R v Blundell
[2017] ACTSC 128
•17 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Blundell |
Citation: | [2017] ACTSC 128 |
Hearing Date: | 17 May 2017 |
DecisionDate: | 17 May 2017 |
Before: | Murrell CJ |
Decision: | See [55]–[56] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug offences – Supply drug of dependence – Possess prohibited substance – Possess offensive weapon – Damage to property – Domestic violence offences – Offender with extensive criminal history – Consideration of rehabilitation prospects when sentencing |
Legislation Cited: | Crimes Act 1900 (ACT) ss 381(1), 382(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Telecommunications Act 1997 (Cth) |
Parties: | The Queen (Crown) Peter Blundell (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 171 of 2015; SCC 172 of 2015; SCC 267 of 2016; SCC 66 of 2017; SCC 67 of 2017 |
MURRELL CJ:
The offender is before the Court for sentence and resentence in relation to three groups of matters:
(a)Three offences committed on 15 October 2016
(i)sell or supply drug of dependence, namely MDMA contrary to s 164(2)(a) of the Drugs of Dependence Act 1989 (ACT);
(ii)possess prohibited substance, namely methylamphetamine contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT); and
(iii)possess knife in a public place without reasonable excuse contrary to s 382(1) of the Crimes Act 1900 (ACT) (Crimes Act).
(b)Two offences committed on 30 October 2016
(i)possess offensive weapon with intent to commit an offence involving actual or threatened violence contrary to s 381(1) of the Crimes Act; and
(ii)intentional damage to property contrary to s 403(1) of the Criminal Code 2002 (ACT) (Criminal Code).
(c)Two breach offences committed on 17 March 2015
(i)possess offensive weapon with intent to commit an offence involving actual or threatened violence contrary to s 381(1) of the Crimes Act; and
(ii)intentional damage to property contrary to s 403(1) of the Criminal Code.
The offences of 15 and 30 October 2016 constituted breaches of good behaviour orders associated with partially suspended sentences that I imposed on 24 May 2016 for the offences committed on 17 March 2015. The breaches of the good behaviour orders are admitted.
The offence of possessing an offensive weapon carries a maximum penalty of one year’s imprisonment, a fine of $2000 or both.
The offence of intentionally damaging property carries a maximum penalty of 10 years’ imprisonment, a fine of $150 000 or both.
The offence of selling or supplying a drug of dependence carries a maximum penalty of five years' imprisonment, a fine of $75 000 or both.
The offence of possessing a prohibited substance carries a maximum penalty of two years’ imprisonment, a fine of $7 500 or both.
The offence of possessing a knife in a public place without reasonable excuse carries a maximum penalty of six months’ imprisonment, a fine of $1500 or both.
In relation to the offences committed on 30 October 2016, the offender pleaded guilty at an early stage in the Magistrates Court. He should receive a discount of 25 per cent for the utilitarian value of the early pleas.
For the offences committed on 15 October 2016, the offender entered pleas of guilty in the face of a strong Crown case. Nevertheless, he should receive a significant discount. Because the sentences that I intend to impose are short, I will not quantify the discount in a strictly numerical way.
Offences committed on 15 October 2016
At about 9:05 pm on Saturday, 15 October 2016, the offender was outside McDonald’s in East Row, Civic. He was captured on CCTV supplying a man with MDMA. This is the supply a drug of dependence charge. At 9.15 pm police searched the offender. He was found to be in possession of a knife, which he produced to the police voluntarily. The blade was approximately 26 cm long. The offender maintained that he was carrying the knife for self defence following a recent home invasion in which he was the victim and received a significant injury. The offender was also found to be in possession of a small bag containing approximately half a gram of a substance said to be MDMA. At 9:25 pm, the offender was arrested.
When the offender was searched following his arrest, police located an additional nine clip seal bags in his possession. Three of the bags contained MDMA. The original police statement of facts said each bag contained about half a gram of MDMA, but on the appeal the prosecutor submitted that it was a total of half a gram. These three bags and the bag of MDMA found prior to the offender being arrested are not the subject of any charge. However, they provide context to the offence of supplying a man outside the McDonald's outlet.
Five of the clip seal bags, contained methylamphetamine. Again, the prosecutor’s submission differed from the original police statement of facts; the prosecutor submitted that the total was about half a gram of methylamphetamine but the police statement asserted that each bag contained approximately half a gram. It is the possession of this crystal methylamphetamine (or “ice”) that is the subject of the charge of possessing a prohibited substance.
A further clip seal bag was located in the offender's backpack. It contained traces of a substance that was suspected of being methylamphetamine.
Police also located 50 empty clip seal bags in the offender's backpack.
Objective seriousness
Objectively, the offences committed on 15 October 2016 were not particularly serious. In relation to the supply matter, the drug in question was actually supplied, not merely possessed. However, regardless of whether the second drug matter involved a quantity of 0.5 grams or 2.5 grams, the quantity of the drug involved in each drug matter was small. There was nothing particularly remarkable about the offences. The knife was voluntarily produced to the police.
The offender's criminal history contains several drug matters. They occurred in New South Wales in 1999, 2003, 2005 and 2013. The last such matter resulted in the imposition of a reasonably significant fine. Further, when the offences of 15 October 2016 were committed, the offender was on conditional liberty in relation to the offences of 17 March 2015.
From 15 to 17 October 2016, the offender spent three days in custody in relation to the offences committed on 15 October 2016. That period should be taken into account.
Offences committed on 30 October 2016
The next group of offences was committed on 30 October 2016. At the time, the offender was in an on-and-off relationship with the victim. Two days prior to 30 October 2016, the offender moved into the victim’s residence. At that stage, he was also spending a good deal of time at his father's residence.
On 30 October 2016, the victim received a text message from the offender. As a result, she returned to their shared residence. She was accompanied by a friend, Mr Spooner. The offender was not there. The victim observed that a coffee table that she had inherited from her mother had been defaced with a permanent marker. That is the offence of intentionally damaging property.
After further text messaging between the offender and the victim, the offender returned to the residence. The offender and the victim argued. The offender produced a blade and a metal pole. That is the offence of possessing an offensive weapon. Mr Spooner intervened, deflecting the offender’s aggression. The offender threatened Mr Spooner, but the victim negotiated with the offender, enabling Mr Spooner to leave.
The argument between the offender and the victim continued. The offender raised the metal pole and struck a mobile telephone that was used by the victim, causing significant damage to the mobile telephone.
The victim left the residence. Later, police attended and arrested the offender.
Objective Seriousness
The offences are of significant objective seriousness. Both occurred in a domestic violence context.
In relation to the offence of possessing an offensive weapon, the offender possessed both an offensive weapon (the blade) and a metal pole that was capable of being used as a weapon. The conduct of using the pole to damage the mobile phone and the fact that the incident was apparently designed to convey a threat to the victim which would have frightened the victim, aggravated the objective seriousness of the offence.
In relation to the offence of damaging property, it is very likely that the table in question was not of enormous monetary value. However, it had a sentimental value to the victim and the offender seems to have been aware of that. Those circumstances add to the objective seriousness of the offence.
When he committed the offences on 30 October 2016, the offender was subject to a suspended sentence and related good behaviour order that I had imposed on 24 May 2016 for very similar offences committed on 17 March 2015.
Breach offences committed on 17 March 2015
On 17 March 2015, the offender attended premises occupied by an acquaintance against whom the offender held a grievance. He attempted to push his way inside, without success. As he left the premises, he slashed the tyres of the victim’s car and smashed the car windscreen. That conduct is the offence of causing intentional damage to property.
Three hours later, the offender returned and demanded entry to the victim’s property. Holding a bladed knife in an upright position, he kicked the victim’s door and used the weapon to strike at the door before leaving. That conduct is the offence of possessing an offensive weapon.
At the time of the offences, the offender was on conditional liberty for similar offences.
For the offence of possessing an offensive weapon, the offender was sentenced to seven months’ imprisonment (reduced from nine months for the plea of guilty), suspended after five months. For the offence of damaging property, he was sentenced to eight months’ imprisonment (reduced from 10 months for the plea of guilty), suspended after three months. The effective sentence was 10 months’ imprisonment, to be suspended after five months. The offender was to be released on 31 May 2016 and the sentence was to expire on 22 October 2016.
Recent history of imprisonment
Because of other sentences that he was serving, the offender was incarcerated from 17 March 2015 to 31 May 2016. At that time, the remaining four months and 22 days of the sentence was suspended on condition that he enter into a 12 month good behaviour order.
Following the offender’s release from custody at the end of May 2016, except for the three days that he spent in custody in relation to the 15 October 2016 matters, the offender was at large until his arrest on 30 October 2016.
Meanwhile, on 30 June 2016, the offender committed an offence against the Telecommunications Act 1997 (Cth). As a result, he served a sentence of three months’ imprisonment, from 31 October 2016 to 30 January 2017.
Since 31 January 2017, he has been in custody solely in relation to the matters for which I am to sentence and resentence him.
Subjective circumstances
The offender is a 36-year-old man with an extensive criminal history. He has been convicted of a wide range of matters, including offences of violence, property offences and driving offences, as well as the drug offences referred to above. In the past, his compliance with community based orders has been poor.
The offender has served several periods of imprisonment. From May 2011 to April 2014, he was in custody for an assault occasioning bodily harm and aggravated burglary offences committed in 2010. In about April 2014, he was released. In July 2014, he committed a raft of offences, including common assault and damage property. In August 2014, he was returned to custody and spent a period in a mental health facility because of an attempted suicide. He was in custody from August 2014 until February 2015, when he was released. As I have already mentioned, about a month later, in March 2015, he reoffended. The most recent periods of imprisonment that the offender has served are from 17 March 2015 to 31 May 2016 and from 31 October 2016 to date.
Since May 2011, the offender has been at large in the community for a few months in the middle of 2014, about one month in early 2015, and five months from the end of May 2016 to the end of October 2016, i.e. he has been at liberty in the community for a total of about nine months in the last six years.
The offender was raised in Queanbeyan. He is the second oldest of seven children. He experienced a traumatic childhood and was removed from parental care at the age of seven. Thereafter, he moved between foster homes, where he was exposed to serious physical and sexual abuse. He claimed to have left his last foster home at the age of 14, when he began to live on the streets.
The offender has limited contact with family members other than his father. As I have already mentioned, prior to his recent incarceration, the offender was living partly with his father because of the on-and-off relationship with the victim of the 30 October 2016 offences.
While at large in August 2016, the offender was the victim of a serious home invasion during which he suffered significant injury. Although there is no medical evidence describing the precise condition, the offender says that he was in a coma for several days. In any event, possibly because of the identity of the perpetrators, he did not report the matter to the police. He remains concerned about the prospect of future victimisation.
As a consequence of the home invasion, the offender has been housed in strict protection within the custodial environment. There is no evidence that incarceration in strict protection is more onerous than imprisonment within the general population. The offender has been able to undertake a number of programs this year, including the Foundation Skills Program, Barista Training and the Harm Minimisation Program. He has also been able to work as a cleaner, so opportunity for development has not been eliminated.
In May 2016, when the offender was last released from custody, he was not offered the Detention Exit Community Outreach (DECO) Program. That was offered to him following discharge from the hospital some months after he was released. The Program has a very good reputation for assisting former prisoners to stabilise and providing holistic support to them.
In the past, the offender has had occasional casual employment but has generally been unemployed. The offender reported that he completed Year 10 at Canberra Institute of Technology.
From the age of 13 or 14 years until his mid-20s, the offender was a binge drinker of alcohol. The offender says that, since then, he has been a moderate consumer of alcohol.
During his 20s, the offender began to use methylamphetamine, heroin and amphetamines. Reportedly, prior to being imprisoned late last year, he was injecting half a gram of ice on most days. He has engaged in a variety of interventions for substance abuse (including the Solaris Program, Karralika Program and attendance at Narcotics Anonymous). However, none of these interventions has resulted in long-term success. His history of violence excludes him from some programs. However, it is positive that the offender has engaged in a number of programs over the last few months in custody.
The offender reported that he has been diagnosed with borderline personality disorder, major depression and anti-social disorder. ACT Health records indicate diagnoses of substance use disorder and antisocial personality traits. I have mentioned his history of suicidal ideation and self harm. Currently, the offender is medicated for mental health conditions. However, shortly prior to the offences, he stopped taking the medication.
It has been recommended that the offender undertake Dialectical Behavioural Therapy (DBT). I understand that DBT is one of the few forms of therapy that is beneficial to persons diagnosed with borderline personality disorder. I am informed that DBT is not offered to prisoners and it is difficult to obtain appropriate treatment in the community, particularly on a public health basis.
It is commendable that the offender decided to plead guilty to the offences that occurred on 30 October 2016 (the domestic violence offences) to avoid causing undue stress to the victim.
Sentences
In sentencing the offender, I am required to have regard to relevant sentencing purposes as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). In relation to the offences before the Court, important purposes include punishment, specific deterrence and general deterrence, which is always an important sentencing consideration in relation to drug offences.
It is difficult to work out how to take the purpose of rehabilitation into account. On the last few occasions when the offender has been released from custody, his performance in the community has been disastrous. Within a fairly short period of time, he has committed the very sort of offences for which he was previously incarcerated. However, in the past the offender has made efforts to treat his substance abuse and has cooperated in relation to mental health treatment. While in custody during his recent period of incarceration, he engaged in programs that will assist him in the future.
I consider that the offender is motivated to rehabilitate, but as past performance indicates, it will be very difficult for him to do so. The parole authority is best placed to assess his prospects for rehabilitation. When he is released into the community, it will be important that he be supervised for a significant period of time. I bear that in mind in fixing the nonparole period.
In sentencing the offender, I must have regard to relevant aggravating and mitigating features as set out in s 33 of the Sentencing Act. I believe that I have referred to all relevant matters.
I have not been taken to any comparable cases. The maximum penalties are an important guide to the sentences that should be imposed.
As I have already mentioned, the breaches are admitted. I find the breaches are established and the offender is convicted.
The offender is sentenced as follows:
Breach offences
(a)For the offence of damage property – four months and 22 days’ imprisonment from 1 January 2017 to 22 May 2017.
(b)For the offence of possess offensive weapon – one month and three weeks’ imprisonment from 1 January 2017 to 21 February 2017.
Offences committed on 15 October 2016
(c)For the offence of sale or supply drug of dependence – two months’ imprisonment from 22 April 2017 to 21 June 2017. This takes into account the plea of guilty.
(d)
For the offence of possess prohibited drug – one month’s imprisonment from
22 April 2017 to 21 May 2017.
(e)For the offence of possess knife without reasonable excuse – two months’ imprisonment from 22 May 2017 to 21 July 2017.
For the offences committed on 30 October 2016
(f)For the offence of damage property - 12 months' imprisonment less 25 per cent - nine months’ imprisonment from 22 June 2017 to 21 March 2018.
(g)For the offence of possess offensive weapon - eight months’ imprisonment less 25 per cent - six months’ imprisonment from 22 December 2017 to 21 June 2018.
The result of the above sentences is that the offender will be in custody from 1 January 2017 to 21 June 2018.
In setting the nonparole period, I take into account the whole period that the offender will be in custody, i.e. the period from 31 October 2016 to 21 June 2018, a period of 20 months. I consider that the nonparole period should be about 60 per cent of the total period and be of significant duration. I fix a nonparole period to commence on 1 January 2017 and expire on 30 October 2017
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell. Associate: Date: 9 June 2017 |
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