R v Boardman
[2017] ACTSC 228
•28 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Boardman |
Citation: | [2017] ACTSC 228 |
Hearing Dates: | 28 October 2016, 18 April 2017 and 28 July 2017 |
DecisionDate: | 28 July 2017 |
Before: | Burns J |
Decision: | See [14]-[15] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – breach of Good Behaviour Order – reckless – serious offence – mental illness – illicit drugs – criminal history – offer to give evidence – mental illness played causative role – plea of guilty – reasonable prospects of rehabilitation – re-sentenced – terms of imprisonment – sentences suspended – Good Behaviour Order imposed |
Legislation Cited: | Criminal Code 2002 (ACT) s 404(1) Crimes (Sentence Administration) Act 2005 (ACT) |
Parties: | The Queen (Crown) Matthew Boardman (Offender) |
Representation: | Counsel ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender) |
| Solicitors Ms M Moss (28 October 2016), Mr D Sahu Khan (18 April 2017) and Mr K Lee (28 July 2017) (Crown) Mr D Berents (Offender) | |
File Numbers: | SCC 141 of 2016; SCC 58 of 2013; SCC 115 of 2010; SCC 286 of 2007 |
Matthew Boardman, you appear before me today for sentence with respect to one count of arson, contrary to s 404(1) of the Criminal Code 2002 (ACT). A conviction recorded with respect to that offence will mean that you are in breach of Good Behaviour Order imposed by Refshauge J as part of suspended sentence orders on 30 July 2013.
A full Statement of Facts was tendered on 28 October last year when this matter came before me on the plea of guilty. I will not now recite the facts. It is sufficient to say that I accept on the balance of probabilities that the circumstances of the offence were such that you were using a cigarette lighter to trim ragged edges of a curtain in the premises in which you were residing at that time. As a consequence of that conduct, the curtain caught fire which of course then spread to other parts of the room. Ultimately, some $69,000 worth of damage was done to the premises in which you were residing. I note that those premises were a house which was the property of ACT Housing. I approach the matter therefore on the basis that this was a careless accident and that your conduct in setting this fire was reckless rather than intentional.
All offences of arson are considered to be serious. This particular case demonstrates some of the reasons why that is so. In large measure, such offences are considered serious by the community because there is inevitably the prospect that the fire will spread and will either cause significant damage to property or will place the lives or wellbeing of others at risk. Those others may well be those who are residing in the same premises where the fire occurs, but may also include those who are called upon as part of emergency services to respond to the fire. In the present case this was a standalone house in which you were the only occupant, so there was no imminent risk to other occupants of the premises. However, of course there was always the potential of risk of harm to those members of emergency services who were called upon to respond to the fire. I accept there was no planning involved in this offence.
At the time of this offence your mental health was unstable. I am satisfied on all of the material before me that you suffer from a mental illness, being an underlying condition of depression which is exacerbated by drug use and also stressors in your life. You have in the past experienced psychosis as a consequence of the use of illicit drugs. More recently you have been observed to demonstrate psychotic features even in the absence of the use of illicit substances.
In the period leading up to the commission of this offence you were using illicit drugs, but you were also subject to a significant stressor in that you were a witness to a murder and you anticipated that you would be called to give evidence in the trial of the accused with regard to that offence and you feared reprisals either from the offender or associates of the offender. I note that subsequently that person pleaded guilty and you were not called upon to give evidence. I also take into account of course the fact that you had offered to give evidence with regard to that offender in those proceedings.
The significant point, however, in terms of objective seriousness of the offence is that I am satisfied that at the time that you committed this offence you were subject to a mental illness and that that mental illness played a causative role in the commission of this offence. I accept the submission made by the prosecutor that some moderation of general deterrence is called for in sentencing you for this offence due to your mental illness.
You have a not insignificant criminal history and, as the prosecutor rightly points out, you have in the past been given opportunities to address criminogenic factors, and in particular substance abuse issues. On my reading of the material which is before me it does not appear that in the past mental health issues have been placed before the court as being significant in terms of your offending behaviour. This appears to be the first occasion upon which the focus is on mental health issues, and in particular such issues being causally connected to your offending.
I take into account your plea of guilty with respect to this matter and I propose to reduce by 25 per cent the sentence that would otherwise be appropriate in order to reflect your plea of guilty. I am satisfied that a sentence of imprisonment should be imposed, however the question is how that sentence should be served. It has been submitted on your behalf by Mr Berents that a suspended sentence of imprisonment should be imposed. The prosecutor, as I understand it, does not oppose a sentence which incorporates some degree of suspension of sentence, but submits that some element of full-time imprisonment would be appropriate.
In that regard the prosecutor has pointed to the opportunities that you have been given in the past for rehabilitation and also the possibility that you may not make appropriate use of any opportunity which is now offered to you to rehabilitate yourself based upon your performance in the past. In my opinion your past performance with respect to orders of the court, and in particular orders addressing rehabilitation - and again in particular those dealing with addressing substance abuse - should not be seen as being particularly persuasive with regard to your future prospects of responding to court orders. That is because in the past it appears to me that the influence of your mental health has not been appropriately recognised and addressed.
I note that you have spent 112 days in full-time custody prior to sentencing. In addition, you spent 109 days in residential rehabilitation facilities prior to sentencing. I will take those periods that you spent either in full-time custody or participating in residential rehabilitation programs into account by backdating the commencement date of the sentences which I will impose.
I am satisfied that you have reasonable prospects for rehabilitation so long as you are appropriately treated with respect to your mental health issues. In my opinion that is one of the two key factors that needs to be addressed. Those two key factors are to a great extent interconnected in that they are your mental health issues and also your drug and alcohol abuse issues. Both of those need to be addressed at the one time.
I propose to, as I have said, impose sentences of imprisonment, to backdate those to a date which takes into account the period of time that you have already spent in custody and also to allow a period of time for the periods that you spent in residential rehabilitation programs. I propose to suspend the balance of the sentences from today and impose a Good Behaviour Order.
In dealing with the breach matters I will impose sentences of imprisonment which are in all but one case the same as the sentences that were imposed by Refshauge J. However, in order to reflect the period of time that has passed since those sentences were imposed and the gains, moderate though they may be, that you have made since that time I will make all of those sentences concurrent. I will also suspend such portions of those sentences as you have not actually served up to this point.
Sentence
I record a conviction with respect to the offence of arson (CC15/11177). Now, recording that conviction means that you are in breach of the Good Behaviour Orders that were imposed by Refshauge J. I will cancel those Good Behaviour Orders as I am obliged to do under the Crimes (Sentence Administration) Act 2005 (ACT) and I will resentence you with respect to each of those offences.
(a)Firstly, with regard to the offence of assault on 15 October 2009 (CC10/1279) you will be sentenced to four months imprisonment which will commence on 17 February 2017 and expire on 16 July 2017.
(b)Secondly, with respect to the offence of robbery which occurred on 2 July 2007 (CC2007/6629) you will be sentenced to 12 months imprisonment commencing on 17 February 2017 and expiring on 16 February 2018, of which the period commencing on 17 February 2017 and expiring on 27 July 2017 is to be served by way of full-time imprisonment with the balance to be suspended with a Good Behaviour Order for a period of 10 months commencing today, 28 July 2017, and expiring on 27 May 2018. Bearing in mind what I propose to do with respect to the arson offence in a moment, that Good Behaviour Order will be subject to the core conditions only.
(c)Thirdly, with respect to the offence of robbery on 1 July 2007 (CC2007/6628) you will be sentenced to 12 months imprisonment commencing on 17 February 2017 and expiring on 16 February 2018, of which the period commencing on 17 February 2017 and expiring on 27 July 2017 is to be served by way of full‑time imprisonment, with the balance to be suspended with a Good Behaviour Order for a period of 10 months commencing 28 July 2017 which will be subject to the core conditions only.
(d)Fourthly, with respect to the offence of robbery on 3 July 2007 (CC2007/6630) you will be sentenced to 12 months imprisonment commencing on 17 February 2017 and expiring on 16 February 2018. Again, the period from 17 February 2017 until 27 July 2017 will be served by way of full-time imprisonment and the balance will be suspended with a Good Behaviour Order for a period of 10 months commencing 28 July 2017, which will be subject to the core conditions only.
(e)Fifthly, with respect to the offence of robbery on 4 July 2007 (CC2007/6631) you will be sentenced to 12 months imprisonment commencing on 17 February 2017 and expiring on 16 February 2018, of which the period commencing on 17 February 2017 and expiring on 27 July 2018 is to be served by way of full‑time imprisonment with the balance to be suspended with a Good Behaviour Order for a period of 10 months commencing on 28 July 2017, which will be subject to the core conditions only.
(f)With respect to the offence of assault on 3 July 2007 (CC2007/6632) you will be sentenced to three months imprisonment commencing on 17 February 2017 and expiring on 16 May 2017.
(g)With respect to the offence of burglary (CC10/2276) you will be sentenced to 15 months imprisonment commencing on 17 February 2017 and expiring on 16 May 2018, of which the period commencing on 17 February 2017 and expiring on 27 July 2017 is to be served by way of full-time imprisonment with the balance to be suspended with a Good Behaviour Order for a period of 10 months commencing 28 July 2017, which will be subject to the core conditions only.
(h)With regard to the offence of theft (CC10/2277) you will be sentenced to five months imprisonment commencing on 17 February 2017 and expiring on 16 July 2017.
(i)With respect to the offence of damaging property (CC10/2278) you will be sentenced to three months imprisonment commencing on 17 February 2017 and expiring on 16 May 2017.
(j)Finally, with respect to the offence of obtaining property by deception (CC13/3664) you will be sentenced to one month imprisonment commencing on 17 February 2017 and expiring on 16 March 2017.
With regard to the offence of arson (CC15/11177) you will be sentenced to 18 months imprisonment, which I have reduced from two years in order to reflect your plea of guilty, commencing on 17 February 2017 and expiring on 16 August 2018, of which the period commencing on 17 February 2017 and expiring on 27 July 2017 is to be served by way of full-time imprisonment with the balance suspended, with a Good Behaviour Order with a period of 18 months from 28 July 2017 with the following conditions.
(a)Firstly, that you are to accept the supervision of the Director‑General or that person's delegate for that period of 18 months, or such lesser period as deemed appropriate by your supervising officer.
(b)Secondly, you are to reside as directed by the Director-General or her delegate and I recommend that you be directed to reside with Mr John Gilmour of [redacted for legal reasons], Griffith in the Australian Capital Territory (ACT).
(c)Thirdly, you are to undertake such assessments or treatment for mental health issues as directed by the Director‑General or that person's delegate and I recommend that you be directed to participate in the Detention Exit Mental Health Outreach Program if assessed as suitable and also to participate in activities arranged by Grow.
(d)Fourthly, you are to undertake such assessments, counselling or treatment for substance abuse as directed by the Director-General or that person's delegate.
[Speaking directly to the offender]
Mr Boardman, there were 10 offences that were dealt with by Refshauge J. I have effectively reimposed sentences with respect to those 10 offences, but I have backdated the sentences, all of them, to commence on 17 February 2017. Now, the result of that is that you have actually served the sentences with respect to five out of those 10 sentences, so they have gone. There are still five of them left and I have imposed sentences that are partly suspended and imposed a Good Behaviour Order of 10 months with respect to those particular offences.
Now, with respect to the arson offence I have sentenced you to 18 months imprisonment. Again, that was backdated to 17 February. I have suspended that sentence as of today and there is a Good Behaviour Order for a period of 18 months from today with the conditions that I have outlined.
I am giving you an opportunity to address both mental health issues and also your drug and alcohol issues. You must understand that those two issues are interconnected; that if you abuse drugs and alcohol then the likelihood is that you are not going to address your mental health issues, and in any event the treatments that are available are not going to work as well. At the same time if you do not accept treatment with respect to your mental health issues, the likelihood is that your mental health will then decline, which will then probably lead to you using drugs and alcohol again.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 1 September 2017 |
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