R v Butkovic; R v Kaddour
[2019] ACTSC 398
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Butkovic; R v Kaddour |
| Citation: | [2019] ACTSC 398 |
| Hearing Date(s): | 21 November 2019 |
| Decision Date: | 21 November 2019 |
| Before: | Loukas-Karlsson J |
| Decision: | See [54] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two offenders – Common assault – possession of offensive weapon with intent – good behaviour orders imposed |
| Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 381 Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 10, 11, 12, 13, 33, 35 |
| Cases Cited: | Ashdown v The Queen [2011] VSCA 408; 37 VR 341 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v the Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 |
| O’Brien v The Queen [2015] ACTCA 47 | |
| R v Hill [2016] ACTSC 310 R v Meyboom [2012] ACTCA 48 R v Pham [2015] HCA 39; 256 CLR 550 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Vance [2008] VSC 468 Thompson v The Queen [2018] ACTCA 2 Zdravkovic v The Queen [2016] ACTCA 53 | |
| Parties: | The Queen (Crown) |
| Kyle Joseph Butkovic (Offender) Ibrahim Kaddour (Offender) | |
| Representation: | Counsel |
| A Williamson (Crown) B Morrisroe (Offender) | |
| T Jackson (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Sharman Robertson (Offender) United Legal (Offender) | |
| File Number(s): | SCC 98 of 2019; SCC 99 of 2019; SCC 101 of 2019; SCC 102 of 2019 |
| Loukas-Karlsson J | |
| Introduction |
1. The offender Kyle Butkovic has pleaded guilty to:
(a) One count of common assault (SCAN2019/3832), contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act), the maximum penalty for which is two years' imprisonment. (b) A transferred offence of possession of an offensive weapon with intent, (CC18/14831), contrary to s 381 of the Crimes Act, the maximum penalty for which is a fine of $2000, one year of imprisonment, or both. 2. The offender Ibrahim Kaddour pleaded guilty to:
(a)
One count of common assault (SCAN2019/3833) contrary to s 26 of the Crimes Act, the maximum penalty for which is two years' imprisonment.
(b)
A transferred offence of possession of an offensive weapon with intent (CC18/14829) contrary to s 381 of the Crimes Act, the maximum penalty for which is a fine of $2,000, one year of imprisonment, or both.
Agreed Facts
3. The agreed facts are as follows.
4. At about 1 am on 5 November 2019 the two offenders and Javarne Saipani attended Unit 28/20 Oliver Street, Lyneham in the ACT in order to see Mr James Lynch.
5. Upon arrival, both offenders and Mr Saipani entered the premises, and shortly after entering an altercation ensued. During the altercation the offender Mr Butkovic struck Mr Callum Ward. Shortly afterwards the offender Mr Kaddour struck Mr James Lynch while he was seated in the lounge room.
6. During the course of the incident the offender Mr Butkovic picked up an electrical conduct weapon in the shape of a gold baton. The offender Mr Kaddour picked up a black folding knife. Upon observing this altercation Ms Laura Burton, the lawful occupier of the unit, told both offenders to leave. They did not do so.
7. Whilst this was happening another occupant of the unit, Ms Stephanie Downs, feared for her safety. She climbed out her bedroom window on the second storey and approached her neighbour in the unit below and asked that he call police on her behalf. Police attended a short time later and arrested both offenders.
Time in custody
8. The offenders were remitted to bail on 16 November 2018 and they spent 11 days in custody.
Objective Seriousness
9. The prosecution submitted that the offences were in the low to mid-range of objective seriousness. Counsel for Mr Butkovic submitted that the offences were at a lower level, or low range. Counsel for Mr Kaddour similarly submitted that the offences were low range.
10. It must be stated that references to low, midrange and high range are not necessarily helpful in this jurisdiction. As has previously been expressed, it is preferable for a sentencing judge to identifying features of the case that inform the objective seriousness of that case: R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo'ua).
11. It is quite clear from the agreed statement of facts that these offences occurred at residential premises which brings the objective seriousness above the lowest range. That is a significant identifying feature of the case.
Subjective Matters
12. Both counsel for the offenders made submissions in relation to the subjective circumstances.
13. Mr Butkovic is 27 years of age and Mr Kaddour is 24 years of age.
14. It was submitted by Ms Morrisroe first of all in relation to the criminal history that there are no matters of violence in relation to the record of Mr Butkovic. Ms Morrisroe also submitted that Mr Butkovic had trained as a stonemason, has worked as a labourer, and undertook an apprenticeship, and is currently hopeful of obtaining work as a concreter in the near future.
15. Ms Morrisroe further submitted that he had been on the wrong track, but that at the present time Mr Butkovic had a partner with whom he resided and there were no children of that union. It was submitted that he comes from a supportive family and his parents offer as much support as they can. They are retired people who now live at the coast.
16. In relation to s 10 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), Ms Morrisroe submitted that the s 10 threshold in relation to imprisonment had not been crossed and submitted that a conviction with a good behaviour order would be appropriate in this case, taking into account the 11 days in custody that are solely referable to this matter.
17. Mr Jackson for Mr Kaddour similarly submitted that a s 13 bond good behaviour order was the appropriate sentencing outcome in this matter. It was similarly submitted that the s 10 threshold had not been crossed in light of the single application of force related to the common assault.
18. Mr Jackson further submitted that Mr Kaddour was in his mid-twenties, as referred to above, that his father had been present throughout the trial and was very supportive of his son, his father being a businessman who employs his son in his pest control business. His father had moved the family from the Punchbowl area in Sydney at the time of the global financial crisis.
19. It was indicated that Mr Kaddour's father, now that his son is working with him in the family business, has impressed upon him the hard work ethic, that is important to being a productive member of our community. It was also submitted that he has been working at the family business whilst on bail and that this demonstrates that he has the potential and ability to be a worthwhile member of the community.
20. Mr Jackson also indicates that Mr Kaddour has a significant support network and that there have been no breaches of his bail. Mr Kaddour is the eldest son of his family and
Mr Jackson submitted that the “fear of God” had been made clear to the offender by
his father and the importance of ensuring that he was a worthwhile and contributing member to the community of Canberra (T 223.11). Mr Jackson also submitted that Mr Kaddour works 40 to 60 hours a week and wants to be a role model in relation to his behaviour now in the community.
Conditional Liberty
21. Counsel for the prosecution, in relation to the subjective matters, emphasised as a point of comparable parity between the two offenders, that in fact there was a breach of conditional liberty relevant to this matter on the part of Mr Kaddour and referred to the criminal record in that regard.
22. In relation to the question of conditional liberty, the offender Mr Kaddour was at the time of offending serving a suspended sentence at the time of the offence, which is a breach of conditional liberty. As has been referred to by Wood CJ at CL in R v Tran [1999] NSWCCA 109 at [15]:
Betrayal of the opportunity for rehabilitation offered through probation or parole, or a provisional release on bail, is regarded very seriously and should have been weighed against the respondent.
23. The fact that Mr Kaddour was on conditional liberty at the time of the offence is an aggravating factor on sentence, and I take the conditional liberty into account as an aggravating factor on sentence.
Criminal History
24. I note in respect of Mr Butkovic, the matter recorded in the Magistrates Court on 25 March 2019 of traffic in a controlled drug other than cannabis. A matter in which he was convicted and sentenced pursuant to s 11 under the Sentencing Act by way of an Intensive Corrections Order. I also note a possess prohibited substance matter he was convicted for on the same date, and a possess a declared substance without authorisation again on the same date. There are a number of other driving matters on the record from 2013 and before that. It should be noted, as was submitted by Ms Morrisroe in respect of the offender Mr Butkovic, that there are no prior matters of violence in relation to his record.
25. In respect of Mr Kaddour, I note that on 24 July 2017 in relation to a joint commission of assault occasioning actual bodily harm that the offender Mr Kaddour was convicted and sentenced pursuant to s 12 of the Sentencing Act to 10 months' imprisonment. The sentence was suspended and the offender released after serving three months, on condition that he sign an undertaking to comply with the his good behaviour obligations.
26. As I have stated above, that is a matter of significance as it is an aggravating matter on the question of sentence, the breach of conditional liberty. Prior to that there were two driving matters and a matter of some antiquity, in 2013, of possess knife without reasonable excuse.
Plea of Guilty and Time in Custody
27. The offenders entered pleas of guilty today and pursuant to s 33(1)(j) of the Sentencing Act, in deciding how to sentence the offender the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard, and this provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: Toumo'ua at [41]-[48].
Monfries v The Queen 2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from NSW: see Toumo'ua at [50].
29. It was submitted to me by Ms Morrisroe that a discount of 25 per cent applied to both the assault and the offensive weapon charge. A submission was made by Mr Jackson for Mr Kaddour of 25 per cent for the common assault and 10 to 15 per cent in relation to the offensive weapon.
30. Mr Williamson, on behalf of the Crown, indicated that he did not cavil with a discount of 25 per cent for the common assault matter, but submitted that the same discount would not apply with respect to the offensive weapon matter.
31. In those circumstances, I will allow a 20 per cent discount in respect of the offensive weapon matter in respect of both defendants, and a 25 per cent discount in respect of the common assault matters, taking into account the authorities and relevant provisions.
32. In relation to time in custody, both Mr Butkovic and Mr Kaddour have spent 11 days in custody solely referable to these offences. I take the time in custody into account when determining sentence.
33. I take the pleas of guilty into account and the relevant discounts into account in determining whether or not a term of imprisonment is appropriate, or whether a different form of penalty, a good behaviour order, is appropriate (T 226.45-47; 231.25-41).
Sentencing Statistics
34. Bare sentencing statistics provide limited information: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili).
35. It was agreed by both prosecution and counsel for the offenders that in light of the fact that these are matters that are usually dealt with in the Magistrates Court, statistics are not of particularly significant utility in the disposition of this matter.
Parity
36. In relation to parity, the Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated:
…[J]ust as equal justice requires that like offenders should be treated alike, relevant
differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295,
301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied
by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino
v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at
[48] (Le Clair).
37. The principles in relation to parity in sentencing co-offenders are well known, and unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32].
38. In sentencing the offenders, I take into account the principles of parity, noting the similarity in ages, both being in their mid-twenties, 24 and 27 years of age respectively. Additionally, I note broadly similar subjective circumstances. Nevertheless, the matter of conditional liberty in respect of Mr Kaddour is a significant aggravating matter on sentence that I take into account in determining parity.
Statutory and Other Relevant Considerations
39. In sentencing the offenders, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act.
40. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, rehabilitation, denunciation and recognition of harm to the victim are important sentencing considerations. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison.
41. In this matter it is appropriate that there be an alternative to imprisonment, and I note in that regard, as was stated by Murrell CJ of this Court in R v Hill [2016] ACTSC 310 (Hill) at [48]:
Where a person has good prospects of rehabilitation… the Court, by supporting those
prospects in the sentence imposed, thereby also addresses likely future harm to the
community and protection of the community.42. It was also emphasised in Hill that sentencing must always deliver individualised justice, and there will be exceptions to the necessity for full-time custody.
43. In coming to a conclusion by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offences with
respect to each individual offender, the offenders’ pleas of guilty, and what are at this
stage some prospects for rehabilitation.
44. As with every sentencing exercise, careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
45. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is
whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v
The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66];
Zdravkovic at [71].46. Drug addiction is a relevant circumstance for the court to consider, but is not of itself a mitigating factor.
47. In relation to concurrency, I refer to the following passage from Cahyadi v The Queen
[2007] NSWCCA 1; 168 A Crim R 41 at [27]; O’Brien v The Queen [2015] ACTCA 47:
[W]here offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent. It is submitted that there should be a substantial degree of concurrency between each of the offences given the fact that they constituted a single course of conduct.
48. I take these principles into account on sentence.
49. I also note that the possession and use of knives in the community was referred to in R v Vance [2008] VSC 468 (cited with approval by the Victorian Court of Appeal in Ashdown v The Queen [2011] VSCA 408; 37 VR 341 at [20]):
The use of knives in the community is to be abhorred. It is in these circumstance that injuries
more serious than those actually intended occur …
Sentence
50. It must be recognised by the Court that the offences committed against the victims have had a significant impact upon them and the consequences of being a victim of these offences must be acknowledged.
51. As I have indicated, in coming to a sentence by way of instinctive synthesis I've taken into account all the matters discussed above, including objective seriousness and the subjective matters.
52. In respect of Mr Butkovic:
(a) The appropriate sentence for the offence of common assault (SCAN 2019/3832) is a good behaviour order 18 months. (b) The appropriate sentence for the offence of offence of possession of an offensive weapon with intent (CC18/14831) is a good behaviour order 18 months. 53. In respect of Mr Kaddour:
(a)
The appropriate sentence for the offence of common assault (SCAN 2019/3833) is a good behaviour order for 24 months.
(b)
The appropriate sentence for the offence of offence of possession of an offensive weapon with intent (CC18/14829) is a good behaviour order for 24 months.
Orders
54. I make the following orders:
(a)
I record convictions in relation to the offences for both Mr Butkovic and Mr Kaddour.
(b) In respect of the offences of Mr Butkovic:
(i)
For the offence of common assault (SCAN 2019/3832), pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), the offender is sentenced to a good behaviour order for a period of 18 months with the core conditions, commencing 21 November 2019 and ending 20 May 2021.
(ii)
For the offence of possession of an offensive weapon with intent (CC18/14831) pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), the offender is sentenced to a good behaviour order for a period of 18 months with the core conditions commencing 21 November 2019 and ending 20 May 2021.
(c) In respect of the offences of Mr Kaddour:
(i)
For the offence of common assault (SCAN 2019/3833) pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), the offender is sentenced to a good behaviour order for a period of 24 months with the core conditions, commencing 21 November 2019 and ending 20 November 2021.
(ii)
For the offence of possession of an offensive weapon with intent (CC18/14829) pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), the offender is sentenced to a good behaviour order for a period of 24 months with the core conditions commencing 21 November 2019 and ending 20 November 2021.
I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson
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