R v Blackburn (No 1)
[2020] ACTSC 373
•16 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Blackburn (No 1) |
Citation: | [2020] ACTSC 373 |
Hearing Date: | 11 September 2020 |
DecisionDate: | 16 September 2020 |
Before: | Refshauge AJ |
Decision: | 1. Mr Blackburn be convicted of assaulting Craig Hunt on 18 March 2020 and occasioning him actual bodily harm, and be sentenced to 11 months' imprisonment, to commence on 3 April 2020. 2. Mr Blackburn be convicted of assaulting Mr Hunt on the same day, and be sentenced to two months’ imprisonment, to commence on 3 February 2021. 3. Mr Blackburn be convicted of assaulting Taylor Areole on 18 March 2020, and be sentenced to 14 days' imprisonment, to commence on 20 March 2021. 4. Mr Blackburn be convicted of destroying property, namely Mr Hunt's phone, and be sentenced to three months' imprisonment, to commence on 2 February 2021. 5. Mr Blackburn be convicted of aggravated burglary on 29 March 2020, and be sentenced to 18 months' imprisonment, to commence on 3 May 2021. 6. Mr Blackburn be convicted of dishonestly taking Michael Brennan's motor vehicle on 29 March 2020 without his consent, and be sentenced to six months' imprisonment, to commence on 3 June 2021. 7. Mr Blackburn be convicted of theft from Mr Brennan, jointly with the male co-offender on 29 March 2020, and be sentenced to three months' imprisonment, to commence on 3 September 2021. 8. Mr Blackburn be convicted of dishonestly driving Mr Brennan's vehicle without his consent, and be sentenced to three months' imprisonment, to commence on 3 September 2021. 9. Mr Blackburn be convicted of making off without payment on 30 March 2020, and be fined $250, with 12 months to pay. 10. Mr Blackburn be convicted of aggravated dangerous driving on 3 April 2020 as a first offender, and be sentenced to six months' imprisonment, to commence on 3 December 2021, and be disqualified from holding or obtaining a driver license for 12 months. 11. Mr Blackburn be convicted of failing to stop for police when directed, and be sentenced to two months' imprisonment, to commence on 3 May 2022, and be disqualified from holding or obtaining a driver license for three months. 12. Mr Blackburn be convicted of being an unaccompanied learner driver on 3 April 2020, and be fined $400, with 12 months to pay. 13. Mr Blackburn be convicted of driving with a prescribed drug in his blood as a first offender, and be fined $200, with 12 months to pay, and be disqualified from holding or obtaining a driver license for six months. 14. Mr Blackburn be convicted of assaulting Constable Kneen, and be sentenced to three months' imprisonment, to commence on 3 July 2020. 15. It be noted that this is a total of imprisonment for three years and six months, to commence on 3 April 2020 and end on 2 October 2022, a total fine of $850 with 12 months to pay, and a disqualification from holding or obtaining a driver licence for 12 months. 16. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made, to commence today in respect of the offence of aggravated burglary on 29 March 2020, for which Mr Blackburn has been convicted and sentenced, which is the primary offence. It be declared that the Drug and Alcohol Treatment Order is for a period of 12 months. 17. The Drug and Alcohol Treatment Order be extended to the offences of theft, the three offences of common assault, the offence of assault occasioning actual bodily harm, the offence of destroying property, the offence of dishonestly taking someone else's motor vehicle without the owner's consent and of dishonestly driving that motor vehicle without the owner's consent, the offence of aggravated dangerous driving, and the offence of failing to stop for police when directed, all being associated offences. 18. It be noted that the convictions for the primary offence and the associated offences have been recorded and that sentences of imprisonment have been imposed for each of those offences, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order and which constitute the custodial part of the Drug and Alcohol Treatment Order. 19. The sentence of three years and six months’ imprisonment for the primary offence and associated offences be suspended, for a period from today until the end of the sentence of imprisonment, under s 80W of the Crimes (Sentencing) Act 2005 (ACT). 20. On the completion of the Drug and Alcohol Treatment Order, Mr Blackburn be required to sign an undertaking to comply with the offender's Good Behaviour obligations for a period of 2 years from 17 September 2021 and to accept supervision from the ACT Commissioner of Corrective Services or his delegate for the period during which the person supervising him considers appropriate and to obey all reasonable directions of the person supervising him. 21. For the treatment and supervision part of the Drug and Alcohol Treatment Order, Mr Blackburn be ordered to comply with the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Drug and Alcohol Treatment Order and complete a program of treatment as agreed with the Treatment Order Team from time to time and as ordered by the Court. 22. Mr Blackburn be directed to travel directly to Canberra Recovery Services in Fyshwick, to arrive there by 1:00 pm and to admit himself to the treatment program and not to leave that program without the leave of the Court and to obey all rules of the program and the facility. 23. Mr Blackburn be directed that if he is to be discharged from or leaves the program, he is to present himself to ACT Corrective Services by 4 pm the next business day with a view to having the Drug and Alcohol Treatment Order reviewed. 24. Mr Blackburn be directed to comply with any directions of the Court about attendance at Court, in person or by electronic means, and about any other treatment or supervision matter from time to time. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – common assault – destroying property which does not exceed the value of $5,000 – aggravated burglary – theft – dishonestly taking a motor vehicle without the owner’s consent – making off without payment – dishonesty driving a motor vehicle without the owner’s consent – failing to stop for police when directed – aggravated dangerous driving –driving as an unaccompanied learner driver – driving with a prescribed drug in the blood – pleas of guilty – Drug and Alcohol Treatment Order made |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 116(3), 309 Criminal Code 2002 (ACT) ss 45, 308, 312, 318(1), 318(2) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Sladic v Proud [2013] ACTSC 232; 237 A Crim R 1 |
Parties: | The Queen (Crown) Jake Blackburn (Offender) |
Representation: | Counsel S McFarland (Crown) C Brown (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 119 of 2020 SCC 120 of 2020 SCC 203 of 2020 SCC 205 of 2020 |
REFSHAUGE AJ:
Introduction
As I said in R v Massey (No 1) [2020] ACTSC 256 at [1], the sentencing of young people with depressingly long criminal histories is always difficult. It can be depressing, but if careful thought can construct a sentence that protects the community, so far as sentencing can, and provides the young person with an opportunity to move beyond the criminality and its causes to a sensible, fulfilled and fulfilling life, then the opportunity should be taken and the sentencing will be especially worthwhile.
Now appearing before me for sentencing on serious and disturbing charges is a young man, Jake Blackburn. Mr Blackburn has pleaded guilty to a long list of charges. These are offences of assault occasioning actual bodily harm, three offences of common assault, destroying property, aggravated burglary, theft, dishonestly taking a motor vehicle without the owner's consent, making off without payment, dishonestly driving that motor vehicle without the owner's consent, failing to stop for police when directed, aggravated dangerous driving, driving with a prescribed drug in his blood, and driving as an unaccompanied learner driver.
These offences arise out of two unrelated episodes of criminal activity. The evidence in this case was admitted without objection or challenge. I had the following materials before me:
(a)For the Crown:
1) a Statement of Facts for the first episode, which was in two related parts and which Mr Blackburn did not challenge;
2) photographs of the collision on 3 April 2020;
3) Mr Blackburn's criminal history in the ACT and New South Wales;
4) a Pre-Sentence Report of 6 May 2020 and an Addendum Pre-Sentence Report of 22 May 2020;
5) a Drug and Alcohol Sentencing List Suitability Report of the Alcohol and Drug Services of Canberra Health Services, dated 9 September 2020;
6) a Drug and Alcohol Treatment Assessment of ACT Corrective Services dated 3 September 2020;
7) a Forensic Mental Health DASL Assessment Report of Canberra Health Services dated 11 August 2020;
8) a Statement of Facts for the second set of charges, which Mr Blackburn did not challenge;
9) photographs of the victim and his smashed phone;
10) a Compensation Schedule; and
11) a Drug and Alcohol Sentencing List case plan.
(b)For Mr Blackburn:
1) a Forensic Psychological Report of Ms Leesa Morris dated 20 July 2020;
2) a copy of an Involuntary Detention Order;
3) progress notes from the Canberra Hospital of 6 April 2020 and 11 October 2011;
4) a referral from the Canberra Hospital to Mr Blackburn's General Practitioner; and
5) a checklist, case notes, incident summary form and detainee work application from ACT Corrective Services.
I also had comprehensive, helpful and thoughtful written submissions from the Crown and from Mr Blackburn's counsel and heard oral submissions from both counsel, which were useful and of assistance.
The Facts
At midday on 18 March 2020, Mr Blackburn approached a 16-year-old student at Lake Tuggeranong College ACT, who was talking with some friends. Mr Blackburn swore at the student for what he was saying, grabbed him and punched him in the nose, causing it to bleed. Mr Blackburn then pushed the student, causing him to fall on the road on his back and then proceeded to punch him repeatedly in the head.
A girl tried to intervene, but Mr Blackburn pushed her away and hit the victim further. During the altercation, the student's phone fell onto the ground and Mr Blackburn picked it up and threw it onto the ground hard, causing it to break into pieces. The student was later examined at the Canberra Hospital and diagnosed with minor bruising. These events constituted the offences of assault occasioning actual bodily harm, common assault and destroying property.
On 29 March 2020, at about 2 am in the morning, Mr Blackburn, wearing a balaclava, smashed a glass door and entered a residential unit in Belconnen. He had an axe and was accompanied by another male. The owner was at home and Mr Blackburn held the axe to his head for about 30 seconds while demanding cannabis.
The two intruders took the victim's wallet and when they demanded a personal identification number for the bank account, a card for which was in the wallet, he gave it to them as he was afraid that they would otherwise hurt him.
The wallet also contained $80, which they took, and they took the victim's mobile phone and the keys to his vehicle. At the time, the co-offender was wearing what was described as a big, open teeth style mask. These events constituted the charges of aggravated burglary and theft. The two intruders then took the motor vehicle and drove it away to the bank, where they tried to use the cards.
They returned to the unit without their face coverings and told the victim that the automatic teller machine had swallowed his bank card and that they had been unable to withdraw any cash. They also attempted to have the victim use the internet banking application on his phone, but were unsuccessful. They then left again and drove off.
Later that day, the victim went looking for his car and found it in Kambah. He was approached by Mr Blackburn and the other male, who said that they had been unable to get any money. The victim then drove his vehicle to a service station in Belconnen, apparently with Mr Blackburn and his co-offender, and filled the car with petrol, for which he was unable to pay because the thieves still had his wallet. He was allowed credit by the service station. He then returned home.
In the afternoon of that day, as the victim sought to leave the apartment complex in his car, Mr Blackburn and the other male entered his vehicle, telling him that they would buy him some beers, so the victim drove them then to a liquor store and they bought some beer for him. They then purchased some cigarettes and returned to the victim's unit.
Shortly after, Mr Blackburn and the male drove away in the car. They paid for the outstanding petrol purchases at the Belconnen service station. The next day, Mr Blackburn filled the vehicle with petrol at a service station in Lyneham and left without paying. These events constituted the offences of dishonestly taking a motor vehicle without the owner’s consent and making off without payment.
Five days later, on 5 April 2020, the victim's car was seen in Melbourne by police, who attempted to intercept it but failed to do so after Mr Blackburn drove off erratically. Later that day, the vehicle was sighted by police near Yass, where New South Wales police attempted to stop it, but it was again driven off.
Police disengaged with the pursuit they had begun, but later deployed tyre deflation devices, which deflated the right-hand rear tyre but did not stop the vehicle, which continued being driven at high speed and in a dangerous manner over the ACT border.
Still later, ACT police sighted the vehicle near the township of Hall. By this time, the vehicle had no right-hand back tyre, but was being driven, albeit at about 140 kilometres per hour, on the axle with sparks coming from the rear of the vehicle. Police followed the vehicle in an unmarked police car and noticed it swerving in and out of traffic, with Mr Blackburn apparently struggling to maintain control.
When it came to a stop, police positioned their vehicles in an attempt to block the Barton Highway, making it clear that he was to stop for them, but Mr Blackburn drove the victim's vehicle around the police vehicle and sped away.
A police pursuit commenced, with Mr Blackburn reaching up to 178 kilometres per hour in the vehicle, continuing to weave in and out of traffic and driving through two sets of red lights. At one point, he was driving on the wrong side of the road. The manner of driving was clearly dangerous and put other road users at serious risk of injury or even death.
Later, at the intersection of Ginninderra Drive and William Slim Drive, the vehicle drove through a red-light signal and collided with a taxi passenger van with such force that the van flipped on its side and then collided with a further vehicle, which came to a stop. Mr Blackburn was arrested.
I have seen photographs of the scene of the collision. It is a terrifying view. They show extensive damage to all the vehicles. Fortunately, but no thanks to Mr Blackburn, no one was seriously injured in the collision. It is amazing that no one was killed in the collision.
When Constable Robert Kneen spoke to Mr Blackburn and asked him if he had been overseas, he answered that he had just returned from Wuhan and coughed in the Constable's direction. He continued to cough frequently until police put a mask over his face.
Mr Blackburn was tested and returned a positive result for Delta-9-tetrahydrocannabinol, more commonly known as THC, which is the cannabinoid molecule and main psychoactive ingredient in cannabis, a prescribed drug.
Inquiries made by police of the Road Transport Authority showed that Mr Blackburn was the holder of a learner driver licence and was required to be accompanied when driving by the holder of a full driver licence. No such person was in the victim's car during the chase and at the collision.
These events constituted the charges of dishonestly driving a motor vehicle without the owner's consent, failing to stop for police as a first offender, aggravated dangerous driving, driving as an unaccompanied learner driver, common assault and driving with a prescribed drug in his blood as a first offence.
The Proceedings
After Mr Blackburn's arrest on charges relating to the events of 3 April 2020, he appeared in the ACT Magistrates Court on the next day. He was remanded in custody, but was referred, under s 309 of the Crimes Act 1900 (ACT), to a medical facility for examination to determine whether he needed ‘immediate treatment or care because of mental impairment’).
He returned to court on 8 April 2020 and entered pleas of guilty to the four charges that had been laid. The proceedings were adjourned to 8 May 2020 for sentence hearing.
On 6 May 2020, Mr Blackburn appeared again to answer two summonses on information relating to the events in Belconnen on 29 March 2020. He entered pleas of guilty and was remanded in custody to 8 May 2020. On that day, the proceedings were further adjourned to 29 May 2020, and a Pre-Sentence Report was ordered. Mr Blackburn remained in custody.
On 29 May 2020, Mr Blackburn appeared in Court to answer further summonses on information and further charges were laid in court in relation to the events of 29 March 2020. The prosecution declined to consent to the summary hearing of the indictable charges.
Mr Blackburn was then committed to this Court for sentence on the indictable charges, and the summary only charges were transferred under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT). Mr Blackburn remained in custody.
On 25 June 2020, Mr Blackburn was referred to the Drug and Alcohol Sentencing List, having been assessed as eligible. On 30 July 2020, it was noted he was eligible, and Drug and Alcohol Treatment Assessments (Suitability Assessment) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) were ordered. He remained in custody.
On 27 August 2020, the matters were listed for sentence on 11 September 2020.
On 8 September 2020, Mr Blackburn was brought before the ACT Magistrates Court, and charges were also then laid before the Court for the four offences relating to the first episode of criminal behaviour he committed on 18 March 2020. He entered pleas of guilty and was committed to this Court for sentence.
I heard sentencing submissions on 11 September 2020 and he now stands for the imposition of sentence. Mr Blackburn has been in custody for 166 days in respect of these charges.
The Offences
Aggravated burglary is an offence contrary to s 312 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 20 years imprisonment and a fine of $320,000, or both.
Theft is an offence against s 308 of the Criminal Code, charged, in this case, by virtue of s 45, as jointly committed by Mr Blackburn and the other offender. It renders Mr Blackburn liable for a maximum penalty of 10 years imprisonment and a fine of $160, or both.
Dishonestly taking a motor vehicle without the owner's consent is made an offence by s 318(1) of the Criminal Code, which provides for a maximum penalty of imprisonment for five years or a fine of $80,000, or both.
Dishonestly driving a motor vehicle without the owner's consent is an offence contrary to s 318(2) of the Criminal Code and renders Mr Blackburn liable to a maximum penalty of five years imprisonment or a fine of $80,000, or both.
Making off without payment is an offence against s 323(1) of the Criminal Code, which provides for a maximum penalty of 6 months’ imprisonment or a fine of $8,000, or both.
Common assault is an offence against s 26 of the Crimes Act, and attracts a maximum penalty of two years imprisonment.
Failing to stop for police when directed is made an offence by s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), which provides for a maximum penalty for a first offender of 12 months imprisonment or a fine of $16,000, or both.
Aggravated dangerous driving is prohibited by s 7(1) of the Road Transport (Safety and Traffic Management) Act and provides for a maximum penalty for a first offender of 12 months imprisonment and a fine of $16,000.
Being an unaccompanied learner driver is an offence contrary to reg 20(3) of the Road Transport (Driver Licensing) Regulations 2000 (ACT), which provides for a maximum penalty of a fine of $3,000. Curiously, the Magistrates Court bench sheet refers to reg 21, which is a definition section.
Driving with a prescribed drug in the blood is an offence against s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), which, for a first offender, attracts a maximum penalty of a fine of $1,600.
Destroying property which does not exceed the value of $5,000 is made an offence under s 116(3) of the Crimes Act and renders Mr Blackburn liable for a maximum penalty of two years imprisonment or a fine of $8,000.
Assault occasioning actual bodily harm is prohibited by s 24 of the Crimes Act and attracts a maximum penalty of five years imprisonment.
As the High Court has pointed out in Markarian v The Queen [2005] HCA 25; 228 CLR 357, maximum penalties are important, as they provide courts with an important yardstick by which to adjudge the seriousness of the offences. I have regard to each of these maximum penalties. As the court there added, at 13; [31], however, it is not permissible ‘to look first to a maximum penalty’, and then ‘to proceed by making a proportional deduction from it’.
The First Episode
The first episode of criminal behaviour constituted a vicious attack on a 16-year-old boy. The injuries were a bloody nose and some bruising. Nevertheless, it must have been very frightening to the victim, having come at him out of the blue as Mr Blackburn did. That Mr Blackburn was about five years older than the victim adds a little to the seriousness of the offence.
Actual bodily harm means any hurt or injury that interferes with the health or comfort of a person. It must be more than transient or trifling (R v Donovan [1934] 2 KB 498 at 509; R v Burdon [2011] ACTSC 90 at [25]-[26]). Thus, the bruising and breaking of the skin constitutes the offence, though it is not the most serious version of injuries seen for this offence.
I had photographs of the victim's face. The photographs show some redness; I could not see much injury. It was certainly not trivial, but not a serious version of the offence, save that, of course, the punches were to his head, a vulnerable part of the body (R v Hodge [2015] ACTSC 214 at [15]). This makes it somewhat more serious. The photographs do not suggest that there are any long-term physical consequences of the attack and I had no Victim Impact Statement.
In the light of what the Statement of Facts reported that Mr Blackburn said before attacking the victim, I cannot be satisfied beyond reasonable doubt that it was, from Mr Blackburn's perspective, an unprovoked attack, though that may not, of course, have justified it.
Given Mr Blackburn’s mental condition, especially his impulsivity, this somewhat moderates the seriousness of the offence. At the end of the day, the nature of the injuries are important for assessment of the seriousness of the offence (R v Bloomfield (1998) 44 NSWLR 734 at 739–40) and I have described those.
The destruction of the victim's phone is an offence of moderate seriousness. The phone was worth about $800, which is not a very high value, but a phone is, these days, an important accessory for young people and it also contains a lot of stored information, the loss of which can cause serious inconvenience. The assault of the bystander was not particularly serious, constituted by Mr Blackburn pushing her out of the way. I was not informed of any significant impact that it may have had.
The Second Episode
The second episode can be divided into two parts: the events of 29 and 30 March 2020 and the events of 3 April 2020.
(a) The Events of 29 and 30 March 2020
As to the first, the burglary was aggravated by both criteria of aggravation for the offence, namely that it was in company and also that Mr Blackburn had an offensive weapon with him. Indeed, not only did he have the weapon, he held it to the victim's head for 30 seconds. That sounds like a short time, but anyone who waits for traffic lights to change, especially in an otherwise empty intersection, knows that it is, in perception, quite a long time.
There does not seem to have been much premeditation or planning. At least, the evidence does not show that. The two intruders were wearing face coverings, one wore a baclava and another, a face mask, which they had to procure along with the axe, and demanded drugs which the victim did not seem to have. I note, however, that the offenders kept returning to the victim's unit during the day. They were also driven away by the victim.
Damage was also caused on the original entry. The victim, however, seemed not to have been so affected by the intrusion that he was unable to seek out his car and in fact, drove Mr Blackburn and the other male to get the beer and cigarettes.
It was a somewhat more serious offence because it was a home invasion very early in the morning. Residents are entitled to feel safe in their own homes. That also makes the burglary somewhat more serious (R v Parker [2018] ACTSC 55 at [21]). It was also more serious because the victim was at home at the time.
Not a great deal of property of value was taken. The amount of cash taken was relatively small and despite the significant inconvenience caused by the loss of the victim's wallet, and in particular, his bank card, though no cash was stolen by its use, it was not a particularly serious theft. The property taken does not appear to have had any particular sentimental value, which is a factor also relevant to assessing the seriousness of the offence.
The more serious offence is the taking of the motor vehicle. As I have pointed out elsewhere, this was a serious offence because of the significance of the owner’s dependence on such a valuable purchase. I made the point in R v Massey (No 1) at [54] as follows:
… a motor vehicle is, after a home, often the most expensive purchase of a family, and in Canberra, many people are dependent on it as their appropriate transport. This may, at least in part, explain the serious view taken of the offence by the legislature. (citations omitted)
The offence was aggravated because the vehicle was ultimately damaged. Indeed, from the photographs of the collision available to me, it was almost certainly destroyed so that it would have had to be written off. There was no evidence of any specific inconvenience caused to the owner, but it is inevitable that it would have caused some, probably much, inconvenience. Also, the work of replacing it, including, if it was insured, dealing with an insurance company, would not be an inconsiderable task.
The charge of making off without paying for the petrol from the Lyneham service station seems to be a fairly unremarkable version of the offence. The amount involved was a relatively modest amount of $57.70.
(b) The Events of 3 April 2020
As to the second part of the episode, the driving in the ACT after returning from Victoria was seriously problematic. In terms of the maximum penalties, the common assault of Constable Kneen was not the most serious offence. Nevertheless, while a cruel offence, there was no actual damage done and, indeed, no physical interaction between the offender and victim. That the victim was a police official doing her duty and who was obliged to interact with Mr Blackburn does make it more serious than it would have otherwise been.
In terms of dangerousness to the community and disregard for the law, the most serious offence in this part of the episode is the offence of aggravated dangerous driving. In 1998, the New South Wales Court of Criminal Appeal published a guideline judgment for the sentence of dangerous driving causing death, R v Jurisic [1998] NSWSC 423; 45 NSWLR 209. It published a guideline for the sentencing for the offence of aggravated dangerous driving in 2002 (R v Whyte [2002] NSWCA 343; 55 NSWLR 252), which adopted much of what was said in R v Jurisic. These guidelines were generally approved in this jurisdiction by the Court of Appeal in Monfries v The Queen [2014] ACTCA 46 at [89]. See also R v Kekalainen [2014] ACTSC 132 at [27]-[28], where I pointed out that care has to be taken with the fact that lesser penalties are provided for in this Territory than in New South Wales. In any event, the decisions are useful for identifying the relevant aggravating and mitigating factors (see p 231 of R v Jurisic).
In this case, matters of aggravation include that the driving occurred at peak hour (8:31 am), though there was no specific evidence of the number of cars on the road, which was probably less than usual because of the COVID-19 pandemic lockdown.
It was also aggravating that Mr Blackburn drove through two red lights and was found to have used illicit drugs. The length and speed of driving, ‘at no less than 140 km/h’, makes the offence more serious, as well as the fact that he had driven to avoid police and evade arrest, though that was in part subject to a separate offence.
His driving in the manner he did, rather erratically because of the deflated tyre, is also relevant to make the offence more serious. It was submitted that the fact that Mr Blackburn was driving a stolen car was an aggravating factor. He was, however, charged separately with this offence, so I do not consider it in this context. That he was driving as an unaccompanied learner is also aggravating, but is also separately charged, and these factors make that offence more serious.
Finally, it is interesting that the factor of the collision, the damage done and, were it applicable, injuries suffered, are not mentioned in R v Jurisic, nor in R v Whyte, but with the greatest of respect to those courts, it does seem to me that, in the circumstances of the ACT offence, they were relevant factors and matters of aggravation. It must be regarded as approaching a very serious version of the offence.
The other offences seem to me relatively unremarkable versions of the offences, save that some of the aggravating factors of the offence of aggravated dangerous driving, including the length of driving and the manner of driving, were present.
Subjective Circumstances
Mr Blackburn was born 21 years ago in the ACT, the third of four children. All his siblings are sisters. He had had a somewhat disrupted home life. He was assaulted by his parents and experienced child sexual assault in afterschool care.
He was sent to boarding school at the early age of eight, and three years later, moved to Cairns to live with his father when his parents separated. He then later moved to the United Kingdom to live with his maternal grandparents when he was 13 and loved it, but had to return not long after due to their ill health. He then went to Bungendore to live with his mother for a little over three years [redacted for legal reasons].
From then on, his accommodation became unstable, and he relied on temporary accommodation with friends, interspersed with periods of homelessness. Throughout his childhood he experienced numerous changes in schooling in both primary and secondary schools and so did not make many childhood friends. He also suffered from bullying.
He finally left school in Year 10. He did manage to obtain employment from time to time, but it has been inconsistent since 2016. More recently, however, he was employed as a kitchenhand in Canberra, apparently a good job which he liked and his employer liked him, but lost his employment in February this year due to the effects of the government lockdown to address the COVID-19 pandemic. He says that his employer is willing to re-hire him when the business situation improves.
In 2018, Mr Blackburn was referred by Centrelink, from which he was obtaining benefits, for a psychiatric examination and he was diagnosed with substance abuse disorder and depression, amounting to a recognised disability.
He was then referred to a Disability Employment Services provider, which has been managing his disability since then and provides case support. Since he lost his job in February this year, he has been in receipt of the Youth Allowance and Disability Support payments from Centrelink, with an additional Rent Assistance payment.
Mr Blackburn has a positive relationship with his parents, even though his father lives in Sydney and his mother lives in Newcastle. As a result, he has limited contact with them. He is especially close to his sister, who lives in Maitland. His other two sisters live in Queensland. He has had a relationship with his current partner since December 2019.
Mr Blackburn had problems with alcohol in the past. He says it does not currently cause problems, though his sister disagrees, advising the author of the very helpful Pre-Sentence Report that he has increased his alcohol consumption since losing employment. Mr Blackburn uses cannabis frequently and it causes him some financial strain. He has previously used methamphetamine, but not, he says, since 2017.
Since 2011, Mr Blackburn has made numerous suicide attempts [redacted for legal reasons], and one of his current offences may have been the third attempt at ending his life. He is currently taking prescribed medication. In addition to suicidal ideation, he has recently reported auditory hallucinations and heavy substance misuse. He also exhibited vague paranoia. His parents continue to support him.
Mr Blackburn has accepted responsibility for the offences he has committed and expressed disappointment at his actions. He denied that he was using drugs at the time of the offending, though he did test positive to cannabis when arrested for driving and it seems to me that it is likely he was using or at least suffering from the effects of cannabis at that time.
Mr Blackburn has a depressingly long criminal history for one so young. [Redacted for legal reasons].
[Redacted for legal reasons] … the current offences are not entirely out of character, but do show an escalation of offending that is worrying.
Sentencing Practice
I have considered the sentencing practice for the offences of burglary and aggravated burglary in R v Crawford (No 1) [2020] ACTSC 245 at [65]-[76]. In addition, I note that the Court of Appeal, in Love v The Queen [2012] ACTCA 8, said, at [13], that ‘sentences of around 18 months could be said to be within range for the ordinary course of domestic burglaries, but that higher sentences would be justified in particular circumstances.’
It is difficult to find a sentencing practice for offences of theft, as the circumstances vary so widely. I also noted in R v Crawford (No 1), at [69]-[73], the range shown in the ACT Sentencing Database. I rely on what I there said in that case about both offences.
I have discussed sentencing practice for the offence of dishonestly riding in a motor vehicle without the owner's consent in R v Massey (No 1) at [76]-[78]. I rely on what I there said. I also consider that the offence of dishonestly taking a motor vehicle without the owner's consent to be a similar offence, perhaps a little more serious.
As to aggravated dangerous driving, the ACT Sentencing Database shows one decision in the Supreme Court where a sentence of six months' imprisonment was imposed. In the ACT Magistrates Court, there are many more cases. Over a third of the offences have attracted a prison sentence of nine months' imprisonment or less, with the majority being for three or four months.
Consideration
It is always important for a court imposing sentence on an offender in this Territory to have regard to the purposes of sentencing set out in s 7(1) of the Sentencing Act. In this case, Mr Blackburn's prior offending, the nature of the offending and the seriousness of some of the offences suggest that punishment is an important factor.
It has been submitted that because of the prevalence of many of the offences, general deterrence is also important. Prevalence is something that a court may see from its own experience (see R v Ryan (1988) 33 A Crim R 288 at 293). Generally, however, it must be said that increasing prevalence, which might aggravate a sentence, must be proved by appropriate evidence (see the discussion in Sladicv Proud [2013] ACTSC 232; 237 A Crim R 1 at [102]-[105]). Nevertheless, the courts can, especially with common offences, draw on their own experience as to prevalence (Parnell and Ellis v Rigby [2008] NTSC 40; 24 NTLR 1 at 9; [32]).
I note, however, that general deterrence is moderated in this case for the reasons I note below (at [94]-[99]). It is also important to make Mr Blackburn accountable for his actions, and for the Court to denounce his actions, especially where he invaded the security of the victim when entering his residence, and then, when driving away, put other innocent drivers at peril. It is important to recognise the harm done to the victims, but it was of varying kinds and not all as equally serious, or ultimately as equally serious, as many of these offences.
I can see no reason, however, that these should overwhelm a need for rehabilitation. Indeed, that remains a very important consideration, as is well known when sentencing a young offender. The value to the community of a rehabilitated young offender is very significant.
There are four other matters of importance. In the first place, Mr Blackburn has pleaded guilty to each offence and at a very early stage. Indeed, at the earliest opportunity in most cases. The Crown case was, in most cases, very strong, and in some cases, overwhelming. That does not, however, completely deny the offender some significant recognition of the utilitarian value of the pleas.
Secondly, the plea is also a sign of remorse. In addition, Mr Blackburn told the author of the helpful Pre-Sentence Report that he accepted responsibility for the offences and expressed disappointment with his actions. In a curious way, his behaviour in purchasing some beer and cigarettes for the victim of the aggravated burglary and paying the debt at the service station is an indicator of some remorse.
Further, Mr Blackburn repeated his remorse and showed some insight, as he explained to Ms Morris, the author of the Forensic Psychological Report, that he felt remorse ‘straight after’ the offending. Hence, he purchased beers and cigarettes for the victims and reported being relieved that the victims of the collision ‘weren't hurt worse than they were’. Finally, the Crown accepted that Mr Blackburn ‘showed levels of remorse’. I must take this into account, as I accept that he showed genuine remorse for his actions.
Thirdly, Mr Blackburn has had a level of dislocation and deprivation in his childhood. This enlivens the principles that the High Court articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (see also R v Crawford (No 1) at [85]-[87]). Thus, Ms Morris reports that Mr Blackburn suffered ‘parental alcohol abuse, neglect, physical violence, physical instability in living arrangements, child sexual assault and significantly disrupted attachment’.
This, Ms Morris finds, ‘could potentially meet’ the criterion for Posttraumatic Stress Disorder, and later concluded that ‘[h]is cluster of symptoms suggests that … [he] would meet criteria for 309.81 Posttraumatic Stress Disorder, complex’. The effects of this disadvantage have continued for Mr Blackburn, who, in line with the High Court's recognition in Bugmy v The Queen that such disadvantage may not diminish over time, continues to experience distressing dreams that are sometimes violent and a persistent low mood. Further, the early introduction that he had to drug addiction requires its influence to be taken into account (R v Henry [2001] NSWCCA 521).
Finally, Mr Blackburn's mental condition was clearly a substantial motivation for at least some of the offences. Thus, Ms Morris diagnosed Mr Blackburn as suffering a Major Depressive Disorder, recurrent episode with psychotic features; Generalised Anxiety Disorder; Cannabis Use Disorder, moderate, in early remission, in a controlled environment; Posttraumatic Stress Disorder, complex; and Attention Deficit/ Hyperactivity Disorder (ADHD), predominantly hyperactive/ impulsive presentation.
In addition, he has presented with Antisocial Personality Disorder and Borderline Personality Disorder traits. In particular, Mr Blackburn has expressed suicidal ideation at times, as I have already mentioned (at [77] above), and has attempted suicide. This strongly supports his explanation for the dangerous driving, which he said he carried out because he wanted to die.
He has had contact with the Adult Mental Health Unit in 2018 and has been seen for mental health issues during periods of incarceration. Mr Blackburn was also detained on 4 April 2020 as an involuntary patient in the Adult Mental Health Unit for a total of 14 days following his most recent arrest. This was in part because of his suicidal ideation. The hospital notes described him as presenting ‘with acute on [sic] chronic psychosocial difficulties … with cluster B personality vulnerabilities including antisocial and suicidal behaviour’.
Further, Ms Morris opined that his mental health condition ‘impacted his decision making and judgement through both neurodevelopmental and emotional dysfunction’. She added, his conduct ‘appears to have made emotionally-driven (i.e., non-rational) decisions, with the aim to alleviate his psychological distress’. Additionally, his ADHD creates impulsivity, a behaviour over which Ms Morris pointed out he has little control.
In this case, this will reduce the moral culpability of Mr Blackburn, make him much less an appropriate vehicle for general deterrence, and moderate the significance of specific deterrence. For the relevant principles, see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.
In R v Lindsay [2020] ACTCA 25 at [66], these principles were described as ‘the correct approach’. They are relevantly identical to the principles set out in R v Verdins [2007] VSCA 102; 16 VR 269, also frequently cited in this Court, following R v Flowers [2014] ACTCA 13. It also moderates but does not eliminate the relevance of general deterrence. A person with a mental condition is generally an inappropriate vehicle for general deterrence (see R v Verdins).
Then there are multiple sentences. This is an important matter that needs to be addressed. First, the sentence for each offence needs to be appropriate. I have, however, reviewed each sentence to ensure, where there are common elements overlapping between any offences, that Mr Blackburn is not punished twice. Thus, for example, the aggravated burglary and theft contain common elements which means that concurrency is appropriate and indeed, usually results in the sentences being made fully concurrent in sentencing.
I have also considered whether the sentences should be partly or wholly concurrent because they are, for example, part of the same enterprise. In this case, the assault occasioning actual bodily harm of Mr Hunt is part of the same fight in which Mr Blackburn committed a common assault on him, to which he has also pleaded guilty. Similarly, the aggravating driving offence is part of the same conduct that includes the other driving offences.
I have then reviewed the length of the whole term of imprisonment to ensure that the principle of totality is respected, that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and the hope of achieving Mr Blackburn's goals when he returns to the community.
Thus, this is to be achieved by making appropriate concurrency or cumulation between the sentences. It is necessary, however, to ensure that he is not mistaken into believing that he can commit additional offences with impunity.
Finally, I will take into account the pre-sentence custody by backdating the sentences. This will not prevent consideration of a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Sentencing Act, as I have explained in R v Crawford (No 1) at [91]-[111].
Sentencing
His Honour then spoke directly to the accused:
Mr Blackburn, please stand.
I convict you of assaulting Craig Hunt on 18 March 2020 and occasioning him actual bodily harm. I sentence you to 11 months' imprisonment, to commence on 3 April 2020. Had you not pleaded guilty, I would have sentenced you to 15 months' imprisonment.
I convict you of assaulting Mr Hunt on the same day. I sentence you to two months’ imprisonment, to commence on 3 February 2021. That is to be cumulative as to one month on the sentence for assault occasioning actual bodily harm. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.
I convict you of assaulting Taylor Areole on 18 March 2020. I sentence you to 14 days' imprisonment to commence on 20 March 2021. That is to be wholly concurrent with the sentence for assaulting Mr Hunt. Had you not pleaded guilty, I would have sentenced you to 21 days' imprisonment.
I convict you of destroying property, namely Mr Hunt's phone. I sentence you to three months' imprisonment, to commence on 2 February 2021. That is to be cumulative as to one month on the sentence for assault on Taylor Areole. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.
I convict you of aggravated burglary on 29 March 2020. I sentence you to 18 months' imprisonment, to commence on 3 May 2021. That is to be cumulative as to 15 months on the sentence for destroying property. Had you not pleaded guilty, I would have sentenced you to two years' imprisonment.
I convict you of dishonestly taking Michael Brennan's motor vehicle on 29 March 2020 without his consent. I sentence you to six months' imprisonment, to commence on 3 June 2021. That is to be cumulative as to four months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to eight months' imprisonment.
I convict you from theft from Mr Brennan, jointly with the male co-offender on 29 March 2020. I sentence you to three months' imprisonment to commence on 3 September 2021. That is to be wholly concurrent on the sentence for the aggravated burglary. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.
I convict you of dishonestly driving Mr Brennan's vehicle without his consent. I sentence you to three months' imprisonment, to commence on 3 September 2021. That is to be wholly concurrent on the offence of dishonestly taking the vehicle without Mr Brennan's consent. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.
I convict you of making off without payment on 30 March 2020. I impose a fine of $250 and I allow you 12 months to pay. Had you not pleaded guilty, I would have fined you $350.
I convict you of aggravated dangerous driving on 3 April 2020 as a first offender. I sentence you to six months' imprisonment, to commence on 3 December 2021. That is to be wholly cumulative on the sentence for dishonestly driving Mr Brennan's vehicle without his consent. Had you not pleaded guilty, I would have sentenced you to eight months' imprisonment. I disqualify you from holding or obtaining a driver licence for 12 months.
I convict you of failing to stop for police when directed. I sentence you to two months' imprisonment, to commence on 3 May 2022. That is to be cumulative as to one month on the offence of aggravated dangerous driving. Had you not pleaded guilty, I would have sentenced you to three months' imprisonment. I disqualify you from holding or obtaining a driver licence for three months.
I convict you for being an unaccompanied learner driver on 3 April 2020. I impose a fine of $400 and allow you 12 months to pay. Had you not pleaded guilty, I would have fined you $500.
I convict you of driving with a prescribed drug in your blood as a first offender. I fine you $200 and allow you 12 months to pay. Had you not pleaded guilty, I would have fined you $250. I disqualify you from holding or obtaining a driver licence for six months.
I convict you of assaulting Constable Kneen. I sentence you to three months' imprisonment, to commence on 3 July 2020. That is to be wholly cumulative on the sentence for the offence of failing to stop for police when directed. Had you not pleaded guilty, I would have sentenced you to four months' imprisonment.
That is a total of imprisonment for three years and six months, to commence on 3 April 2020 and end on 2 October 2022, a total fine of $850 with 12 months to pay, and a disqualification from holding or obtaining a driver licence for 12 months.
Mr Blackburn, you may be seated.
I note that Mr Blackburn:
(a)has pleaded guilty to 14 offences, each of which is an eligible offence within the meaning of s 12A of the Sentencing Act;
(b)has been convicted and sentenced to a sentence of at least one year and not more than four years' imprisonment; and
(c)is not subject to any other ‘sentencing order’ within the meaning of s 12A of the Sentencing Act, as he is subject to no other court order, and has been fined for three offences and is subject to a licence disqualification order for two of them.
Accordingly, s 12A of the Sentencing Act applies and a Treatment Order may be made in respect of Mr Blackburn. I have received reports assessing whether Mr Blackburn is suitable for a Treatment Order. They are listed above at [3].
I have read and carefully considered each report. I have carefully considered the recommendations in each of those reports, including that Mr Blackburn is suitable for a Treatment Order. As a result of the reports and of the evidence I have received, I am satisfied that Mr Blackburn is dependent on illicit drugs and alcohol and his dependency substantially contributed to the commission of the primary offence and that he will live in the ACT for the duration of a Treatment Order.
I have not identified any indicators of unsuitability for a Treatment Order, as set out in Table 46K of the Sentencing Act. In my view, a Treatment Order is suitable for Mr Blackburn. It is appropriate for him to serve the sentence I have imposed in accordance with a Treatment Order, especially having regard to the care plan prepared by Canberra Health Services where appropriate arrangements for the administration of the treatment is practicable.
Drug and Alcohol Treatment Order
His Honour then spoke directly to the accused again:
Mr Blackburn, please stand.
I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT), to commence today in respect of the offence of aggravated burglary on 29 March 2020, for which I have convicted and sentenced you, which is the primary offence. I declare that the Drug and Alcohol Treatment Order is for a period of 12 months.
I extend the Drug and Alcohol Treatment Order to the offences of theft, the three offences of common assault, the offence of assault occasioning actual bodily harm, the offence of destroying property, the offence of dishonestly taking someone else's motor vehicle without the owner's consent and of dishonestly driving that motor vehicle without the owner's consent, the offence of aggravated dangerous driving and the offence of failing to stop for police when directed, all being associated offences.
I have recorded the convictions for the primary offence and the associated offences and imposed sentences of imprisonment for each of those offences, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order and which constitute the custodial part of the Drug and Alcohol Treatment Order.
I suspend the sentence of three years and six months’ imprisonment for the primary offence and associated offences, for a period from today until the end of the sentence of imprisonment, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
On the completion of the Drug and Alcohol Treatment Order, I require you to sign an undertaking to comply with the offender's Good Behaviour obligations for a period of 2 years from 17 September 2021 and to accept supervision from the ACT Commissioner of Corrective Services or his delegate for the period during which the person supervising you considers appropriate and to obey all reasonable directions of the person supervising you.
For the treatment and supervision part of the Drug and Alcohol Treatment Order, I order that you to comply with the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) for the term of the Drug and Alcohol Treatment Order and complete a program of treatment as agreed with the Treatment Order Team from time to time and as ordered by the Court.
I direct that on your release you travel directly to Canberra Recovery Services in Fyshwick, to arrive there by 1:00 pm and to admit yourself to the treatment program and not to leave that program without the leave of the Court and to obey all rules of the program and the facility.
I direct that if you are discharged from or leave the program, you are to present yourself to ACT Corrective Services by 4 pm the next business day with a view to having the Drug and Alcohol Treatment Order reviewed.
I direct that you comply with any directions of the Court about attendance at Court, in person or by electronic means, and about any other treatment or supervision matter from time to time.
Mr Blackburn, that is a lengthy explanation of where you have been, and I hope also a glimmer of where you might go. At the end of the day, I have said that you are at a turning point. [Redacted for legal reasons]. It is a very serious appearance, because you have accumulated a large number of offences and some of them are very serious offences and would ordinarily require you to spend a lengthy period of time in jail.
You have indicated that you are ready now to reform. I hope that it is more than just an expectation that you will avoid jail, because if you are genuinely ready to reform, then the Drug and Alcohol Treatment Order is a way in which you can put that wish into practice.
It will, however, require effort by you. It is not going to be easy. Getting out of drug addiction is not easy and getting back into a life of normality, or what we regard as normality in the community, when you have had the kind of background and difficulty in growing up that you have had, is not easy.
However, there are opportunities to assist you and if you are prepared to put your effort into it and do something about it yourself, then this Court will help you and the people associated with this Court and the people at Canberra Recovery Services will help you.
They will challenge you; they will demand much of you; there will be rules that get right up your nose and there will be lots of things that will be difficult, but if you are prepared to do it, then you can avoid returning to jail. But that is what will happen if you do not take this opportunity, because there is no alternative.
So take this opportunity if you want to stay out of jail, but also if you want to live a life that the people around you live, not the life of the people that you mix with, not the criminal classes, but the life of people who enjoy life, who have a fulfilled life, who have an interesting life, and who do actually do something with their life that they can be proud of and look back on with pleasure.
We will help you, but it will be tough. We will sanction you, and punish you, if you fall beside the wayside, but we will also help you. But at the end of the day, if you give up, then jail is the only option. I hope you take that on board. You will, in any event, see me a few other times.
I have got two faces; one helps you and one punishes you, but they are the same person and what I have in mind is that you live in the community in a better way than you have done in the past. I hope you take that challenge. It is a big challenge. Come back and see me and say you have taken it up, that you are doing well with it, and that you will get on with it.
You may be seated.
| I certify that the preceding one-hundred and forty-four [144] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: Samuel Xiang Date: 8 April 2021 |
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