R v Beroukas

[2021] ACTSC 172

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Beroukas
Citation:	[2021] ACTSC 172
Hearing Dates:	25, 28 June, 6, 12 July 2021
Decision Date:	12 July 2021
Reasons Date:	4 August 2021
Before:	McWilliam AJ
Decision:	See [44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson while in lawful custody – offender sentenced – where error in sentence – whether proceedings may be reopened to correct
errors pursuant to s 61 of the Crimes (Sentencing) Act 2005
(ACT) – new sentencing orders imposed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 27, 31, 33, 61, 64, 72 Crimes (Sentence Administration) Act 2005 (ACT) s 140 Criminal Code 2002 (ACT) s 404
Cases Cited:	Achurch v The Queen [2014] HCA 10; 253 CLR 141 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Perkins v R [2018] NSWCCA 62 Porter v R [2008] NSWCCA 145 R v Baker [2000] NSWCCA 85 R v Denniss [2021] ACTSC 15 R v Dunn [2019] ACTSC 75 R v Elzakhem [2008] NSWCCA 31 R v Howsan [2020] ACTSC 172 R v Hudson [2019] ACTSC 110 R v JJ [2014] ACTCA 23; 242 A Crim R 363 R v Millwood [2012] NSWCCA 2 R v Pitt [2001] NSWCCA 156 R v Potts [2020] ACTCA 12; 351 FLR 1 R v Wrigley [2015] ACTSC 114
Parties:	The Queen (Crown)
Jordan Wayne Beroukas (Offender)
Representation:	Counsel
J Hiscox (Crown) S Avery (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Sarah Avery Legal Practice (Offender)
File Number:	SCC 100 of 2021
MCWILLIAM AJ:

1. On 28 June 2021, following a hearing on 25 June 2021, Mr Jordan Wayne Beroukas was sentenced for the offence of arson contrary to s 404(1) of the Criminal Code 2002 (ACT) (Code). The reasons I gave orally at the time are set out below.

2. Subsequently, the sentence was reopened pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Following a further hearing on 6 July 2021, I was satisfied that an error in the original sentence meant that each of the

orders made on 28 June 2021 had been made “contrary to law” (being the words of s

61(1)(a) of the Sentencing Act). The orders made on 25 June 2021 were vacated, the errors raised were corrected, and the offender was re-sentenced on 12 July 2021.

3. At the time of re-sentencing, I indicated to the parties that I would include further reasons in relation to the application of s 61 of the Sentencing Act. They are also included in the reasons that follow.

Sentence delivered on 28 June 2021

4.       On 1 February 2021, the offender pleaded guilty to the charge of arson contrary to

section 404(1) of the Code. The maximum penalty is 15 years’ imprisonment or a fine

of $240,000 or both.

5.       The facts of the offending are described in detail in the agreed Statement of Facts. In summary, the offender was an inmate at the Alexander Maconochie Centre (AMC) in December 2019, where he was on remand for other offences at the time (although by reason of a later sentence of imprisonment for those offences being backdated, he is taken to be a sentenced prisoner on the date of the offence). He went into Cell 7, where he lit a fire. The fire spread to other parts of the cell and smoke came out of the cell. The fire was extinguished relatively quickly by other inmates and damage to the extent of $2,300 was caused.

Objective seriousness

6.       Various factors relevant to assessing the objective seriousness of a particular offence of arson include the extent of the damage caused, the potential risk of injury to other people, possible spread of the fire, the offender's motive and the degree of planning and pre-meditation. These considerations are drawn from cases relied upon by the Crown, and they include: R v Elzakhem [2008] NSWCCA 31 at [45], Porter v R [2008] NSWCCA 145 at [56], R v Baker [2000] NSWCCA 85 at [16], and R v Pitt [2001] NSWCCA 156 at [27].

7.       I have also had regard to R v Wrigley [2015] ACTSC 114, where Refshauge J helpfully collected the authorities that his Honour considered to be of guidance when sentencing for the offence of arson at [34]. I respectfully adopt his Honour's succinct summary. It is unnecessary to repeat those principles here.

8.       In the present case there was obviously the potential risk of injury to other people and possibility for the spread of the fire. However, although the offence occurred in the setting of a prison, which is an aggravating feature, no persons were hurt and it does not seem to have been a crime with the specific intent to cause any harm. Indeed, it is unclear why the fire was lit. The offender told the authors of the pre-sentence report that his actions were quite irresponsible and poor. He acknowledged some peer pressure but stated the pressure in no way excused his behaviour. In his oral evidence before me, the offender again acknowledged the irresponsibility of his actions, which he attributed to an immature desire to impress people who would have been better ignored.

9. Together with the facts set out at [5] above, these matters warrant an assessment of the objective seriousness of the criminal conduct as being well below medium.

Subjective circumstances

10.     The offender was born in 1997. He is one of two siblings. He left home at 14 years of age because of physical and emotional abuse from his stepfather. Relations with his family have since improved.

11.     In written submissions, Mx Avery, the legal representative for the offender, referred to the application of the principles articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) at [40]-[44]. I note the comments in R v Millwood [2012] NSWCCA 2 at [69] as to the role that common sense plays in such circumstances,

and that a person who has been deprived of a “normal” or “advantaged” upbringing may have “fewer emotional resources to guide his … behavioural decisions”.

However, if one considers how the disadvantage connects to a particular offence (see Perkins v R [2018] NSWCCA 62 at [41]), the evidence as to how the Bugmy principle featured in respect of the present offence is somewhat lacking and I have not considered the history of disadvantage to be of such weight that it provides a strong mitigating factor on sentence for the type of offence in question.

12.     The offender has a long history of illicit drug use. He has made some efforts to address his alcohol and drug use, but clearly, he has some way to go. The pre- sentence report notes that he would benefit from engagement with structured drug counselling programs in relation to relapse prevention, given the history of use. The offender gave evidence that he was already engaging with a drug rehabilitation service provider with a view to participating in day programs, in the event that he is released from the AMC. Those programs are an interim measure until he can gain entry to a residential rehabilitation program.

13.     The offender has, by his plea, accepted responsibility, and from his oral evidence confirming the contents of the pre-sentence report, I accept that he has exhibited a degree of remorse. In addition, the offender has taken part in a restorative justice conference with two of the officers of Corrective Services involved in the incident.

14.     Although the plea was not entered at the earliest stage, and in fact followed a plea of not guilty, the offender is nevertheless entitled to the benefit of this plea. I assess the discount at close to 15 per cent, noting that I specifically take into account the very strong case that existed against the offender.

15.     There is limited evidence of the offender's education. He has a limited employment history in the building industry and as a removalist. Part of the reason for the lack of significant employment or training is the fact that the offender has a significant criminal history, which has resulted in him spending much of his adult life in prison.

16.     That includes the offender being sentenced to a term of imprisonment for the matters on which he was on remand since the commission of the offence. He is now eligible for parole, although the grant of parole (on 17 June 2021) is subject to this outstanding sentence for the arson offence. As a result of time spent incarcerated for other offences, the offender has had an opportunity to reflect on what he wants his life to look like in the future. He says that he has done every course that he can do while at the AMC in order to give himself the best chance of success when he regains his liberty.

17.     Of critical importance to the offender now is the fact that his de facto partner has recently given birth to the offender's first child. The offender has yet to meet his child and he is intending to do whatever it takes to be an involved parent and positive role model for that child. That appears to have been the catalyst for engaging in drug rehabilitation.

18.     Arson is, of course, a serious offence and normally demands a prison sentence. Although it is necessary to take into account sentencing practice, it must be remembered that each case turns on its own facts.

19.     The Crown referred me to a number of comparable cases, each of which had a different result. These cases included: R v Denniss [2021] ACTSC 15, R v Howsan [2020] ACTSC 172, R v Hudson [2019] ACTSC 110, and R v Dunn [2019] ACTSC 75.

20. Sections 6, 7 and 33 of the Sentencing Act are relevant and I have had regard to the importance of general deterrence which is encapsulated in the principles in the authorities to which I have earlier referred at [8]-[9] above of these reasons.

21. Section 10 of the Sentencing Act is also important because it says imprisonment should be a last resort. Although the Crown indicated that a reparation order would be appropriate and the offender has shown a willingness to pay for the damage, it transpires that in fact, the particular cell at the AMC is part of broader renovations and the cost of repair has been overtaken by that fact. The offender is not in a position to pay a fine and I consider that any fine worthy of the seriousness of the offence would be crippling for him.

22.     The pre-sentence report has indicated that given the history of non-compliance by the offender in respect of other offences, the offender is not suitable for an intensive correction order and I agree with that assessment for the reasons given by the officer who prepared the report.

23. I have also considered the submission of Mx Avery in relation to the possibility of a deferred sentence. I was initially attracted to the submission in light of the current level of drug rehabilitation engagement. However, having regard to s 27(1)(c) of the Sentencing Act, I am not persuaded that section applies to make that an available option. The words of that provision are as follows:

… that the offender is neither serving nor liable to serve a term of imprisonment for another

offence …

24. When regard is had to s 140 of the Crimes (Sentence Administration) Act 2005

(ACT), the offender is taken, while on parole, to be “under the sentence of imprisonment”. Only at the conclusion of the parole period, without the parole order

being cancelled or the offender otherwise being discharged from the imprisonment, is the sentence taken to be served or taken to have been served. He is therefore

currently ‘liable to serve a term of imprisonment for another offence’ and the

considerations for a deferred sentence do not apply.

25.     Accordingly, I am satisfied that a sentence of imprisonment, while one of last resort, is the appropriate course. Recognising that the offender has been in custody for some time since the offending and that the offending was committed during a term of imprisonment, I apply the principles of totality. The application of the totality principle has been variously described in the authorities many times. A recent useful description is to be found in R v Potts [2020] ACTCA 12; 351 FLR 1 at [127]:

… [The totality] principle requires that when a sentencing judge is considering imposing a

series of consecutive sentences, the judge must review the aggregate sentence and consider whether it is just and appropriate; and, where necessary, achieve an appropriate result by making the sentences wholly or partially concurrent, or reducing the length of the individual sentences: see Mill v The Queen (1988) 166 CLR 59 at 63. In Nguyen v The

Queen [2016] HCA 17; 256 CLR 656 … Gageler, Nettle and Gordon JJ observed at [64]

that the object of sentencing is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of the criminality comprised in the totality of the offences. To similar effect, Bell and Keane JJ observed at [37] that a sentencing judge is required to impose an appropriate sentence for each offence and to structure the sentence such that the overall sentence is just and appropriate to the

totality of the appellant’s offending behaviour.

26.     In that regard, I consider it relevant that this charge was not brought until 1 February 2021, more than a year after the offence was known to have occurred. The reasons

for that were outside the offender’s control. Having had regard to s 72 of the

Sentencing Act, requiring the entirety of the sentence to be served cumulatively would be crippling for this offender and may destroy the current motivation and impetus to rehabilitate.

27.     I was impressed with the offender's statements of a change to his attitudes and intended course of life and it is important to recognise the willingness of the offender to rehabilitate himself, and to give him every opportunity to do so.

28.     In that regard I have taken into account the evidence and submissions from the legal representative for the offender to the effect that there may be rehabilitation programs available to the offender sometime in August of this year.

Conclusion and orders on 28 June 2021

29.     Ultimately, the way to proceed is to sentence the offender to a period of imprisonment for 12 months, but to reduce that to 10 months for the guilty plea, backdate the sentence for a month to take into account the principle of totality, and to then suspend the sentence after two months to enable him to pursue rehabilitation options.

30.     The orders that were made on 28 June 2021 were:

(1)	For the offence of arson contrary to s 404(1) of the Code, the offender is convicted
and sentenced to 10 months’ imprisonment (reduced from 12 months) to commence
on 28 May 2021 and end on 27 March 2022.
(2)	This period of imprisonment is to be suspended after two months on condition that the offender enter into a Good Behaviour Order for a period of 12 months thereafter, during which time he is to accept the core conditions of such an order as well as the supervision of the Director-General and to obey all such directions as are imposed upon him in respect of treatment of his drug and alcohol problems.
(3)	Pursuant to ss 66 and 65(2) and (3) of the Sentencing Act, the Court sets a non-parole period starting on 17 June 2021 and concluding on 27 July 2021.

Reopening the original sentence

31.     Following the sentencing of the offender, it became apparent that the above orders did not accord with the requirements of the Sentencing Act in three ways.

32. In relation to order 1, the offender was in lawful custody at the time of the offence. The sentence was required to be served consecutively with his existing sentence of imprisonment, unless the Court directed otherwise: s 72(2) of the Sentencing Act. Although an intention to make such a direction may have been inferred from the reasoning set out at [26] above, the Court did not then expressly make the direction pursuant to s 72(3) of the Sentencing Act.

33.     The existing sentence was for a term of two years and seven months’ imprisonment

commencing on 20 April 2019. Due to the offender having been released on parole but subsequently having parole revoked, the timing of that sentence meant that the sentence for the arson offence could not commence before 10 February 2022. Order 1 of the previous orders made on 28 June 2021 was thus in error as to the date of commencement permitted under the statute.

34. In relation to order 2, the combination sentence was precluded due to the operation of s 31(2) of the Sentencing Act. That section prevents the Court from setting the start

of the period for a good behaviour order “on a day when the offender may be serving a period of full-time detention or may be on parole” (emphasis added). Accordingly,

although the offender was eligible for parole from 27 July 2021, the good behaviour order could not commence until the full term of imprisonment ended, which was not until 27 March 2022.

35.     In relation to order 3, the offence was committed while the offender was in lawful custody. Under s 64 of the newly amended part 5.2 of the Sentencing Act, the

sentence was deemed an “excluded sentence of imprisonment” and therefore the

entire part 5.2, which gives the Court power to reset the non-parole period, does not
apply.

36. Section 61 of the Sentencing Act allows the Court to reopen sentencing proceedings and amend or make new orders, but only in specified circumstances.

37.     The material parts of the section are as follows:

61               Reopening proceedings to correct penalty errors

(1) This section applies to a criminal proceeding …in which a court has—

(a) made a sentence-related order that is contrary to law; or

(b) failed to make a sentence-related order that is required to be made

by law.

(2) This section applies whether or not anyone has been convicted or found guilty of an offence in the proceeding.

(3) The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following:

(a) make a sentence-related order that is in accordance with law;

(b) amend any relevant finding of guilt, conviction, sentence or order.

(4) …

(5) … (6) …

(7) In this section:

sentence-related order—

(a) see section 55 (Application—pt 4.4); and

(b) includes an ancillary order within the meaning of section 58 (Ancillary orders relating to offences taken into account in sentencing).

38. As submitted by the legal representative for the Crown, s 61 allows the Court to reopen proceedings only to deal with orders that are contrary to law or that fail to make an order that is required to be made by law. It is not a mechanism to otherwise avoid an appeal: see R v JJ [2014] ACTCA 23; 242 A Crim R 363 at [38], adopting Achurch v The Queen [2014] HCA 10; 253 CLR 141 (Achurch) at [19], [32] and [36].

39.     In Achurch, the plurality (French CJ, Crennan, Kiefel and Bell JJ), held at [32] that the equivalent NSW provision dealing with the correction and adjustment of sentences only applies where the penalty itself was contrary to law. Due to the principle of finality, the reasoning process of the sentencing judge could not be scrutinised as a way of reopening proceedings. Thus, the provision did not authorise a Court to

reopen proceedings “in which a sentence open at law was reached by a process of
reasoning involving an error of law” (at [4]).

40. Ultimately, it was accepted by the parties during the further hearing (in accordance with s 61(3) of the Sentencing Act) that each of the orders was made contrary to a provision of the Sentencing Act and therefore contrary to law.

41.     It was therefore necessary to vacate the orders on 28 June 2021. Applying the earlier reasoning (which was itself not the source of error), the offender was re-sentenced on 12 July 2021 in a manner that complied with the provisions of the Sentencing Act.

42.     There was some discussion during the hearing as to whether the offence of arson

was an offence “that involves causing harm, or threatening to cause harm, to a corrections officer”. If it was, then s 72(4) of the Sentencing Act needed to be

addressed. It provides as follows:

(4) Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.

43. The way that I read that provision, while the offence of arson does have the capacity to threaten to cause harm to a corrections officer in certain circumstances, it was not an offence which directly involves threatening harm to corrections officers and therefore s 72(4) of the Sentencing Act did not apply. Certainly, the facts of this case did not involve a fire that threatened harm to any corrections officer. However, in light of the potential ambiguity, I formed the view that a consecutive sentence was appropriate. Such sentence would comply with s 72(2). The reasoning regarding totality (set out at [25] above) could equally be achieved, not by imposing a lesser term, but by fully suspending the sentence.

44.     Accordingly, the orders made on 12 July 2021 were as follows:

1) Pursuant to s 61(3) of the Sentencing Act, the orders made on 28 June 2021 are vacated and in lieu thereof the following orders are made:

a. In relation to the offence of arson (CAN1240/2021) contrary to s 401 of the Code, the offender is convicted and sentenced to 10

months’ imprisonment (reduced from 12 months) to commence on

10 February 2022 and to end on 9 December 2022.

b. This period of imprisonment is to be fully suspended on condition that the offender enter into a Good Behaviour Order for a period of 12 months thereafter, during which time he is to accept the core conditions of such an order as well as the supervision of the Director-General and to obey all such directions as are imposed upon him in respect of treatment of his drug and alcohol problems.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam.

Associate: Dominic Page

Date: 04 August 2021