R v Blundell
[2022] ACTSC 379
•23 February 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Blundell |
Citation: | [2022] ACTSC 379 |
Hearing Dates: | 4 February 2022, 18 February 2022 |
Decision Date: | 23 February 2022 |
Before: | Refshauge AJ |
Decision: | 1. Peter Dennis Blundell be convicted of attempted aggravated burglary and sentenced to 12 months imprisonment, commencing on 28 December 2021 and expiring on 27 December 2022. 2. Peter Dennis Blundell be convicted of dishonestly riding in a motor vehicle without the owner’s consent and be sentenced to 3 months imprisonment, commencing on 28 November 2022 and expiring on 27 February 2023. 3. A non-parole period of 4 months be set, commencing on 28 December 2021 and ending on 27 April 2022. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted Aggravated Burglary – Dishonestly Riding in a Motor Vehicle Without the Owner’s Consent – Childhood Disadvantage – Drug Addiction – Parity Principle – Drug and Alcohol Treatment Order Application – Application Withdrawn – Sentence of Imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J Criminal Code 2002 (ACT) ss 44, 312, 318 |
Cases Cited: | Brown v The Queen [2020] VSCA 212; 62 VR 491 Douglas v The Queen (1995) 56 FCR 465 Webb v O’Sullivan [1952] SASR 65 |
Parties: | ACT Director of Public Prosecutions ( Crown) Peter Dennis Blundell ( Offender) |
Representation: | Counsel C Daly (4 February 2022, 18 February 2022), C Muthurajah (23 February 2022) ( Crown) D Berents (4 February 2022), E Bayliss (18 February 2022, 23 February 2022) ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Offender) | |
File Number: | SCC 187 of 2021 |
REFSHAUGE AJ
Introduction
As explained in R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[8], the Drug and Alcohol Sentencing List of this Court, the ACT Supreme Court, is part of an international attempt to address the place of drugs in initiating and facilitating crime by providing intensive treatment combined with judicial supervision in an effort to eradicate the cause of the criminogenic behaviour of offenders, by allowing them to become and remain abstinent from the abuse of alcohol and other drugs.
The research shows that these attempts have been successful in many instances. There are, however, significant barriers both to access and to success. Sometimes offenders are simply not ready for the rigour and pressures of the process and leave it without getting their dependency under control. Sometimes they find that the entrenched and pernicious hold that the dependency has on them cannot be brought to a manageable level. Of course, some do not want it and informed consent is an important precondition to their entry to the program.
Even if an offender is dependent on alcohol or other drugs and willing to attempt rehabilitation, the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which establishes the regime of the Drug and Alcohol Treatment Order (Treatment Order) provides eligibility criteria which not everyone in that situation meets. A Treatment Order cannot then be made.
The most difficult and regrettable situation is where an otherwise eligible and suitable person cannot be the subject of a Treatment Order. This can, as explained in R v Tonna (No 2) [2020] ACTSC 362 at [65]–[66], [70]–[73] be because a Treatment Order cannot be continued or even made in the first place where there are no rehabilitation facilities to accommodate the offender appropriately. This includes, in some jurisdictions, the requirement that the offender have stable accommodation. It is not a formal requirement in this Territory, though there is an implication from the requirement in s 12A(2)(a)(iii) of the Sentencing Act that “the offender will live in the ACT for the term of the sentence”, but it is a weak one, for it is then qualified because there is an expressed exception where “directed by the court” otherwise.
This Court has, however, taken a generally liberal view towards the question of accommodation. See, for example, R v Coleman [2021] ACTSC 349 at [119]; R v Snow [2021] ACTSC 342 at [52], [85]–[88]; R v Bonfield [2021] ACTSC 362 at [125], [185]). Nevertheless, stable and safe accommodation can be essential to success under a Treatment Order. Thus, it does cause challenges, especially at the end of any residential drug rehabilitation placement. It would be an unfortunate result were the Court required to discriminate against a willing participant because there were no facilities available or they were effectively homeless, but the fact is that such problems are likely to undermine the effectiveness of the program and, in effect, set the offender up to fail.
In this context, Peter Blundell, who has pleaded guilty to an offence of attempted aggravated burglary and an offence of dishonestly riding in a stolen motor vehicle without consent, must be sentenced. He originally sought that a Treatment Order be made, though that was recommended to be unsuitable because of a lack of stable accommodation and a lack of treatment options. This is addressed below.
In the sentencing proceedings the Crown, ably represented by Ms C Daly of counsel, tendered the Crown Tender Bundle which was admitted into evidence without objection. It contained the committal documents, an Agreed Statement of Facts, Mr Blundell’s Criminal History, a Victim Impact Statement, which Ms Daly read out to the Court so Mr Blundell could hear it, and R v Winters [2019] ACTSC 289, the sentencing remarks in the sentencing of Mr Blundell’s co-offender.
In addition, it contained the Drug and Alcohol Treatment Assessments (Suitability Assessment) under s 46J of the Sentencing Act which the Court had ordered to be prepared. The Drug and Alcohol Treatment Assessment Report dated 25 October 2021 was prepared by ACT Corrective Services, and the Drug and Alcohol Sentencing List Suitability Assessment Report dated 27 October 2021 was prepared by the Alcohol and Drug Service.
At a further hearing, an amended Report dated 18 February 2022 prepared by the Alcohol and Drug Service was also admitted and at the final sentencing hearing it was tendered without objection.
None of the contents of any of the documents were challenged.
Both the Crown and Mr D Berents, counsel for Mr Blundell, provided helpful written submissions and, at the hearing, made valuable oral submissions as well as engaging with questions from the Court.
From this material, the Court makes the following findings.
The facts
On 12 March 2019, Mr Blundell and his co-offender, Joshua Winters, went to a property in Gordon, ACT, arriving at about 8:20 am. Mr Winters was driving a Holden Commodore station wagon which had been stolen from a property in Calwell, ACT, sometime between 2:00 pm on 11 March 2019 and 8:00 am on 12 March 2019. There was no evidence as to who had stolen it. Mr Blundell was a front seat passenger in the vehicle.
Mr Winters was carrying a shortened firearm with him. Mr Blundell was also carrying a weapon, namely a knife within a sheath. He and Mr Winters entered the premises through the garden by jumping over the side fence, apparently where there was a Colorbond panel which they touched with their hands, leaving fingerprints on it, as later identified by AFP Forensics.
The resident of the premises heard the offenders and saw them jumping over the fence. Her one-year-old child was, at the time, playing in the garden on her tricycle and saw the offenders.
As Mr Winters approached the back sliding door of the premises, he turned and saw the child. Mr Blundell had reached the rear corner of the residence before he also saw the child. Both of them then left the premises, running to the vehicle, and Mr Winters drove it away.
The incident was captured on a CCTV facility in the area and, as well as the fingerprints, police who attended located a gold flick-knife which had been left behind by Mr Blundell. It was analysed to show Mr Blundell’s DNA on the hilt.
These were the facts for the offences with which Mr Blundell was charged and to which he has pleaded guilty. The circumstance of aggravation of the attempted aggravated burglary charge was that he had a knife with him. That he was with a co-offender was also a circumstance of aggravation, though it was not charged as such.
Mr Blundell was later arrested by New South Wales Police on 26 March 2019 for unrelated matters. He was then interviewed by ACT Police officers at a correctional centre in New South Wales and made full admissions to the offences, including that he had with him on the day of the offences at least six knives for his protection.
The Holden Commodore station wagon was recovered on 13 March 2019 at the Wanniassa Hills Primary School. It was completely burnt out.
The proceedings
Mr Blundell was in custody in New South Wales until 27 January 2020, having been sentenced for five dishonesty offences and having a knife in a public place. He was later granted parole. He then appeared in the ACT Magistrates Court in custody on 6 February 2020 and the proceedings were adjourned.
On 23 May 2020, he was again in custody in New South Wales, for committing offences which also breached a parole order, and remained there until he was again granted parole on 22 January 2021.
He appeared in the ACT Magistrates Court in custody on 23 March 2021 and was granted bail again. He appeared in custody in the ACT Magistrates Court on 1 July 2021 and remained in custody.
It appears from the Court records that a plea of guilty was indicated on 7 May 2020 to the offence of dishonestly riding in a motor vehicle without the owner’s consent. Thereafter, he further indicated a plea of guilty on 27 July 2021 and indicated that representations were being made to the Director of Public Prosecutions on the other charge, but a plea of guilty to both charges was actually entered on 17 August 2021. He was then committed to this Court for sentence. At that stage, the Brief of Evidence by the prosecution had not been prepared.
Although in custody since 1 July 2021, he was sentenced in the ACT Magistrates Court on 30 August 2021 to 6 months imprisonment for offences of failing to appear in accordance with a bail undertaking, possessing a drug of dependence and possessing a knife without reasonable excuse. That sentence was backdated to commence on 1 July 2021 and ended on 31 December 2021.
On the current offences, then, he has been in custody for one day on 6 February 2020, and also on one day on 23 March 2021 and for 55 days prior to 31 December 2021 to today. That total period of 57 days will be taken into account on sentence.
The total period of custody in both jurisdictions is also relevant on sentence as the New South Wales offences were committed on 27 March 2019, close to the date of commission of these offences. This is required by the principle of totality: see Mill v The Queen (1988) 166 CLR 59.
The offences
Following Mr Blundell’s plea of guilty, he must now be sentenced. In order for the Court to reach a just and adequate sentence, s 33 of the Sentencing Act sets out matters to which the sentencing court must have regard, so far as it knows them.
They cover the offence and the offender, but also the effect of his offending on the community, especially the victims of the offences.
The offences will be considered first. Under s 33(1)(a) of the Sentencing Act, the Court must take into account the nature and circumstances of the offences. This has various aspects. In the first place, as the High Court has made clear, the maximum penalty identifies the relative seriousness of the offences and requires consideration as the legislative mandate, as well as being a yardstick.
The facts, which are found above, are also very important, as are the current views of courts which, in their sentencing practice (s 33(1)(za) of the Sentencing Act), identify the relevant aggravating and mitigating factors.
The first offence is that of attempted aggravated burglary. That is to say, it was not an actual burglary because Mr Blundell and Mr Winters did not gain access to the premises where they planned to commit a theft. Under s 44(9) of the Criminal Code 2002 (ACT), a person who commits the offence of attempting to commit another offence is punishable as if the offence attempted had been committed.
Thus, attempting to commit an aggravated burglary is made a crime by s 44(1) of the Criminal Code and, because this is the maximum penalty under s 312 of the Criminal Code for the offence of aggravated burglary, the maximum penalty is 20 years imprisonment or a fine of $320,000, or both. It is, thus, a very serious offence, though by no means the most serious of all criminal offences.
As with most criminal offences, it can be committed in a variety of ways and the courts have identified relevant factors. The Court set out those for burglary in R v McHughes (No 3) [2021] ACTSC 344 at [28], after an analysis of the relevant cases. As aggravated burglary is a burglary offence committed in specified circumstances of aggravation, those factors are relevant here. They need not be set out, but the ones relevant for this sentencing exercise will only be mentioned.
The premises the subject of the offence were residential premises, making the offence the most serious form of burglary and the occupants, or at least two of them, were on the premises at the time. Indeed, one was a small child who would have been likely disturbed to see the two men, one armed with a gun, come over the fence into the backyard where she was playing. There was no confrontation with the child or with the child’s mother. Indeed, the offender stopped upon seeing the young child.
No damage was done at all during the commission of the offence, nor was there any evidence that the premises were particularly targeted or had been the subject of any earlier burglary.
Mr Blundell told the author of the Suitability Assessment that he was “helping a mate” when they went to rob a “drug dealer”.
There was some premeditation, given that explanation and the fact that a firearm was being used.
Unfortunately, there is no Victim Impact Statement from the occupant of the premises, so the extent of the actual harm suffered is not clear, but it is accepted that it would have been a shock for her and she would have felt concern for her child. It is not possible to speculate much further.
In the sentencing of Mr Winters, it was held that the offence was of not more than medium objective seriousness, though had the substantive offence actually been committed, it is likely to have been more serious.
The offence of dishonestly riding in a motor vehicle without the owner’s consent is contrary to s 318(2) of the Criminal Code and attracts a maximum penalty of 5 years imprisonment or a fine of $80,000, or both. The seriousness of the offence has been described in R v Crawford (No 1) [2020] ACTSC 245 at [38] and what the Court there said is adopted here.
Again, it can be committed in a variety of circumstances and the relevant ones are set out in detail in R v Connors [2022] ACTSC 374 at [63]. It is only necessary to refer to the relevant ones.
Riding in the motor vehicle is less serious than driving it, as Mr Winters did, though the maximum penalties are the same.
While the value of the vehicle is relevant, it is not so significant for the passenger, as Mr Blundell was. Nevertheless, no evidence was given of this, although it can be said that the vehicle was not a luxury car, but was likely to have some significant value.
The Victim Impact Statement made by the owner of the car gave an insight into the harm done. Although more directly relevant to the original thief and to the driver, it is nevertheless relevant even to the passenger. The car had a value for the owner, “It performed well” and he “really liked that car”. He felt sad to see it abused and damaged. The taking of it caused members of his family to become hypervigilant about security and become scared in the house, again more relevant to the original thief, but its further use, of which Mr Blundell was a part, continued the deprivation of the vehicle from its owner.
The vehicle was used to facilitate the commission of the offence of attempted aggravated burglary and this is an aggravating feature.
The fact that the vehicle was not recovered, except as a wreck, as it was, in fact, substantially damaged, makes the offence more serious, but, again, is primarily relevant to the original thief and the driver to perhaps a lesser extent, unless responsible for the damage.
There is little evidence as to the distance that Mr Blundell travelled in the vehicle. There was also no evidence of any poor or dangerous driving. It is not clear where the driving started on this occasion, but they went to Gordon and then likely to the primary school in Wanniassa. Mr Winters did commit some further offences later that day (see R v Winters at [5]–[6]). It was not suggested that Mr Blundell was involved in the car’s destruction.
Again, this was not the most serious version of the offence. Indeed, it was certainly not a very serious one, though such offences are never trivial.
Subjective circumstances
Mr Blundell was born in Queanbeyan 41 years ago, the second of his parents’ seven children. He also has four half-siblings. While not entirely clear, his biological father left the relationship before Mr Blundell was four years old and he did not have much contact with him. His mother suffered from depression and epilepsy.
His mother re-partnered, but his stepfather subjected his mother and Mr Blundell to significant physical abuse. There was also drug use in the home.
Mr Blundell had a chaotic childhood. He was placed in foster care when he was seven years old and experienced a number of placements. He would often run away with his father. He reports that, at his last placement, he was subject to physical and sexual abuse and he is taking legal proceedings as a consequence.
Because of the change in foster placements, he also changed schools frequently and this caused, as would be expected, educational difficulties and behavioural issues. He said that he attended, in all, 36 primary schools and 12 high schools. He completely disengaged and left school within a week of commencing Year 9, at about age 14.
This was the first year also when he became involved with the juvenile justice system. He was often placed in boys’ homes.
He appears to have little contact now with his family.
He has had a number of relationships. The longest one lasted for about nine years. His current partner is in custody in the Alexander Maconochie Centre.
Mr Blundell has had a long history of alcohol and other drug use. He first drank alcohol when he was only 13 or 14 years old. By age 23, he was drinking heavily and binge drinking. He has significantly reduced his intake since then.
His first taste of cannabis was at age 14, but he was soon using daily, though his use reduced from when he turned about 30 years old and he currently uses it infrequently. He found that it made him paranoid, a not uncommon side effect.
His main drug of choice is methamphetamine which, however, he did not start to use seriously until he was about 25 years of age, though he may have first tasted it at age 16 from at least one account. Prior to being remanded in custody on these charges, he was regularly using the drug. He said that if it was of a good quality, he would use about three times a week. If it was of bad quality, he used it daily. He was using an average of between one and four grams a day. He admitted to using the drug while in custody.
At the time of his offending, Mr Blundell says that he was affected by methamphetamine and cannabis. Mr Blundell has used other drugs, either briefly or quite infrequently. These include heroin, cocaine, hallucinogens, speed/amphetamine, MDMA/Ecstasy, GHB and unprescribed medications.
Mr Blundell has had some attempts at alcohol and other drug treatment. He entered the Karralika Programs Inc Therapeutic Community about 13 years ago, but he only managed to stay for about three and a half weeks.
He also applied for admission to Karralika again and the Canberra Recovery Services facility, but was rejected because of his history of violence.
He has, however, attended meetings of Narcotics Anonymous in the past and, he suggests, on about five occasions at the beginning of 2021.
Mr Blundell has had a number of physical injuries, including broken bones to his right leg six times, staples in his scalp and a skin graft to his left eye. Apart from the ache he feels in his leg during the cold weather, he has few ongoing consequences. He does experience migraines, however, at least five times a month. Prior assaults and car accidents have resulted in the loss of his top teeth.
He was diagnosed with an adjustment reaction leading to self-harm and anti-social personality features as well as his methamphetamine use disorder. He has also, it appears, a diagnosis of borderline personality disorder and, in 2014, a psychiatrist opined that he has “poor control of anger, impulsive behaviour, poor frustration tolerance and lack of remorse about his actions causing harm to others”.
Mr Blundell has a long and deplorable criminal history. There are a total of 122 offences on his record of which he has been found to have committed. [Redacted for legal reasons].
In his record, he has prior offences of dishonestly taking, driving and riding in motor vehicles without the owner’s consent, and aggravated burglary, the offences for which he has now pleaded guilty, though the latter offence was only an attempted one on this occasion.
A large number of the offences were offences of violence, which bears out the psychiatrist’s opinion. There were many traffic offences, many dishonesty offences and, inevitably, a number of drug offences.
Since May 2011, he has been sentenced to a total of over nine years imprisonment and to periods of imprisonment before that, as well as community-based orders. He has a substantial history of noncompliance with community-based orders, including the revocation of parole orders. This confirms his report that, in that time, the longest period he has been in the community is a cumulative of 12 months, including a single period of 5 months.
Despite all this, Mr Blundell, during the actual period of remand, has not been subject to any disciplinary action, but not subject to urinalysis. He has also been employed in the gaol’s kitchen, which he is reported to have said he enjoys.
Current sentencing practice
As noted above (at [31]), a factor to be considered by a court sentencing an offender is current sentencing practice (see s 33(1)(za) of the Sentencing Act). Part of this has been addressed in considering the nature and circumstances of the offences.
In addition, the actual sentences currently imposed provide, especially when the principles leading to the actual sentence are considered, helpful information for a sentencing court to decide the sentence to be imposed.
This can be done by consideration of the sentencing remarks, especially of comparable sentences.
While there are severe limitations, however, it is also permissible, but with caution, to consider sentencing statistics as set out in the ACT Sentencing Database. Thus, in R v Elphick [2021] ACTSC 9 at [154] the Court said:
The limitations of sentencing statistics are well-known. However, for what they are worth, sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment:
(a)the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months’ imprisonment;
[…]
(c)the offence of taking a motor vehicle without consent usually results in a sentence of six to 12 months’ imprisonment;
Neither of these are the exact offences for which Mr Blundell must be punished, but they do provide some information about what are relevant offences.
Perhaps the most relevant sentence is that of the co-offender, that is, the sentence set out in R v Winters. This is because of the parity principle. The Court of Appeal in Saipani v The Queen [2021] ACTCA 5 at [56]–[57] explained that principle as follows:
56. The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”. As his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.
57. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green), the majority of the High Court (French CJ, Crennan and Kiefel JJ) said, at [28]:
“Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant aspect.
(Emphasis in original.)
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
(Footnotes omitted).
While Mr Winters and Mr Blundell were co-offenders, Mr Winters obviously drove the stolen motor vehicle while Mr Blundell only rode in it. Mr Winters was, as Mr Blundell said without challenge in these proceedings, the mover of the offence, namely that he was requested to help Mr Winters and so Mr Winters was the instigator, though, it has to be accepted that he obviously was a willing participant. See R v Winters.
Like Mr Blundell, Mr Winters had a difficult upbringing, leaving school also at Year 8. He did have, however, more employment than Mr Blundell, though interrupted by periods in prison. He was 26 years of age, significantly younger than Mr Blundell. He had a substantial criminal history, but there was no evidence of whether, unlike with Mr Blundell, he had committed these offences before. Like for Mr Blundell, the Court commented that “[Mr Winters] should consider changing his permanent address to the AMC because he is likely to be in and out of that institution for many years to come.”
Mr Blundell, however, has expressed an intention to rehabilitate and there are some sparks of action to show that his intention is not entirely empty words.
As with Mr Blundell, Mr Winters was also on conditional liberty when committing the offences. His pleas of guilty came somewhat later than did the plea by Mr Blundell.
For the attempted aggravated burglary, Mr Winters was sentenced to 12 months imprisonment, reduced from 15 months imprisonment for the plea of guilty. For dishonestly driving a motor vehicle without consent he was sentenced to 3 months imprisonment, with 2 months cumulative on the earlier sentence.
Consideration
In order to impose a just and adequate sentence, the court, which is to sentence an offender, must take into account all the various factors mentioned and fashion the sentence from them. It is of great assistance to understand what is intended to be achieved by the sentences both immediately (for example, punishment) and ultimately (for example, the protection of the community).
This Territory has helpfully codified the purposes of sentencing in s 7 of the Sentencing Act and a court sentencing an offender must have regard to them.
Given the seriousness of the attempted aggravated burglary offence, though the actual offence was not the most serious version by a long margin, punishment will be a factor. The breach of society’s norms in both offences and the effect on the victims being so serious, it is important to reinforce the need to comply with such norms by ensuring also that the sentencing will deter others from committing such offences.
Mr Blundell himself must also be stopped from committing these offences. Thus, a sentence will have elements designed to deter him, and that is appropriate, though it appears that deterrent sentences have not, in the past, been effective. Reform would also achieve this objective and can be the surest protection of the community, which is an objective to be also achieved.
The victims must be vindicated by a sentence which will recognise the harm done to them, as well as holding Mr Blundell accountable for his actions.
Mr Blundell pleaded guilty in the Magistrates Court. While not at the earliest time, it was before the prosecution Brief of Evidence had been prepared and so of high utilitarian value, though the facts show that the case against Mr Blundell was very strong, particularly in respect of the attempted aggravated burglary offence, but not so strong in respect of the other offence. This moderates the discount to be applied to the sentence in respect of the plea.
The harm done to the victims is also very relevant. Mr Blundell recognised, the evidence shows, the likely effect on the small child and showed empathy, a feeling not expressed in relation to the adult victims. Even in the absence of a Victim Impact Statement, it is possible from the evidence in the sentencing proceedings and the nature of a crime to find the harm that ordinarily attaches to such offences and that the circumstances can show something more (see WAP v The Queen [2017] NSWCCA 212 at [83]). Harm to victims can also be assessed from judicial experience and common sense (R v JRN [2019] NSWDC 496 at [32]), though it is necessary to take care not to do so beyond what can be clearly accepted. It will ordinarily not allow any special harm to be identified.
So far as the Victim Impact Statement is concerned, it was made by the owner of the stolen vehicle. It showed significant consequences to the victim’s family in their emotional response — inability to sleep, not feeling safe, anxiety about safety, the innocence of children taken, and so on. He expressed the personal distress caused by the loss of the car that he liked and the inconvenience of the consequences. While relevant, they have greater impact on the sentence for the driver and of course the original thief. They will, however, be taken into account.
The parties accepted that Mr Blundell’s significantly disadvantaged childhood, especially domestically but including social deprivation and disrupted schooling, did mean that his culpability was affected and reduced. This effect was not reduced by his long and disturbing criminal record, nor his age. It is, thus, to be given full weight, but that does not mean that it will have the same mitigation effect for all the purposes of punishment.
Mr Blundell’s prior record, however, is relevant to show that leniency, which a court sentencing him should lean towards in accordance with the principle of parsimony (Webb v O’Sullivan [1952] SASR 65 at 66), will assume a somewhat lesser role, especially for reoffending of the same kind of offence (see Millard v The Queen [2016] ACTCA 14 at [38]).
Mr Berents submitted that Mr Blundell’s mental state would justify some moderation in sentence to meet the principles set out R v Verdins [2007] VSCA 102; 16 VR 269. He submitted that the diagnoses of borderline personality disorder, antisocial personality disorder, major depressive disorder as well as methamphetamine substance use disorder should be accepted. The Court will do so, especially as the Crown did not make contrary submissions.
Nevertheless, the Crown pointed out that, while these conditions have been diagnosed, they are not sufficient. As the Victorian Court of Appeal said in R v Verdins at 272; [13], “[w]here a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry.”
Further, the Victorian Court of Appeal held in Brown v The Queen [2020] VSCA 212; 62 VR 491 at 509; [68] “that a personality disorder is likely to engage the Verdins principles only in a case of some severity.” As the Crown pointed out, there was no such evidence. Further, it did not establish a “clinically significant impairment of mental functioning” (Brown v The Queen at 509; [69]).
Nevertheless, there was some relevant effect described by Dr Gunaratne, namely “impulsive behaviour… and lack of remorse about his actions causing harm to others which contribute to a chronically high risk of harm to others”. This does seem to me to engage the Verdins principles, but to a limited extent, namely his ability to make appropriate judgements, rational choices and to think clearly, that he may be disinhibited and fail to appreciate the wrongfulness of his conduct. That, of course, would not be to the extent of some mental impairment and does not avoid him being held responsible for his actions.
Accordingly, some moderation of the sentence is appropriate.
Mr Blundell did commence use of illicit drugs at an early age, namely 13 or 14 years old. While his use of methamphetamine was later, it seems impossible to find that the earlier use of drugs did not, to some extent, facilitate his entry into methamphetamine use. Such early use is relevant to the sentence, not because drug use is a mitigation, but because the time it was initiated was when the offender was unlikely to have been able to make a rational choice about it. See Douglas v The Queen (1995) 56 FCR 465 at 470. See also R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397–8; [273]. This makes it relevant as a subjective circumstance and it will be taken into account.
As noted above (at [76]) it is necessary to take parity with the sentence imposed on Mr Winters into account. There are some differences. Significant ones are that Mr Blundell was the significantly older of the two, with a longer criminal record, though apparently not dissimilar. Further, so far as dealing with the stolen motor vehicle is concerned, Mr Blundell’s offence was somewhat less serious. There was, nevertheless, much that was similar. Mr Winters, however, was dealt with at the time with a large number of other offences. On the other hand, Mr Blundell has been in prison for a significant period since the offences, which were committed very nearly three years ago.
Accordingly, while the basic sentence to be imposed should reflect this parity, the internal structure will reflect some of those differences.
100.In this regard, in particular, the issue of totality is relevant. The further offences committed in New South Wales for which Mr Blundell was incarcerated were committed about the same time as these offences — 15 days apart. It is likely that, were they committed in the same jurisdiction, they would have been dealt with in the same proceedings. This, as pointed out in Mill v The Queen, means that the whole sentence should take into account the sentence for the other offences and to be addressed in the context of totality accordingly.
101.That, here, certainly means that any non-parole period would take into account Mr Blundell’s total period of incarceration. So far as the head sentence is concerned, however, it seems that this will already have been taken into account by Elkaim J in R v Winters when imposing the sentences for the common offences in the context of the whole sentence for the additional offences for which Mr Winters was sentenced. This will also be relevant when considering any difference because of the slight differences in the issues of comparability mentioned when discussing parity above (at [76]).
102.All the matters of which there is evidence before the Court and which are set out in these reasons are taken into account.
103.Of the reasonably appropriate alternative sentences, only a sentence of imprisonment is appropriate (s 10 of the Sentencing Act).
104.Nevertheless, a reasonably short non-parole period is appropriate, both because of the totality of Mr Blundell’s incarceration to date, but also as a reasonably extended parole period will provide Mr Blundell with the support to commence any rehabilitation that he may wish to pursue. He has, of course, plenty of experience of the consequences of non-compliance with such an order and the future if he does not take the opportunity to engage with rehabilitation opportunities.
105.This view is reinforced by the submission of Mr Berents that Mr Blundell may be at a “crossroads” between continuing his life of drugs and crime and becoming a pro-social member of the community. While noting the scepticism the Court should give to such a claim (see R v Connors at [3]–[7]), this will give Mr Blundell an opportunity to show that he can translate the intention into action and lifestyle.
106.While the current criminal justice system has neither deterred nor rehabilitated Mr Blundell from his criminal activities, the tools available to a Court are limited, especially since, as noted below, the possible making of a Treatment Order is no longer available.
107.The submission that Mr Blundell has shown remorse is noted. There is certainly some strength in that through his plea of guilty, especially at a relatively early stage. He also expressed some empathy with the young child at the site of the first offence, but he showed no empathy for the adult victims of either of the offences. That is partly a function, no doubt, of his mental situation, but the fact is that his remorse is quite limited.
108.Finally, there are two offences to be considered and a just and adequate sentence has to be imposed on the sentence for each offence. The length of each has been carefully considered to ensure that, and also to ensure that Mr Blundell is not punished twice.
109.Whether the sentences should be wholly or partly concurrent has also been considered, which is relevant here because the offences were part of the same course of conduct.
110.As noted, the total length of imprisonment has been carefully considered, especially in the context of the earlier continuous period of imprisonment, so as to ensure that the principle of totality is respected. The total sentence reflects the criminality of the offences committed, but no more than that, and it is not excessive but will leave open the realistic prospect of reform and allow Mr Blundell to achieve his goals when released.
111.This may result in what some see as leniency, but while the total criminality is a very important factor, Mr Blundell’s personal circumstances and, indeed, his wish to rehabilitate and the limited steps he has taken so far, are also important. Thus, while the sentence must be proportionate to his culpability for the crimes, the effect on the victims and the community more generally, it must also be proportionate to his subjective circumstances and the value of reform to both the community and to himself.
Drug and Alcohol Treatment Order application
112.Mr Blundell originally sought that a Treatment Order be made. Normally, that would be considered after sentence, for the reasons set out in R v Slattery [2021] ACTSC 154 at [3].
113.Mr Blundell has been assessed for a Treatment Order and the Court has received and carefully considered the Suitability Assessments listed above (at [8]). That of ACT Corrective Services recommended that he was unsuitable because of his serious criminal record and his substantial non-compliance with court orders, such that his likely capacity to comply with a Treatment Order is limited. This would need to be considered carefully were that option still available.
114.The Suitability Assessment of the Alcohol and Drug Services recommended that he was suitable, but only on the condition that he be admitted to the residential drug rehabilitation program at Karralika Programs Inc. He was assessed by that organisation and found unsuitable.
115.In the light of that outcome, Mr Blundell accepted that a Treatment Order was no longer available and withdrew his request that one be made, which prevents a Treatment Order being made. For this reason, this issue has been addressed at this stage in the sentencing, which can now be completed as no such order can be made.
Sentence
[His Honour then spoke directly to the offender]
116.Mr Blundell, please stand.
(1)You are convicted of attempted aggravated burglary on 12 March 2019 and sentenced to 12 months imprisonment to commence on 28 December 2021 and end on 27 December 2022. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment.
(2)You are convicted of dishonestly riding in a motor vehicle without the owner’s consent on 12 March 2019 and sentenced to three months imprisonment to commence on 28 November 2022 and end on 27 February 2023. That is to be cumulative as to two months on the sentence for the attempted aggravated burglary. Had you not pleaded guilty, you would have been sentenced to 4 months imprisonment.
(3)A non-parole period of 4 months is set, to commence on 28 December 2021 and end on 27 April 2022.
117.Mr Blundell, there are a lot of words there. You will understand many of them because they relate to you and your circumstances and the offences you have committed. In effect, I have said that the full sentence is the same as your co-offender, Mr Winters, being 14 months imprisonment for the offences that you committed. They are offences that do affect the community. They affect the victims very significantly and you are starting to understand that, but you have got a way to go. I hope some thought you might put into this and your future — which I will describe in a moment — might allow you to understand that really it is not good for you, it is not good for the community and it is certainly not good for the victims for you to continue in this way.
118.I have noted your wish to have a Treatment Order and, given your circumstances, it would be a pleasure for me to make such an Order, but that is simply not possible. I think you are possibly at a stage where you have grown out of this lifestyle. You have spent most of your 41 years in really unpleasant circumstances, starting with your childhood and then crime and knocking around with people who are also drug dependent. Those crimes, a lot of which are of violence and injure people, create fear in the community and then you are in gaol, where you have probably now become fairly comfortable, but there really is a different life out here.
119.There is something that you can grab hold of to make of yourself proud of what you have done and what you can do. Finding that the work in the prison kitchen is something that you like, is a spark to suggest that there is something beyond committing crime, going into prison, coming out and hanging around with people who are not going to help you get off the drugs, that you could get back into a genuine lifestyle.
120.I have given you this opportunity. I cannot put you on a Treatment Order, unfortunately, because your drug dependency is so significant that it will need intense assistance. I hope you can get that, and I am sure there will be some opportunity for you to do that when you are on parole. Grab it with both hands. This is a real opportunity.
121.I have made a short non-parole period which will end in April. That gives you, I hope, enough time to put together your application for parole and get it before the Sentence Administration Board and it is much shorter than ordinarily would be given for an offence such as this. That is partly because you have been in New South Wales prisons for so long, but also because I am accepting at face value your wish to do something about your life.
122.Now is your opportunity. You will have quite a few months, about 10 months or so, where you are under supervision. Now, what I would encourage you to do is not to look at that supervision as punitive. Yes, Corrective Services officers can sometimes direct you to do things you do not want to do, but basically their work is to try and help you identify where you can reform. They have knowledge of some of the people who can help you — counsellors and drug rehabilitation agencies and, if you need some mental health support, how you can get access to that. Use that resource as best you can and, if you cooperate with them, they will cooperate with you. If you are respectful to them, I am sure they will be respectful to you.
123.Here is an opportunity. I have put it in your hands. You take it and run with it. I hope that we will not see you again in these Courts. I am putting some trust that you are genuine about this and you have got the strength of character actually to deliver it, as long as you focus not on the past and what you have done, but on the future. If you are right and my understanding is correct, then you have started the difficult path of not using drugs.
124.It is a horrible dependency. It grabs you like nothing else and twists your insides. Now is the time to really jump above that and show that you have the strength of character to confront your past, put it behind you and make a future for yourself, and a family. That would be, you will find, immensely satisfying to you.
125.I hope that you will take this opportunity and work on it and, if you do so, you may relapse at some stage and there might be an offence, but the Court will be able to see that you are going in the right direction and I hope will, in the future, continue to encourage you.
126.You may be seated.
| I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge Associate: Date: 25 January 2023 |
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