R v Campbell
[2017] ACTSC 204
•2 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Campbell |
Citation: | [2017] ACTSC 204 |
Hearing Date: | 2 August 2017 |
DecisionDate: | 2 August 2017 |
Before: | Elkaim J |
Decision: | See paragraph [17] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – damage property – guilty pleas. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 66 |
Cases Cited: | R v Campbell (No 2) [2016] ACTSC 368 |
Parties: | The Queen (Crown) Tyler John Campbell (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Mr D Lee (Offender) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) Gabbedy Milson Lee (Offender) | |
File Numbers: | SCC 218 of 2016, SCC 219 of 2016 and SCC 220 of 2016 |
ELKAIM J:
On 7 June 2017, the offender entered a plea of guilty to the charge of aggravated burglary. On 28 July 2016, he entered pleas in the Magistrates Court to three charges of common assault. His hearing today is for sentencing in respect of the four charges.
The charges relate to an incident in the early hours of 2 July 2016. On the previous evening, the offender had been at a party in Monash in the Australian Capital Territory. He was drunk and left the party after having fallen out with a number of persons.
The offender returned at 1.20 am the next morning with two other persons, each armed with a weapon. They entered the premises without permission. The offender was carrying a metal pole. These facts formed the basis for the aggravated burglary. The assault offences arise from assaults on different persons on the premises. Details of the offences can be seen in the Statement of Facts, forming part of Exhibit A.
The offender was taken into custody on 3 July 2016. He has been in custody since that date. Normally, any sentence of imprisonment imposed by me would be backdated to 3 July 2016. There is, however, a complicating factor. On 13 December 2016, I sentenced the offender for a number of charges, including two offences of aggravated robbery.
The head sentence is due to expire on 3 July 2019. The non-parole period will expire on 13 December 2017. Counsel for the offender submitted that any sentence that I impose today should be backdated to 3 July 2016. I disagree. The backdating of the earlier sentences to 4 July 2016 means that the offender has been in prison since that date in respect of those offences.
I do, however, agree that I should take into account that the offender has been in custody since 3 July 2016 and that his non-parole period for the ‘other’ offences will only expire in December 2017. It would offend the principles of totality, and plain justice, if I were to commence a sentence in respect of the matters for which he appears today from the end of the non-parole period.
At the same time, it is important for me to recognise the seriousness of the offences for which he is to be sentenced. Aggravated burglary is prevalent and there is a community expectation that it will be punished appropriately. It is also important for me to bear in mind the objects of sentencing, including both subjective and public deterrence and also the expectations of the victims. The offences may be seen as approaching a medium objective seriousness.
I set out the offender’s background in my judgment of 13 December 2016 (R v Campbell (No 2) [2016] ACTSC 368). I do not intend to repeat it here. What I do however acknowledge, as I did last year, is that the offender appears to have turned a corner and now recognises his wrongdoing and the gravity of his actions. I am also satisfied that he has expressed remorse and that there is a reasonable prospect of rehabilitation, and on release from prison, of starting a more productive life.
The offender has a significant criminal record. This means that it is difficult to be lenient. It is also difficult to impose any sentence other than full-time imprisonment. I note that no suggestion was made of a suspended sentence or an intensive corrections order.
The offences were all part of the same criminal enterprise. They all occurred during an episode of supreme stupidity and aggression on the offender’s part. He was no doubt fuelled by alcohol and perhaps also illicit drugs. I think the sentences for all the offences should be served concurrently.
I think the only way to achieve a sentence that takes into account the principles of sentencing and does not crush the offender’s chances of rehabilitation, is to commence a sentence from today which extends past the non-parole period previously set but only for a relatively short amount of time.
In doing so I hope to achieve the appropriate measure of punishment for the offences, by the offender remaining in prison beyond the end of the non-parole period but also to limit the extra time in which he is in prison before he can try to commence a new life.
In order to achieve this purpose, it is necessary for me to cancel the non-parole period presently in place and to reset it on the date that the new sentence is due to expire. This action is taken pursuant to s 66 of the Crimes (Sentencing) Act 2005 (ACT).
The maximum penalty for aggravated burglary is a fine of $300,000 or 20 years imprisonment or both.
The maximum penalty for common assault is two years imprisonment.
I think the extra time the offender must remain in prison is three months. In order to achieve this result, it is necessary to sentence the offender to a period of imprisonment of 7 months and 11 days. On one view, this may be seen as lenient. However, I think it necessary to avoid ‘over sentencing’ and also to take into account the offender’s pleas of guilty and finally, and hopefully, the reassessment that he seems to have made of his life.
I make the following orders:
(a)For the offence of aggravated burglary (CC 6951/16), the offender is sentenced to a term of imprisonment of seven months and eleven days to commence today and end on 12 March 2018.
(b)For the offence of common assault (6952/16), the offender is sentenced to a term of imprisonment of three months to commence today and end on 1 November 2017.
(c)For the offence of common assault (6953/16), the offender is sentenced to a term of imprisonment of three months to commence today and end on 1 November 2017.
(d)For the offence of common assault (6954/16), the offender is sentenced to a term of imprisonment of three months to commence today and end on 1 November 2017.
(e)The non-parole period imposed on 13 December 2016 in R v Campbell (No 2) [2016] ACTSC 368 is cancelled.
(f)The non-parole period in respect of the sentence delivered on 13 December 2016 in R v Campbell (No 2) [2016] ACTSC 368 is reset to expire on 13 March 2018.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 2 August 2017 |