R v Batcheldor
[2021] ACTSC 208
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Batcheldor |
Citation: | [2021] ACTSC 208 |
Hearing Dates: | 25 March and 30 August 2021 |
DecisionDate: | 30 August 2021 |
Before: | Mossop J |
Decision: | See [52] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – damaging property – breach of good behaviour order – significant criminal history – high risk of reoffending – no evidence of link between offending and mental health conditions – sentences of imprisonment imposed |
Legislation Cited: | Criminal Code 2002 (ACT), ss 310(a), 403 Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), ss 10, 66(3) |
Cases Cited: | R v Hawkins [2020] ACTSC 29 R v Murray [2016] ACTSC 173 |
Parties: | The Queen ( Crown) Anthony Batcheldor ( Offender) |
Representation: | Counsel M Smith ( Crown) F Purnell SC ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 237 of 2020 |
MOSSOP J:
Introduction
The offender, Anthony Batcheldor, has pleaded guilty to the following offences:
(a)count 1: aggravated robbery, contrary to s 310(a) of the Criminal Code 2002 (ACT), which carries a maximum penalty of 25 years’ imprisonment, a fine of $400,000 or both; and
(b)count 2: damaging property, contrary to s 403 of the Criminal Code, which carries a maximum penalty of 10 years’ imprisonment, a fine of $160,000 or both.
This offending is said to put the offender in breach of a 12-month good behaviour order that was imposed as part of a suspended sentence imposed by a magistrate on 15 May 2020 on a charge of attempted escape from arrest.
Facts
The facts in relation to the offending are agreed and are, in summary, as follows.
The victim met the offender in June 2019 and had regular interactions with him since then. At some point in 2019 the offender gave the victim a number of silver coins. The offender was of the view that the coins were worth $500,000 and asked the victim to see if anyone might buy them. The victim took the coins to an acquaintance with some knowledge of coins, who I will refer to as CG, but later forgot about them.
A few weeks before the offences, the offender called the victim and asked where the coins were. The victim said he had given them to CG. The victim called CG who told him that she could not find the coins, but that they were fake and not worth any money. The offender again contacted the victim. When the victim reported what CG said, the offender hung up. The parties agreed that the offender’s motivation for the subsequent offending was to seek compensation and retribution from the victim in relation to the missing coins, which the offender regarded as valuable.
At approximately 2pm on 13 June 2020, the offender called the victim and demanded $1000 in two hours. A few hours later the victim ran into two acquaintances at the Evatt shops and told them about the phone call with the offender. The three men returned to the victim’s house together.
At approximately 4:30pm, the offender, his co-offender Joshua Watson, and an unknown woman drove in the offender’s car to the victim’s house. The victim was inside with the two other men. The offender and Mr Watson knocked on the victim’s door. The victim unlocked the screen door and the offender let himself into the residence. The victim turned around and when his back was to the offender, Mr Watson and the woman, he felt a closed fist punch to the back of his head, causing him to fall to the ground. The victim crawled into the lounge room and felt repeated closed fist punched to the back of his head. The victim lay on the lounge and saw Mr Watson standing behind the offender. It is not possible to say beyond reasonable doubt that the blows were inflicted by the offender.
The victim attempted to stand up and the offender hit the victim’s left eye with a clenched fist. The offender grabbed the victim by his singlet, causing it to rip, and threw the victim into a wall. The victim fled out the front screen door to his neighbour’s house where he asked them to call the police. He could hear the sounds of property being destroyed from his house.
The offender remained in the house and smashed television screens and the glass panels on the heaters. The offender and Mr Watson then walked back and forth between the house and the car, taking items belonging to the victim. They then left the area. The items stolen were a CCTV hard drive, a white X-Box gaming console, a mobile phone, a silver lock box containing hard drives and USBs and a fishing tackle box and fishing rods. The total estimated value of the stolen items is approximately $2600.
When police attended the scene, the victim was upset and physically shaking. There were cuts and swelling to his face. He was taken to Canberra Hospital and assessed as having suffered over 12 injuries, including lacerations, abrasions and bruising across his face.
The offender’s car, which had been observed by police leaving the scene on 13 June 2020, was located later that night. A search warrant was executed on the car and a number of items stolen from the victim’s residence were located. This included the CCTV hard drive which recorded the offender, Mr Watson and the woman arriving at the victim’s house, as well as the victim fleeing and the two co-offenders carrying items from the house into the car. A number of mixed DNA profiles were found on items in the car, which showed extremely strong support for the proposition that the offender, Mr Watson and the victim were contributors to the various DNA profiles. There were several DNA profiles that showed extremely strong support for the proposition that the offender was the source of the DNA profiles.
The offender was arrested on 11 July 2020 in relation to these and other offences.
At the time of the offending the offender was on conditional liberty because he was subject to the 12-month good behaviour order associated with the suspended sentence on the charge of attempted escape from arrest.
Objective seriousness
The aggravated robbery may be summarised as a violent home invasion. It is apparent from the background to the offending set out in the Agreed Statement of Facts that the offender was the principal organiser of the home invasion and the principal inflictor of the violence upon the victim. The robbery did not involve the presence or use of weapons. It involved repeated infliction of actual violence upon the victim. It occurred in the victim’s home. It occurred when the offender was on conditional liberty. It involved the theft of a substantial number of items of value, totalling approximately $2600. It is in the mid-range of objective seriousness for the offence of aggravated robbery.
The damage property charge involved the smashing of the screens of an unidentified number of televisions in the premises and the smashing of glass panels on an unidentified number of heaters. Given the lack of precision in the statement of facts the offender must be sentenced on the basis that there were only two televisions and two heaters which were damaged. The damage occurred in the context of the offender seeking retribution for the loss of property. It occurred in the victim’s home. It is an offence at the low end of the mid-range of objective seriousness for this offence.
Procedural history
This matter was listed before me for sentence on 25 March 2021. On that day, counsel for the offender sought an adjournment to allow time for the preparation of an expert report relating to his mental health. Although it was not possible for the offender to obtain a report from a private forensic psychiatrist, a report of Dr Anthony Barker was ultimately prepared and admitted into evidence.
Subjective circumstances
The personal circumstances of the offender are described in the pre-sentence report dated 23 March 2021 and in the forensic psychiatric report prepared by Dr Barker dated 16 August 2021.
The offender is a 30-year-old man of Aboriginal descent and was 28 at the date of the offences. He was born in regional NSW and has five siblings. He experienced a supportive and positive upbringing and reported a good relationship with his mother. His father died in 2018 and he has had limited contact with his brothers since then. He has had no contact with two half-sisters since 2013.
He has no children and has been single since late 2019. He reported numerous convictions in relation to contravening protection orders against both his parents and ex‑partner. He attributed this offending to his drug use at the time.
The offender left high school in Year 11 at the age of 16. He has been employed in a wide variety of roles since his teenage years, including as a carpet-layer, lifeguard, silo constructer and sheep shearer. Prior to being arrested in July 2020, he had been employed for two months as a labourer in a landscaping business. Before then, he performed cash handy-man jobs, wherever he was able to find work. The offender reported that he usually earned approximately $800 to $1200 per fortnight through this work. He stated that he has not received financial assistance from Centrelink, although this was disputed by family members when they were contacted in relation to a December 2020 pre-sentence report. He reported no debts in the community and anticipates receiving Centrelink payments on his release, until he is able to secure employment.
He is not involved in any organised pro-social activities in the community. He spends his leisure time fishing or motorbike riding.
The offender has a long history of drug and alcohol abuse. He commenced alcohol use at the age of 14 and was consuming 24 to 48 cans of pre-mixed spirits each weekend. His consumption of alcohol increased to six days per week when he was 17 years old. He stated that when he was 21 years old, he was prompted by his brother’s alcohol‑related health problems to cease this level of alcohol consumption. When he was last in the community, he was consuming approximately six drinks per week on the weekend.
He commenced cannabis use when he was 12 years old. He continued sporadic cannabis use until the age of 21 years old, when he began to smoke a quarter of an ounce of cannabis daily. This substance use only deceased upon imprisonment.
He commenced intermittent methylamphetamine use when he was 16 years old. This continued until he was 22 years old, when his substance use increased to 3.5 g per day. He only abstained from drug use when preparing for amateur cage fights. He also reported previously using buprenorphine without a prescription, occasional MDMA use and a heroin addiction for two years in 2014 and 2015.
The offender previously completed the Solaris Therapeutic Community Program while in custody at the Alexander Maconochie Centre. He noted that he will need the support of alcohol and other drug counselling upon his release. He has also stated an intention to be re-admitted into the Solaris program if sentenced to a further custodial period.
Since being remanded in custody in July 2020, the offender has been subject to drug screening by way of urinalysis on four occasions. The preliminary results of the intake screening indicated the presence of methylamphetamine, cannabis, benzodiazepine and amphetamine. He tested positive for methadone in October 2020. He tested negative in January 2021. The preliminary results of a screening in March 2021 indicated the presence of methylamphetamine, amphetamine and buprenorphine but the results of confirmatory testing were not disclosed.
The offender advised being in generally good physical health. He is currently being treated for depression and anxiety. He has previously attempted suicide on two occasions, including May 2020. At the time of the pre-sentence report, he denied any current suicidal ideation. A letter from ACT Health dated 15 March 2021 identified no acute mental health risks. The report of Dr Barker dated 16 August 2021 reached the conclusion that the offender does not currently suffer from a mental illness and his mental health currently appears to be relatively stable. The doctor could identify no realistic connection between his offending behaviour and his history of mental illness. The doctor recorded that incarceration would not weigh more heavily upon him as a result of his mental health because in fact he feels better able to cope in custody than he does in the community.
The offender stated to the author of the pre-sentence report that he disagreed with much of the Agreed Statement of Facts. He said that he only pleaded guilty in order to obtain a lesser charge for Mr Watson. The author of the pre-sentence report stated that “[the offender] did not indicate any remorse for his actions, nor demonstrate any depth of understanding regarding the impact that his actions had had upon the victim.”
He reported completing an anger management program while in custody. However, the author of the pre-sentence report identified that there is a record of the offender being involved in a serious assault on another detainee on the same date as the program. The offender has a poor history of compliance with community-based orders. As a result of this and his significant criminal history, he has been assessed as being at a high risk of reoffending.
The author of the pre-sentence report noted that, to the offender’s credit, he has taken some steps to address his substance use and violent behaviours through programs while in custody. It was suggested that he may benefit from cognitive behaviour therapy to address his ongoing involvement in violent incidents and a mental health assessment considering his background of suicide attempts. That mental health assessment has obviously now taken place.
While in custody the offender actively contributed to the NAIDOC cultural day in 2021, completed an anger management program in September 2020 and completed a program on managing anxiety and depression in April 2021.
The offender was assessed as not suitable for an intensive correction order due to his illicit substance use. He was also assessed as unsuitable for a community service work condition.
Criminal history
The offender has an extensive criminal history. In NSW he has convictions for using violence to cause fear, assaulting an officer in the execution of duty, resisting an officer in the executions of duty, intimidating a police officer in execution of duty, destroying or damaging property, using a carriage service to menace/harass/offend, contravening an apprehended violence order, common assault, unlicensed driving, reckless/furious/dangerous driving, larceny, assault occasioning actual bodily harm, driving while disqualified, entering a vehicle without consent and stalking/intimidation with intent to cause fear or physical or mental harm.
He has convictions in the ACT for interfering with a conveyance, riding/driving a motor vehicle without consent, damaging property, obstructing/resisting a Territory public official, aggravated furious/reckless/dangerous driving, driving while disqualified, common assault, assault occasioning actual bodily harm, minor theft, drug possession, attempt to escape from arrest, driving with a prescribed drug in oral fluid/blood, failing to appear after a bail undertaking, providing a false name/address and using an uninsured and unregistered/suspended vehicle.
He has received numerous custodial sentences in the past.
At the time of the offending, he was serving a two-month suspended sentence with a 12‑month good behaviour order for the charge of attempted escape from arrest. This sentence was imposed in the Magistrates Court on 15 May 2020. On 17 December 2020 he was sentenced in the Magistrates Court for further offences which breached the good behaviour order imposed as part of the suspended sentence. As a result, the good behaviour order was cancelled and he was resentenced to 58 days in custody which had been fully served.
Plea of guilty
The offender pleaded guilty to the two offences on 22 February 2021. This was following two criminal case conferences in February 2021, but prior to the matter being listed for trial. The plea was entered on a fresh indictment following the criminal case conferences. Pleas of guilty associated with the criminal case conference process generally receive discounts of between 15 and 20 per cent on account of their utilitarian value. In this case, I consider that a discount of approximately 20 per cent is appropriate. In adopting this approach, I have given some recognition to the fact that the utilitarian value of the plea is increased in circumstances where there are difficulties as a result of the COVID‑19 pandemic in conducting jury trials.
Co-offender
The co-offender, Mr Watson, pleaded guilty to aiding and abetting an aggravated robbery. He received on that charge a sentence of two years and six months’ imprisonment. It was not clear what the starting point was but it is likely to be somewhere in the order of three years.
Time in custody
The offender has been in custody since he was arrested for the present offences on 11 July 2020. On 17 December 2020 he was sentenced to 14 months’ imprisonment in relation to other offences. As a result, none of the period the offender has spent in custody since his arrest is attributable solely to the current offending.
On 18 March 2021 the offender was sentenced in the Magistrates Court in relation to further offending against the victim which occurred on 20 June 2020. He was sentenced to 24 months’ imprisonment, ending on 5 June 2023. The non-parole period was set to end on 5 December 2022.
Consideration
Aggravated robbery and damage property
While the offender clearly has a history of drug abuse, it is not clear that drug addiction is the principal driver of this offending. I was told (although it was not an agreed fact) that he was on methamphetamine at the time of the offending. I accept that in that sense his drug use was a contributor to his offending. He certainly has a long history of drug use which commenced as a child. While I have taken that history into consideration, having regard to his age, the nature of the offending and the limited evidence of attempts to control his addictions, the evidence is not such as to indicate that it is a significantly mitigating factor.
His history of offending and the nature of the present offences indicates that sentencing purposes of specific deterrence, denunciation, recognition of harm to the victim and protection of the community must be prominent. While the prospect of rehabilitation of the offender remains open, this is not a case where that can outweigh the other purposes of sentencing. There is no doubt that the s 10 of the Crimes (Sentencing) Act 2005 (ACT) threshold has been met.
I have noted that he is being sentenced at a time where there is increased anxiety about the spread of COVID-19 both in the community and within the prison system. I do not consider that this is a substantially mitigating factor, having regard to the existence of restrictions both in the community and in prisons. I accept that that the pandemic has had and will continue to alter prison conditions including through the limitation on visitors. Each of these are matters which I have taken into account.
I was referred to a number of cases involving sentences for aggravated robbery. They were R v Hodge [2015] ACTSC 214, R v Murray [2016] ACTSC 173 and R v Hawkins [2020] ACTSC 29. These cases reflect starting points of four and half years, three years and three and half years respectively. I have taken the sentences into account.
The appropriate starting point for the offence of aggravated robbery is a sentence of four years and three months which will be reduced to three years and five months on account of the plea of guilty.
On the damage property charge, the starting point is a sentence of imprisonment of 18 months reduced to 14 months and 15 days on account of the plea of guilty. Given the close relationship between the offending and the need to achieve an appropriate aggregate sentence, the sentences will be concurrent except as to 5 months. That gives an aggregate sentence of three years and 10 months.
Breach of suspended sentence
The good behaviour order associated with the suspended sentence on the charge of attempting to escape from arrest has already been cancelled and the sentence imposed. This breach of that good behaviour order arising from the current offending raises the same issue as that identified in R v Heijm [2021] ACTSC 17 (Heijm) at [38], namely whether where a good behaviour order has already been cancelled and the offender resentenced, it is open to take action under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). Given that, in my view, it is appropriate to, in effect, take no further action beyond that already taken in relation to the earlier breach of the good behaviour order, I will deal with the matter in the same way as I did in Heijm, namely to reimpose the same sentence that was imposed after the earlier breach.
Non-parole period
In relation to the non-parole period, it is relevant to take into account that on 17 December 2020 Magistrate Hunter imposed an aggregate sentence of 14 months and 26 days commencing on 11 July 2020 and ending on 6 October 2021. The non-parole period was a period of 10 months, just over 70 per cent of the total aggregate sentence.
On 18 March 2021 Special Magistrate Campbell imposed an aggregate sentence of imprisonment for 24 months. The non-parole period in relation to those sentences was 14 months but that was subsequently adjusted so as to make clear that there was a single non-parole period commencing at the commencement of the earlier sentence, namely 11 July 2020.
The imposition of the sentences that I will impose will automatically cancel the non-parole period for the offender’s existing sentences: see s 66(3) of the Crimes (Sentencing) Act. The new non-parole period will commence on 11 July 2020.
In my view, the appropriate non-parole period is approximately 65 per cent of the overall sentence. That reflects both the gravity of the offending and the distinctly guarded prospects of rehabilitation yet gives some recognition to the potential for the offender to rehabilitate himself. That gives an end date of 25 November 2024.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery (CC2020/8307) the offender is convicted and sentenced to imprisonment for three years and five months commencing on 6 June 2023 and ending on 5 November 2026.
2. On the charge of damaging property (CC2020/8309) the offender is convicted and sentenced to imprisonment for 14 months and 15 days commencing on the 22 January 2026 and ending on 5 April 2027.
3. On the charge of attempt to escape from custody (CC2020/5757) the offender is resentenced to imprisonment for 58 days commencing on 11 July 2020 and ending on 6 September 2020.
4. The non-parole period starts on 11 July 2020 and ends on 25 November 2024.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 15 September 2021 |
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