R v Banks
[2022] ACTSC 202
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Banks |
Citation: | [2022] ACTSC 202 |
Hearing Date: | 12 July 2022 |
DecisionDate: | 11 August 2022 |
Before: | Kennett J |
Decision: | See [81]–[85] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – make demand with threat to kill – joint commission – possess prohibited weapon – intensive corrections order imposed – reparation order imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 42 Crimes (Sentencing) Act 2005 (ACT) ss 11, 12A, 19, 46D, 78 Prohibited Weapons Act 1996 (ACT) s 5 |
Cases Cited: | Bentley v The Queen [2021] NSWCCA 18; 287 A Crim R 564 Butler v The Queen [2013] ACTCA 38 Thompson v The Queen [2018] ACTCA 2 |
Texts Cited: | Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) |
Parties: | The Queen ( Crown) Jamie Arthur Banks ( Offender) |
Representation: | Counsel A Williamson ( Crown) S Whybrow ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Offender) | |
File Number: | SCC 295 of 2021 |
KENNETT J:
Introduction
On 25 May 2022 the offender, Jamie Arthur Banks, pleaded guilty to two offences that he committed in August 2021.
(a) Make demand with threat to kill (joint commission) contrary to s 32(1)(a) of the Crimes Act 1900 (ACT) (Crimes Act) read with s 45A of the Criminal Code 2002 (ACT)
The maximum penalty is 20 years’ imprisonment.
(b) Possess prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT)
The maximum penalty is 5 years’ imprisonment, a fine of $80,000, or both.
The facts relating to the joint commission offending are set out in R v Kirkwood [2022] ACTSC 148 (Kirkwood). The following is a summary of the agreed statement of facts before the Court in this proceeding.
(a) The offender sometimes goes by the nickname “Jim Bob”. He went to school with the co-offender, Jesse Kirkwood (together referred to as the offenders). The offenders have known each other for over 10 years.
(b) Between 13 and 15 August 2021, co-offender Kirkwood made and received a number of calls from a contact saved in his phone as “Jimbob”.
(c) As set out in more detail in Kirkwood, on 13 August 2021, co-offender Kirkwood and another co-offender, Keona Watson, exchanged messages using an encrypted mobile phone application. The messages refer to a “hit” that was out on Jeffrey Hollins (a pseudonym) for him to be killed. They indicate that co-offender Watson knew Mr Hollins through her former partner Mr Arden (a pseudonym), that co-offender Kirkwood was interested in the money for the hit, and that co-offender Kirkwood agreed to pay co-offender Watson $1,000 for Mr Arden’s address on the understanding that Mr Hollins was likely to be there. Mr Hollins was also sometimes known as “Jim Bob”.
(d) Shortly after 1:30pm on 13 August 2021, co-offender Watson directed the offender, co-offender Kirkwood and an unidentified male to Mr Arden’s residence. The offender and co-offender Kirkwood got out of the car.
(e) The complainant (Amos Derricks (a pseudonym)), who lived with Mr Arden, was the only person at home. Co-offender Kirkwood told the complainant that they were looking for “Jim Bob”. In response, the complainant told Mr Kirkwood and the offender that he did not know where Mr Hollins was. The complainant further said he would not let the offenders inside and that he would call the police. The complainant left the house to talk with the offenders only after co-offender Kirkwood said they were going to try to find another way to get into the house.
(f) Outside, co-offender Kirkwood again asked the complainant where Mr Hollins was, saying words to the effect of “if you don’t tell us where he is now, there’s going to be ten boys rocking up here and it’s not going to be good”.
(g) Fearing for his safety, the complainant drove the offenders to look for Mr Hollins at his residence in Kambah. On the way, co-offender Kirkwood said words to the effect of “I’m a professional kidnapper and I’ll kill someone for a certain amount of money”. During a detour to co-offender Kirkwood’s residence, co-offender Kirkwood tried to show the complainant a video that he said showed what they did to the last person who tried to do a “runner”. The offender then sat watching the complainant from another vehicle while co-offender Kirkwood went inside. Co-offender Kirkwood returned to the car with a samurai sword and the offender sat in the back seat. Co-offender Kirkwood told stories of how he kidnapped people and how he would like to kill people. The offender told the complainant that he would like to grab a gun and shoot someone.
(h) Upon arrival at Mr Hollins’ residence, a housemate of Mr Hollins told the complainant that Mr Hollins was not home.
(i) The offender asked the complainant to make a $1 bank transfer so that he could verify the complainant’s financial details for his boss. A transaction was attempted but could not be completed because a verification code was required, and had, the complainant said, been sent to a laptop in his home. The three returned to the complainant’s home.
(j) Around this time, the complainant asked the offenders what they were doing. Co-offender Kirkwood said that there was a $25,000 “hit” out on Mr Hollins and that they were going to kill Mr Hollins unless they could get $25,000 some other way (Count 1—Make demand with threat to kill).
(k) On return to the complainant’s residence, co-offender Kirkwood ransacked Mr Arden’s bedroom, taking approximately $11,500 worth of his belongings, while the offender sat on the couch and went through the camera system at the residence to see if it was working. The complainant got the verification code from his laptop for the offender, thinking this was for the $1 transfer. The offender transferred $1,000 to co-offender Kirkwood’s bank account.
(l) The complainant told the offenders that he would get them some money so that they would leave him and Mr Hollins alone. The three drove to the branch of Bendigo Bank in Curtin so the complainant could increase what he said was a $1,000 daily limit on his bank withdrawals. Co-offender Kirkwood told the complainant to withdraw $2,000. The complainant went briefly inside the bank, returned to the car, and told the offenders that it would take at least 15 minutes to increase the daily limit. the complainant was told to get what he could. The complainant withdrew $1,000 from an ATM and gave it to the offender. The offenders were then driven to a location near the offender’s home where they got out of the car.
In relation to the offence of possess prohibited weapon, the agreed statement of facts sets out that the police attended the offender’s home on 20 August 2021 to execute a search warrant. The offender answered the door with an axe in his hand. The police located a black conducted energy weapon (CEW) in the offender’s bedroom (Count 2—Possess Prohibited Weapon).
Victim impact statements
A victim impact statement written by Mr Derricks was provided to the Court. Mr Derricks says that, following the offence, he has ongoing fears for his safety that have prompted him to leave the ACT. The offending has also affected his ability to trust people and has negatively impacted his sleep. He reports that during the offence he felt as though his life was in danger; he was intimidated, fearful, anxious and in a state of panic.
Objective seriousness
Make demand with threat to kill
The nature of the demand, the nature of the threat, and the manner and circumstances in which they were made are relevant in assessing the objective seriousness of this offence: Kirkwood, [75].
In relation to the nature of the demand, the offender demanded $25,000 from the complainant. This is a significant sum that would not be easily obtainable.
In relation to the nature of the threat, there was an explicit threat to kill Mr Hollins, but the threat was made to Mr Derricks rather than to Mr Hollins himself, who was not present when the threat was made. As I found in Kirkwood, this offending is less objectively serious than offending where the threat to kill is directed towards the same person as the demand and is capable of immediate realisation. Nevertheless, the threat was credible enough to make the complainant do what he could to meet it, notwithstanding the considerable cost to him.
The Crown submitted that there was also an implied threat to kill or inflict grievous bodily harm on Mr Derricks. It was put that a threat of this kind was implied in the explicit threats made to him by the offenders (that there would be “ten boys rocking up here and it’s not going to be good”, that co-offender Kirkwood is “a professional kidnapper” who will “kill someone for a certain amount of money”, and that the offender would like to grab a gun and shoot someone); the attempt to show a video to the complainant of what co-offender Kirkwood claimed happened to the last person who tried to do a “runner”; and the presence of the samurai sword. These things would doubtless have been very frightening for the complainant, and it is an agreed fact that he feared for his safety, but they do not establish that the offenders made a threat to kill or inflict grievous bodily harm against Mr Derricks.
The Crown also submitted that “forcible confinement” was an aspect of this offending which increases its objective seriousness. It is possible that forcible confinement would add to the seriousness of the offending by supporting a finding that there was an implied threat to kill or inflict grievous bodily harm on Mr Derricks, or by informing the manner and circumstances in which the demand was made. However, I have concerns about making a finding that the complainant was so confined. The offender was not charged with unlawful confinement. The complainant may have had some opportunities to escape, most notably when he entered the bank by himself, or not to take the offenders to Mr Hollins’ residence at all. It is possible that he did not take these opportunities, in part, due to the strength of his belief that he needed to obtain money to prevent the killing of Mr Hollins, which is relevant to the objective seriousness of the offending in a different way.
In relation to the manner and circumstances in which the demand was made, the relevant facts are set out at [2], and to some extent have been addressed immediately above. No threat was made to kill the complainant, but the prolonged offending, in company, would have been very frightening for him. Unlike in Kirkwood, where possession of the samurai sword was separately charged, here I take its presence into account as an aggravating factor.
In relation to the offender’s motive and the degree of planning involved, counsel for the offender submitted that the offending was not planned or pre-meditated by the offender but rather a result of a misunderstanding stemming from the fact that Mr Hollins and the offender share the nickname “Jim Bob”. That is, the offender decided to accompany co-offender Kirkwood to the complainant’s residence by reason of an apprehension that the target of the “hit” (“Jim Bob”) was the offender himself, and a wish to investigate that threat.
I do not accept this submission. It is somewhat implausible that, upon forming the belief that he might be the object of a contract killing, the offender would try to find out more by going to see those believed to be involved in its planning. Even if he had reasons not to involve the police, it is more likely that the offender would ask his long-standing acquaintance Mr Kirkwood to find out more, or else simply make himself difficult to find. The explanation is also not found in the agreed statement of facts. It was offered to Ms Carol Aldridge, the author of the Pre-Sentence Report, and Ms Leesa Morris who wrote a psychological assessment commissioned by the offender, but it has not been put in sworn evidence or been the subject of cross-examination. In circumstances where the offender knew those reports were being prepared to be tendered as part of this sentencing proceeding, it is difficult to afford the statements more than very limited weight: Imbornone v R [2017] NSWCCA 144, [56]–[60]; R v Yeboah [2022] ACTSC 127, [18].
The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou v The Queen [2015] HCA 29; 256 CLR 47, [64], [66]. That burden has not been discharged here.
On the other hand, the conduct of the offender throughout the commission of the offence, and the fact that the offender was with co-offender Kirkwood for approximately one hour prior to their arrival at the complainant’s residence suggest only weakly that he was involved in its planning. The offending was not sophisticated, and would not have involved a large amount of planning, but I do not consider it established that the offender arrived at the complainant’s residence having planned or pre-meditated the offending.
The issue is not of great importance. Given the unsophisticated nature of the offending and its extended duration, the extent of the offender’s role in its planning would not have greatly lessened or increased the objective seriousness of his role in the commission of the offence. Almost all of the conduct constituting the offending was carried out after Mr Derricks made it clear that the “hit” concerned another Jim Bob.
I regard this offending as being in the low range of objective seriousness, but at the upper end of that range.
Possess prohibited weapon
In Chatfield v Badman [2015] ACTSC 209, Murrell CJ observed that “[w]hen considering the objective seriousness of an offence of this type, it is necessary to consider both the nature of the particular prohibited weapon and the nature of the offender’s conduct vis-à-vis that weapon.”
(a) The nature of the prohibited weapon. The weapon was a CEW, which it was agreed is commonly referred to as a taser. Tasers are dangerous weapons, capable of being used to inflict injury. However, they are less likely to cause grievous bodily harm or death than many of the other weapons captured by s 5 of the Prohibited Weapons Act, which, at the upper end of objective seriousness, include bombs, grenades, mines and devices made or modified to kill or incapacitate someone.
(b) The nature of the offender’s conduct and circumstances in which the weapon was possessed. There is no evidence that the device has ever been used by the offender or anyone else. It was not associated with the offender’s involvement in the threat to kill Mr Hollins, and there is no evidence to suggest it was connected with any other illegal activity (for instance, protection in relation to drug dealing). It was, however, possessed in a house where three young children live. I consider that this must be regarded as an aggravating feature.
(c) During the execution of the search warrant, the offender stated that he had never seen the taser before. To Ms Morris he reportedly denied having purchased it, but accepted he knew it was in his home, saying “I’d seen it before but I didn’t know it was in the spot that they found it in”. It would not be possible to accept that the offender had never seen the taser found in his bedroom before even without these conflicting statements. Whether he was responsible for its purchase makes no material differences to my findings.
I regard this offending as being in the low range of objective seriousness, but somewhat towards the upper end of that range.
Subjective features
The Court was provided with a Pre-Sentence Report (PSR) dated 7 July 2022. Subjective features were also addressed in written and oral submissions and in a psychologist’s report prepared by Ms Leesa Morris, letters from the offender’s and his partner’s medical treating practitioners and a large number of character references tendered by the offender.
Family circumstances and relationships
The offender was born in Queanbeyan and raised in Canberra. His father committed suicide when he was one year old. He and his older brother were raised by his mother and his maternal great grandparents. At around the age of 13, the offender was greatly affected by the death of his great grandfather who, he indicated to the PSR author, was a positive male role model. The offender maintains a close relationship with his father’s extended family of uncles, aunts and cousins.
[Redacted]. It is surprising this was not addressed in the PSR, or during the sentence hearing, given the significant impact it may have had on the offender’s life. Ms Morris reports the offender saying that, if given the opportunity to ‘go back and change things’ in his life, he would not take any drugs and [redacted].
The offender reported to the PSR author “a previous 13 year relationship with his ex partner” with whom he had three children. The children are now aged ten, eight and two. It was explained in oral submissions that this “on-and-off again” relationship had ended approximately six months prior to the offending, but the parties had commenced cohabiting again at some point since his arrest. (I therefore refer to the offender’s “partner”, although she is described in the reports as his ex or former partner.)
Tragically, in the last three years, the offender’s family has experienced the death by suicide of the offender’s partner’s father and brother.
The offender plays a significant role in caring for his children. It is described in the PSR that the offender is heavily involved with his two eldest daughters’ sporting activities, and common themes in the character references are the offender’s dedication to his family, and the strong bond between the offender and his children. He currently shares caring responsibilities with his partner, but it was submitted on behalf of the offender that she has physical and mental health issues which have “at times” and “for extended periods” left the offender as the children’s primary carer. Counsel for the offender used the metaphor of a “safety net”. It was also said from the bar table that the offender has recently applied to be a recognised carer for his partner.
I accept that the offender’s partner and children would suffer hardship if the offender were sentenced of full-time imprisonment, and to a lesser degree, if he were subjected to an intensive corrections order (ICO). However, I have given these facts little weight. In his written submissions the offender relied upon R v BC (No 4) [2021] ACTSC 119, a decision which was recently disturbed on appeal. The Court of Appeal constituted by Elkaim, Mossop and Bromwich JJ observed that although there is significant authority to the effect that there is no need for “highly exceptional” circumstances before hardship can be taken into account, there is a relatively high bar before this will result in any significant reduction in sentence: R v BC [2022] ACTCA 19, [35]–[37]. Hardship—sometimes very significant—to the family and dependents of an offender is often the inevitable consequence of the imposition of adequate punishment and is therefore not permitted to overwhelm other sentencing considerations. The evidence in the present case does not go into detail about the support available to the offender’s partner and children in the event that he is incarcerated; however, the hardship that can be envisaged is of a similar nature to that which was regarded as not justifying any significant leniency in R v Sordini [2015] ACTSC 45 and R v NO (No 2) [2018] ACTSC 37.
Education and employment
The offender attended school in Canberra until the age of 16, when he left before completing Year 10 to seek employment.
He commenced an apprenticeship as an electrician which he aims to formally complete. For the last six years, the offender has been employed in the landscaping industry. For the last two and a half years, he has been managing his own landscaping business. The work was described in oral submissions as highly seasonal. However, to the extent that this income is insufficient, the offender has other opportunities to work. An ex-employer indicated in his character reference that he would be prepared to employ the offender again.
Drug use
The offender commenced smoking cannabis during his teenage years. He reported to the PSR author that he continued to use cannabis socially for a few years, before ceasing as he did not enjoy the effects of the drug. The offender also reported that five months prior to the commission of the offences, he was smoking methamphetamine daily, at a cost of approximately $300 per week, but that this use ceased at the time of his arrest (20 August 2021).
Ms Morris’ report discloses a somewhat more extensive history of drug and alcohol use than the PSR, including experimentation with “party drugs”, alcohol abuse as an avoidance mechanism and cannabis use in the last four years. The two are consistent, however, in recording the offender’s claim that he has not used illicit substances since around the time of his arrest. I also note that, on the basis of the information with which she was provided, Ms Morris considered the offender may meet the criteria for stimulant use disorder (amphetamine-type substance) moderate.
Health
The offender is engaging with his GP in relation to cardiovascular disease and kidney problems.
He reported to the PSR author having previously suffered from anxiety and depression, and currently being on medication to stabilise his symptoms. He and his GP are reportedly developing a mental health care plan which will include counselling for past grief and trauma.
In her report, Ms Morris opined that the offender does not present with sufficient symptoms to meet the criteria for posttraumatic stress disorder. She also recorded the offender’s reporting of anxiety symptoms, and some suicidal ideation since having been charged. A Violence Risk Appraisal Guide-Revised (VRAG-V) assessment suggested a 20 per cent likelihood of reoffending in the next five years. Ms Morris recommended psychological assistance for the offender, and opined that treatment is best delivered in the community. Although I have had regard to this report and Ms Morris’ recommendations, it must be acknowledged that its preparation involved a degree of self-reporting from the offender, and it should be read in that light.
Attitude to offences
The PSR author considered the offender to have insight into the impact of his behaviour against Mr Derricks. However, she also noted that he sought to justify the offence of possess prohibited weapon by saying that he did not own, and could not explain the presence of, the taser, and that he sought to minimise his involvement in the offence of make demand with threat to kill by saying that he was charged simply because he was there with the co-offenders at the time of the offences and had minimal involvement. Similar statements are recorded in Ms Morris’ report. At best these statements are self-serving and at worst they demonstrate a lack of understanding of the severity of the offending and the role he played in its commission.
Other sentencing considerations
Criminal history
The offender has a limited criminal history. [Redacted]. In 2021, the offender was convicted of failing to vote and having custody of a knife in a public place. In each case a fine was imposed. The offender does not have a recent history of like offending that would disentitle him to leniency.
Plea of guilty
The matter was set down for trial in the week commencing 31 May 2022. Following settlement discussions between counsel occurring in the week commencing 16 May 2022, on 25 May 2022 a plea of guilty was entered to the charges before the Court.
Noting the usual range of discounts applied by this Court outlined by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47], I consider that the appropriate discount on the sentences I would have otherwise imposed is slightly less than 15 per cent.
The matter having been listed for trial affects the utilitarian value of the plea and would ordinarily result in a discount of 10 per cent. Although Court resources are ultimately spared when the trial date is vacated, the trial date occupies time in the Court’s list that cannot always be used effectively when the trial is vacated following the entering of guilty pleas. It was not, however, a plea entered “on the steps of the Court” (which almost invariably results in Court resources going to waste).
However the settlement discussions resulted in a significant charge, aggravated robbery, being discontinued. The parties did not suggest that this result was one which was always available to the offender. In my view, this warrants the increase in the percentage of the discount that I have applied.
Time in custody and on conditional liberty
The offender was arrested on 20 August 2021 and granted conditional bail on 21 August 2021.
It was submitted on behalf of the offender that he was subject to stringent bail conditions with which he had complied and that the sentence should be discounted or backdated on this basis. The condition relied on was a curfew condition requiring the offender to remain at his residence from 8:00PM to 6:00AM that was in place from the grant of bail to 17 February 2022.
The principles to be applied with respect to consideration of periods on bail are set out in Stott v The Queen [2021] ACTCA 18 at [44]–[47] (Stott). The Court is vested with a wide discretion regarding whether and how to take onerous bail conditions into account. Exercise of the discretion is usually reserved for circumstances in which the incursion into liberty occasioned by the bail conditions is such that the period of bail can be characterised as the notional equivalent of custody, or where the offender has spent a significant period of time in residential rehabilitation.
While the curfew condition represented an incursion into the liberty of the offender, I do not consider that, either in isolation or in conjunction with the other bail conditions imposed on the offender, it is the notional equivalent of custody. Unlike the circumstances in Stott, the offender was not effectively confined to his home at all times. Subject to a prohibition on entering the suburb of Chapman and interacting with certain people, the offender had access to the broader Territory community during the day. He was able to work, attend to his family’s needs and socialise. I do not consider it appropriate to take the time spent on bail into account on sentence.
Parity
Count 1 was committed with two co-offenders, enlivening the parity principle.
On 3 May 2022, McWilliam AsJ imposed a sentence of one year and nine months’ imprisonment (reduced from two years and four months’ imprisonment) on co-offender Watson for the offence of make demand with threat to kill: R v Watson [2022] ACTSC 95. The total sentence, which also incorporated a charge for aggravated burglary arising out of the same circumstances, was one year and 10 months’ imprisonment. Pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), her Honour imposed an 18-month drug and alcohol treatment order.
On 24 June 2022, I imposed a sentence of two years’ imprisonment (reduced from three years’ imprisonment) on co-offender Kirkwood for the offence of make demand with threat to kill. The total sentence, which incorporated a variety of other offending, was five years, nine months and 15 days’ imprisonment, with a nonparole period of three years.
The parity principle requires the Court to have regard to the sentences imposed on co-offenders to avoid any unjustifiable disparity, while ensuring that relevant differences between co-offenders’ involvement and subjective circumstances are acknowledged: see Green v The Queen [2011] HCA 49; Thompson v The Queen [2018] ACTCA 2, [24].
In the case of co-offenders who are participants in a joint criminal enterprise, while each participant is criminally responsible for the acts of the other in furtherance of the enterprise, each participant’s moral culpability may differ depending on their level of participation, affecting the sentence imposed: eg, Bentley v The Queen [2021] NSWCCA 18; 287 A Crim R 564, [167]. The level of differentiation that is appropriate based on difference in participation is, however, limited: Pacicevic v The Queen [2010] ACTCA 25, [9]. The Court must not lose sight of the fact that each was a participant in an offence committed with a common purpose.
Co-offender Watson’s degree of moral culpability was less than that of co-offender Kirkwood and that of the offender. This is because she did not engage directly in the offending; she was not present in the car and did not convey the threat to the complainant.
I consider that the offender’s moral culpability was less than that of co-offender Kirkwood. As the Crown rightly concedes, co-offender Kirkwood played a more active role in the offending. It has also not been established that the offender was involved in any planning associated with the offence. While this merits some differentiation, the differentiation should not be substantial having regard to the authorities outlined above.
When assessing application of the parity principle I have also had regard to the fact that, in contrast to the case of co-offender Kirkwood, the presence of the samurai sword was not the subject of a separate charge here and therefore operates as an aggravating factor.
Comparable cases
Count 1
I was referred to ACT cases concerning offences involving contravention of ss 30 (threat to kill) or 32 (demand accompanied by threat) of the Crimes Act. I was also referred to comparative authorities regarding similar offences in Victoria and Queensland. While I have had regard to these authorities, I note the observations of the Court of Appeal in Kourpanidis v The Queen [2022] ACTCA 11 at [92] that:
Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, 'unifying principles' may be expressed slightly differently and sentencing patterns may differ between jurisdictions.
The Crown placed particular reliance on R v Butler (Unreported, Supreme Court of the ACT, Nield AJ, 5 September 2012) (an appeal successfully challenged the nonparole period, but did not address the head sentence: Butler v The Queen [2013] ACTCA 38) and R v Canizares (Unreported, Supreme Court of the ACT, Nield AJ, 6 September 2012) (upheld on appeal in Canizares v The Queen [2013] ACTCA 19), which the Crown contended concerned less serious offending than the present circumstances. Each involved the less serious offence of making a demand with a threat to endanger health, which carries a lower maximum penalty of 10 years’ imprisonment, and each resulted in the imposition of a sentence of imprisonment of three years.
In Butler, the accused was purporting to be collecting a debt of $60,000 owed by the complainant on behalf of an associate who he called his “boss”. Veiled threats were made to the complainant’s health or wellbeing should he not provide an initial payment of $20,000, including describing previous circumstances where in the event of non-payment, his boss would “chop [their] hand off or break [their] legs”. Nield AJ found that these threats also extended to the wife and children of the complainant (although this finding was overturned on appeal). His Honour considered that the offender had not demonstrated remorse, had a significant criminal history, and had an even chance of re-offending. The length of the sentence was not challenged on appeal, although the nonparole period was reduced.
In Canizares, the offender threatened to “bash” the complainant, who was 17 years old, unless she withdrew money from an ATM and provided it to him. The complainant complied, withdrew $20 and provided it to the offender. At first instance, Nield AJ assessed the offending as rising to the mid range of objective seriousness. His Honour considered that the offender was not remorseful, had a significant criminal record and had poor prospects for rehabilitation. The offence was also committed while he was on conditional liberty. While the Court of Appeal did not find that the sentencing Judge had erred in the exercise of the sentencing discretion, the sentence was described by Higgins CJ at [3] (with whom Burns and Gilmour JJ agreed) as being “at the top of the range for the objective circumstances of the offending behaviour”.
Neither of these cases involved a threat to kill; however, both involved clear threats to the physical well-being of the complainant. In Butler, the threat was allied to a demand for a very significant sum of money, by an offender with a significant criminal history. While I accept that the offending in the present case is more objectively serious than Canizares, there were also multiple factors disentitling the offender in that case to leniency that are not present here. Other comparative cases also lend support to Higgins CJ’s observation that the sentence imposed in Canizares was at the top end of the available range.
Counsel for the offender relied on several cases involving making a demand accompanied by threat, which he submitted were more objectively serious than the present circumstances.
R v Avery [2018] ACTSC 64 concerned the unlawful confinement of the complainant (which was separately charged) over a drug related debt. Among other things, the complainant was duct taped to a chair, struck to the head several times and had scissor blades pushed into his neck piercing the skin. The offender then told the complainant that “first thing in the morning you are going to rock up here with the papers to your car, you are going to sign it over to me. You owe me three grand on top of that.”. Elkaim J imposed sentences of 12 months imprisonment (reduced from 18 months’ imprisonment) for the charges of unlawful confinement and make demand accompanied by threat to endanger health. The offender had a negligible criminal history, but some past association with an Outlaw Motorcycle Gang. On appeal, only the sentence for unlawful confinement was challenged. That sentence was held to be manifestly inadequate and increased to two years and seven months’ imprisonment (reduced from four years’ imprisonment): The Queen v Avery [2018] ACTCA 57.
The offending in Avery was clearly serious, but the offender was apparently charged with an offence under s 32(2) of the Crimes Act (making a demand with a threat to endanger the health, safety or physical well-being of a person) with a maximum penalty of 10 years’ imprisonment (cf the maximum penalty of 20 years, under s 32(1), in the present case), which is likely to have affected the sentence imposed. Further, the extent to which the violent aspects of the offending were taken into account in connection with the offence against s 32(2) (as distinct from the sentence for the unlawful confinement offence, with the Court of Appeal regarded as inadequate) is somewhat unclear.
R v UG [2019] ACTSC 290 was an instance of family violence. After an argument, the offender retrieved a single-edged axe, and commenced swinging it at the complainant (who was his then partner) and using it to damage furniture throughout the house. The offender ordered that his four children get into his car, which they did. He also demanded that the complainant enter the car. The complainant pleaded for him to release the children first. By this stage, police had arrived. The offender then held the axe blade to the throat of his eldest daughter and demanded that the complainant “get in the fucking car or I’ll put this through [our daughter’s] fucking face”. On the charge of demand with threat to kill, Elkaim J imposed a sentence of 14 months’ imprisonment (reduced from 18 months’ imprisonment). The Court of Appeal accepted that this sentence was manifestly inadequate but exercised the residual discretion not to intervene: [2020] ACTCA 8. The Court accepted that the offender had a mental health condition that was causally connected to the offending but held that the sentence failed to reflect the high objective seriousness of the offence.
The present circumstances are not as objectively serious as those in UG, but that observation does not take matters very far. The Court of Appeal regarded the sentence of 14 months as manifestly inadequate, but exercised its discretion not to resentence the offender and thus gave no indication of what sentence was appropriate. It did note (at [96]) that resentencing would be of little precedential value because the offending was causally related to an “acute mental health problem” suffered by the offender.
Comparative cases are not, of course, determinative of the sentencing range available. Consistency in sentencing does not require numerical equivalence and care must be taken for the need to render individual justice.
Count 2
I was referred to a range of ACT offences involving contravention of s 5 of the Prohibited Weapons Act 1996 (ACT). The cases concerned a range of prohibited weapons, including knuckledusters, nunchakus and knives. Sentences ranged from imposition of a good behaviour order to 12 months’ imprisonment.
R v Goward [2017] ACTSC 157 was the only authority I was referred to in which the sole prohibited weapon was a CEW. As in the present case, it was found during the execution of a search warrant. Burns J imposed a sentence of 10 months’ imprisonment, reduced from 12 months’ imprisonment for a plea of guilty. The offender had an extensive criminal history and was assessed at high risk of reoffending. However, his Honour placed significant weight on a letter from a prospective employer that spoke to the offender’s increasing maturity.
R v Okwechime [2015] ACTSC 129 also concerned possession of a CEW that was located along with other prohibited weapons, a prohibited firearm, and a firearm possessed without a licence. Each was the subject of individual charges. Again, the weapons were located during the execution of a search warrant. Burns J imposed a sentence of eight months’ imprisonment for the possession of the CEW. His Honour considered that the offender had limited prospects for rehabilitation; he had an extensive criminal history, had committed the offences while on conditional liberty and had a history of non-compliance with community-based sentences.
Although I was not referred to it as a comparable case, Chatfield v Badman [2015] ACTSC 209 is also instructive. This case concerned an electric shock device that was disguised as an iPhone discovered during the execution of a search warrant. The weapon was not operational, capable of doing nothing more than startling the recipient with a shock, and there was no evidence it had ever been used. The offender had a limited criminal history with no history of like offending. In the Magistrates Court, a wholly suspended sentence of three months’ imprisonment was imposed. Murrell CJ allowed an appeal against sentence and imposed a good behaviour order for a period of 18 months. Her Honour considered that the Magistrate erred in characterising the offence as falling within the mid range of objective seriousness.
Consideration
Relevant sentencing purposes include general and specific deterrence, adequate punishment, denunciation of the conduct and recognition of the harm done to the complainant. Given the offender’s relative youth and lack of criminal antecedents, rehabilitation is also a prominent sentencing purpose.
The offender conceded that, having regard to the objective seriousness of the offending, a sentence of imprisonment was the only appropriate penalty.
The question is, however, whether the objective seriousness of the offence and associated sentencing purposes are such that a community-based sentence, such as an ICO, is appropriate. As Refshauge ACJ observed in R v Ngerengere (No 3) [2016] ACTSC 299 at [32], when considering whether to impose an ICO, the Court should first determine the period of imprisonment without having regard to the manner in which it will be served. The Court must then consider:
whether the service of the sentence other than by way of full-time imprisonment … would result in a sentence that reflects the objective seriousness of the offence and fulfils the statutory purposes of punishment.
These considerations are particularly important in circumstances where the Court is minded to impose a sentence of between two and four years’ imprisonment. Section 11(3) of the Sentencing Act allows the Court to impose an ICO only if satisfied that it is appropriate to do so having regard to:
(a) the level of harm to the victim and the community caused by the offence; and
(b) whether the offender poses a risk to one or more people or the community; and
(c) the offender's culpability for the offence having regard to all the circumstances.
The Crown’s position was that imposition of an ICO would fail to give appropriate weight to the sentencing purposes of denunciation and deterrence, allowing rehabilitation to unduly overwhelm the assessment of the objective seriousness of the offending.
I respectfully disagree. While it must be accepted that there is some leniency involved in the imposition of an ICO by virtue of the fact that the offender is permitted to remain in the community, it is not a lenient sentence. An ICO is the second most severe penalty the legislature has made available for the Court to impose: R v Srna [2018] ACTSC 337, [13]. As the Explanatory Statement for the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT), makes clear, it is a sentence which is considered “just below a sentence of full-time imprisonment” that is punitive and has a powerful deterrent effect.
The core conditions set out in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), which are required to be imposed by virtue of s 11(4) of the Sentencing Act, materially curtail the offender’s liberty while in the community. Among other things, an offender must:
(a) not leave the ACT without the permission of the director-general;
(b) notify the director-general of any change in address;
(c) comply with directions given by the director-general in relation to the ICO;
(d) if directed by the director-general, undertake drug and alcohol testing;
(e) if directed by the director-general,
i. live at any premises; or
ii. undertake any program.
While these restrictions fall well short of the loss of personal autonomy that is occasioned by full-time imprisonment, they are obviously punitive and impose a significant burden on the offender that can substantially affect their daily life.
It is also a flexible sentencing option that can be tailored to the circumstances of the offence and the offender. Should relevant sentencing purposes require significant weight be attributed to adequate punishment, the Court can attach additional conditions that restrict the offender’s liberty as an aspect of the punishment imposed by the Court for the commission of the offence (rather than because such conditions are required to promote rehabilitation or limit the risk posed to the community by the offender): R v Ferguson [2016] ACTSC 255, [14].
Of course, imposition of an ICO will not be appropriate in all circumstances in which it is available. There will be circumstances where the harm done by virtue of the offence is too great (see, eg, R v Richardson [2016] ACTSC 133) or the offending is too serious (see, eg, R v Brown (No 3) [2022] ACTSC 180). This is not such a case. While the objective seriousness of the offending does require that weight be attributed to adequate punishment, that sentencing purpose can be achieved by the imposition of additional conditions attaching to the ICO. Nor is there any evidence that the offender poses a significant risk to the community which would render an ICO an unsafe sentence.
In imposing an ICO, I have had regard to the intensive correction assessment that formed part of the PSR and the report of Ms Morris: Sentencing Act s 78(2). The offender was assessed as suitable for an ICO by the author of the PSR. Although the matters concerning suitability contained in s 46D of the Sentencing Act are not expressly discussed in the relevant part of the PSR, I proceed on the basis that the author of the PSR had regard to those matters in expressing her conclusion. I do not consider that the evidence discussed at [30]–[31] above constitutes a “major problem with a controlled drug” within the meaning of the section; and the material before me does not suggest that any of the other indications of unsuitability listed in s 46D is present.
The Sentencing Act does not permit backdating of an ICO. I will instead have regard to the day spent in custody in setting the term of the ICO.
The Crown also sought a reparation order be made against the offender in the sum of $1000. The offender consented to the imposition of such an order. Reparation orders are a matter of discretion. It is ordinarily granted in straightforward factual circumstances where loss is easily quantified. It is not part of the punishment imposed by the Court on the offender; it instead provides a “quick and convenient redress to a victim of crimes, avoiding the need for a civil proceeding in which the evidence will largely duplicate the evidence that is before the court in the criminal proceeding” : R v CA (No 2) [2016] ACTSC 371; 316 FLR 49, [14] (Murrell CJ).
Here the quantification of loss, being $2000, is agreed and forms part of the statement of facts. In R v Sidaros (No 4) [2020] ACTSC 87, Murrell CJ imposed a reparation order that approximately reflected apportionment as a percentage the number of offenders involved.
The Crown submitted that the same approach should be applied in this matter, and that 50 per cent of the loss should be apportioned to the offender as co-offender Watson had ceased involvement by the time the money was appropriated from the victim. No objection was taken by counsel for the offender and, in any event, I consider such an approach appropriate.
Orders
The orders of the Court are as follows.
I convict the offender of each offence and impose the following sentences:
(a) Count 1 (CC2021/9442), two years and five months’ imprisonment (reduced from two years and ten months’ imprisonment for the plea of guilty), from 11 August 2022 to 10 January 2025.
(b) Count 2 (CC2021/8847), four months and eight days’ imprisonment (reduced from five months’ imprisonment for the plea of guilty), from 3 November 2024 to 10 March 2025.
The total sentence is two years and seven months’ imprisonment, from 11 August 2022 to 10 March 2025.
Pursuant to s 11 of the Sentencing Act, I order that the sentence be served by intensive corrections order in the community, including the core conditions contained in s 42 of the Sentence Administration Act and the following additional conditions:
(a) the offender perform 150 hours of community service during the term of the order;
(b) the offender engage with any referral made by ACT Corrective Services in respect of:
i. drug management programs; and
ii. counselling;
(c) for the first 16 months of the order, the offender remain at his residence between the hours of 10:00PM and 5:00AM, unless he has obtained the prior written approval of ACT Corrective Services.
Pursuant to s 19 of the Sentencing Act, the offender is required to make reparation to Amos Derricks by way of a payment of money in the sum of $1000.
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Kennett Associate: Date: |
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