Police v Ronald Tracey
[2022] ACTMC 26
•22 December 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Ronald Tracey |
Citation: | [2022] ACTMC 26 |
Hearing Date: | 8 December 2022 |
DecisionDate: | 22 December 2022 |
Before: | Special Magistrate Hopkins Elders: W. Tompkins D. Jard R. Peters Court Co-ordinator M. Abel |
Decision: | See [85] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Galambany Court – Circle Sentencing – assault – damage property – offences committed while in custody – direction to serve concurrently with existing sentence – special circumstances apply – childhood disadvantage – institutionalisation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 63, 64, 72 Crimes Act 1900 (ACT) 24, 26A Criminal Code 2002 (ACT) s 403 |
Cases Cited: | Biddle v Gatherer [2021] ACTSC 236 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Hogan v Hinch [2011] HCA; 243 CLR 506 Horan v O’Brien [2021] ACTSC 323 Owen Patterson v Wendy Brookman [2021] ACTMC 16 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v BS-X [2021] ACTSC 160 R v Tracey [2020] ACTSC 28 Tracey v The Queen [2020] ACTCA 51 R v Rappel [2019] ACTCA 11 R v Verdins [2017] VSCA 102 R v Winters [2022] ACTSC 42 Tabbah v The Queen [2019] NSWCCA 324 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 |
Texts Cited: Parties: | Australian Law Reform Commission in its Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report (2017) Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022) Bugmy Bar Book, Out of Home Care (September 2021) Commission of Inquiry into Abuse of Children in Queensland Institutions (1999) Edwige, V and Gray, P, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021) Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 11 Nadia Maria Mulino (Informant) Adriene Alice Nunn (Informant) John Edgar Campbell (Informant) Ronald Tracey (Offender) |
Representation: | B. Perkins (Informant) D. Turner (Offender) |
| Solicitors ACT Director of Public Prosecutions (Informant) Aboriginal Legal Service (NSW/ACT) (Offender) | |
File Number: | CC 11906/2020 CC 11907/2020 CC 7654/2021 CC 3705/2022 CC 7655/2021 CC 11018/2021 |
SPECIAL MAGISTRATE HOPKINS:
Introduction
This is a sentencing decision of the Galambany Court. The Galambany Court is a specialised circle sentencing court, within the ACT Magistrates Court, established to provide a culturally relevant and restorative sentencing process for Aboriginal and Torres Strait Islander people who have pleaded guilty to an offence. In the language of the Ngunnawal people, Galambany means ‘we all, including you’. The capacity of the Galambany Court to achieve its objectives depends upon the dedication, commitment and wisdom of Elders, who sit and exercise First Nations authority in the Court, with the permission of Ngunnawal and Ngambri Traditional Owners of the land upon which the Court sits.
Court proceedings take place in a circle. Words are spoken, listened to, and heard in the Circle. Though the law applied to those who are sentenced in the Circle is the same as in a standard courtroom, the process is different. This process enhances understanding. I have explained the process in detail in the decision of Owen Patterson v Wendy Brookman [2021] ACTMC 16.
The delivery of this decision is also different. It is written to be spoken directly to you, Ronald.
I acknowledge you as a proud Murri man from Queensland. Your mother is a Murri woman. Sadly, in your words, she gave you up for adoption when you were six weeks old ‘because she had no money’. She was then aged 17.
You have met your mother only once, spending six weeks with her in 2007 during a period when you were not in prison. You were then 35 years old. You said it was very hard to connect: that you were ‘like strangers’. You have had limited contact with her or your three surviving sisters since that time, though you are hoping to reconnect again upon your release.
Separation from your mother, from family, from culture and from Country is a defining feature of your life. It has led to a lifetime of isolation, institutionalisation and deep depression. But those connections have not been severed. From what I have read and heard, your connection to family and culture is increasingly important to you. Strengthening this connection may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021); R v BS-X [81]-[82].
Understanding your experience as a child and ward of the state provides a key explanation for the offending for which you are to be sentenced, as it does for the long history of offending in which you have engaged. The ‘effects of profound childhood deprivation do not diminish with the passage of time and repeat offending’: Bugmy v The Queen [2013] HCA 37 [44]; 249 CLR 571, 595.
No child should have to face the experiences you have faced. It is clear that these experiences have shaped you and that you suffer greatly under their weight. To adopt the words of Dean J in Veen v R (No 2) [1988] HCA 14 [9]; (1988) 164 CLR 465, 495 your current circumstances ‘must realistically be seen as having been at least partly caused by the oppressive and deforming yoke … society laid upon [your] formative years’.
And yet, you are a survivor. There is strength in this. To realise the potential of that strength it is necessary for you to accept responsibility for your offending and for your rehabilitation, drawing upon the supports that are available to you, to find a future in which you do not harm others or society.
10. There is hope that this future has begun to emerge since the offending for which you are to be sentenced.
11. You are currently serving sentences of imprisonment imposed upon you by Mossop J in the ACT Supreme Court on 10 February 2020 in relation to offences of aggravated burglary, burglary, theft, obtaining property by deception, assault, possession of an offensive weapon and possession of a knife: R v Tracey [2020] ACTSC 28.
12. For those offences you were sentenced to a total of seven years and eight months’ imprisonment, from 4 March 2019 to 3 November 2026. A non-parole period of four years and two months was set from 4 March 2019 to 3 May 2023. An appeal against that sentence on grounds including that it was manifestly excessive was dismissed: Tracey v The Queen [2020] ACTCA 51.
13. Under this sentence, your earliest possible release date is 3 May 2023. This does not take into account the sentences to be imposed upon you today.
14. You are now to be sentenced for a total of six offences, all committed whilst you were in lawful custody at the Alexander Maconochie Centre (AMC):
a) two offences of assaulting a frontline community service provider, contrary to s 26A Crimes Act 1900 (ACT), each with a maximum penalty of 2 years imprisonment;
b) one offence of assault occasioning actual bodily harm, contrary to s 24 Crimes Act 1900 (ACT), with a maximum penalty of 5 years imprisonment; and
c) three offences of damaging property, contrary to s 403 Criminal Code 2002 (ACT), with a maximum penalty of 10 years imprisonment.
15. Having pleaded guilty, you came before the Galambany Court on 8 December 2022 to participate in a sentencing conversation with the Elders.
16. Sentencing you for committing these offences presents significant challenges. Because all of your offences were committed whilst you were in lawful custody, there is a presumption that the sentence imposed on you today will be served consecutively with the existing sentence: s 72 Crimes (Sentencing) Act 2005 (ACT). That means that the sentence would be added on top of your existing sentence, and would commence on 3 November 2026, extending well into 2027.
17. There is a further complication. A court cannot impose a non-parole period for offences committed whilst a person is in lawful custody: s 64 Crimes (Sentencing) Act 2005 (ACT). Because of this, if the sentence were to be imposed consecutively, this would mean that your earliest release would be at some time in 2027, approximately four years after your current non-parole period ends.
18. The court can direct that you serve the sentences concurrently with your existing sentence. That means that the sentence would be served at the same time. However, because three of your offences involve causing harm to correctional officers, such a direction can only be given where there are special circumstances: s 72(4) Crimes (Sentencing) Act 2005 (ACT).
19. Your lawyer urged the court to find special circumstances and direct that the sentences be imposed to run concurrently with your existing sentence. This would, in effect, amount to a substantial additional non-parole period. But it would still enable you to work towards parole and receive supervision and support in the community on release if parole was granted. That you receive such supervision and support upon release is very much in your interests and the interest of the community.
20. Having considered all of your circumstances, the prosecutor agreed with your lawyer that a consecutive sentence of imprisonment without the prospect of parole would be ‘crushing’.
21. For reasons that I will later explain, I do consider that special circumstances apply and that it is appropriate for your sentence to be imposed so that it is concurrent with your existing sentence. The overall sentence I will impose is six months imprisonment commencing on 3 May 2023 and ending on 2 November 2023. This will mean that your earliest possible release date on parole will be 2 November 2023. If you are granted parole on that date, there will be a period of parole supervision and support of three years. This is something for you to work towards.
The Offences
22. The offences you are to be sentenced for span a period of approximately a year from 10 September 2020 to 16 September 2021.
23. All offences involved you reacting impulsively and violently, in circumstances in which you perceived yourself to be under threat or unfairly treated, assaulting correctional officers or damaging property within your cell.
24. Correctional officers at the AMC are there to do a job. It is a challenging job. They do not deserve to be subjected to violence. The harm that your actions have caused to people and to property must be recognised. I will briefly refer to the facts of each offence.
25. On 10 September 2020 at about 6.15pm you were outside the Accommodation Unit in the AMC. You climbed over a fence, entering an open area you did not have permission to be in. Two corrections officers, Mr Tildsley and Mr Pedlingham approached you and told you to stop. You appeared to be looking for something on the ground. You told the Elders this was a tennis ball. The two corrections officers followed you. When they were one to two metres away, you suddenly turned and punched Mr Tildsley in the region of his left eye, causing him to feel pain. You then clenched both fists and began walking towards both officers. They called for assistance. You were then observed to reach for something on the ground. The corrections officers tried to stop you and you used both arms to push Mr Pedlingham. These actions constituted the two charges of assaulting a frontline community service provider (CC11906-7/2020). Mr Tildsley was taken to hospital for medical treatment where it was determined that he had suffered swelling and bruising.
26. Whilst you were not subject to disciplinary action in relation to the assaults, you were punished for being out of bounds. You spent 35 days in a management area, where you were isolated from other inmates, received no yard time or exercise and had only one phone call each week.
27. Following a referral to the Restorative Justice Unit, you were found eligible and suitable to participate in a conference with Mr Tildsley and Mr Pedlingham. A face-to-face conference was held with them on 25 July 2022. The conference report states that ‘[t]he conference itself satisfied the needs of the participants’. It is a shame that a more detailed report of what was said at that conference is not available to the court.
28. What can be inferred from the information in the report and from the assessment of suitability by reference to Crimes (Restorative Justice) Act 2004 ss 32 and 36 is that you took responsibility for the harm you had caused and were remorseful. This is very much to your credit and constitutes concrete action to repair that harm. It is consistent with your plea of guilty and the remorse you expressed in you conversation with the Elders.
29. In your conversation with the Elders about the assaults you committed on 10 September 2020, you said that you assaulted Mr Tildsley because you were scared he was going to hit you. This fear arose from past experience in carceral institutions. However, you accepted that it was your fault for being out of bounds and acknowledged that it was not the job of corrections officers to come to work to get assaulted.
30. On 6 April 2021 at about 9.30am you were alone in Cell 12 in the Management Unit of the AMC. You began to make demands of corrections officers to give you food. These were denied and you became aggressive and belligerent. You then set fire to material in the toilet of your cell causing significant damage. This was extinguished. You secured yourself in an external yard and refused to re-enter your cell. You later complied and were escorted to Cell 11 (CC3705/2021).
31. At about 2pm that same day you scratched the viewing panel of your Cell 11 and caused significant damage throughout the cell, tearing electrical items off the wall and smashing other cell fittings. After a period of negotiation you were then moved to Cell 1 in the Crisis Support Unit (CC7654/2021).
32. At about 2.50pm that same day, you smashed the glass viewing panel of Cell 1 with a metal toilet roll holder and made multiple attempts to smash a larger viewing panel. You also damaged the intercom and the bed light (CC7655/2021).
33. The offending took place over a sustained period. The total cost of the damage and repairs was $10,341.60. In your conversation you did not express remorse for causing this damage.
34. On 16 September 2021 at about 3.30pm you were in your cell in the Sentence Unit. You spoke with a corrections officer, Mr McGregor, about a broken window. You then demanded to be moved to alternative accommodation, threatening to ‘go off and destroy the place’ if your demand was not met. Mr McGregor said he would inform his senior officer.
35. The statement of facts then indicates that without provocation or warning you launched yourself at Mr McGregor, striking him repeatedly with a closed fist. Whilst he grappled to restrain you, you continued to throw punches and tore his radio handset from his chest, striking him across the bridge of his nose. Numerous detainees gathered at the entrance to the cell alerting other officers to the situation. You were restrained. Mr McGregor was taken to hospital for assessment. The incident was distressing for him. He suffered pain and feared significant injury. He was exposed and vulnerable in the cell. He sustained bruising to his left temple and a cut to his nose and inner lip. It must have been a terrifying experience (CC11018/2021).
36. To some extent, you contested the way in which the assault commenced. You requested that the CCTV footage be played and tendered as evidence, maintaining that you were grabbed around the throat before you punched Mr McGregor.
37. On your account, you had been placed in the cell with another detainees after five months in the management unit. You said you had been promised a ‘one-outer’ and you were not coping with close confinement with another detainee in a cell designed for one. The detainee you were sharing the cell with was in some distress, a window was broken so it was cold and you wanted to be moved. When your request was denied you said that you ‘went to walk out the door’ and it was at this point that you said ‘he grabbed me and then I just reacted, like, I hit him, and then I thought – my heart was pumping – like, I’ve got to hit him because he’s going to get me, you know. Because I’ve been assaulted by staff – prison staff all my life. So that’s why I hit him.’ You said ‘I shouldn’t have, but I had to, because I was scared’.
38. It was agreed that the court could view that footage and draw conclusions from it. Your lawyer submitted that in so far as the footage supported your ‘subjective view,’ that subjective view could be taken into account in deciding how serious your offending was. No contrary position was put by the prosecutor.
39. I have watched the footage repeatedly and it does offer some support for what you said about how the assault commenced. It is apparent that Mr McGregor enters then leaves your cell in a relaxed manner, having spoken to your cellmate. He then turns to speak with you, standing in the doorway. There is no indication on your face or in your body language of any intent to assault. It is then clear that you move towards him. Although he may well have perceived this as a lunge, it does not appear consistent with that description. It is at least equally consistent with you attempting to leave the cell. Mr McGregor can then be seen to grab your clothing in the area of the upper chest. It is at this point that you punch him with your left fist. He grapples with you and lands on top of you in the cell. Punches are thrown both ways during this process, and whilst you are on the ground.
40. Ultimately, I accept that the assault you committed was not pre-meditated. Rather it was a reactive response to your perception that you were under threat. That said, the footage is consistent with Mr McGregor’s perception that you moved towards him and that he was under threat and called upon to respond as he did. The threat to corrections officers is very real. Though there is some explanation for your assault upon him based in the circumstances and your past experience, this does not excuse or justify your conduct. In the 25-30 seconds that it took before back-up arrived for Mr McGregor, he no doubt experienced significant fear.
Pleas of Guilty
41. The timing of your guilty pleas varied. They were not entered at the earliest opportunity. Nonetheless, your pleas spared the time and resources of a contested hearing. Importantly, this meant that the victims of your offences were not required to give evidence. I consider it appropriate that you receive a 15-20% reduction on the sentences that would otherwise have been imposed. I have applied this reduction to the sentences imposed for each offence.
42. Your pleas of guilty are also an indication of your remorse and acceptance of responsibility.
Subjective Circumstances
43. You are now 50 years old. You have a long and serious history of criminal offending in Queensland, New South Wales, Victoria and the ACT. I will not detail that history. On your account, since the age of 12 you have spent a total of four years out of custodial institutions. You said ‘As I get out of jail I can’t cope in the community and I just steal stuff to survive’.
44. As was pointed out by Mossop J in R v Tracey [2020] ACTSC 28 [40], this history demonstrates a persistent pattern of property crime and violence. It reduces the potential for leniency and raises concerns about your prospects of rehabilitation. Importantly, it suggests that unless you receive, accept and engage with rehabilitative supports whilst in prison and upon release, there is a likelihood that you will again fail to cope in the community.
45. Your history of criminal offending finds its explanation in your experience as a child.
46. The court has the benefit of a detailed report of a Dr Boer, a Registered Clinical Psychologist with extensive experience in forensic and correctional settings. This report was very helpful. It provided an important foundation for the conversation you had with the Elders. It enabled the court to better understand the ways in which your experiences as a child and young person have shaped your life, and how they played a role in your offending. Importantly, the report also enabled the court to appreciate the strengths and supports you are drawing upon, and will need to draw upon, to shape your future.
47. I will not refer in detail to the adverse and formative experiences you faced as a child and ward of the state. To publicly recount the details of trauma risks further traumatisation. It is however important to briefly summarise that experience as it explains why you react violently when you are fearful and frustrated, and substantially reduces your moral culpability for the inability to control that impulse: Bugmy v The Queen [2013] HCA 37 [42]; 249 CLR 571 (Bugmy v The Queen).
48. Ultimately, as Aunty Michele Abel recognised, you have lived a life where you often feel threatened and unsafe, reacting quickly to defend yourself. As Elder William Tomkins put it, it’s about ‘survival, especially in prison and in boys’ homes … It’s standing your ground … to ward off any harm that may come upon you’. Physical and psychological safety are key to changing your future. This may be inextricably linked to cultural connection and support.
49. After being separated from your mother at the age of six weeks, you were adopted. You felt like you ‘didn’t fit in’. You witnessed family violence. You only found out that you were adopted at age 11 or 12.
50. At age 12 you were made a ward of the state and sent to ‘Wilson Boys Home’. This was the Wilson Youth Hospital which, along with other such institutions in Queensland, was the subject of the Commission of Inquiry into Abuse of Children in Queensland Institutions (1999), conducted by Leneen Forde AC (The Forde Inquiry). The description of the experiences children faced in Wilson Youth Hospital recorded in that report are heartrending in the extreme (see pp 151-162). Like so many other children, you were subject to significant abuse at this institution. At one point you escaped and lived on the street for about six months before being institutionalised again.
51. Your substance misuse began at age 12, with alcohol. Since that time you have used and experienced addiction to multiple illicit substances.
52. At age 15 you were sent to ‘Westbrook’, otherwise known as Westbrook Training Centre. Like Wilson Youth Hospital, it was an institution in which horrific physical, emotional and sexual abuse was experienced by children and young people. Westbrook too was the subject of the Forde Inquiry (see pp 124-140; see also, Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 11).
53. Then at age 17 you were sent to Bogo Road Gaol, an adult prison.
54. Your experiences as a child and young person within these state run institutions caused you enormous and ongoing harm. They were institutions of fear, not safety; of isolation, not connection. Your criminal history demonstrates that your experiences in these institutions did not support you to live a healthy life in the community. Indeed, there is little doubt that the harm done to you in these institutions is inextricably linked to your offending and ongoing incarceration.
55. As is recognised by the Australian Law Reform Commission in its Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report (2017) ‘child removal into out-of-home care and juvenile detention could be considered as key drivers of adult incarceration’ (p 485). See also, Bugmy Bar Book, Out of Home Care (September 2021) pp 10-12; Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022).
56. According to Dr Boer, you suffer from Major Depressive Disorder of a severe nature with associated episodes of anxious distress. You experience chronic low mood and are reactive to situational stressors. He believes you have suffered with this condition for 20 years or more. Dr Boer says that when you are in the community, your substance abuse problems (primarily alcohol) increase the severity of your depression.
57. In his opinion you have suffered a serious history of social disadvantage, including loss of culture, from the time of birth. The cumulative effects of your experiences as a child and young person, and as an adult living a life in prison, have resulted in you having problems with aggression and emotional control. Your wellbeing has been profoundly affected.
58. Dr Boer is of the opinion that your Major Depressive Disorder acted to disinhibit you at the time of offending and impaired your ability to exercise appropriate judgement and make calm rational choices. This is consistent with the nature of the offending.
59. But Dr Boer also says that you are on a positive path. You will be beginning the Karralika intensive treatment program within the AMC Therapeutic Community in January 2023. You have engaged with an Elder whilst in custody who has encouraged you to connect with your birth family again, to work with an Aboriginal Land Council in Queensland to better understand your history and connections, and to engage with Indigenous specific support services, such as Winnungah Nimmityjah Aboriginal Health Service.
60. Dr Boer says:
Mr Tracey is at the beginning of understanding his own personal path – but he seems intent on following his healing journey – and has responded well to Elder leadership … Ongoing Elder involvement could facilitate this journey, including possible involvement in Yarning Circles, and cultural activities.
61. He goes on to say:
Mr Tracey’s willingness to participate in offence-related rehabilitation, job training, and education at the present time indicates that it would be most beneficial for him to continue to engage in these pursuits – in the community – at the earliest opportunity. It is my opinion that it would be ideal if he could engage in therapy for his complex treatment needs related to his offending behaviour in the community (e.g., trauma-related therapy – which is not available in custody).
62. This is important. It is a recognition that ultimately your complex childhood trauma, and the trauma associated with the lifetime of incarceration you have experienced, cannot be addressed whilst you are in custody. And yet, you will have to develop the strength, whilst in custody, to enable you to find sufficient stability and support upon release for you to engage in this therapy.
63. You provided the court with a large number of certificates of participation and attainment relating to rehabilitation and preparation for employment courses completed during your time at the AMC. This is an indication that you are serious about changing your life path. This is very much to your credit.
64. Critically, on 14 October 2022 you were admitted into the Karralika Solaris Therapeutic Community within the AMC. You will be commencing a sixteen-week psychoeducational group program in January 2023. Once complete, you will engage in a more practical relapse prevention program for six weeks.
65. Entry into and completion of this program offers a new opportunity for you. It is my understanding that you have not had such an opportunity before. The Solaris Program Case Manager, Ms Calder, wrote a letter to the court in which she made clear that you have already demonstrated a commitment to the program and to the Therapeutic Community. She says:
Mr Tracey has been proactively engaging in supported recovery-based conversations with staff in the Therapeutic Community including participation in case management. Mr Tracey displays vulnerability, authenticity in discussions as he explores his underlying treatment issues and past traumas in relation to supporting positive behaviour change. Mr Tracey is an active participant in the various community elements of the program and has been observed to consciously step outside his comfort zone in the pursuit of developing helpful social supports and recovery-based activities.
66. Your enthusiasm for and commitment to this program was made clear in your conversation with the Elders. You said ‘I’ve already started it … Because every morning I wake up and I go to the group meeting … it’s all about thoughts and feelings and processing’. You said that you have wanted to do such a course for years but that it has been very hard to get into. You have your own cell in the community, and you are feeling positive.
67. You also said that you have been seeing a counsellor for 12 months who has been advocating for you and mediating with staff at the AMC. The fact that you have formed positive relationships of support with professionals and now with other detainees is a strong indication of your developing strength and your willingness to change.
68. Looking towards the future, you made clear that you are working towards parole and hoping for housing in the community and support. In the past you said you have been released from prison with only a dole check and short-term motel accommodation. You said you are getting support from your case worker to apply for funding through the National Disability Insurance Scheme so that you will have further support on release.
69. It is important that the strength you are showing, through your significant efforts to address a lifetime of disadvantage, is recognised and factored into the sentence to be imposed on you. The hope you have, and the work you are doing to realise this hope, must be fostered.
Consideration
70. In sentencing you today, I am required to consider the purposes of sentencing set out in section 7 of the Crimes (Sentencing) Act 2005 (ACT).
71. You must be adequately punished in a way that is just and appropriate. This requires consideration of the nature of your offending, the harm you caused and your moral culpability, which is reduced by reason of your history of childhood disadvantage, and to a lesser extent, by reason of your mental impairment which is both a consequence of your childhood experience and your experience of institutionalisation: Bugmy v The Queen [44]; R v Verdins [2017] VSCA 102 [32] (R v Verdins); DPP(Cth) v De La Rosa [2010] NSWCCA 194 [177]; 243 FLR 28 (R v De La Rosa).
72. Your sentence must deter you and others from assaulting correctional officers and damaging property. Deterrence is important in relation to offences committed whilst in lawful custody: R v Rappel [2019] ACTCA 11 at [24] (R v Rappel). That said, your disadvantaged background and experiences whilst in the care of the state, together with your mental impairment, significantly moderate the extent to which you can be considered an appropriate vehicle for general deterrence. In plain speech, that means your experience as a child and young person reduces the extent to which an example can be made of you to deter others from committing offences in lawful custody: see R v Verdins [32]; R v De La Rosa [177].
73. The sentence must recognise the harm you have caused, particularly to correctional officers who have a challenging job. They must be protected.
74. Your conduct in assaulting correctional officers and damaging property must also be denounced. It is important that you understand that I am not denouncing you as a person. You are responsible for your offending, but it does not define you.
75. Finally, the sentence imposed must be designed to promote your rehabilitation and protect the community. Though these purposes can conflict, ultimately, as stated by French CJ in Hogan v Hinch [2011] HCA; 243 CLR 506 at [32] ‘Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest’.
76. In your case, protection of the community both inside and outside of correctional facilities will likely depend on the extent to which you engage with supports that are available to you. This is why it is in the interests of your rehabilitation and protection of the community that you be released, when the time comes, with the supervision and support of parole.
Legislation Concerning Offences in Lawful Custody
77. All of your offences were committed whilst you were in lawful custody. I have been assisted in considering the operation of statutory provisions that apply to such offending by a series of recent Supreme Court and Court of Appeal cases, including R v Rappel; Biddle v Gatherer [2021] ACTSC 236; 17 FLR 328; Horan v O’Brien [2021] ACTSC 323 (Horan v O’Brien) and R v Winters [2022] ACTSC 42.
78. Because you committed the offence in lawful custody, s 64(2) of the Crimes (Sentencing) Act 2005 (ACT) prevents me from imposing a non-parole period for your sentence.
79. Section 72 of the Crimes (Sentencing) Act 2005 (ACT) further provides that, unless I give a direction to the contrary, the sentence imposed must be served consecutively. This means that, unless I direct otherwise, the sentence I impose must be served at the end of the sentence you are currently serving. I cannot give this direction unless I find that ‘special circumstances apply’: s 72(4).
80. The purpose of s 72(4) is to ensure that ordinarily no leniency is to be afforded to those who offend while in custody: R v Rappel [24]; The Queen v Potts [2020] ACTCA 12 [128] (The Queen v Potts).
81. However, ‘the harshness of an aggregate sentence considered by reference to the totality principle may amount to special circumstances for the purposes of s 72(4)’: The Queen v Potts [128-129] (Rangiah J with Elkaim and Mossop JJ agreeing [2], [29]); Tabbah v The Queen [2019] NSWCCA 324 [137], [140].
82. The totality principle requires me to ensure that the total sentence imposed on you reflects the overall criminality of your offending. This is important because the overall sentence must ‘hold out a proper measure of hope for, and encouragement to, rehabilitation and reform’: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 341.
83. As I said earlier in my reasons, if I were to impose a consecutive sentence, this would mean that your earliest release would be at some time in 2027, approximately four years after your current non-parole period ends. This would be a crushing sentence. It would exclude rehabilitation as a sentencing purpose and it would remove the potential for support and protection of the community provided by supervised release: Horan v O’Brien [23].
84. Ronald, in your case I do find that special circumstances apply based upon considerations of totality, but also upon consideration of your traumatic experiences as a child and young person which have shaped your life. Together these circumstances lead to a conclusion that the appropriate sentence is one that runs concurrent with your existing sentence, but one that will mean that you will have to spend an additional six months in prison before you are eligible for parole. Under the sentence I will impose, your earliest possible release date will be 2 November 2023.
Orders
85.The sentences I impose are as follows:
a)On the charge of assaulting a front line community service provider committed on 10 September 2020 (CC11906/2020) you are convicted and sentenced to imprisonment for 3 months commencing on 3 May 2023 and ending on 2 August 2023.
b)On the charge of assaulting a front line community service provider committed on 10 September 2020 (CC11907/2020) you are convicted and sentenced to imprisonment for 2 months commencing on 3 May 2023 and ending on 2 July 2023.
c)On the charge of damaging property committed on 6 April 2021 (CC7654/2021) you are convicted and sentenced to imprisonment for 3 months commencing on 17 May 2023 and ending on 16 August 2023.
d)On the charge of damaging property committed on 6 April 2021 (CC3705/2021) you are convicted and sentenced to imprisonment for 3 months commencing on 3 June 2023 and ending on 2 September 2023.
e)On the charge of damaging property committed on 6 April 2021 (CC7655/2021) you are convicted and sentenced to imprisonment for 3 months commencing on 3 July 2023 and ending on 2 October 2023.
f)On the charge of assault occasioning actual bodily harm committed on 16 September 2021 (CC11018/2020) you are convicted and sentenced to imprisonment for 4 months commencing on 3 July 2023 and ending on 2 November 2023.
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Hopkins sitting with the Elders of the Galambany Court. Associate: B. Edwards Date: 22 December 2022 |
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