R v Campbell (No 4)

Case

[2019] ACTSC 240

27 August 2019


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Campbell (No 4)

Citation:

[2019] ACTSC 240

Hearing Date:

15 July 2019

DecisionDate:

27 August 2019

Before:

Loukas-Karlsson J

Decision:

See [79]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach family violence order – use of a prohibited weapon – attempted aggravated robbery – assault occasioning actual bodily harm – wounding – significant criminal history

Legislation Cited:

Crimes Act 1900 (ACT) ss 21, 24
Criminal Code 2002 (ACT) ss 44, 310
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33
Family Violence Act 2016 (ACT) s 43

Prohibited Weapons Act 1996 (ACT) s 5

Cases Cited:

Ashdown v The Queen [2011] VSCA 408; 37 VR 341
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
Cheung v The Queen [2001] HCA 67; 209 CLR 1
Cotter v Corvisy [2008] ACTSC 64
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428
Kelly v Ashby [2015] ACTSC 346
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Millard v The Queen [2016] ACTCA 14
Nchouki v The Queen [2018] ACTCA 28
O’Brien v The Queen [2015] ACTCA 47
R v BI (No 4) [2017] ACTSC 71
R v Carmody [2016] ACTSC 382
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Isaacs [1997] 41 NSWLR 374
R v Martin [2007] VSCA 291
R v Meyboom [2012] ACTCA 48
R v Newman; R v Reid [2016] ACTSC 102
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
R v Wallace [2007] NSWCCA 63
Saga v Reid [2010] ACTSC 59
Taylor v The Queen [2014] ACTCA 9

Zdravkovic v The Queen [2016] ACTCA 53

Parties:

The Queen (Crown)

Aaron Kenneth Campbell (Offender)

Representation:

Counsel

M Fernandez (Crown)

J Moffett (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson (Offender)

File Number:

SCC 124 of 2019

LOUKAS-KARLSSON J:

Introduction

  1. On 10 December 2018, Aaron Kenneth Campbell (the offender) was found guilty of the following offences:

    (a) An offence of contravening a family violence order (FVO) contrary to section 43(2) of the Family Violence Act 2016 (ACT) (CC2018/2156) (Count 1). The maximum penalty for this offence is 500 penalty units, imprisonment for 5 years, or both.

    (b) An offence of unauthorised possession/use of a prohibited weapon contrary to section 5 of the Prohibited Weapons Act 1996 (ACT) (CC2018/2154) (Count 2). The maximum penalty for this offence is 500 penalty units, imprisonment for 5 years, or both.

    (c) An offence of attempted aggravated robbery contrary to section 310 of the Criminal Code 2002 (ACT) (Criminal Code) (CC2018/2155) (Count 3). The maximum penalty for this offence is 2,500 penalty units or imprisonment for 25 years, or both.

    (d) An offence of assault occasioning actual bodily harm contrary to section 24 of the Crimes Act 1900 (ACT) (Crimes Act) (XO2018/31377) (Count 4). The maximum penalty for this offence is imprisonment for 5 years.

    (e) An offence of wounding contrary to section 21 of the Crimes Act (CC2018/2157) (Count 5). The maximum penalty for this offence is imprisonment for 5 years.

Facts after Jury Trial

  1. The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) endorsed the NSW Court of Criminal Appeal’s approach in R v Isaacs [1997] 41 NSWLR 374 (Isaacs)  in relation to the Court’s role in sentencing and interpreting a jury’s verdict of guilty following a trial. The Court in Cheung at [14] quoted the summarised principles from Isaacs (at pages 377-378) as follows:

1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. …

Factual Findings

  1. Taking into account these principles, I make the following factual findings.

  1. The offences relate to an incident at approximately 10:30pm on Friday 19 January 2018 in the carpark of a KFC outlet in Fyshwick, Canberra. Mr Carpenter had organised a drug deal with Ms Collier to purchase methylamphetamine on behalf of Ms Hehir. Mr Carpenter and Ms Hehir drove to the KFC with a friend, Mr Beaver Jnr, and his father Mr Beaver Snr.

  1. Ms Collier drove with Mr Holz and the offender to the KFC. At the time, the offender was subject to an FVO with Ms Collier as the respondent. The breach of this FVO constitutes Count 1.

  1. Before arriving at that establishment, Ms Collier let the offender out of the car. Upon arriving at the KFC Ms Hehir approached the vehicle Ms Collier was in, the offender and Mr Holz came out of the bushes, and the offender tasered Ms Hehir twice in the neck. This conduct constitutes Count 2.

  1. The offender then attempted to take Ms Hehir’s handbag and a struggle ensued. This conduct constitutes Count 3.

  1. The offender then dragged Ms Hehir along the ground in the process, occasioning actual bodily harm. This conduct constitutes Count 4.

  1. Mr Beaver Jnr, seeing Ms Hehir in difficulty, attempted to assist. When he got close to the offender, he was stabbed in the left abdomen. This conduct constitutes Count 5.

Victim Impact

10.  Counsel for the prosecution submitted that although no victim impact statements were before the court, the court observed both Mr Beaver and Ms Hehir during the trial, who “both experienced … traumatic incidents” (T18.4).

11.  Courts understand the serious effects of such offences as these on victims. The Court acknowledges the significant impact that these offences have had and will continue to have on the victims of these offences.

Objective Seriousness

12.  Counsel for the offender and prosecution agreed that the offences were very serious criminal offences, in particular, the aggravated robbery. Counsel for the offender “for the most part” adopted the prosecution’s submissions on objective seriousness (T7.15) and made additional submissions.

Count 1

13.  In relation to Count 1, the prosecution submitted that while the offender treated the FVO with “absolute impunity” it is apparent the respondent consented to the breach, and that the offending was accordingly in the low range of objective seriousness.

14.  Counsel for the offender submitted that it was low-range, as it was effectively a consent breach. Accordingly, it was submitted that the sentence should be largely concurrent.

15.  I find Count 1 to be of low-range.

Count 2

16.  In relation to Count 2, it was submitted by the prosecution that by reference to Nchouki v The Queen [2018] ACTCA 28, the objective seriousness of the offence is (Crown Sentencing Submissions, p3):

[I]nformed by the fact that the weapons were possessed and used in the context of a premeditated aggravated robbery in the context of a faux drug deal. The weapons were used ... in a public place. The danger to the community is self-evident – and reflected by the fact that the weapon was discharged during the confrontation. It is submitted on this basis that this is an example of offending in the mid to high range of objective seriousness.

17.  Counsel for the offender submitted the offence was mid-range or slightly higher, as it was a means to robbery of money to purchase methylamphetamine.

18.  I find Count 2 to be of mid-range, taking into account the matters discussed above.

Count 3

19.  In relation to Count 3, the prosecution submitted that the key principles for sentencing aggravated robbery are derived from R v Henry [1999] 46 NSWLR 346 (Henry). However, it was submitted that this case is “substantially more objectively serious” than the facts in Henry in which the following characteristics were outlined:  

i.Young offender with no or little criminal history

ii.Weapon like a knife, capable of killing or inflicting serious injury

iii.Limited degree of planning

iv.Limited, if any, actual violence but a real threat thereof

v.Victim in a vulnerable position such as shopkeeper or taxi driver

vi.Small amount taken

vii.Plea of guilty, the significance of which is limited by a strong Crown case.

20.  In particular, the attack was substantially premeditated (an aggravating factor on sentence per R v Carmody [2016] ACTSC 382), and significant violence was committed in execution of the robbery.

21.  The prosecution submitted that an attempt to commit an offence is punishable as if the offence attempted had been committed (Criminal Code, s 44(9)) and the sentencing principles to be applied are per R v BI (No 4) [2017] ACTSC 71. The prosecution submitted that:

[T]he offence is not an offence to which the ‘conventional’ view applies, because:

a)     The attempts, while thwarted by the actions of the complainant, may easily have been successful.

b)     The robbery failed only as a result of Ms Hehir’s strength in the circumstances, and the good fortune that the police arrived shortly after.

c)     The harm suffered by Ms Hehir and Mr Beaver would have been the same regardless of whether the accused successfully took Ms Hehir’s handbag.

It is submitted that, given the above factors, the count of aggravated robbery falls in the upper range of objective seriousness.

22.  The prosecution submitted it was above mid-range. Counsel for the offender submitted that Counts 3 and 5 (the latter count which was the wounding), should account for the majority of the sentence imposed.

23.  I find Count 3 to be above mid-range. I note in this context there was a degree of planning and I accept the prosecution’s submissions.

Count 4

24.  In relation to Count 4, the prosecution submitted by reference to the factors in R v Reid [2016] ACTSC 102 that the sustained and violent nature of the attack, and the fact it was committed in the context of a failed aggravated robbery, puts the offence in the mid-range of objective seriousness.

25.  In R v Newman; R v Reid [2016] ACTSC 102 Murrell CJ outlined the principles relevant to assessing the objective seriousness of an assault occasioning actual bodily harm at [14]:

[T]here are two principal factors to be considered when assessing the objective seriousness of such an offence: first, the nature of the offending conduct; and, second, the nature of the injuries that were sustained by the victim.

26.  Counsel for the offender made no specific submissions on Count 4.

27.  I find Count 4 to be of mid-range, taking into account the nature of the incident and the nature of the injuries.

Count 5

28.  In relation to Count 5, the prosecution submitted that the “life-threatening nature of the injury is plain”, the offence was premeditated, and it was committed against someone who came to the rescue of Ms Hehir, which puts the wounding at the upper range of objective seriousness. As stated earlier in the context of Count 3, counsel for the offender submitted that Counts 3 and 5 should account for the majority of the sentence imposed.

29.  Medical records confirm that Mr Beaver Jnr suffered a deep stab wound to his left abdomen that required emergency surgery but there was no damage to his internal organs and he is expected to make a full recovery.

30.  I find Count 5 to be above mid-range.

31.  It must be stated that references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, “it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]).

32.  I accept the identifying features outlined by both the prosecution and defence which are broadly in agreement in relation to objective seriousness as the submissions accord with my view of the facts.

Subjective Circumstances  

33.  Before me is the Pre-sentence Report (PSR) prepared for the offender on 4 March 2019.

34.  The offender is 34 years old. He is one of four children, the offender’s family has resided in Canberra since he was an infant. He claimed he has strong family ties, and is close to his mother and three siblings. Two of his siblings have spent time in the Alexander McConachie Centre (AMC). The offender reported he has been involved in an intermittent relationship with his current partner for the past six years according to the PSR.

35.  The offender reported he was expelled from school at 13 years old for using illicit drugs and fighting. He reported he considers himself “illiterate” although stated he has completed a six-month numeracy and literacy course through the Canberra Institute of Technology. The offender stated he can read to a very basic level.

36.  In relation to employment, the offender advised that he had a work history of mainly labouring. He reported being unemployed for the 14 months before his current remand period. He has no significant assets and approximately $2,000 in unpaid court fines.

37.  The offender disclosed past use of alcohol, cannabis, opioids and crystal methamphetamine. His use of alcohol appeared to the author of the PSR to be insignificant. He claimed limited use of heroin. However, he is currently on the methadone program. On 14 October 2018, the offender was subject to urinalysis testing. No illicit substances were detected. On 13 February 2019 a self-report drug screening tool was administered, which determined that the offender requires further assessment for his drug use. The offender has attended short-form Alcohol and Drug programmes when in custody.

38.  The offender has been diagnosed with mild depression and cannabis use disorder. The PSR indicated the offender reported previous diagnoses of bipolar, depression and Post Traumatic Stress Disorder (PTSD) over a stabbing incident, however no psychotic phenomena were found that were “consistent with major mental illness”. The offender is currently prescribed anti-depressant medication.

39.  The offender disagreed with the Statement of Facts and stated he was not present when the offences occurred. The PSR author concluded that the offender has a long history of offending and his most recent offences continue an established pattern of antisocial behaviour. The author concluded that periods of incarceration and being subject to community-based orders have not reduced the offender’s propensity to break the law, and that he may struggle to establish a pro-social life in the community. The factors that impact the offender’s life include, but are not limited to, his attitude to offending, drug issues, unemployment, literacy problems and possible mental health issues. The offender was assessed as suitable for engagement with targeted intervention programs.

Court Alcohol and Drug Assessment (2018) (CADAS)

40.  A CADAS dated April 2018 was also in evidence before the court. Though the report is over a year old, it included some relevant additional information. The author noted the offender was diagnosed with PTSD after being stabbed in 2016. The offender also reported multiple brain injuries and childhood physical abuse.

Neuropsychologist Report

41.  A report by Dr Wayne Reid, dated 16 April 2019, was also in evidence. The report included the following:

[The offender] reported starting to smoke marijuana at nine years of age and has continued smoking all through his life. He had his first dose of heroin when he was 12 or 13 years of age and around this time also started using methamphetamines and has continued to use these drugs up until coming into prison.

[The offender] reported to intensive drug rehabilitation apart from … undertaking brief cannabis use rehabilitation programme when he was in late adolescence.

[The offender] has had inguinal hernia repairs x 3 and has a divergent squint in the left eye. He reported two occasions of head injury from assaults where he was hit on the head by a meat cleaver. … He also reports having sustained multiple minor injuries in two motorbike accidents the last having occurred five years ago.

He told me he was diagnosed with attention deficit hyperactivity disorder at around the age of four or five years and was treated with dexamphetamine until he was eight.

In addition he reported a long history of depression and more recently, following an assault where he was stabbed, he has become anxious, hypervigilant and has panic attacks.

[At assessment the offender] was alert, fully co-operative, gave a lucid account of his history and was well motivated in his performance on tests. On questioning about his cognitive abilities he described long standing problems with learning, concentration and memory.

I am of the opinion [the offender’s] intellectual disability, memory impairment; deficits in his executive skills and information processing are long standing deficits. His intellectual functioning places him in the intellectual developmental disorder mild severity range. In addition he has long standing substance abuse disorder … on a background of early symptoms of attention deficit hyperactivity disorder and conduct disorder.

The combination of these factors on balance were likely to affect his ability to know his conduct was wrong and the long standing problems he has had with impulse control further diminished by drugs affected his ability to control his conduct. …

It is … recommended he be referred to a psychiatrist who specialises in adult ADHD as he may benefit from medication to treat this disorder.

42.  Dr Reid also reported the offender’s polysubstance abuse disorder includes heroin, methylamphetamine and cannabis. At the time of the offences the offender reported to Dr Reid that was under the influence of methamphetamine and heroin. I note counsel for the offender did not make submissions based on the principles enunciated in R v Verdins [2007] VSCA 102; 16 VR 269, and specifically disavowed such a submission (see T5.28):

I put on the record, for my learned friend’s benefit as much as the court’s, this report is not designed to traverse the findings of guilt by the jury or raise any section 32 mental health issue. This simply will be useful … for your honour to have an understanding about … subjectives of [the offender’s] life.

43.  In oral submissions, counsel for the offender highlighted, childhood disadvantage, and exposure to drugs and alcohol from 13, when he was also expelled from school.

44.  I take into account the subjective matters including the CADAS report and neuropsychologist report.

Conditional Liberty

  1. As stated by Wood CJ (as he then was) at [15] in R v Tran [1999] NSWCCA 109:

Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.

  1. The prosecution submitted that at the time of these offences the defendant was on bail in NSW for three sequences of offending, being two counts of stalking and intimidation, one count of contravening an AVO, and one count of assault occasioning actual bodily harm, damaging property and contravening an AVO.

  1. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.

Criminal and Disciplinary History

48.  The offender has a significant criminal history in the ACT and NSW including theft, burglary, aggravated burglary, knowingly resisting a territory public official, possessing a knife without reasonable excuse, taking a motor vehicle without consent, possessing a prohibited drug, aggravated break and enter, stalking or intimidating with intention to cause fear, including driving with a prescribed drug and driving unlicensed and uninsured. He has breached bail and good behaviour orders on a number of occasions.

49.  It is not a record that warrants any leniency on sentence. It deprives the offender of the leniency available to a person of no prior criminal record.

50.  The offender has been on remand since 1 February 2018, in which time he has been the subject of three disciplinary reports as follows:

(a)In 23 March 2018, for diverting methadone;

(b)In 21 July 2018, for contravening a direction; and

(c)In 4 August 2018, for assaulting a detainee (with no injury).

51.  Counsel for the offender submitted that this behaviour was only in the lead-up to the trial in 2018. I accept this submission.

Time in Custody

52.  The offender has spent 572 days in custody, from 1 February 2018, solely referable to these offences. This is comprised of 530 days until the previous hearing for this matter on 15 July 2019, and 42 days since.

Cases

  1. Neither the prosecution nor counsel for the offender provided comparable cases. The prosecution referred to the NSW guideline judgment of Henry in this context along with other decisions in relation to general sentencing principle.

Statutory and Other Relevant Considerations

  1. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.

  1. 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. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim along with rehabilitation are important sentencing considerations. Counsel for the prosecution submitted that in this case:

[T]he court should fashion a sentence that … gives appropriate weight to the principles of adequate punishment; general and specific deterrence; making the offender accountable for his actions; and denouncing the conduct and recognising the harm done to the victim and community.

56. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.

57.  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.

58.  The use of knives in the community was discussed by Cohlan J in R v Vance [2008] VSC 468 (cited with approval by the Victorian Court of Appeal in Ashdown v The Queen [2011] 37 VR 341):

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 …

59.  The comments of the ACT Court of Appeal in Nchouki v The Queen [2018] ACTCA 28 at [92] are also relevant on sentencing principle:

The legislative purpose in prohibiting the possession of weapons or articles prohibited under the Prohibited Weapons Act is protection of the public. In determining the objective seriousness of an offence under s 5 of the Prohibited Weapons Act, of unauthorised possession of a prohibited weapon, it is necessary to consider not only the nature of the weapon, but also the circumstances in which it was possessed in order to determine the danger or potential danger to the public in the particular offence.

60.  It must also be emphasised that drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: Henry at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].

61.  It is important to indicate that childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44]. I take the childhood disadvantage into account on sentence.

62.  When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation 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].

63.  Counsel for the prosecution submitted that the non-parole period will constitute a “substantial part of the total sentence” (Taylor v The Queen [2014] ACTCA 9).

64.  Counsel for the offender submitted that I consider a longer period of parole (T12.15).

Concurrency

65.  Counsel for the prosecution referred to Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]; O’Brien v The Queen [2015] ACTCA 47, and quoted the following:

[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.

66.  I take these principles into account on sentence.

Rehabilitation

67.  A letter from the offender dated 15 July 2019 was tendered. This letter expressed the following:

First, I am not saying what I have done is entirely based on my traumatic childhood. I have to take responsibility and be accountable for my own behaviour.

Secondly, I am now aware that my behaviour needs to change. I have some disabilities, mental health issues and a lot of childhood issues that I realise they have contributed to my offending behaviour. I started doing some work around these issues working with a counsellor. I know this will be hard work but I am now ready and motivated to work really hard for my own good. My behaviour has to, and must change.

Your Honour I am committed to my rehabilitation, this time. I have been lucky to have a counsellor that is working with me and is telling me things as they are. In the past I have been too cushioned and people will tell me what they think I want to hear and same with me, I will tell them what I want them to hear.

This is different, I get challenged a lot, and I know that this is working for me. I can even see the difference in the way I interact with these officers. I want to use this next chapter of my life to improve myself, and be the best possible person I can be when I return to the community.

  1. Counsel for the offender submitted that the offender is addicted to illicit substances and (at (T15.7)):

[S]creaming out for … proper and structured rehabilitation … because if he kicks the drug addictions and the associated antisocial behaviour involved with that, then there’s a possibility there that he will be able to be released back into the community.

  1. Counsel for the offender further submitted that, given the subjective circumstances of the offender, the Court would (T12.16):

Set a reasonably beneficial non-parole period so Mr Campbell can, when he’s released from custody, get that rehabilitation that he so desperately needs in circumstances surrounding substance abuse.

  1. I take the offender’s potential for rehabilitation into account on sentencing.

Sentence

71.  It must be recognised by the Court that the offences committed against the victims have had a serious and significant impact upon them. Both the short and long-term consequences of being the victim of these offences must be acknowledged.

72.  In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective matters.

73.  The appropriate sentence for Count 1 is a good behaviour order of 3 months. I acknowledge this will have no practical utility but it is not appropriate to order a term of imprisonment in light of the context of this offence.

74.  The appropriate sentence for Count 2 is 12 months.

75.  The appropriate sentence for Count 3 is 4 years.

76.  The appropriate sentence for Count 4 is 8 months.

77.  The appropriate sentence for Count 5 is 3 years.

78.  Overall there will be a sentence of 6 years with a non-parole period of 3 years 6 months.

Order

79.   I make the following orders:

(a)I record convictions in relation to the offences.

(b)In respect of the offence of contravening a family violence order contrary to section 43(2) of the Family Violence Act (CC2018/2156) (Count 1), the offender is sentenced to a 3 month good behaviour order, commencing on 27 August 2019 and ending on 26 November 2019.

(c)In respect of the offence of unauthorised use of a prohibited weapon contrary to section 5 of the Prohibited Weapons Act (CC/2018/2154) (Count 2), the offender is sentenced to a term of 12 months of imprisonment, commencing on 1 February 2018 and ending on 31 January 2019.

(d)In respect of the offence of attempted aggravated robbery contrary to section 310 of the Criminal Code (CC2018/2155) (Count 3), the offender is sentenced to a term of 4 years of imprisonment, commencing on 1 February 2018 and ending on 31 January 2022.

(e)In respect of the transfer offence of assault occasioning actual bodily harm contrary to section 24 of the Crimes Act (XO2018/31377) (Count 4), the offender is sentenced to a term of 8 months of imprisonment, commencing on 1 February 2021 and ending on 30 September 2021.

(f)In respect of the offence of wounding contrary to section 21 of the Crimes Act (CC2018/2157) (Count 5), the offender is sentenced to a term of 3 years of imprisonment, commencing on 1 February 2021 and ending on 31 January 2024.

(g)I set a non-parole period of 3 years and 6 months, commencing on 1 February 2018 and ending on 1 August 2021.

I certify that the preceding 79 numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson

Associate:

Date: 27 August 2019

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Most Recent Citation
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Cases Cited

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Statutory Material Cited

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Cheung v The Queen [2001] HCA 67
R v Tran [1999] NSWCCA 109