R v Blundell
[2016] ACTSC 117
•24 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Blundell |
Citation: | [2016] ACTSC 117 |
Hearing Date(s): | 24 May 2016 |
DecisionDate: | 24 May 2016 |
Before: | Murrell CJ |
Decision: | Suspended sentence order made. Sentenced to good behaviour order for 4 months and 22 days. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally or recklessly causing damage to property – possession of an offensive weapon – where offences committed while at liberty – where plea of guilty to lesser charge was entered a week before trial |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 33 Crimes Act 1900 (ACT) s 381 Criminal Code 2002 (ACT) s 403 |
Parties: | The Queen (Crown) Peter Blundell (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 171 of 2015 |
MURRELL CJ:
The offender is before the court for sentence in relation to two offences.
The first is an offence that, on 17 March 2015, the offender intentionally or recklessly caused damage to property belonging to Jason Kember. This is an offence against s 403 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 10 years’ imprisonment.
A plea of guilty was entered on 2 March 2016, the week before the trial was due to commence. A week or two prior to the plea date, the offender had offered to plead guilty to the current charge. The original indictment contained significantly more serious counts relating to the same offending episode. Ultimately, the Crown accepted a plea of guilty to the charge of causing damage to property. As a result, the supporting statement of facts was very substantially amended.
The Crown case was always very strong in relation to the charge of causing damage to property. Having regard to the strength of the Crown case, the circumstances in which the plea was offered and accepted and the timing, it is my view that the appropriate discount is 15%.
The second matter is a summary offence of possessing an offensive weapon, which is an offence against s 381 of the Crimes Act 1900 (ACT). It carries a maximum penalty of one year’s imprisonment. In this matter there was a very early plea of guilty and the appropriate discount is 25%.
The offences
The offender’s ex-partner, Ms Goodwin, was in a relationship with Mr Kember. At the time of the offences there was tension between the offender and Mr Kember.
At about 4.00am on 17 March 2015, the offender attended a residence where Ms Goodwin was with Mr Kember. A Mr Pearson was also present. The offender yelled that he wanted to be let inside the premises. He attempted to push his way inside, without success. He then left the premises, slashing the tyres of Mr Kember’s car and smashing the windscreen. The damage to the car is the subject matter of the charge of damaging property.
At about 7.00am on 17 March 2015, the offender returned to the premises and demanded to be let inside. He was holding a bladed knife (which was referred to at some points in the statement of facts as a machete) in an upright position in his hand. He kicked the door and used the weapon to strike at the door before leaving. This is the subject matter of the charge of possessing an offensive weapon.
When spoken to by police, the offender agreed to participate in a record of interview. He admitted to having the machete with him when he attended the residence and said that he had yelled and tapped the machete on the stairwell rail while he was at the residence.
The offences occurred at Mr Kember’s home at night time, and these factors are relevant to an assessment of the objective seriousness of the offences.
Custodial history
At the time of the offences the offender was on conditional liberty. Sentences had been deferred by Magistrate Dingwall in relation to several offences, including an offence of possessing an offensive weapon and an offence of damaging property. The offender had been serving those deferred sentences since 20 February 2015 and it is significant that the offences before this Court were committed only four weeks later.
The offender was arrested for these matters on 17 March 2015 and was refused bail. He returned to custody.
On 3 July 2015, the offender came before Magistrate Dingwall in relation to the deferred sentence matters. He was then required to serve the deferred sentences and those sentences were backdated to 23 August 2014 to take into account previous periods spent in custody. The sentences expired on 22 December 2015.
Since 22 December 2015, the offender has been remanded in custody on the matters before this Court. This period should be treated as time served in relation to these matters. I could further backdate the sentences that I impose, but I do not consider that it is appropriate to do so; the offender had only just been released on deferred sentences in respect of similar matters when these offences were committed.
Subjective factors
Offender’s criminal history
The offender is 35 years old.
The offender has a lengthy adult criminal history, commencing in 1998 when he was 18 years old. He has been convicted of a wide range of matters, including relatively minor drug matters, assault offences (including several offences of assault occasioning actual bodily harm), offences involving the dishonest use of motor vehicles and other dishonesty matters, driving offences and street offences. There are multiple previous weapons offences on the offender’s criminal history, several damage property matters and a significant number of offences of violence on the offender’s criminal history.
The offender has served sentences of imprisonment in New South Wales for offences of violence (including assault occasioning actual bodily harm) and in the ACT for assault occasioning actual bodily harm in 2011 and, as noted above, more recently he served the sentences imposed by Magistrate Dingwall. The sentences were five months’ imprisonment (for possessing an offensive weapon) and three months’ imprisonment (for a damage property offence). They were not the only matters for which the offender was sentenced by Magistrate Dingwall.
Offender’s background
The Court has the benefit of a pre-sentence report and a CADAS report.
The pre-sentence report explains that the offender comes from a very disadvantaged background. He was born and raised in Queanbeyan. He is the second oldest of seven children. He had a traumatic childhood. He was removed from his parents’ custody at the age of seven. Thereafter, he moved between foster homes. He was exposed to physical and sexual abuse during his time in foster care. He left foster care at 14 years of age and then lived on the streets.
The offender has very little contact with family, except for one cousin who is supportive and who has offered to provide the offender with accommodation upon his release from custody. The offender has a son from a previous relationship but maintains no contact with the child or the child’s mother.
In the past, the offender has had casual employment in the construction industry.
The offender has a very long history of abusing illicit substances, as detailed in the CADAS report. He began to abuse opioids at 12 years of age. During his teens, the offender was a binge drinker. He was a heavy user of cannabis from 15 years of age. During his 20s, the offender abused both heroin and amphetamines.
In the past, the offender has undertaken drug rehabilitation, but it does not seem to have yielded long-term success. He was treated in the Solaris program, although the dates are not clear from the report. In 2012–2013 he actively participated in Narcotics Anonymous and he was seeing a counsellor. However, his commitment to drug rehabilitation has waivered.
The offender has significant mental health issues. He has been diagnosed as having a borderline personality disorder and suffering from major depression. Reportedly, the offender is now in contact with mental health services. He is receiving anti-depressant medication and his mood is relatively stable, but his mental health status remains problematic. One positive sign is that, during his recent engagement with mental health services in custody, the offender has begun to address childhood trauma issues.
The offender is aware of the Detention Exit Community Mental Health Outreach Program and is willing to participate in that program upon his release from custody.
The pre-sentence report says that the offender has little, if any, real insight into the offending behaviour that is the subject of these proceedings and its impact on Mr Kember and others who were present at the time.
Consideration
According to the author of the pre-sentence report, there is a high risk of general reoffending. The risk is assessed as “high” primarily because of unaddressed illicit substance use, demonstrated non-compliance with community based orders, anti‑social peer associations and limited familial support. To that I would add that the offender’s mental health issues probably aggravate the risk of reoffending.
I accept the submission of Mr Davies for the offender that the offender comes from a very disadvantaged background and the childhood trauma and abuse that he suffered will very likely remain ongoing problems through the offender’s life, and may result in criminal conduct.
The offender’s current problems and past criminal history cause grave concern about the prospect of future offending at a relatively serious level, but the task in which I am engaged is one of imposing appropriate sentences for the matters that are before the Court. Given that they are relatively low-level offences, there is limited capacity within the sentencing process to address the offender’s very long-standing issues.
In sentencing the offender, I am conscious that he has been in custody since March 2015. In fixing a date for suspension of the sentence, I bear in mind the total period of incarceration, not merely the period of imprisonment that I will impose.
I accept the prosecution’s submissions that the relevant sentencing purposes to be addressed by the sentences include punishment, general and personal deterrence, protection of the community, accountability and denunciation. Rehabilitation is always a consideration, but in the present case the prospects are cloudy and the opportunity to address rehabilitation by the sentences is very limited.
I bear in mind the considerations in s 33 of the Crimes (Sentencing) Act 2005 (ACT). I have already referred to a number of those considerations. To some extent, the offences form a part of the course of conduct. Among other things, this factor suggests that there should be a very significant level of concurrency between the two offences.
Unfortunately, the offender has accepted very little responsibility for the offences, although he has pleaded guilty.
Sentence
In relation to the damage property offence, I would have imposed a sentence of 10 months’ imprisonment but I have reduced it by approximately 15% to eight months’ imprisonment for the plea of guilty. In relation to the possession of an offensive weapon offence, I would have imposed a sentence of nine months’ imprisonment, but I have reduced that sentence by two months to seven months’ imprisonment for the plea of guilty.
The offender is sentenced to eight months’ imprisonment on the damage property offence and seven months’ imprisonment on the possession of an offensive weapon offence. The seven months’ sentence will commence on 23 December 2015 and expire on 22 July 2016. The eight months’ sentence will commence on 23 February 2016 and expire on 22 October 2016.
I suspend part of the sentences of imprisonment. The sentences will be suspended from 31 May 2016 and I make a good behaviour order for the remaining period of the sentences, from 31 May 2016 to 22 October 2016, a period of four months and 22 days. The good behaviour order will be for a period of 12 months from 31 May 2016. The good behaviour order requires the offender to sign an undertaking to comply with good behaviour obligations. I include a condition that the offender report to Corrective Services at Eclipse House by 4.00pm on 1 June 2016 and accept the supervision of Corrective Services for 12 months from 31 May 2016..
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 21 June 2016 |
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