentencing and represents the minimum period of imprisonment that justice requires that a Defendant should serve in detention.
127․Generally, the prospects of rehabilitation will be important, however the need for rehabilitation must be balanced against the requirement that the sentence be of an appropriate severity. The extent to which the community requires protection will also be of importance. Ordinarily, the non-parole period will constitute a substantial part of the total sentence.
128․In DPP v Reid (No 2), Taylor J noted that the Defendant appeared to have engaged well since his remand in custody in terms of his employment, clean urinalysis results and participation in various educative and health programs, including drug rehabilitation. In setting a non-parole period, her Honour noted the importance of transitional parole supports being provided to the Defendant given that he has been in full-time imprisonment since August 2023 and in light of his more recent efforts to further his rehabilitation. Her Honour imposed a non-parole period of 27 months, being close to 60% of the total sentence.
129․Consistently with the approach taken by Taylor J, I consider that it is appropriate to set a non-parole period of 2 years and 7 months, commencing on 28 April 2021 and expiring on 27 November 2023. That is close to 60% of the aggregate term of approximately 4 years and 5 months (28 April 2021 to 24 September 2025).
130․In my view, that is the minimum period of imprisonment that justice requires in the circumstances of this case. I have not had regard to the NSW sentences in determining the non-parole period as, while those sentences were registered in the ACT, they have now expired.
131․I also note that the Defendant will be immediately eligible for parole, and thus the non-parole period I will set is facilitative of the Defendant pursuing rehabilitation and being appropriately supported in his re-introduction into the community.
Orders
132․I make the following orders:
(a)For the offence of aggravated destroy or cause damage to property (CC2023/7896), the Defendant is sentenced to a term of imprisonment of 5 months, commencing on 10 March 2025 and expiring on 9 August 2025.
(b)For the offence of fail to appear after bail undertaking (CC2023/8544), the Defendant is sentenced to a term of imprisonment of 1 month and 15 days, commencing on 10 August 2025 and expiring on 24 September 2025.
(c)I set a non-parole period of 2 years and 7 months, commencing on 28 April 2021 and ending on 27 November 2023.
(d)For the offence of aggravated destroy or cause damage to property (CC2023/6268), the Defendant is to pay a fine of $850, with no time to pay.
(e)For the offence of unlawful trespass (CC2023/6269), the Defendant is to pay a fine of $300, with no time to pay.
| I certify that the preceding one hundred and thirty-two [132] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: 12/12/2024 |
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