R v Campbell (No 2)
[2022] ACTSC 370
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Campbell (No 2) |
Citation: | [2022] ACTSC 370 |
Hearing Date: | 15 July 2022 |
DecisionDate: | 20 July 2022 |
Before: | Refshauge AJ |
Decision: | 1. The Drug and Alcohol Treatment Order made on 14 December 2021 and amended on 24 December 2021 be cancelled. 2. The conviction for aggravated robbery on 4 August 2021 be confirmed. 3. The sentence of two years and four months imprisonment is imposed, to commence on 30 January 2022 to take into account pre-sentence custody and custody under the Drug and Alcohol Treatment Order, and end on 29 May 2024. 4. Aaron James Campbell be convicted of attempted aggravated robbery and sentenced to two years imprisonment, commencing on 30 September 2023 and expiring on 29 September 2025. 5. For the aggravated robbery, Aaron James Campbell be convicted and sentenced to two years and five months imprisonment, commencing on 30 October 2024 and expiring on 29 March 2027. 6. Aaron James Campbell be convicted of going equipped for theft and sentenced to three months imprisonment, to commence on 30 January 2027 and expiring on 29 April 2027. 7. Aaron James Campbell be convicted of burglary and a sentence of 12 months imprisonment, commencing on 30 January 2027 and expiring on 29 January 2028, is imposed. 8. Aaron James Campbell be convicted of possessing a knife in a public place without a reasonable excuse and sentenced to three months imprisonment, to commence on 30 November 2027 and expiring on 29 February 2028. 9. Aaron James Campbell be convicted of assaulting a frontline community service provider and sentenced to six months imprisonment, to commence on 30 November 2027 and expiring on 29 May 2028. 10. Aaron James Campbell be convicted of damaging property not exceeding $5,000 and sentenced to six months imprisonment, commencing on 30 January 2028 and expiring on 29 July 2028. 11. A non-parole period of three years and three months is imposed, to commence on 30 January 2022 and to expire on 29 April 2025. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – Cancellation – Imposition of Original Sentence – Further Offending – Attempted Aggravated Robbery – Aggravated Robbery – Going Equipped for Theft – Burglary – Possessing a Knife Without a Reasonable Excuse – Assaulting a Frontline Community Service Provider – Damage Property – Sentence of Imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26A, 116 Crimes Sentencing Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 80ZC, 80ZD, 80ZE, 80ZH, 80ZJ Criminal Code 2002 (ACT) ss 44, 310, 315 |
Cases Cited: | Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Foster [2021] ACTSC 229 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Saga v Reid and Collett [2010] ACTSC 59 |
Parties: | The Queen ( Crown) Aaron James Campbell ( Offender) |
Representation: | Counsel C Daly ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 221 of 2021 SCC 132 of 2022 SCC 133 of 2022 |
REFSHAUGE AJ:
Introduction
On 11 December 2021 Aaron Campbell, a 22 year old man, was sentenced to a period of two years and four months imprisonment for a crime of aggravated robbery to be served by a Drug and Alcohol Treatment Order (Treatment Order), made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
On 15 February 2022, Mr Campbell left the residential drug rehabilitation facility where he had been directed to reside under the Treatment Order.
On 8 March 2022, Mr Campbell was arrested for committing a further aggravated robbery offence. He has since been charged with other offences he has since committed.
Mr Campbell has been dependent on illicit drugs.
A Treatment Order is an important sentencing option designed for an offender, providing the opportunity to address his or her alcohol or drug dependence in order to live a drug and crime free lifestyle. This is a specific program intended to furnish such an offender with the support needed for rehabilitation. This is, however, also intended, by such rehabilitation, to protect the community from further criminality by the offender.
As French CJ said in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32] “[r]ehabilitation, if it can achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.”
Mr Campbell has failed to take advantage of that rehabilitation opportunity afforded to him and must be sentenced accordingly. In doing so, he is, of course, not to be punished for not completing the Treatment Order. While that will have an effect on the sentence, the courts also know the challenges of such rehabilitation. As was said in Saga v Reid and Collett [2010] ACTSC 59 at [89], drug dependency
is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation.
Mr Campbell is now to be sentenced for seven further offences, to each of which he has pleaded guilty. They are offences of aggravated robbery, attempted aggravated robbery, burglary, going equipped for theft, possessing a knife in a public place, assaulting a frontline community service provider and property damage, all committed while Mr Campbell was at liberty after leaving the residential rehabilitation facility.
On sentencing, the Crown tendered, without objection, the Crown Tender Bundle which included the prescribed cover sheet, the Committal and Transfer documents, an Agreed Statement of Facts, Mr Campbell's Criminal History, a Compensation Schedule, an email from his Case Manager at Alcohol and Drug Services dated 14 February 2022, the warrant issued by the Court on 15 February 2022, a Pre-Sentence Report dated 6 July 2022, the Treatment Order made on 14 December 2021 and the Crown Tender Bundle, which was tendered in the proceedings for the earlier sentencing, and which bundle was described in R v Campbell [2021] ACTSC 359 at [4]–[6]. This evidence was admitted.
There were no challenges to the contents of any of these documents.
Ms C Duffy, Mr Campbell's counsel, tendered no evidence for him, relying on that material already admitted.
No oral evidence was called. Ms C Daly, counsel for the Crown, filed valuable written submissions. Both Ms Daly and Ms Duffy made helpful and pertinent oral submissions and engaged with the questions from the Court.
From this material, the following findings are made.
The facts
On 22 February 2022, Mr Campbell went to Raymond Street, Ainslie, and got into a white Audi SQ5 motor vehicle parked there, which was owned by a resident of the street.
At about 4:10 pm he was found in the vehicle by the resident, who approached him and said “What are you doing?” Mr Campbell said “Give me the car keys” and, when the resident told him he would not, Mr Campbell got out of the vehicle, confronted the resident and produced a knife approximately 125 millimetres in length. He pointed it at the resident and repeated “Pass over your keys”.
The resident retreated to his house and called for help and Mr Campbell fled along Raymond Street.
CCTV footage which captured the incident showed Mr Campbell as the person in the car. Forensic samples taken from the car also identified him.
These events were the basis for the charge of attempted aggravated robbery, the circumstance of aggravation being the use of the knife.
On 7 March 2022, Mr Campbell went to a construction site on the campus of the Australian National University, arriving at about 10:49 pm. He had no authority to enter the site, but did so. At about 11:06 pm, he used a metal pole to break into a vending machine on the construction site, damaging it.
Between when he arrived at the site and about 3:54 am the next day, 8 March 2022, Mr Campbell searched the construction site. He carried various tools around, which he ultimately left near the site. These events were captured on CCTV installed at or near the site.
At about 3:00 am, he took a can of drink from the vending machine that he had damaged and drank from it.
He remained on the site and, at about 7:00 am, a worker on the construction site arrived nearby and parked his car in a car park there. He walked to the site.
The worker returned to his car a little later and found Mr Campbell leaning inside the driver's side of the vehicle of a fellow worker. He approached Mr Campbell and, when he was about 5 metres away, said “Oi, what are you doing?”.
Mr Campbell turned to face the worker, who continued to approach him. Mr Campbell then reached into his jacket pocket, pulled out a knife which was about 5 to 7.5 centimetres long and held it in his right hand.
Letting out an expletive, the worker left the car park and phoned a colleague.
The colleague and two others, including the driver of the other car, arrived at the car park. By that time, it appears that Mr Campbell had left the scene. The driver of the car then looked into the car, which was a company car, and noticed that his Gucci wallet was missing. Another colleague also searched the car and noted that his wallet and Apple AirPods were also missing. He immediately called police to report the incident.
The third colleague tracked the location of his Apple AirPods and provided their location to the police.
At about 9:10 am, a police officer travelling along Currong Street South, Reid, noticed Mr Campbell walking through the courtyard of the Argyle Apartments complex. The police officer approached Mr Campbell and informed him that he was under arrest for aggravated burglary. Mr Campbell stepped towards the police officer and punched him with considerable force. At the time, he was holding a grey backpack which made contact with the left side of the police officer's head, which immediately began to swell.
Mr Campbell then ran back into the Argyle Apartments courtyard, but the police officer took hold of his right arm and repeated that he was under arrest. Although Mr Campbell continued to struggle, the police officer managed to place Mr Campbell into handcuffs.
In a search of the grey backpack, the police officer located the Apple AirPods, the Gucci wallet and the other wallet, which had been taken earlier. The wallets contained various cards, including fuel cards, and a Toyota car key. The police officer also located a blue-handled folding knife, a chisel and a large pick end tool with a black handle.
Mr Campbell was taken to the ACT Watch House, where he stated that he was under the influence of drugs.
The owner of the vending machine which was on the ANU construction site provided an invoice showing the cost of repairs to the machine in the sum of $3,485.70.
These events constituted the facts of the offences of burglary, namely the entry into the construction site; the aggravated robbery, the circumstance of aggravation being the use of the knife; property damage of the vending machine; going equipped for theft, being the possession of the chisel and tool found in the grey backpack; possessing a knife in a public place without a reasonable excuse; and assaulting a frontline community service provider, namely the police officer.
The proceedings
As noted above, Mr Campbell was arrested on 8 March 2022 and appeared later that day in the ACT Magistrates Court. He was charged with the offences of aggravated robbery, going equipped for theft, possessing a knife in a public place without reasonable excuse and assaulting a frontline community service provider. He was remanded in custody and the proceedings were adjourned to 28 March 2022.
On the adjourned date, Mr Campbell was further charged with the offences of attempted aggravated robbery, burglary and damaging property. The proceedings were further adjourned and Mr Campbell remained in custody.
The proceedings were adjourned a further four times, but no plea was entered to the charges until the sixth time the proceedings were before the Court, on 24 May 2022, when the Court amended the charges of aggravated robbery, going equipped for theft and burglary. At that stage, no other plea had been entered and the prosecution had not been required to provide a Brief of Evidence to Mr Campbell's lawyers.
Mr Campbell then entered pleas of guilty to all the charges, he was committed to this Court for sentence and the summary offences were transferred as related charges. He remained in custody.
Mr Campbell was, at the time of the offences, on conditional liberty. The sentence of imprisonment imposed on 11 December 2021 had been suspended, having been ordered to be served under a Treatment Order.
In this Court, the proceedings were adjourned for sentence to 15 July 2022. The sentencing hearing proceeded and sentence is to be imposed today, on 20 July 2022. He has, thus, been in custody for 135 days.
The offences
Section 33(1) of the Sentencing Act sets out the considerations that a court sentencing an offender must take into account, so far as the court knows them. This is, however, not an exhaustive list.
Section 33(1)(a) of the Sentencing Act refers to the nature and circumstances of the offence and this includes the facts of the offences, which have been found above (at [14] to [33]). It also includes consideration of the maximum penalty prescribed by the legislature for each offence. This acts also to permit comparison of the seriousness of the various offences with other offences and, when taken into account with all the other factors, to be a yardstick.
In addition, s 33(1)(za) of the Sentencing Act requires current sentencing practice to be considered. This is required because each offence can be committed in a great variety of ways and circumstances, which differences may have a bearing on either the nature or the length of the sentence. Thus, the relevant factors to use for such an assessment can, in fact, be found from those that have been identified by the courts over time. This will, in this instance, assist in assessing the serious of each offence.
Aggravated robbery is an offence against s 310 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 25 years imprisonment or a fine of $400,000, or both. It is, therefore, a very serious offence, with few more serious by the measure of that maximum penalty. Part of its seriousness is that it is a crime of both dishonesty and violence: R v Watson [2021] ACTSC 339 at [38]–[41].
Where a person has attempted to commit an offence, then, under s 44 of the Criminal Code, unless the acts engaged in are merely preparatory to the commission of the offence, this is, in itself, an offence. The offence of attempt is a separate offence to the offence attempted to be committed, but, in nature, similar in objective seriousness. If a person is found guilty of attempting to commit an offence (substantive offence), he or she is punishable as if the substantive offence had been committed and liable for the maximum penalty for that substantive offence.
In this case, it is clear that Mr Campbell was actually trying to commit the offence of aggravated robbery. He was in another person's vehicle, he demanded the keys, he clearly intended to drive off in it, thus stealing it, and at the time had with him a knife which he brandished at the owner.
Thus, the seriousness of both the actual and attempted offences are very similar, in that the factors of aggravation or of mitigation are generally the same, so that it is relevant to consider these factors for both.
In R v Campbell at [24]–[27], the Court considered the offence of aggravated robbery and noted that the features of a “typical” or “standard” offence are set out in the New South Wales decision of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 380; [162], which assists in identifying the relevant factors. It is important to note that the absence of such factors, which would otherwise aggravate an offence, will not mitigate it: R v McFarlane (1993) 2 Tas R 201 at 221–2.
The weapon is important. In both these cases that was a knife, which courts regard as a serious weapon: R v Forrest (No 2) [2017] ACTSC 83 at [87]. There was, however, no actual violence. Further, there was, on the evidence, no real planning or premeditation for either offence.
The Crown suggested that the presence of the person with keys enabled Mr Campbell to leave the area, but this does not seem to be much by the way of planning, nor is it clear on the evidence that he knew of the presence of these persons until he was confronted with them and produced his knife. On the other hand, in the attempted aggravated robbery Mr Campbell tried to steal a motor vehicle, which is quite a valuable item of property. In the aggravated robbery the items stolen were less valuable, though the likely personal inconvenience value of the cards taken with the wallets would have been significant.
None of the victims were in especially vulnerable positions, though, in each case, they were actually alone at the time, but both able to call for assistance, which seemed available readily. Further, given the time of day and place of the offence, it is likely that other people may have been around or able to be easily summoned.
In the case of the attempted aggravated robbery, there are some additional factors: see Cajina v The Queen [2009] ACTCA 2 at [29] and R v BI (No 4) [2017] ACTSC 71 at [40]. In this case, the reason Mr Campbell did not complete the robbery was that the owner of the motor vehicle called out for help and he then desisted. There is no reason why the attempt would not otherwise have been likely to succeed.
Mr Campbell was severely affected by drugs at the time of the offending and this clearly contributed substantially to the commission of the offence. There is no other particular motivation for the offending. This, of course, does not mitigate the offending.
Burglary is an offence prescribed by s 310 of the Criminal Code, conviction for which renders Mr Campbell liable to a maximum penalty of 14 years imprisonment or a fine of $224,000, or both. It is, thus, also a serious crime, but not as serious as the aggravated robberies. The relevant factors have been considered in a number of decisions, such as R v Foster [2021] ACTSC 229 at [35]–[38] and R v Hancock [2021] ACTSC 52 at [33].
In this case, the premises were a construction site, which is less serious than were it to have been a residence. It was not, so far as the evidence shows, in a residential area either. No other persons were present at the time and, other than as noted below, no damage was, on the evidence, done on entry or while Mr Campbell was trespassing on the premises, other than to the vending machine for which he is separately charged. No goods were actually stolen, except as noted below.
That Mr Campbell was carrying some tools suggests that it was, to some small degree, a planned offence, not entirely opportunistic.
Mr Campbell's motivation for the offence is unclear, though he may well have been seeking funds or items to sell to gain living expenses, or the purchase of drugs, by which he was substantially affected. Since he declined to cooperate in the preparation of a Pre-Sentence Report, there is no evidence to assist in making a finding of this and no submissions addressed the issue.
Going equipped for theft is made an offence by s 315 of the Criminal Code for which the legislature has prescribed a maximum penalty of three years imprisonment or a fine of $48,000, or both. Its seriousness is, thus, generally less than that of the other offences so far addressed.
While perhaps not, in itself, an offence of dishonesty, going equipped for theft is associated with such offences, especially theft. The offence is, as was said in R v Gray [2020] ACTSC 40 at [10] “geared to protecting property from criminal interference”. It was, as described in R v Novakovic (a.k.a Noland) (No 1) [2021] ACTSC 62 at [37], an “ancillary” offence to dishonesty offences.
Inevitably in such an offence, there is some preparation. That is rather inherent in the offence and so is not a particularly aggravating feature of the actual offence. The tools, however, are relevant. The more sophisticated or likely to cause damage the items are, the more serious the offence. Here, there was a chisel and a pick end tool, not items perhaps as readily obtainable as would, for example, be a knife or perhaps a screwdriver.
Assaulting a frontline community service provider is an offence against s 26A of the Crimes Act 1900 (ACT), which establishes a maximum penalty of two years imprisonment. It is a new offence intended to protect emergency service providers, including police, in carrying out their duties.
The seriousness appears, like for an assault offence, to be related to the injury suffered. Here, the force used was, it appears, quite significant, as the punch was described as being applied with “considerable force” and was accompanied by striking the police officer with the backpack, which contained the tools and other items, making it a fairly heavy weapon. There was, however, no evidence of significant injury or any ongoing consequence, though such offences are, of course, entirely unacceptable as an attack on people doing their duty for the benefit of the community as a whole.
Damaging property is made a crime by s 116(3) of the Crimes Act and the maximum penalty is two years imprisonment or a fine of $8,000, or both.
The gist of the offence is the damage caused and, here, the Court is fortunate to have the cost of repairs in $3,485.70, a not insignificant sum. The damage was not otherwise described.
Subjective features
In addition to the nature and circumstances of the offences, a number of paragraphs in s 33(1) of the Sentencing Act relate to the subjective circumstances of the offender, which is the other significant factor in sentencing at common law: R v Kilic [2016] HCA 48; 259 CLR 256 at 266; [19].
In this case, Mr Campbell was sentenced for an offence of aggravated robbery a little less than eight months ago. Detailed evidence of his subjective features were then before the Court, principally in the form of the Drug and Alcohol Treatment Assessments (Suitability Assessments) prepared under s 46J of the Sentencing Act. Ms Duffy relied on those in these proceedings and very little additional evidence of Mr Campbell's personal circumstances was adduced.
Accordingly, what was said in R v Campbell at [32]–[46] is hereby incorporated into these reasons.
Those matters may be summarised as follows.
Mr Campbell is 22 years old. He is still, for sentencing purposes, a young man (R v Tonna (No 2) [2020] ACTSC 362 at [44]–[48]) and so he is entitled to the approach to sentencing that such an age requires. There are some caveats to that: Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at 55–6; [38].
His home life was marked by family violence and exposure to alcoholism. This, it was accepted, led to significant childhood disadvantage which, in accordance with the principles accepted in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594–5; [43]–[44], reduces his moral culpability.
He appears to have had disruptive schooling and little employment.
He has a serious criminal record. [Redacted for legal reasons]. In the last four years, he has committed 18 offences, mainly dishonesty offences, with some offences of violence, including the earlier offences of aggravated robbery dealt with in December 2021 and also an offence of possessing a knife in a public place without a reasonable excuse. He has, in those years, served a substantial period of time in prison for various offences.
He had an early introduction to drug use, well before he could give informed consent to engage in such risky behaviour. He continues to use cannabis and methamphetamine, which is his main drug of choice. He has had little Alcohol, Tobacco or Other Drug Treatment.
Mr Campbell sought a referral for restorative justice. Although a number of the offences were not eligible for such a referral, either because of the nature of the offence or the absence of an identifiable victim, a referral was made.
Sentencing practice
The complex practice of sentencing requires disparate factors to be synthesised by the court sentencing an offender into a sentence that gives proper weight to them.
Significant principles guide such sentencing and consistency is one of them. This is in part expressed in s 33(1)(za) of the Sentencing Act, which requires current sentencing practice to be considered.
Part of this has already been considered above (at [40]–[63]) because the factors relevant to the seriousness of the offence are derived from such practice.
In addition, however, the sentences being currently imposed are an important source of information and guidance as to a sentence that will respect the principle of consistency, which is, of course, an aspect of fairness and justice.
There are two ways in which these sentences can be discovered, namely by recourse to the ACT Sentencing Database, which holds relevant statistics, and by consideration of other decisions identified as comparable.
While providing helpful information, the Sentencing Database has significant limitations. So long as these are recognised, the information can be useful and informative.
Comparable decisions are more helpful, for they set out the relevant factors and principles in the way in which they are applied and synthesised to reach a sentence.
Neither source of information, however, can lead to any prescribed limits or boundaries to the sentence to be imposed. Prior sentences are not precedents and there is no right sentence for any offence or offender.
The current sentencing practice in relation to aggravated robbery has been set out in R v Campbell at [50]–[54]. That will be taken into account. No additional comparable cases were included in counsel’s submissions. Recently considering this offence is the decision of R v Ruwhiu [2022] ACTSC 290 at [29]–[32] and regard is had to that also.
As to the offence of burglary, current sentencing practice of that offence has been recently considered in R v Ruwhiu at [33]–[44] and also in R v Winters [2022] ACTSC 371, though the latter was, in part, in relation to the more serious offence of aggravated burglary. While these considerations are relevant and will be taken into account, care has been taken not to have the more serious offence influence a proper sentence for the less serious charge.
Drug and Alcohol Treatment Order
As noted above (at [1]), when Mr Campbell was sentenced to a term of imprisonment for an offence of aggravated robbery, it was ordered on 14 December 2021 that he serve it by a Treatment Order.
That order required him to serve it initially in a residential drug rehabilitation program conducted by Karralika Programs Incorporated. He admitted himself to that facility. Unfortunately, the next day, 15 December 2021, he left the facility.
Under the Treatment Order, he was required to report to ACT Corrective Services by 4:00 pm on the next day. He failed to do so. He was eventually arrested by police on 19 December 2021 and was remanded in custody, when the suspension of the custodial part of the Treatment Order was provisionally cancelled.
While Karralika Programs Incorporated was not prepared to readmit Mr Campbell, Canberra Recovery Services (as to which, see R v Ngerengere (No 3) [2016] ACTSC 299 at [70]), another drug rehabilitation agency, which also provides residential drug rehabilitation, was prepared to admit him to its residential program.
Accordingly, the Treatment Order was amended under s 80ZH(6) of the Sentencing Act to require him to admit himself to the Canberra Recovery Services facility and complete its residential program.
Initially, he seemed to progress well. For example, on 7 January 2022 a report to this Court stated that he was “adhering to the program guidelines” and that he had been “observed to be settling in well and is willing to explore healthy coping strategies and relapse prevention planning”. His adherence to program guidelines was confirmed in the report to Court on 21 January, which also reported that he had continued “to engage in groups”, had “been commended for sitting with his discomfort” and was “continuing to settle in well”. A similar report was received on 4 February 2022.
Unfortunately, he left the facility on 13 February 2022 at about 10:00 pm. He and another resident left to use methamphetamine and GHB (gamma hydroxybutyrate). The other resident returned, but Mr Campbell did not, nor did he report to ACT Corrective Services by 4:00 pm on 15 February 2022.
On that day, 15 February 2022, a warrant was issued under s 80ZJ of the Sentencing Act for his arrest. He was, as noted above (at [29]), arrested on 8 March 2022 when the warrant was then executed.
Since he was also arrested for the current offences and remanded in custody by the ACT Magistrates Court pending the disposition of them, the Court was required, under s 80ZC(2) of the Sentencing Act, provisionally to suspend the treatment and supervision part of the Treatment Order. Further, under s 80ZC(3), the time served by him on remand in that Court is required to count towards the sentence imposed under the custodial part of the Treatment Order. This period extends until today, when the sentences are to be imposed. This is a total of 135 days, as noted above (at [39]).
The further offending must be regarded as very serious, given the circumstances under which the offences were committed and the nature of the offences, especially the aggravated robbery, attempted aggravated robbery and burglary, as well as assaulting a frontline community service provider. Given his plea of guilty, it is inevitable that he would be convicted of the offences. A non-conviction order would be, at least, manifestly inadequate. Despite Mr Campbell's subjective circumstances, it is also inevitable that under s 10 of the Sentencing Act Mr Campbell will be sentenced to a period of imprisonment. As a result, s 80ZD(3) of the Sentencing Act requires the Court to cancel the Treatment Order and impose the sentence of imprisonment that was suspended.
The period of imprisonment to be imposed, however, must take into account the period of 36 days of pre-sentence custody (see R v Campbell at [20]) and, also under s 80ZC(3) of the Sentencing Act, the 135 days of imprisonment since the Treatment Order was made: s 80ZD(4) of the Sentencing Act.
It is also notable that, unlike where a Treatment Order is cancelled because of unsatisfactory circumstances under s 80ZE of the Sentencing Act, the Court appears to have no discretion to re-sentence Mr Campbell.
In accordance with the principles set out R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], these periods of custody should be taken into account by backdating the total sentence.
Consideration
The Court must come to a sentence that is just and adequate (see, for example, Director of Public Prosecutions v Simpson (a pseudonym) [2011] VCC 228 at [57], R v Sismanoglou [2015] VCC 1508 at [133], Director of Public Prosecutions v Peddell [2018] VCC 1546 at [86] and Director of Public Prosecutions v Hogan-Keogh [2020] VCC 261 at [35]).
To do so, it is important to have regard to the purposes for which the sentence is to be imposed. The objectives of sentences are set out in s 7 of the Sentencing Act and it is appropriate to have regard to them: see R v Barton [2016] ACTSC 162 at [29].
Thus, the seriousness of the offences and the adverse effect that they have on a civilised community require that punishment will play an important part in the sentence to be imposed.
Such a sentence will also be fashioned to make it clear that such offences should not be committed by others, thus deterring them from engaging in such conduct. This will also go, in part, towards the protection of the community.
A period of imprisonment will also, but only in the short-term, protect the community from Mr Campbell. The sentence, however, should be such as to denounce his conduct and to make him accountable for his actions.
Given his age and the other matters relevant to sentencing, Mr Campbell's rehabilitation is also to be considered and to have an appropriate impact on the sentence. That he has been given a chance and, given his initial failure under it, a generous chance, to engage in rehabilitation, which he did not take, this is more problematic. No explanation has been provided for his failure, which would have assisted in assessing how this purpose can properly and fairly be met. Nevertheless, as noted in Saga v Reid and Collett at [89], multiple failures do not deny an offender the possibility of rehabilitation opportunities so long as there is a rational basis for such further opportunities.
As a young offender, he should be given the opportunity for rehabilitation if it can be done within the confines of a just and adequate sentence. While rehabilitation may be complicated in custody, there are nevertheless opportunities for him to address his drug dependence in the Solaris Therapeutic Community Program (as to which, see R v JM [2014] ACTSC 380 at [26]). When he leaves prison, it would be hoped that he would continue in some way the rehabilitation in which he has shown an initial interest, but which he was unable to maintain.
While Mr Campbell must, to the extent possible, be deterred from committing these offences again and, indeed, any others, his record shows in the repeat offending especially, including some of these offences, that this is not currently working and the evidence for this being effective is somewhat unclear: Lloyd v The Queen [2022] NSWCCA 18 at [40].
It is also important to take into account the harm done to the victims. In this case, no Victim Impact Statements were provided. The Court can take into account the general understanding of such impacts. For example, it is clear that a robbery causes mental upset to a victim and an aggravated robbery more so, though how serious or how long-lasting can only be assessed where there is some specific evidence.
In this case, Mr Campbell pleaded guilty in the ACT Magistrates Court at a relatively early stage. In particular, he did not put the prosecution to the effort of having to prepare a Brief of Evidence. At law, this justifies a reasonably significant discount on his sentence, though the case against him was strong, but perhaps not quite overwhelming.
In addition, Mr Campbell generally accepted the facts as asserted, though there were some negotiations as to those for some of the offences, being those committed at the Australian National University, leading ultimately to a plea of guilty to those offences as amended.
It was also submitted that these matters disclosed a degree of remorse, taken with his request to be referred to restorative justice. This was not challenged and may be accepted, though the level of remorse so disclosed was not high.
On the other hand, Mr Campbell was at conditional liberty when the offences were committed. He had been subject to a Treatment Order made following the imposition of a significant sentence of imprisonment, which had been suspended.
This suspension permitted him to be in the community and not in custody, but that is a matter of trust that he can be allowed to be free of custodial constraint. His offending is a breach of that trust and requires the sentence to be more severe than otherwise.
Nevertheless, he suffered from childhood disadvantage and the early exposure to, and participation in, drug taking. It is clear from his history that the absence of support and parental supervision and his exposure to family violence has led him into failing to gain self-control, has normalised violence and has failed to help him grow into a law-abiding member of the community. This reduces the culpability of his offending and will moderate the sentence to be imposed.
His criminal record shows that any leniency to be included in the sentence must be quite limited, especially for the repeat offending of the same offence for which, in some cases, custodial sentences have already been imposed.
In addition to these matters, the nature and circumstances of the offences, Mr Campbell's subjective circumstances, all of which have been described and the effect of his offending on the community as well as on the victims have all been taken into account.
Mr Campbell was solely responsible for the offending and he has taken responsibility for it both in his plea of guilty and his request to be referred to restorative justice.
Nevertheless, having regard to all these matters and considering all sentencing alternatives, it is clear, as foreshadowed above (at [93]), that no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
There are, of course, seven offences for which Mr Campbell has to be sentenced. A sentence has to be imposed on each and carefully considered. The length of each sentence has to be considered to ensure it is just and adequate and also to ensure that Mr Campbell is not punished twice.
Consideration has also been given to whether the sentences should be partly or wholly concurrent, for example because they are part of the same course of conduct or contain common elements. This is clearly relevant in relation to the offences at the Australian National University. It is relevant to all but one of the further offences.
The length of the total term of sentence arrived at has also to be considered carefully to ensure that the principle of totality is respected. The total sentence must adequately reflect the criminality of the offences committed, but no more than that and the total sentence must not be excessive, but leave open the realistic prospect of reform for Mr Campbell and maintain the hope required for him to take an effective part in the community and realise his aims when he is released.
This may result in what is seen as some leniency, in that some sentences are made concurrent, or partly concurrent, but while the total criminality of Mr Campbell is a very important factor, the childhood deprivation, his early introduction to drugs and his recognition that he must be accountable for his actions, as well as his rather incipient, but hopefully still there, wish for rehabilitation, is also important. Thus, it requires a sentence proportionate to his culpability for the crimes and the effect on the community, but also Mr Campbell's subjective circumstances and the value of reform to both the community and to himself.
Nevertheless, it is important to make clear to an offender that the commission of multiple offences does not bring a kind of immunity from punishment or other consequences for multiple offending.
Given that there is no basis for suspending any part of the sentence, a non-parole period will be set. Given the subjective matters, particularly Mr Campbell's youth, this will be a relatively short period to permit, if parole is granted, a substantial period of supervised reintegration into the community.
[His Honour then spoke directly to the offender]
The Orders of the Court are as follows:
1. The Drug and Alcohol Treatment Order made on 14 December 2021 and amended on 24 December 2021 be cancelled.
2. The conviction for aggravated robbery on 4 August 2021 be confirmed.
3. The sentence of two years and four months imprisonment is imposed, to commence on 30 January 2022 to take into account pre-sentence custody and custody under the Drug and Alcohol Treatment Order, and end on 29 May 2024.
4. You are convicted of attempted aggravated robbery and sentenced to two years imprisonment, commencing on 30 September 2023 and expiring on 29 September 2025. That is cumulative as to 16 months on the sentence for the first aggravated robbery. Had you not pleaded guilty, you would have been sentenced to 32 months imprisonment.
5. For the aggravated robbery, you are convicted and sentenced to two years and five months imprisonment, commencing on 30 October 2024 and expiring on 29 March 2027. That is to be cumulative as to 18 months on the sentence for attempted aggravated robbery. Had you not pleaded guilty, you would have been sentenced to three years and three months imprisonment.
6. You are convicted of going equipped for theft and sentenced to three months imprisonment, to commence on 30 January 2027 and expiring on 29 April 2027. That is to be cumulative as to one month on the sentence for aggravated burglary. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
7. You are convicted of burglary and a sentence of 12 months imprisonment, commencing on 30 January 2027 and expiring on 29 January 2028, is imposed. That is to be cumulative as to nine months on the sentences for aggravated robbery and going equipped for theft. Had you not pleaded guilty, you would have been sentenced to 16 months imprisonment.
8. You are convicted of possessing a knife in a public place without a reasonable excuse and sentenced to three months imprisonment, to commence on 30 November 2027 and expiring on 29 February 2028. That is to be cumulative as to one month on the sentence for burglary. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
9. You are convicted of assaulting a frontline community service provider and sentenced to six months imprisonment, to commence on 30 November 2027 and expiring on 29 May 2028. That is to be cumulative as to three months on the sentences for burglary and possessing a knife in a public place. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
10. You are convicted of damaging property not exceeding $5,000 and sentenced to six months imprisonment, commencing on 30 January 2028 and expiring on 29 July 2028. That is to be cumulative as to two months on the sentence for assaulting a frontline community service provider. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
11. That overall sentence is six years and six months. A non-parole period of three years and three months is imposed, to commence on 30 January 2022 and to expire on 29 April 2025.
Mr Campbell, that is the sentence I have imposed. It is a severe sentence and is not one that I take any delight in imposing, but the offences that you have committed were serious offences. They are offences you have committed before, and they are offences that do affect people in the community very seriously.
I greatly regret that you were not able to continue with your rehabilitation, but I hope that this sentence, as structured, will give you some opportunity to do that, both in the sense that you are in a custodial environment where there is some opportunity for rehabilitation through the Solaris program and in that I have given a rather lengthy parole period, if you are granted parole, and that will give you an opportunity, under supervision, to get back into the community. If you really want to live a life that is not in and out of prison, then that, I hope, will be an opportunity for you.
I hope that this will be the last time you are in the Courts. It is really hard to get your drug dependence under control, and prison is not always a good place for that, but I hope you do so, because I hope you learn that prison is not a place you want to be and that the opportunity to have a family, to get a job, to be a participant in the community in a way where you are not looking over your shoulder and running around at night will be the way you live the rest of your life. At the end of the day, it is up to you.
During parole you will have an opportunity to get support from other people and I trust that you will take that, because I am sure you have got the capacity to manage your dependence, but also the challenges that your life has had. I hope that you take that opportunity and if you do, I wish you well and hope that you are able to achieve that.
| I certify that the preceding on hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 9 January 2023 |
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