R v Andy
[2022] ACTSC 54
•23 March 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Andy |
Citation: | [2022] ACTSC 54 |
Hearing Dates: | 10 September 2021, 4 February 2022, 23 March 2022 |
DecisionDates: | 10 September 2021, 23 March 2022 |
ReasonsDates: | 10 September 2021, 23 March 2022 |
Before: | Murrell CJ |
Decision: | Two years and six months’ imprisonment, suspended from 23 March 2022 upon the offender entering into two-year good behaviour orders. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – property damage – theft – where offender suffered profound childhood disadvantage associated with intergenerational disadvantage and trauma |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12, 36 Criminal Code 2002 (ACT) ss 45A, 308, 312, 403 |
Texts Cited: | Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, August 2021) |
Parties: | The Queen (Crown) Damien Thomas Andy (Offender) |
Representation: | Counsel M Lucero (Crown) J Cooper (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) | |
File Number: | SCC 20 of 2021 |
MURREL CJ:
Introduction
The offender is to be sentenced for the following offences committed on 3 September 2020:
(a)Count 1: Aggravated burglary by joint commission, contrary to s 312(a) of the Criminal Code 2002 (ACT) (Criminal Code), by virtue of s 45A of the Criminal Code.
The maximum penalty is 20 years’ imprisonment, a fine or both.
(b)Count 2: Property damage by joint commission, contrary to s 403 of the Criminal Code by virtue of s 45A of the Criminal Code.
The maximum penalty is 10 years’ imprisonment, a fine or both.
(c)Count 3: Theft by joint commission, contrary to s 308 of the Criminal Code by virtue of s 45A of the Criminal Code.
The maximum penalty is 10 years' imprisonment, a fine or both.
Following a criminal case conference and about three weeks before the date fixed for trial, on 26 August 2021, the offender pleaded guilty to the offences. At an early stage, the offender had indicated that he would plead guilty if he was unsuccessful on an application that challenged the validity of the search warrant through which incriminating evidence was recovered.
The offender was in custody from 8 September to 24 September 2020 (17 days), before he was released on bail. The sentences will be backdated to take account of the 17-day period to 24 August 2021.
Two co-accused, Alexander Warne and a young person, are to be tried in the week commencing 20 September 2021. A fourth person was not identified.
Facts
Offences on 3 September 2020
At about 9:50AM on 3 September 2020, Lynette Walker (a pseudonym) was at home with her two children, aged one and seven years. She was in the kitchen when she heard a repeated smashing noise at the front door. She looked down the hallway and saw four people standing near her front door, three of whom were holding a stick or a baseball bat.
The glass panel beside the front door had been smashed. One of the intruders wore a face covering.
The offender was one of the intruders. He did not have a weapon and was not disguised. Ms Walker recognised him as she had met him on previous occasions through a former partner. In submission, the offender's legal representative said that, in the lead up to the offence, there was hostility between the complainant and the co-accused, Mr Warne.
The intruders stepped through the broken glass panel and entered the house (Count 1).
Ms Walker told her older child to run out the back door. The child ran from the premises and appealed to a bystander, who was waiting for a bus, to call the police.
Ms Walker grabbed her one-year-old child and ran outside. The intruders screamed threats and abuse and damaged property inside the house before following Ms Walker outside. One intruder threw a stick towards Ms Walker as she was holding her one-year-old child. She ran out through the back shed.
The offender stayed outside the back of the house. The co-offenders re-entered the house and proceeded to smash property, including a shelving unit, crockery, a toilet seat, internal doors and glass windows (Count 2). One offender opened the refrigerator and threw food over the kitchen floor. The extent of the gratuitous damage inside the premises is apparent from photographs that are part of Exhibit 1.
The offenders stole Ms Walker's white “Xbox One S” gaming console and a glass “bong” (Count 3). They did not take the cords that had been connected to the Xbox console.
The offenders drove away in a dark blue Holden Commodore that was registered to the offender.
Later that day, police executed a search warrant at the offender's residence. They located two baseball bats (a wooden bat and a silver bat), a hammer and the stolen Xbox console.
CCTV footage seized from the offender's residence showed:
(a)the offender wearing a dark hooded jumper and black pants, putting a baseball bat into his blue Holden Commodore approximately 52 minutes before the offences;
(b)the offender leaving his residence in the car about 30 minutes prior to the offences;
(c)the offender returning to his residence in the same car about 40 minutes after the offences;
(d)an offender walking from the car towards the offender's residence, carrying the “bong” and Xbox console, approximately 40 minutes after the offences; and
(e)another person opening the car and retrieving a broken wooden baseball bat, a silver baseball bat and a hammer approximately one and half hours after the offences.
Forensic analysis matched shards from the silver baseball bat, the hammer and shards found inside the offender's vehicle with glass at Ms Walker's residence. Paint samples from the silver baseball bat were matched to paint samples taken from her residence. DNA on the samples taken from the broken wooden baseball bat matched that of the offender.
On 16 September 2020, a further search of the offender's residence located the stolen glass “bong”.
The complainant provided a victim impact statement which was read by the prosecutor. Inevitably, the offence has had a severe impact on her. In the week following the incident, she and her family stayed elsewhere as they felt too unsafe to go home. Once they returned home, the complainant had difficulty eating, sleeping or concentrating on her children. The family slept together in the living room. The complainant's older daughter developed a nervous skin condition and her younger daughter experienced nightmares and became fearful of men, a fear that she maintained for some months. The complainant installed security features, but she continued to feel fearful when at home. She has become depressed and anxious when interacting with others whom she does not know. She still experiences nightmares and will not go to Queanbeyan for fear of encountering the offender or his family.
Objective Seriousness
The aggravated burglary was a serious offence of its type. The following features are relevant:
(a)It was an offence in the nature of a home invasion involving a violent intrusion into a residence.
(b)Although the offender did not bring an implement into the house, he was integrally involved in the offence; he was the driver, he entered the residence with the other men, he provided some of the implements used in the attack and he maintained possession of the stolen items.
(c)It is relevant that the offender was in the company of not one but three other offenders.
(d)Although the offender himself was not carrying an implement and did not actually damage the property, the other offenders were carrying implements for the apparent purpose of both breaking into the home and causing extensive, gratuitous damage.
(e)There was a degree of planning, as evidenced by the CCTV footage showing the offender putting a baseball bat into his vehicle and attending with others who were also carrying implements. By the same token, the offence was clearly not well thought through in that the offender, who was known to the complainant, made no attempt to disguise himself.
(f)It is clear from the extent of the destruction as compared to the theft that the motive for the offence was to frighten the complainant.
(g)The offence occurred at a time when the complainant and her children were at home and could be expected to be at home. She was a single mother of two young children.
(h)Children were present and they witnessed the event. The presence of the complainant's children aggravated her own fear. Inevitably the incident was very distressing and has had a significant psychological impact on the complainant and her children.
In relation to the objective seriousness of the property damage offence, the offender's role was secondary in that he himself did not directly cause the damage. However, it would appear that an important motive for the incident as a whole was to cause property damage, so he is well implicated in the offence.
The photographs that were tendered show that the damage was multifaceted, extensive and gratuitous. Further, the damage related to the complainant's home and made it very difficult, both physically and emotionally, for the complainant to return to her home and enjoy it thereafter. The home was a rental property and the owner of the property would have incurred very significant expense in repairing the property.
In relation to the objective seriousness of the theft, the items that were taken were of relatively low monetary value and no apparent personal value, and they appear to have been recovered.
Subjective features
The offender is 39 years old and was 38 years old at the date of the offences.
He has a lengthy criminal history in New South Wales, but for matters that are less serious than those before the Court. Principally, his record contains a number of driving offences and offences of family violence.
His criminal record includes numerous driving offences and convictions for contravening apprehended violence orders (domestic violence). There are also two convictions for assault occasioning actual bodily harm, one of which ultimately resulted in a sentence of imprisonment of 12 months with a nonparole period of three months commencing in February 2016. It seems that the offender has served no other sentence of full-time imprisonment.
More recently, for offences of stalking and contravening an apprehended violence order committed in November 2018, he received a two-year supervised community correction order from 8 October 2019 to 7 October 2021. He was sentenced to a nine-month intensive correction order from October 2019 to July 2020 for an offence of assault occasioning actual bodily harm committed in January 2019. For an offence of contravening an apprehended violence order committed in January 2019, he received an eight-month community correction order from August 2019 to April 2020.
There is no history of burglary, property damage or theft. However, there is a significant history of violence, particularly domestic violence.
It is an aggravating feature that at the time of the offences, the offender was on conditional liberty, being subject to a two-year community correction order (from 8 October 2019 to 7 October 2021) that had been imposed by the Queanbeyan Local Court for offences of stalking and contravening a domestic violence order.
Since committing the offences on 3 September 2020, the offender has been found guilty of driving with a low range prescribed concentration of alcohol (for which he was conditionally released without conviction), stalking (for which he received an 18-month supervised community correction order from May 2021 to November 2022) and driving with an illicit drug in his blood (for which he was fined).
The offender is an Aboriginal man who was born in Moruya and is from the Yuin tribe.
He has six children and two grandchildren.
He suffered profound childhood disadvantage associated with intergenerational disadvantage and trauma.
The offender is the oldest of four children.
The offender's father has told him of the removal of the offender's aunts and uncles following the tragic deaths of the offender's paternal grandparents. The offender's father has described how, following the removal, at 12 years of age he had to survive on his own resources. As an adult, the offender's father managed to locate all but one of his siblings. All but one of those located had become alcoholics, although another later found sobriety through the priesthood.
During the offender's childhood, the offender's father was an alcoholic who was aggressive and abusive. The offender's father was physically violent towards the offender's mother in the offender's presence on an almost daily basis. The offender recalled that the “bashings” did occur daily. They were associated with degrading and controlling behaviour. The offender and his siblings were terrified and felt guilty because they were unable to protect their mother. In particular, the offender felt responsible because he was the oldest child.
As most of the family income was spent on alcohol, there was often little food in the house. At a young age, the offender began to do lawn mowing jobs for neighbours after school to raise some money.
At 13 years of age, the offender was sexually abused by an older man who allegedly abused many other children in the same community. Although the matter was reported to the police, the offender was too disturbed to pursue police action. He described continuing symptoms consistent with post-traumatic stress disorder. His mother confirmed that the offender still suffers because of this assault. The offender's anxiety has been increased by a recent assault on one of his daughters.
Following the abuse, the offender started to smoke cannabis for relaxation. His parents smoked a lot of cannabis, and he was able to obtain it through them. The offender remains a heavy cannabis user, smoking up to 20 “cones” a day. He is attempting to cease cannabis use.
The offender's 11-month-old son provides the offender with a strong motivation to change his lifestyle. The offender’s maternal grandfather has passed on traditional culture to the offender and the offender wants to pass these learnings onto his son.
In November 2019, the offender and his partner commenced the Building Respectful Families Program, which uses a “whole family approach” to reconfigure patterns of violence and abuse exhibited by clients with high and complex needs. In September 2020, the coordinator of that program reported that the offender had engaged consistently every week and, over the preceding 12 months, had attended more than 20 sessions. He also fairly stated that it was very difficult to predict whether a participant would sustain positive change, or for how long.
The offender's sister described the offender as an amazing father and grandfather. She said that his two teenage girls were suffering from very serious psychological problems and needed their father's support. She said that his two younger daughters were in his care, having been traumatised by abuse when they lived with their mother who is now incarcerated. The offender's infant son resides with the son’s mother.
The offender's mother has been supporting five of her granddaughters, including four of the offender's children, and stated that she could not continue to provide them with the high level of support that they require. In late 2020, she herself suffered a heart attack. She depends on the offender for support.
The offender’s sister said that the offender had suffered an injury in a motorbike accident which meant that he could not work for some time. However, he provided a short reference from his current employer who has a packing and furniture removal business. She described him as a reliable and hardworking employee.
The Court was given a lengthy report by Vanessa Edwige and Dr Paul Gray entitled “Significance of Culture to Wellbeing, Healing and Rehabilitation” (Report, August 2021) to support the submissions made by the offender's legal representative.
I have no doubt whatsoever that the offender has since childhood suffered the impacts of profound disadvantage and they will continue to impact upon him throughout his life. They will make it difficult for him to address the issues that he has with family violence and substance abuse. However, I am satisfied that he is motivated to address those issues. It is, of course, difficult to predict whether he will be able to achieve or, more importantly, sustain change in behaviour. Such change is most likely to be achieved if the offender receives continuing multifaceted support that covers matters such as his substance abuse, housing, and need to maintain a strong connection with his culture.
Other sentencing considerations
Relevant sentencing purposes include accountability, denunciation and recognition of the high level of harm sustained by the victims.
While rehabilitation is an important sentencing consideration, having regard to the offender's age, criminal history and the longstanding impact of childhood deprivation, his prospects for rehabilitation must remain guarded. Nevertheless, it is very important that he pursues rehabilitation and achieves it to the extent to which he is capable of doing so.
The offences, particularly the offence of aggravated burglary, are serious offences. The offence of aggravated burglary is a serious offence of its type and the maximum penalty for such offences is 20 years' imprisonment. That is a critical sentencing parameter.
The parties agree that the only appropriate sentence is a sentence of full-time imprisonment. In my view, relevant sentencing purposes would not be adequately addressed by any sentence other than by a sentence that involved a significant period of full-time imprisonment.
The Crown referred to several somewhat comparable cases involving aggravated burglary or burglary in the nature of a home invasion. Having regard to the maximum available penalty, the sentences appear to me to be quite low. However, I have had regard to those cases.
When it was indicated to the offender that I would not be prepared to release him in the immediate future on a drug and alcohol treatment order should he be assessed as suitable because I did not consider that making an order in the immediate future would adequately address all sentencing purposes, he instructed his legal representative that he wished to have the matter finalised today by way of a sentence of full-time imprisonment. I consider, and his legal representative agreed, that he should be afforded the opportunity to reflect on this decision, which is a serious decision for two reasons.
First, it would see him incarcerated in an environment which would be counterproductive to the goal of rehabilitation. Second, it would deprive him of the opportunity to receive the sort of support that he clearly needs, and that may be available through a drug and alcohol treatment order. There are few opportunities to receive that sort of high-level assistance and I would like to see the offender reflect on it before finally deciding that he does not wish to pursue that option. By allowing him the time to reflect, this will in no way affect the sentence or make his circumstances any more difficult than if I proceeded to sentence him today.
Sentence imposed on 10 September 2021
On Count 3 (theft), I convict the offender and sentence him to one month’s imprisonment, from 24 August 2021 to 23 September 2021.
In relation to the offences of property damage (Count 2) and aggravated burglary (Count 1), I will adjourn the sentence date to 4 February 2022. Bail is refused.
If I was sentencing the offender today, I would of course have imposed the one-month sentence for theft (Count 3) from 24 August 2021 to 23 September 2021.
For the property damage offence (Count 2), from a starting point of 15 months’ imprisonment, I would reduce the sentence for the plea of guilty to a sentence of 12 months' imprisonment, which would run from 24 August 2021 to 23 August 2022.
For the offence of aggravated burglary (Count 1), from a starting point of 33 months' imprisonment, I would reduce the sentence for the plea of guilty to a sentence of 28 months' imprisonment, which would run from 24 October 2021 to 23 February 2024.
The total sentence would then be two years and six months’ imprisonment. I would impose a nonparole period of one year and three months’ imprisonment, from 24 August 2021 to 23 November 2022.
In the event that the offender returns in February and still wants to proceed to be sentenced in the ordinary way, that is what I will impose.
Sentence imposed on 23 March 2022
On 10 September 2021, I gave an indicative sentence in relation to Counts 1 and 2. At that stage, the question was whether the offender should be placed on a drug and alcohol treatment order.
In February 2022, the offender offered to provide assistance to the authorities. He subsequently did so, providing a statement in connection with the two co-accused with whom he committed the subject offences, and gave extensive evidence at their trial.
The Crown stated that, but for his assistance, convictions would not have been secured. This valuable assistance needs to be recognised in a significant way in the sentences that are imposed. Such recognition can be given in different ways, one of which is in the way in which a sentence is directed to be served.
Prior to being advised of the assistance that was provided, invoking the application of s 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I was minded, although certainly not committed, to directing that the offender serve his sentence by way of a drug and alcohol treatment order.
That is of course an onerous way of serving a sentence. Although it is directed to rehabilitation, it places a variety of requirements on an offender and, in the case of this offender, would have interfered significantly with his life in many respects. This includes the place where he lived, his work commitments, his capacity to engage in sorry business and otherwise to reconnect with his community.
Consequently, after some consideration, I have decided that solely having regard to s 36 of the Sentencing Act, it is appropriate to direct that the sentence be served by way of a partially suspended sentence in recognition of the offender's assistance.
In relation to the property damage offence (Count 2), as indicated on 10 September 2021, the offender is convicted and sentenced to 12 months' imprisonment. Taking into account the period that the offender has spent on bail (that is since 11 February 2022) and the period that he previously spent in custody serving a sentence from 24 August to 23 September 2021, the offender is sentenced to 12 months' imprisonment, from 5 September 2021 to 4 September 2022.
In relation to the aggravated burglary offence (Count 2), the offender is convicted and sentenced to 28 months' imprisonment, from 5 November 2021 to 4 March 2024.
That is a total period of two years and six months' imprisonment.
Pursuant to s 12 of the Sentencing Act, in relation to each conviction, I make a suspended sentence order, suspending the sentence from today, 23 March 2022.
I will make, in each case, a two-year good behaviour order. In each case, the good behaviour order is subject to the conditions that the offender:
(a) report to Corrections by 4:00PM today; and
(b) submit to the supervision of Community Corrections for such period as they deem appropriate, not to exceed the period of two years from today, but to be a period of at least 12 months from today.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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