R v Blackburn; R v QH
[2021] ACTSC 284
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Blackburn; R v QH |
Citation: | [2021] ACTSC 284 |
Hearing Date: | 29 October 2021 |
DecisionDate: | 29 October 2021 |
Before: | Elkaim J |
Decision: | See [62]–[63] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – forcible confinement – co-offenders – extreme subjective circumstances |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26A, 34 Crimes (Sentencing) Act 2005 (ACT) s 72 Criminal Code 2002 (ACT) s 318(2) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Blackburn (No 1) [2020] ACTSC 373 The Queen v Avery [2018] ACTCA 57 |
Parties: | The Queen ( Crown) Jake Blackburn ( Offender) QH ( Offender) |
Representation: | Counsel M Howe ( Crown) J De Bruin ( Offender – Blackburn) R Baldeo ( Offender – QH) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender – Blackburn) Hugo Law Group ( Offender – QH) | |
File Numbers: | SCC 207 of 2021 SCC 209 of 2021; 210 of 2021; 105 of 2020; 106 of 2020; 107 of 2020 |
ELKAIM J:
Mr Blackburn and QH pleaded guilty, on 7 September 2021, to the offence of forcible confinement contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty is 10 years imprisonment. In addition Mr Blackburn pleaded guilty to dishonestly driving a stolen motor vehicle contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is five years imprisonment and/or a fine of $80,000.
QH is also to be sentenced for assaulting a frontline community service provider contrary to s 26A of the Crimes Act1900 (ACT). The maximum penalty is two years imprisonment. Finally, he needs to be dealt with for breach of sentences imposed by Murrell CJ on 7 July 2020.
The person confined by the two offenders was Mr William Amy. Details of the offences can be found in the Agreed Statement of Facts, included in Exhibit A. The following is a summary.
In late March 2021 a red Suzuki GYA SX4 was stolen. On 6 April 2021 this vehicle, driven by Mr Blackburn, played an integral part in the confinement of Mr Amy.
On the latter date the two offenders made contact with Mr Amy at the Lanyon Marketplace. Mr Amy, owed the offenders $75 in relation to a drug debt. He was a day late in complying with his repayment schedule.
After some discussion the offenders instructed Mr Amy to sit in the rear seat of the Suzuki. The offenders demanded Mr Amy to give them his mobile phone and password. The phone was grabbed from Mr Amy and after some persuasion he disclosed the password.
The offenders examined the phone and discovered that Mr Amy had been in contact with a woman that was known to them. This seemed to create a good deal of agitation on the part of the offenders. They drove to an unknown location. At this location Mr Amy was told to get into the boot of the vehicle. The Suzuki being a hatchback, Mr Amy was able to do this by climbing over the back seat. Mr Blackburn shocked Mr Amy with a taser twice whilst he climbed over the seat to the boot.
The vehicle then departed for another location where there was an underground car park. This was only a short stop and then the journey continued. Mr Amy requested a stop to enable him to urinate. The request was approved and the vehicle stopped. Unfortunately, perhaps due to ‘nerves’, Mr Amy was unable to urinate.
Impatient with the time being taken by Mr Amy, Mr Blackburn punched him on his mouth and instructed him to return to the boot. Mr Amy complied.
After about 15 minutes the vehicle stopped again. Mr Blackburn opened the boot and struck Mr Amy on the head with a straight tyre iron. He did so four or five times. This caused Mr Amy to bleed. QH recorded the beating.
Mr Amy was threatened with dire consequences should he not meet his financial obligations to the offenders. Mr Amy feared death.
A short time later the vehicle stopped again and Mr Amy was instructed to get out. He was told to remove his shoes. As he was doing so Mr Blackburn hit him again on the head with the tyre iron. Also again, there were a number of blows inflicted.
Mr Amy was given a bottle of water and a grey jumper. He was told to wrap the jumper around his bleeding head. He was punched again on the side of the mouth. QH also filmed this assault. The two offenders then drove off, leaving Mr Amy without his phone and without his shoes as well as a selection of other items.
Mr Amy was found by a local worker in the early hours of the following morning. Police were called and Mr Amy was taken to hospital.
There were a number of lacerations on his head. One of the cuts, about 5 cm in length, required closing with the use of staples. There are photographs of the repair in Exhibit A.
When QH was arrested on 26 April 2021 he was taken to The Canberra Hospital. He behaved in an erratic manner. At one stage he swung his arms and struck a special Constable in the face. He was wearing handcuffs and caused pain and red welts to the officer’s face.
Objective seriousness
Both offenders were on conditional liberty when the offending occurred. On 16 September 2020 Refshauge AJ sentenced Mr Blackburn to imprisonment for three years and six months (R v Blackburn(No 1) [2020] ACTSC 373). The sentence was wholly suspended under a Drug and Alcohol Treatment Order (a DATO). On 13 May 2021 his Honour cancelled the DATO. As a result Mr Blackburn will be in prison, as a result of Refshauge AJ’s orders until 13 April 2024.
Mr Blackburn, as a result of his return to custody for breach of the DATO, has served no time in custody in respect of the current offending.
On 7 July 2020 Murrell CJ sentenced QH to imprisonment for two years and eight months. The sentence was suspended after eight months on condition QH enter into a good behaviour order for the remaining two years. He did enter into that order.
QH was arrested on 26 April 2021 and has been in custody since that date. He therefore has a ‘credit’ of 187 days.
In R v Randall Williams [2016] ACTSC 389, at [53], Refshauge J (as he then was) set out the considerations that might influence an assessment of the objective seriousness of the offence of forcible confinement:
The offence of unlawful confinement is also a serious one. Nield AJ has outlined in R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) some of the factors that are relevant to the assessment of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54, it seems to me that the matters relevant to that assessment include at least:
· the length of the unlawful confinement;
· the extent that it was premeditated or planned;
· the way in which it was effected;
· the purpose of it;
· the conditions under which the victim was confined, including the behaviour towards the victim, such as the level of restraint, any physical or verbal abuse committed and whether the victim was subjected to degrading behaviour;
· the extent of the fear instilled; and
· the injuries inflicted.
As I read the Statement of Facts, the confinement was not pre-planned but seems to have evolved after the initial discussion with Mr Amy and examination of his mobile telephone.
The offence seems to have taken place over one or two hours and arose from the drug trade. The latter consideration is important. In R v Le Clair; R v Yeboah [2016] ACTSC 126, Burns J, also sentencing co-offenders, said, at [62]:
People who engage in the drug trade cannot expect to live in their own subculture where they mete out punishment for failure to perform deals made in this illicit trade according to their respective strength. The drug trade is pernicious in itself but also because it encourages a separate culture of punishment, and often violent punishment, for the perceived failure to perform agreements made in the course of the trade. I am satisfied that both of you were engaged as drug dealers to some extent and it is clear that the offence of unlawful confinement arose from a drug deal which went wrong.
On my assessment of the objective seriousness of the offending, taking into account the matters described in Randall Williams, I think this offending sits above medium for this type of offence.
I agree with both the Crown and counsel for QH that the offence is not as objectively serious on his part. Although he filmed at least some of the assaults on Mr Amy, his participation was generally less aggressive than Mr Blackburn and at one stage he even called for restraint.
In respect of the frontline worker charge, as stated by the parties, the offence is of minor of objective seriousness.
Subjective features – Mr Blackburn
Mr Blackburn was born in 1999. He is a young man who has already amassed a significant criminal record. When sentencing Mr Blackburn in 2020, Refshauge J provided a detailed description of his background, from [69]:
69.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.
70.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].
71.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.
72.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.
73.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.
74.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.
75.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.
76.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.
77.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.
There is little to add to the above history other than to note that Mr Blackburn did not take advantage of the DATO given to him and soon relapsed into drug taking and crime. Unfortunately Mr Blackburn is facing sentencing on 24 November 2021 in the Magistrates Court for separate offences.
There is however some independent material concerning Mr Blackburn. His sister, Ms Chloe Blackburn, in an email, describes the difficult upbringing she and her brother endured. Their father was rarely in contact and their mother was an alcoholic. They were either left alone at home or taken to the pub. One of their mother’s boyfriends assaulted them. She concludes:
I am by no means excusing his actions are hoping that anyone else will. Just hoping that he gets the help and understanding he needs to better himself, and become a functioning member of society again.
Another sister, Ms Molly Coey echoes Ms Blackburn’s sentiments and comments on their upbringing. She correctly observes that the offender needs to be “away from toxic places and bad influences”.
There is a somewhat out of date (2011) letter from a psychiatrist in Queensland. It does not add much other than to emphasise Mr Blackburn’s deprived upbringing.
There is an email from Mr Blackburn’s father. He places a lot of blame on his former wife. He seems to imply that because he lives in Sydney he cannot provide any support for his son. In a second letter Mr Blackburn Snr seems to be offering more support, suggesting that his son might live with him in South East Queensland.
There is a Forensic Mental Health Assessment prepared for the drug and alcohol proceedings. These refer to Mr Blackburn being treated for a psychotic illness which will require “consistent treatment with psychotropic treatment to minimise the impact of his symptoms on his functioning and behaviour”. The report concludes:
Mr Blackburn would benefit from engaging in psychological intervention aimed at improving distress tolerance to address his trauma background. He currently presents as eager to abstain from substances; however, given the extent of his use over time and his vulnerability to situational and interpersonal stressors it is likely he will remain vulnerable to relapse to drug use in the absence of more adaptive coping strategies and support. As such, it is suggested that he could engage in trauma informed therapy and drug and alcohol intervention.
The warnings of relapse quoted above came to fruition.
A letter from Forensic Psychology Canberra dated 20 July 2020 lists all the mental health conditions suffered by Mr Blackburn. They include a Major Depressive Disorder, a Generalised Anxiety Disorder, a Cannabis Use disorder, a Post-Traumatic Stress Disorder and Attention Deficit/Hyperactivity Disorder. The report does hold some hopes for a more productive future but says there is still a high risk of reoffending.
The report does say:
Mr Blackburn presented as a tired and frustrated young man who demonstrated a strong desire for stability and normality in his life. He has a consistent history of psychological and emotional adversity which has assisted him in arriving at his current circumstances.
All of these personal factors illustrate the background of a person who, it might be said, was destined to fall foul of the law. I think they can be taken into account under the principles set out Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
Subjective features – QH
QH was born in 2001. There is a detailed description of his subjective features in the judgment of Murrell CJ in R v QH; R v CR [2020] ACTSC 178.
The submissions on behalf of QH seek to place the majority of blame for the events on Mr Blackburn. Obviously the participation of each person in an offence is important, but it is also to be remembered that this was a joint enterprise. Each person bears responsibility for what occurred during the enterprise. The submissions note that it was Mr Blackburn who hit the victim over the head with the tyre iron. But he did not do so only once and QH made no attempt to stop them. In fact he recorded the beatings. I do not agree that “the offender’s role is substantially less serious than Mr Blackburn”. He might not have been as involved but his contribution was marked and he was a willing participant in the offending.
Like Mr Blackburn, QH has a very disadvantaged background. This is described in some detail in the psychological report dated 21 October 2021 prepared by Ms Vanessa Edwige. He describes the physical abuse that existed in QH’s home. His father was a drug addict. His mother’s new partner, after his father left, was physically abusive of his mother. A later partner was violent and regularly bashed QH. Yet another partner was also abusive.
QH’s father, in an act of almost unbelievable irresponsibility and callousness, introduced his son to ice at a very tender age. At one stage a teacher, over a period of some months, sexually interfered with QH. He was only 15.
Like Mr Blackburn, QH has been diagnosed with a number of mental disorders. He will require psychological support as well as help with his drug taking. Ms Edwige says that at the time of the offending QH was suffering from a Stimulant Use Disorder and Post-Traumatic Stress Disorder. She holds out some hope that QH is
[W]illing to make significant changes to address his substance misuse. It is my opinion that with intensive support and compliance with the treatment plan outlined, [QH]’s prospects of rehabilitation are positive.
There is a letter to me from QH. He talks about his hopes to return to working with a plumber and to participating in a church social group. He is hopeful of participating in rehabilitation programs and being able to study. He states that he is “honestly wanting normality in my life”.
There is a letter from QH’s aunt. She describes the “very challenging environment” in which he grew up. She talks about his battles with drugs and alcohol but she says:
[QH] is a friendly, generous, and trusting young man who is constantly looking for love, approval and support from others. He is very immature and lacks the social skills and personal development to recognise when others are taking advantage of him. [QH] is a kind hearted, caring and clever boy who is wonderful with children and enjoys a laugh. His willingness to trust and eagerness to belong has consistently put [QH] in compromising positions.
I believe [QH] has utilised drugs and alcohol to hide some of the pain and hurt he has experienced in his young life and in turn many of those experiences involving Drugs and Alcohol have added to the traumas and pain.
The aunt concludes: “He didn’t get a great start in life but he is a beautiful person who needs help”.
There is a letter from the Revd. Michael Cockayne OAM. He describes QH coming to the church for help as a way out of his association with criminals. He says that he was “doing very well for a number of months” but then relapsed after establishing contact with some of his old peers. He joins in other observations, saying:
He is a young man who has great potential but seems to be easily led by those whom he sees as powerful and whom he perhaps fears.
Consideration
In R v Le Clair; R v Yeboah one of the co-accused, after a discount of a plea of guilty received a sentence of three years and six months’ imprisonment. The other accused, again after a discount, received a sentence of 2 years and 11 months’ imprisonment.
In Randall Williams the offender was sentenced to 12 months’ imprisonment (reduced from 15 months) for unlawful confinement.
The Crown submitted that The Queen v Avery [2018] ACTCA 57 provided a useful guideline. In that matter, before the discount, the sentence for unlawful confinement was about 50 months. Counsel for QH submitted that the sentence imposed on Mr Froome of 7 months and 10 days was more comparable (R v Froome [2018] ACTSC 152). Mr Froome was a co-accused of Mr Avery, but his sentence was not taken on appeal by the Crown.
The legal representative for Mr Blackburn submitted that R v Green [2021] ACTSC 13 was pertinent to his client’s case. Mr Green received a sentence, for unlawful confinement, of 40 months’ imprisonment before a reduction to 32 months.
Each of the above cases has different facts to the present case and caution must be taken in using them as a guide to the sentences in this matter. Nevertheless they do provide a useful indication of how the courts have dealt with this offence.
Both offenders are entitled to a discount for the pleas of guilty, which I assess at 20%.
Public deterrence must be an integral part of the sentences. Young men should not think they can commit acts of this gravity without severe consequences. I viewed the video of the bashing of Mr Amy. It was horrific. He may not have put forward a Victim Impact Statement, but that does not diminish the terror he must have felt. He is probably concerned about further retribution. Having seen what he went through I do not blame him at all.
And all of this for a mere $75.
Mr Blackburn
Mr Blackburn’s current sentence will end on 13 April 2024. The non-parole period expires on 18 March 2022. If I make the sentence for the confinement charge wholly cumulative it will amount to a crushing sentence being imposed on Mr Blackburn. Any hopes he has for rehabilitation could well be dashed.
The driving a stolen motor vehicle charge is only concerned with the use of that motor vehicle during the principal offending. It must be seen as part of the same criminal enterprise.
I think the best way to approach Mr Blackburn is to start his sentence when the existing non-parole period ends. I will then reset the non-parole period, based on a global approach to the remainder of time he is to spend in prison, so as to give him some hope to obtain his liberty and commence rehabilitation. Whether it does so or not, will be a matter for him, based on whether or not he wishes the AMC to be his permanent address.
QH
The sentencing of QH is complicated by the necessity to sentence him for the breach of the suspended sentence, but more particularly, to avoid the intricate provisions of s 72 of the Crimes (Sentencing) Act2005 (ACT), to make provision for a degree of concurrency that might otherwise not have been available. To achieve this purpose it is necessary for me to make a direction, perhaps even two directions, under this Act that will enable me to apply some concurrency in the sentences. I make those directions. To the extent that special circumstances are required, I make a finding to that effect, based on the consequence of not making a direction creating an overly crushing sentence on a young person, depriving him of any hope, perhaps even possibility, of rehabilitation.
I am also going to adopt the structure suggested by the Crown in order to avoid complications created by Part 5.2 of the above Act combined with s 118 of the Crimes (Sentence Administration) Act2005 (ACT). It is also my intent to again take an effectively global approach to the whole of the time he is to spend in custody.
As with Mr Blackburn, the future will be in QH’s hands. He has now reached an age where he must take responsibility for his actions. I think I am being lenient. This is mostly because of his past. Future courts, sentencing him for future offences, may decide that leniency should no longer be involved.
Sentence
Jake Blackburn:
(a)On the charge of forcible confinement, committed on 6 April 2021 [CAN 4416/2021] the offender is sentenced to 32 months imprisonment (reduced from 40 months) to commence on 13 October 2022 and end on 12 June 2025.
(b)On the charge of ride/drive motor vehicle without consent, committed on 6 April 2021 [CAN 4426/2021] the offender is sentenced to 3 months imprisonment to commence on 13 October 2022 and end on 12 January 2023.
(c)The previous non-parole period set to expire on 18 March 2022 is set aside.
(d)A new non-parole period is set to expire on 13 February 2024.
QH:
(a)For breach of the Good Behaviour Orders arising from the suspended sentence imposed in R v QH; R v CR [2020] ACTSC 178, the offender is sentenced to the balance of the suspended sentence, namely two years, to date from 26 April 2021 and end on 25 April 2023.
(b)On the charge of forcible confinement, committed on 6 April 2021, [CAN 4364/2021] the offender is sentenced to 12 months imprisonment (reduced from 15 months) to commence on 25 April 2023 and end on 24 April 2024.
(c)A non-parole period for the offence of forcible confinement of six months is set, to commence on 25 April 2023 and end on 24 October 2023.
(d)On the charge of assault frontline community service provider, committed on 26 April 2021, [CAN 4379/2021] the offender is sentenced to 3 months imprisonment to commence on 26 January 2023 and end on 25 April 2023.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 29 October 2021 |
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