R v Carberry
[2022] ACTSC 208
•27 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carberry |
Citation: | [2022] ACTSC 208 |
Hearing Date: | 8 April 2022 |
DecisionDate: | 27 April 2022 |
Before: | Refshauge AJ |
Decision: | 1. Keith Ernest Frank Carberry be convicted of damaging property and sentenced to 27 months imprisonment, to commence on 10 January 2021 and end on 9 April 2023. 2. Keith Ernest Frank Carberry be convicted of arson and sentenced to 38 months imprisonment, to commence on 10 January 2021 and end on 9 March 2024. 3. Keith Ernest Frank Carberry be convicted of aggravated robbery and sentenced to 4 years and 10 months imprisonment, to commence on 10 March 2023 and end on 9 January 2028. 4. A non-parole period of one year and four months be set, to commence on 10 March 2023 and end on 9 July 2024. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Damaging Property – Arson – Aggravated Robbery – Offending While in Custody – Parity – Rehabilitation – Drug and Alcohol Treatment Order Application – Application Denied – Imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) pt 4.4, ss 7, 10, 12A, 31, 33, 46J, 63, 65, 72 Crimes Act 1900 (ACT) ss 24, 26 Criminal Code 2002 (ACT) s 44, 310B, 312, 403, 404 Evidence Act 2011 (ACT) s 4 |
Cases Cited: | Beniamini v Stormon [2014] ACTSC 2 Brown v The Queen [2020] NSWCCA 132 Bugmy v The Queen [2013] HCA 37 Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 Elson v Ayton [2010] ACTSC 70 Green v The Queen; Quinn v The Queen [2011] HCA 27; 244 CLR 462 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Horan v O'Brien [2021] ACTSC 323 KR v The Queen [2012] NSWCCA 32 Lowe v The Queen (1984) 154 CLR 606 McDowall v The Queen [2019] NSWCCA 29 Markarian v The Queen [2005] HCA 25 Park v The Queen [2021] HCA 37 R v Bloomfield (1998) 44 NSWLR 734 R v Bourchas [2002] NSWCCA 373 R v Campbell [2010] ACTCA 20 R v Cotter [2003] NSWCCA 275 R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 R v Davis [2015] ACTSC 101 R v Deng [2022] ACTSC 143 R v DF (No 2) [2012] ACTSC 3 R v Griggs [1999] ACTSC 22 R v Halden (1983) 9 A Crim R 30 R v Hall (No 2) [2022] ACTSC 22 R v Hancock [2021] ACTSC 52 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hodge [2015] ACTSC 214 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Kilic [2016] HCA 48; 259 CLR 256 R v Massey [2022] ACTSC 3 R v NF [2018] ACTSC 165 R v O’Donnell [2009] NSWSC 42 R v Raeyers [2014] ACTSC 134 R v Reid [2004] NSWCCA 301; 148 A Crim R 425 R v Sharp [2018] ACTSC 286 R v Sidaros (No 4) [2020] ACTSC 87 R v Stanley [2015] ACTSC 322 R v Tonna (No 2) [2020] ACTSC 362 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Wrigley [2015] ACTSC 114 Ross v The Queen [2012] NSWCCA 161 Rubino v The Queen [2015] ACTCA 22 Stott v The Queen [2012] ACTCA 33 Webb v O'Sullivan [1952] SASR 65 |
Parties: | The Queen ( Crown) Keith Ernest Frank Carberry ( Offender) |
Representation: | Counsel T Hickey (8 April 2022); C Muthurajah (27 April 2022) ( Crown) M Keaney ( Offender) |
| Solicitors C Daly; ACT Director of Public Prosecutions ( Crown) M Lalor; Equal Justice ( Offender) | |
File Numbers: | SCC 123 of 2021 SCC 271 of 2021 |
REFSHAUGE AJ
Introduction
The need to protect the community and to reinforce standards of conduct, which both conduce to a peaceful and flourishing community and prevent the disturbance of such a community, are necessary and primary considerations for the criminal law. As well as identifying these standards, though by negatively proscribing what should not be done, the criminal law prescribes a response to breaches of those standards in the punishment that it specifies. Thus, as long ago as 1967, the New South Wales Court of Criminal Appeal said in R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274 that all purposes of punishment “may be reduced under a single heading of the protection of society”.
The sentences that may be imposed are set out in the criminal law, but in recent years that has become more flexible than it used to be when, especially after the abolition of capital and corporal punishment the courts were then left only two options: a fine or imprisonment. The options now are both more diverse and able to be adjusted to address the best way to consider and deal with the way in which the protection of the community may be achieved.
Nevertheless, a number of general principles remain important which are designed to promote confidence that the Court responds to breaches of the criminal law, namely, that the sentence is just, adequate and respectful of human rights.
One of the principles is the requirement of consistency, that like cases be treated the same, so that sentencing is not seen as arbitrary or as being dependent on the identity of the sentencing judge: see Lowe v The Queen (1984) 154 CLR 606 at 609.
An important element of the principle of consistency is the requirement that offenders who commit a crime are sentenced in the same way as other offenders who commit the same crime. This was expressed by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 27; 244 CLR 462 at 473; [28]:
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. (citations omitted)
This is, of course, particularly relevant when sentencing co-offenders for the breach of the criminal law that they have committed in the same offence. This calls out for a similar sentence, but is sensitive to differences, so long as they are relevant and important, in the level of culpability for the offence and the personal circumstances of the offender, for each of these may differ even as between co-offenders.
In this context, Keith Carberry stands to be sentenced for three offences in each of which there were co-offenders. He also asks that five offences be taken into account, offences in which some of the co-offenders were also involved.
The offences to which Mr Carberry has pleaded guilty are aggravated robbery, damaging property and arson. The additional offences which Mr Carberry has asked be taken into account under Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), are an attempted aggravated burglary, three offences of common assault and an offence of assault occasioning actual bodily harm.
The evidence
At the sentencing hearing, the Crown tendered without objection the Crown Tender Bundle which included the required cover sheet, an indictment containing eight counts and the Informations and Summonses for two further offences.
It also included a list of additional offences under Part 4.4 of the Sentencing Act. It was, however, not signed but signed copies were subsequently filed in Court. The cover sheet referred also to a further list of additional offences, but no such document was actually included. It, too, was later filed in Court.
The Crown Tender Bundle also included an Agreed Statement of Facts, a Transcript of Intercom Recordings from the Alexander Maconochie Centre on the day of the fires which Mr Carberry and his co-offender started and for which they were to be sentenced on their pleas of guilty, an estimate of damage to the Centre, a Victim Impact Statement, Mr Carberry's Criminal History and those of his co-offenders and the sentencing decision relating to one of his co-offenders.
Further contained in the Crown Tender Bundle was a Drug and Alcohol Sentencing List Suitability Assessment Report dated 21 December 2021 of Alcohol and Drug Services, to which was attached a Case Plan and a Cultural Assessment of Mr Carberry dated 13 January 2022. Together, these were the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act.
The Crown later tendered without objection a Drug and Alcohol Treatment Assessment dated 18 January 2022 of ACT Corrective Services, also a Suitability Assessment.
The Crown also later tendered two USBs (Universal Serial Bus, a plug and play portable storage device for electronic data) showing parts of the events at the Alexander Maconochie Centre out of which came the charges of damaging property and arson. A log of the events was tendered with them and that was read by the Court.
Ms M Keaney, counsel for Mr Carberry, tendered, without objection, a letter from Mr Carberry to the Court and a letter from Mr Carberry to the victim, a letter of support from a friend of Mr Carberry and a psychological report of Ms Megan Godbee reporting on her clinical examination of Mr Carberry.
The contents of none of the documents tendered was challenged.
Ms Keaney also tendered two Reports dated 9 April 2020 and 29 August 2021 of Dr Ellis, a consultant forensic psychiatrist, and a conjoined senior lecturer at the University of New South Wales. These Reports were expressed in the earlier one to be:
psychiatric report[s] to assist solicitors in advocating for clients and making submissions to the court when determining release applications, variations of bail and sentence matters, with regard to the potential impact of COVID-19 on their client's mental health.
Dr Ellis' rooms were in Sydney and the Report clearly referred to the position in New South Wales.
The Crown objected to the tender of these Reports on the ground that they related to the New South Wales situation and do not address the ACT context. The most recent Report is now eight months old, since which time the situation of the COVID-19 pandemic has changed significantly. These changes include that restrictions have been significantly eased in most States and Territories and the impact of the current Omicron variant has been apparently less severe than that of the Delta variant referred to in the Reports. They also objected on the ground that the Report does not take into account Mr Carberry's circumstances, including whether he has been vaccinated and that, in the Territory, the vaccination rate has been above 90%.
The Reports have, of course, been read in order to judge the objection. In the first place, the rules of evidence set out in the Evidence Act 2011 (ACT) do not apply to these proceedings: s 4(2) of the Evidence Act. No direction to make those rules apply has been sought or made by the Court under that section. That appears to mean that the common law rules of evidence apply: see R v Bourchas [2002] NSWCCA 373; 133 A Crim R 413 at 428; [61].
The Reports are informative, but very general, as perhaps is inevitable when they refer often to what “may” happen without much evidence of what is likely or, indeed, the level of likelihood. The objections of the Crown have also some relevance though the Reports do not seem to be much based on the actual situation in New South Wales, but rather the general circumstances of a custodial environment. Without more relevant information about specific mental vulnerabilities of Mr Carberry, it is difficult to see that the Reports show a particular risk to him in incarceration. For example, the Reports referred to the mental health risks of quarantine restrictions, but then point out that they would , in prison, “likely to be at least equivalent to quarantine within one's own home, and likely more aversive.”
The Reports do seem to have some generic information about mental health risks in incarceration in the context of the pandemic, but of such generality as not to be particularly helpful in the case of Mr Carberry. This, however, does not show that they have no value and so they are strictly admissible, but they do not seem to be of much assistance in the sentencing exercise save to emphasise that there may be greater mental health challenges for detainees in the context of the pandemic than otherwise. It is, however, difficult to see that this is sufficient to have the effect that a sentence of imprisonment cannot be imposed. Rather, it should be as short as reasonably possible, a principle that generally applies in sentencing in any event: Webb v O'Sullivan [1952] SASR 65 at 66. See, however, the discussion of this principle in Beniamini v Stormon [2014] ACTSC 2 at [88]–[93].
The Reports will, for what they are worth, be admitted as exhibits.
The submissions
The Crown and Ms Keaney both filed a number of written submissions which were of great assistance in identifying the issues and making appropriate submissions as to how they should be addressed.
Counsel also helpfully expanded on their submissions in oral submissions to the Court and engaged in valuable debate on them.
From this evidence, aided by the submissions, the following findings can be made.
The facts
The offences may be conveniently divided into two parts, the first being from the events of 12 August 2020 and the second from those of 12 May 2021, and each the subject of one of the two Agreed Statements of Facts.
Events of 12 August 2020
At about 2:20 am on that date, Mr Carberry, together with co-offenders Garang Dau Deng and Marley Hall, went to a residence in Narrabundah, ACT.
The occupants of the residence were awake and heard a vehicle drive up to the housing complex. One of them walked to the front sliding glass door and saw three men wearing face coverings approaching the front door. He saw that one of them, who was Mr Deng, was carrying a gun. It was a sawn-off single barrel rifle. Mr Hall was carrying a double-edged bayonet style sword. Mr Carberry was carrying a knife. The occupant called to one of the other occupants, “Nat, they've got a gun. Call the cops,” and she did.
Mr Deng then slid open the front screen door and attempted to open the sliding glass front door, but could not do so as it was locked. He tapped on the glass with the butt of the gun, signalling for the occupant to open the door, but he refused. Mr Deng then tried to break the glass, hitting it four or five times with the weapon.
The occupant yelled, “We've called the cops,” and the three men left.
These were the facts that constituted the attempted aggravated burglary offence which was the subject of the additional offence.
Later that morning at about 3:20 am, the three offenders went to a residential unit in Gordon, ACT, where the occupant was asleep. Mr Deng was still carrying the gun, Mr Hall a long metal weapon which could have been the same as that he had taken to Narrabundah and Mr Carberry was now carrying two knives. While a female waited in the vehicle in which they had driven there, the three men entered the unit through an unlocked door.
They went to the bedroom where the occupant was sleeping and, when she awoke, Mr Hall demanded, “Where's the fucking money?... Don't lie to me, where are the safes?”. Mr Deng said, “Where's the drugs?”. The occupant denied having any money or drugs. Her aunt, for whom she was housesitting, was attending residential drug rehabilitation at Canberra Recovery Services.
The men became angry. Mr Deng pushed the gun he was carrying into her face and said, “Do you want me to blow your brains out?”. Mr Hall then pressed the weapon that he was carrying to her throat and said, “Don't lie to me. Tell me where the money is”. The occupant still could not answer as she did not know.
Mr Carberry and Mr Hall then set about ransacking the unit while Mr Deng remained in the bedroom with the occupant, keeping the gun pointed at her. Mr Carberry took various items from the unit and placed them either into the vehicle in which they had arrived or the vehicle owned by the occupant.
Mr Carberry then motioned to the others that there were police patrolling the area and they began to leave. On departure Mr Hall told the occupant, “You're lucky the police are around otherwise I would've fucked you. Don’t call the fucking cops, otherwise we will come and kill you”.
The property taken included jewellery, jewellery boxes, assorted electrical items and cords, a Rolex and other watches, a black handbag, two rectangular PIN code safes and a hard drive of CCTV footage. The offenders also took a hip bag, a scarf, a gym bag and a jumper. A number of the items were shown as having a monetary value, in total of $9,900, but that did not cover much of the jewellery or other items. The hip bag contained a number of identification cards and bankcards, as well as $200 in cash. It also contained the car keys of the occupant’s car, which one of the offenders used to steal the car and drive it away. The car was valued at $25,000. The others left in the car in which they had arrived.
Fearful of what the offenders had threatened, the occupant did not call the police, but she did call her parents and, though she begged them not to call the police, they did so.
These were the events that founded the charge of aggravated robbery.
Police attended and, in an examination of the scene, identified Mr Carberry's fingerprint on a box that had contained a box of jewellery taken in the robbery. In addition to the fingerprint, police evidence relied on the similarities of the events at Gordon and Narrabundah and the unlikelihood that they would have occurred coincidentally.
They also relied on the association between Mr Carberry and Messrs Deng and Hall, Mr Carberry's association with the property where Mr Deng's motor vehicle was located by the police, the physical similarities between Mr Carberry and the description given by the victim of the aggravated robbery at Gordon, the fingerprint found and on the incriminating text found on Mr Deng's phone.
Police had also seized a vehicle registered in Mr Deng's name and searched it. They found in it a number of items of clothing which were consistent with the clothing worn by Mr Deng on 12 August 2021 and shown on CCTV footage at the Gordon unit, which it appears had been viewed by police. They also found ammunition in it, some of which, on forensic examination, was found to have been once loaded in the shotgun found in the car, apparently used in the offences.
Events of 12 May 2021
Mr Deng and Mr Carberry were, on 12 May 2021, two of 36 detainees in remand unit 1 at the Alexander Maconochie Centre. The unit contained 24 cells split across two levels and on one side led to an external yard. The inside is described in the Agreed Statement of Facts as having “a central kitchen area in the middle of the unit, a television viewing area on the left of the unit and an Officer’s Station and medication dispensary area on the right side of the unit. The Officer’s Station is an enclosed windowed room so that Corrections Officers can physically monitor detainees”.
At about 3:00 pm, Mr Deng and a number of other detainees in the unit, including Mr Carberry, were intoxicated when Corrections Officers spoke to them. The behaviour of these detainees escalated; including threatening the Officers, throwing items at them and fights between detainees.
The Corrections Officers retreated to the Officer’s Station and a full lockdown of the Centre was ordered so that other Officers could be released to assist in managing the disturbance and the detainees.
Mr Deng and Mr Carberry caused significant damage to the unit and the Officer’s Station and property inside both rooms. In particular, Mr Carberry broke and opened a window panel, forcing the Officers to retreat. He and Mr Deng then continued to damage property in the Station.
At about 6:02 pm, Mr Deng went into a cell carrying an item of clothing, lit a lighter and left the cell. Mr Carberry then took some toilet paper from a cell and, after an unsuccessful attempt, managed to set some of the toilet paper alight which he placed into the Officer’s Station through the open window panel.
Mr Carberry and Mr Deng continued to stoke that fire with numerous rolls of toilet paper, clothing and towels. Shortly after, the Officer’s Station became engulfed in large flames which caused the plastic roof of the structure to melt and disintegrate.
Corrections Officers used a hose to try and extinguish the fire through a small office window, but Mr Deng and Mr Carberry continued to throw items at the fire, including a microwave oven. By 6:12 pm, the Station was fully engulfed in flames and the unit was filled with thick black smoke.
A number of detainees were concerned for their safety and the safety of others who remained locked in their cells. While Officers negotiated with the detainees to extinguish the fire, Mr Deng and Mr Carberry tried to block the window and take hold of the fire hose, preventing the Officers from extinguishing the fire.
The two were directed to move to the outside yard but ignored the direction, continuing to try and take hold of the hose. They were sprayed with oleoresin gel spray, which appears to have stopped them interfering with the extinguishing of the fire. Later, however, Mr Carberry left cell 3 in the unit and he appears to have started two small fires in there. Black smoke was billowing out into the unit.
At about 7:10 pm, however, after ACT Fire and Rescue personnel had arrived at the centre, the fire was extinguished and the eight detainees had been removed by the ACT Fire and Rescue officers from their locked cells.
A few minutes after 8:30 pm, however, Mr Carberry removed a towel tied to the outside yard and hung it over the door handle of the gate separating the open yard from the gym area. With a lighter, he tried to ignite the end of the towel. Mr Deng took an item of clothing over to Mr Carberry and tried to light it also. It quickly caught fire and Mr Deng took it and threw it onto a tennis net in the yard. Mr Carberry then brought the towel over and set it alight from the flames.
Mr Deng took a boxing bag, hanging in the yard area, pushed it into the flames and Mr Carberry threw the flaming towel onto the boxing bag, which then caught fire. Mr Carberry then picked up other items of clothing and threw them onto the fire. About 20 minutes later, ACT Fire and Rescue personnel had extinguished the fire.
Undeterred, Mr Deng, assisted by Mr Carberry, later held a gym net over the smouldering ashes of the fire, trying to reignite it. They were successful and they fed the fire with numerous items of clothing, towels and other objects, but the fire was soon also extinguished.
At various times, Mr Deng and Mr Carberry were directed to approach the yard gate so that they could be removed from the unit and rehoused, but they refused, which prolonged the incident.
The material before the Court included transcripts of the intercom recordings between various detainees and Corrections Officers. They showed a high level of distress among the detainees, complaining that “I can't even breathe in here” or “I’m choking”. Many of the complaints were about the smoke, but also other things such as the smashing of items like a computer. The detainees obviously were frightened and wanted to get out of their cells. For some reason the Corrections Officer would not open their doors, saying things like, “I'm not allow [sic] to” or “we're trying our best to get you out” or “I have to get permission and instructions from someone with more power than me”. No evidence was given to justify those reactions.
These were the facts used to support the charge of arson.
Mr Deng and Mr Carberry did not only set fires. They also yelled threats at the Corrections Officers and threw cups at their station, though missing the officers.
They then proceeded to cause damage to property up to about 11:30 pm. The damage included damaging the tap of a kitchen, throwing numerous items about, including milk, food, kitchen items, items off tables, garbage bins, chairs, a metal gym bar and kitchen appliances. They also caused damage to windows and walls of the Officer’s Station. They threw a bin towards the station which hit a detainee.
They dragged refrigerators around, including breaking the top off one, hit tables with the metal gym bar, threw items over the rear fence, damaged gym equipment and damaged the dividing gate. All in all, it was a destructive rampage.
Throughout the incident, they both yelled constant abuse at and made threats to the Officers, such as threatening to kill their families and injure them. At one stage, Mr Carberry imitated shooting at a Corrections Officer with a bow and arrow and used his hands to mimic shooting them with a gun.
The incident was captured on CCTV footage. The log shows them with a clear description of the very disturbing incident and the involvement of both Mr Carberry and Mr Deng.
These were the facts on which the charge of damaging property was based.
During the incident, Mr Carberry pushed a detainee forcefully and then chased him around the unit. This was the first of the assaults that were additional offences.
Mr Carberry also kicked another detainee in the chest with so much force that the detainee was caused to fall backwards to the ground. This was the second assault.
The third assault occurred outside in the yard where Mr Carberry pushed the face of a detainee into the fence.
The final assault, which occasioned actual bodily harm, occurred when Mr Carberry threw a mug at another detainee. The mug struck the detainee in the head and caused him to bleed.
The proceedings
Some of the material to determine the course of the proceedings is unavailable, but Mr Carberry seems to have appeared in Court on 12 October 2020 charged with various offences committed on 12 August 2020 and he was granted bail. The proceedings were adjourned and he failed to appear on the adjourned date of 28 October 2020. A warrant was issued for his arrest and he was arrested on 10 January 2021. He was then remanded in custody and has remained there ever since. He pleaded not guilty to the offences and was committed to the Supreme Court for trial.
Mr Carberry appeared in the Supreme Court on 27 May 2021 and was remanded in custody.
A Criminal Case Conference was held and the proceedings were resolved with Mr Carberry agreeing to plead guilty to the charge of aggravated robbery, and to ask to have the attempted aggravated burglary taken into account, together with the three assaults and the assault occasioning actual bodily harm. He entered the plea on 3 September 2021 and was referred to the Drug and Alcohol Sentencing List.
On 19 November 2021, a sentencing date was set and the Suitability Assessments were directed to be prepared. The sentence date was subsequently adjourned so that the matter of Mr Deng could proceed in parallel.
It appears that as a result of the resolution of the matters in the Criminal Case Conference, the other charges, including those listed on the indictment filed on 11 June 2021, did not proceed. A Notice Declining to Proceed should be filed in respect of those offences: R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45].
As to the offences of arson and damaging property, Mr Carberry pleaded not guilty on the first mention. On the fifth mention, he entered a plea of guilty and was committed for sentence to this Court and the Drug and Alcohol Sentencing List and the proceedings were directed to be heard with the earlier charges.
Mr Carberry has now been in custody since bail was revoked on 10 January 2021, that is 473 days. The pre-sentence custody must be taken into account.
After the first appearance for sentencing, the Crown sought to have this matter remitted to Elkaim J who had sentenced Mr Hall: R v Hall (No 2) [2022] ACTSC 22. There is, of course, a well-known principle that “it is highly desirable that co-offenders should be sentenced by the same sentencing judge”: R v Reid [2004] NSWCCA 301; 148 A Crim R 425 at 431; [27].
That application also came after the other co-offender, Mr Deng, who, unlike Mr Hall, had also been a co-offender in the offences of arson and damaging property, had been referred to this Court in the Drug and Alcohol Sentencing List. Indeed, at the time of the application submissions had been made on sentencing and the sentencing decision was reserved.
The application to remit the matter involving Mr Deng was therefore refused as set out in R v Deng [2022] ACTSC 143 at [166]–[168]. Mr Deng was then sentenced. As Mr Carberry would be sentenced by the same judge who sentenced Mr Deng, the application in respect of Mr Carberry was also refused.
The offences
In order to arrive at the just and adequate sentence which a court sentencing an offender is required to do, a number of matters are required to be considered. At common law, the court must consider the facts of the particular offence and of the offender: R v Kilic [2016] HCA 48; 259 CLR 256 at 266; [19].
This has now been codified to some extent in the Sentencing Act where s 33 sets out matters to which the court must have regard. These do address the offence and the offender but also require consideration of the interests of the victim of the offence as well as the interests of the community. These matters are, however, not exhaustive and the court may consider anything else that is relevant.
Section 33(1)(a) of the Sentencing Act requires the court to consider the nature and circumstances of the offence. There are a number of matters involved in this. First, there are the facts of the offence, clearly a central matter and this has already been addressed.
Next, the High Court has made it clear in a number of cases, recently in Park v The Queen [2021] HCA 37; 95 ALJR 968 at 972; [19], that the court must have careful regard to the maximum penalty prescribed for each offence for the reasons set in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]–[34].
The courts have over time, however, also identified factors which are important to show the seriousness of the offence by aggravating or mitigating the precise way in which the actual offence has been committed.
These are the matters that shall now be addressed to assess the objective seriousness of the offences. This will enable the Court to identify the objective seriousness. There has been a practice of giving quasi-mathematical ratings for that seriousness — “mid-level”, “just below mid-level” and the like. It is not clear by what reference such assessments are made.
The suggestion is that this may be required by the High Court’s decision in R v Kilic, but that has been shown not to be so in R v Massey [2022] ACTSC 3 at [47]–[65].
The Crown accepts that, in any event, not to do so is not an appellable error and it seems that the better approach is to identify the relevant factors showing how serious the offence is: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at 108; [24]; R v Sharp [2018] ACTSC 286 at [59]. This mirrors some considerations even in New South Wales as expressed in Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 at 593; [56] and McDowall v The Queen [2019] NSWCCA 29 at [32]–[37].
Aggravated robbery is an offence against s 310B 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, thus, regarded as one of the most serious of crimes.
The offence has been considered in a number of decisions by the courts over the years. The identification of a “typical case” has been set out in the New South Wales guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 380; [162] which involves:
(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 a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.
Some of these factors do not go directly to the objective seriousness of the offence. While in R v Henry, a range of sentences for such an offence was set out, this does not, of course, bind the Court and has not generally been followed in this Territory: R v NF [2018] ACTSC 165 at [25]. It is, however, persuasive: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49].
This case was a somewhat more serious version of the offence, given that there were three offenders, each carrying weapons, all of which were life threatening. While there was no actual violence, the events were clearly terrifying for the victim, to the extent that she could not call police and was frightened that her parents would so. She was in a vulnerable position in bed, early in the morning and asleep. This led to her suffering severe mental trauma as a consequence.
The property taken was quite substantial and valuable. Some, such as jewellery, may have been of sentimental value though there was no evidence of this.
The evidence of planning is limited, but clearly the offenders had to acquire the weapons and clearly the property was targeted, as they had some intelligence that there may be drugs and money there. Clearly, these are significant aggravating features.
Aggravated burglary is an offence against s 312 of the Criminal Code which prescribes a maximum penalty of 20 years imprisonment or a fine of $320,00 or both. In this case, the actual offence was not committed but it was attempted. Under s 44 of the Criminal Code, a person found guilty of such an offence is punishable as if the offence attempted had actually been committed.
The offence, however, is not one for which a conviction must be entered or a sentence imposed. Under Part 4.4 of the Sentencing Act, it is an offence to be taken into account. Having been taken into account, no proceedings may be started or continued in relation to such an offence. The offender, however, must admit his or her guilt for the offence. The prosecution must consent to the offence or offences being taken into account.
The way in which the offence is taken into account has, for this territory, been set out in R v Campbell [2010] ACTCA 20 at [46]–[50]. In summary, the penalty for the primary offence or offences will be affected because the commission of the additional offence or offences is taken into account. Subject to the limitation of the sentence for the primary offence, which must not exceed the maximum that the Court could have imposed for the principal offence, it is likely to make for a more severe sentence especially as punishment and personal deterrence will be given greater weight than otherwise they may have been given. Taking the offence into account is the same as taking any other relevant factor into account, especially those set out in s 33(1) of the Sentencing Act.
Thus, the seriousness of the offence is necessary to be considered. As it is an attempt and not a completed offence, some additional considerations are relevant. These are set out comprehensively in R v BI (No 4) [2017] ACTSC 71 at [40]. See also Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 at 86–7; [29].
Ordinarily, an attempt will attract a less severe sentence, especially as the harm that the completed offence would cause has not been inflicted. In this case, the only reason the offence was not completed was that the occupants had called the police. This moderates the reduction in severity applicable were the offences to have been impossible or doomed to fail or inept. The offence attempted is, nevertheless, a serious offence and attracts a serious sentence. The attempt was a relatively effective one; certainly not inept.
The offence of aggravated burglary was more serious because both elements of aggravation were present; there were multiple offenders and each had a weapon. Other matters have been identified in R v Hancock [2021] ACTSC 52 at [33].
Here, relevantly, it was a matter of aggravation that the property was a residential one where the occupants were present. The motivation for the burglary was largely, in the case of Mr Carberry, his dependence on illicit drugs and they were committed while he was under their influence. He also blames his association with anti-social friends and co-offenders.
There was no evidence of the extent of any trauma suffered by the occupants though, while clearly concerning, they had the presence of mind to call the police and resist the entry into the premises.
As nothing was taken, it is difficult to say what could have been taken had the offence been completed.
Arson is an offence prohibited by s 404 of the Criminal Code which attracts a maximum penalty of 15 years imprisonment or a fine of $240,000 or both. It is, thus, a serious offence, but not as serious as the others.
In this jurisdiction, the relevant factors have been collected in R v Wrigley [2015] ACTSC 114 at [33] and applied many times since then.
In addition, part of the seriousness of the crime is that there is, as here, a realistic prospect that life will be endangered: R v Raeyers [2014] ACTSC 134 at [35]. These require more severe sentences.
The reason for the offence is somewhat is unclear. Mr Carberry told the author of the Suitability Assessment of Alcohol and Drug Services that he had consumed a “prison brew” of unknown ingredients and unknown alcohol or other substance content. He did not remember the riot and may have “blacked out”. There does not seem to be any particular malevolent intention, though obviously some of this must have been present for which Mr Carberry's intoxication disinhibited him. He told Ms Goldbee that he felt he and the others in his block were treated less fairly than others because they were confined to a small exercise yard. Thus, the real gravity of the offence cannot be adequately identified.
While generally the perpetrators of the crime of arson are difficult to detect, this is hardly so in this case where Mr Deng and Mr Carberry were clearly visible as responsible.
Many of the aggravating factors were not present, though the destruction was obviously wanton and deliberate, especially despite the attempts of Corrections Officers to stop it. It also put other detainees at risk and some were also affected by smoke.
An important factor is the quantum of damage caused. Here, the valuation of the damage was very substantial. Although there was no allocation of the value between the consequences of the arson and the damage caused by the rampage of destruction, the larger part must have been caused by the arson.
In addition, there was inconvenience value to the prison and to the other detainees in the situation where the prison seems generally to be frequently full. The arson caused a unit housing 36 detainees to be taken out of service for some time which would have put pressure on the prison, but also those detainees would have to be housed elsewhere during that time.
It was clearly a serious version of the offence with significant circumstances of aggravation.
Damaging property is made a crime by s 403 of the Criminal Code for which the legislature specifies a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. The least serious of the three offences, it is still a serious offence.
The most relevant factors in the assessment of the seriousness of such an offence are the circumstances in which the damage occurred and the amount of damage caused. See R v Halden (1983) 9 A Crim R 30 at 30, a decision accepted in this Territory in Rubino v The Queen [2015] ACTCA 22 at [43]. The intent is also relevant: Elson v Ayton [2010] ACTSC 70; 241 FLR 178 at 194; [97].
The intent is, as with the arson offence, also unclear in this case though, as with that offence, the disinhibition of Mr Carberry's intoxication presumably released some frustration, as mentioned, at least. The damage was caused during what can only be described as a rampage which continued for many hours and despite directions to stop and for Mr Deng and Mr Carberry to return to their cells.
The amount of damage is unclear, though it must, from the description, have been at least very significant.
Assault occasioning actual bodily harm is an offence prescribed by s 24 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of 5 years imprisonment. Again, as with the offence of attempted aggravated burglary, no sentence for this offence or any of the other three offences of common assault referred to below are required. They will be taken into account in accordance with R v Campbell.
A principal consideration for the seriousness of assault offences is the nature of the injury: see R v Bloomfield (1998) 44 NSWLR 734 at 739–40. The circumstances can also be relevant. Thus, where the victim is in a vulnerable position, this can make the offences more serious. To some extent, this is the position here for the liberty of other detainees and the possibility to remove themselves from where there is a risk of assault occurring was very limited.
Here the injury does not appear to be particularly serious, though the assault was to the head, a particularly vulnerable part of the body: R v Hodge [2015] ACTSC 214 at [15]; R v Stanley [2015] ACTSC 322 at [65].
The fact that it was an assault within a prison environment makes it also a more serious offence; the surrounding circumstances are relevant: Ross v The Queen [2012] NSWCCA 161 at [20].
Common assault is made a crime by s 26 of the Crimes Act which specifies a maximum penalty of two years imprisonment.
Similar considerations apply to this offence as to the offence of assault occasioning actual bodily harm, though that one is a more serious offence. Here, actual injury is unlikely else the offence would have been a more serious one. The nature of the attack or application of force is important and any consequences such as pain or the like will be relevant.
Here there were no details though the incidents were a push, a low serious kick with some force, and a somewhat serious push against a fence which would be likely to result in some, perhaps even transitory pain.
Participation in the offences
While the offences of August 2020 were jointly committed pursuant to an agreement, Ms Keaney submitted that Mr Carberry's actual level of participation was a relevant factor. The Crown demurred.
The Crown pointed out that the offences were a joint criminal enterprise; the offences were aggravated (robbery and burglary) by being committed in company, which means that they were committed in accordance with a common purpose: R v Davis [2015] ACTSC 101 at [45]. The Crown submitted that, where there was an offence committed in accordance with a common purpose, it meant that it was a joint criminal enterprise and that each participant was responsible for all the acts done within the scope of that enterprise. That is clearly true: R v Cotter [2003] NSWCCA 275 at [87]–[90].
Ms Keaney accepted that, but submitted that the culpability of each participant is to be determined by the level of each participant's actions. That is, contrary to the Crown's submission, correct: see R v Sidaros (No 4) [2020] ACTSC 87 at [32]. Thus, in KR v The Queen [2012] NSWCCA 32 at [19]–[20], the Court said, after reviewing the authorities:
[19] What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.
[20] Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process.
This was cited with approval recently in Brown v The Queen [2020] NSWCCA 132 at [38]. See also Stott v The Queen [2012] ACTCA 33 at [68]–[69].
Thus, it is necessary to consider the differences in participation, though as noted in R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 36; [166]: “there are limits” to the differentiation in culpability among co-offenders in a joint enterprise.
Ms Keaney pointed to the following matters submitted to be a relevant differentiation in the culpability of Mr Carberry for the aggravated robbery:
c. Mr Carberry did not possess the firearm at any stage, nor use any weapon
d. That Mr Carberry was present during the robbery but played a lesser role than the other offenders:
e. That at the general time of offending Mr Carberry was struggling with relapse on the drug GHB 'up to 15 mls per day'.
The first two are relevant to Mr Carberry's culpability for the actual offences of aggravated robbery, but they are of limited value. Mr Carberry must reasonably be inferred beyond reasonable doubt to have been aware that Mr Deng carried a firearm. At the very least, he must have seen it and heard the occupants’ reference to that effect during the attempted aggravated burglary. Mr Deng was the only one carrying the gun and there is nothing to suggest that the weapon would not be used for threatening any occupants.
Both Mr Hall and Mr Deng but not Mr Carberry directly threatened the victim initially and used weapons as well to do that. Mr Carberry did participate, as did Mr Hall, but not Mr Deng, in searching the house for the items that they were seeking. Further, he was the one described as having taken the stolen items to the vehicles to be taken away.
His presence was also part of the threat to the occupant; an offence is more serious — an aggravated form — in part because one of the elements of aggravation is that there was more than one offender which is more threatening and able to inflict more harm than one offender.
Further, while it was not a gun, Mr Carberry did have a weapon and a knife is, in many ways, similar to a gun in its lethality, see R v Griggs [1999] ACTSC 22 at [41]. It has also been said of its risk that it “is not a fashion accessory”: R v O’Donnell [2009] NSWSC 42 at [49].
The last point, namely his relapse into the use of GHB, is, of course, part of Mr Carberry's subjective circumstances and this will always provide the possibility, probably likelihood, of some distinction between co-offenders in a joint criminal exercise.
There was respectively little to distinguish Mr Deng's personal circumstances from those of Mr Carberry, though the childhood experience of Mr Deng was more horrific with the experience of war and refugee internment.
As to Mr Hall, he also suffered some childhood disadvantage, though not described in R v Hall (No 2) when sentence was imposed, but said to require application of the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594–5; [41]–[44]. This means by necessary inference that he also suffered from childhood disadvantage.
Nevertheless, making the sentence more serious is the fact Mr Hall was on parole at the time of the offending. Also, he only pleaded guilty in the week before the trial of the offences was to begin.
Thus, apart from limited differences in the subjective circumstances of the co-offenders, including that Mr Hall was on parole and Mr Carberry's drug relapse, which may provide some distinction, there is little differentiating Mr Carberry's participation. However, unlike both Mr Deng and Mr Hall, he did not actually threaten the victim personally initially and the comments and the immediate threat of serious injury or death with the weapons, while holding them to her, was not part of what he did. This is some, albeit limited, differentiation when considered with all his other level of participation.
Further consideration, however, is that, in addition to the offence of attempted aggravated robbery, Mr Carberry has asked that four offences of personal violence, committed in conjunction with the offences of arson and damaging property, be taken into account. While not the most serious versions of these offences viewed from the harm caused, they were committed in somewhat aggravating circumstances as described earlier (at [65]–[68], [116], [118]). This will likely offset to a considerable degree the differences in roles in the aggravated robbery offence.
Subjective circumstances
Mr Carberry was born 24 years ago. He is of Indigenous parentage on both sides of his family and, though he has some knowledge of his culture, it is described as limited and he wishes very much to learn more. He has engaged with the Aboriginal community and seeks support from extended family and the community.
He is, of course, still a relatively young man for sentencing purposes: R v Tonna (No 2) [2020] ACTSC 362 at [44]–[48]. He is the same age as Mr Deng and about 18 months younger than Mr Hall, his two co-offenders.
Mr Carberry's mother died when he was three years old and he was placed in kinship care with his maternal grandmother. He has had a limited relationship with his father due to alcohol use and incarceration. While he is very fond of his grandparents and continues with a positive relationship, their home was not a good place in which to grow up. He suffered physical violence frequently, including for the misbehaviour of other children in the house. Ms Godbee opines that this exposure to violence from multiple sources contributed to his distorted beliefs about the normalcy and appropriateness of violence.
He attended school and likes sports and spending time with friends. He felt he could relax there but he was often in trouble for fighting, failure to complete work and walking out of the classroom. He was often placed in a “time out” room, a windowless closet which, sadly, he says, “prepared me for being in a cell”.
His childhood was clearly marred by exposure to violence and drug and alcohol use and interrupted schooling leading to such disadvantage as to require the considerations set out in Bugmy v The Queen to apply. They will be taken into account.
Mr Carberry completed year 10 at an alternative education facility. He has not had any further formal education though he is completing a construction course. He then engaged in employment from age 18, working for a demolition company. He has undertaken contract work for the company since. His employment, however, has not been stable though he would like to find this.
He has had a number of personal relationships, the first beginning when he was 16 years old and lasting for six years. It was a positive relationship. His partner did not use drugs and he reduced his use while with her. He did, however, while under the influence, commit an offence of domestic violence for which he was incarcerated and this led to him returning to drug use and the end of the partnership.
The two have a two-year-old daughter together and have agreed on arrangements for co-parenting. His current relationship is of about two years duration and he regards himself as also the stepfather to his partner's son.
Mr Carberry reports no physical health issues and none are disclosed in the evidence. He has, however, some mental health challenges. According to Ms Godbee he meets the criteria for Attention Deficit Hyperactivity Disorder (ADHD) but not in full for Post-Traumatic Stress Disorder. These matters did not cause his current offending, but they did, as is expected given his childhood, “ha[ve] a cascading effect on his development that led to antisocial behaviours”.
He has an anger management problem with a low tolerance for rules, for which he has sought some treatment. He has also suffered from anxiety and depression for which he has been prescribed medication, but, by 2015, these conditions had markedly improved, though he was diagnosed in 2016 with “slight depression” and further prescribed medication, which he voluntarily stopped taking. He has a history of self-harm. He is currently assessed as showing no acute or pervasive mental health problems.
Mr Carberry has had a long alcohol and drug use history. He first used alcohol at age 11 or 12 as it was “always around”. He did not drink regularly, however, until he was about 14 or 15 years old. He would drink heavily, but gradually replaced alcohol use with illicit drug use. He last used alcohol when he drank “prison brew” on 12 May 2021 leading to the arson and damaging property offences. He smokes tobacco.
He first used cannabis at about age 13 or 14 and was using daily by the time he was 15 years old, but it was not a major drug and he last used in late 2021.
He commenced using methamphetamines when he was 11 or 12 years of age but then did not use again until he was aged 15 leading to a heavy use between 16 and 18 years old when he used about 1.75 grams a day. He has continued to use until his last use on the day of his offending for the offence of aggravated robbery.
He has used MDMA/Ecstasy and cocaine and non-prescribed benzodiazepines but very rarely.
His use of GHB commenced when he was 21 or 22 years old and he used about five to 15 millilitres a day. He relapsed into use prior to the earlier of the offending for which he is to be sentenced.
Mr Carberry has had some alcohol, tobacco and other drug treatment. He completed the four months program at the Ted Noffs Foundation and later four months of a program at Oolong House two years ago. He has, however, had no community-based treatment.
Mr Carberry has a long and concerning criminal history in both the ACT and New South Wales. [Redacted for legal reasons].
As an adult, he has 16 offences on his record. They range over traffic offences and dishonesty offences, as well as drug related offences. He has not committed a robbery offence before.
While he has failed to appear in accordance with a bail undertaking on two occasions, ACT Corrective Services report that his compliance with bail supervision has been satisfactory. He has, however, not shown the same compliance with supervision under a Good Behaviour Order. He has also, as well as committing these offences, been subject to discipline on several occasions while in custody.
Mr Carberry wrote a letter to the Court in which he set out his personal circumstances, consistent with the reports in evidence. He did show that sport was certainly positive for him. He also described other difficulties that he experienced [redacted for legal reasons] which were concerning. He has, as he described it, suffered from fear and loss and confirmed his threats and attempt at self-harm.
He does describe a life of hardship and challenges, but at the end does wish to be able to achieve something better if given a chance and, in particular, provide support for his daughter.
He also provided a letter to the victim of the aggravated robbery in which he apologised for the harm and pain he caused her and wishes to “take it back” if he could. He explained that he “wasn't myself” because of his drug use and made it clear that he would never wish to hurt her. He says that at the time he was “at the lowest part of my life”, recognising that this is not an excuse and expressing the wrongfulness of his behaviour.
A reference from a long-time family friend was also in evidence in which she described Mr Carberry as “very caring and compassionate” to his daughter, family and loved ones which she has witnessed. She employed Mr Carberry over the years and “has always received great feedback regarding his work and commitment to get the job done”.
Victim Impact Statement
A Victim Impact Statement from the victim of the aggravated robbery was provided.
It was very distressing to read and more distressing to re-read for the preparation of these remarks.
The victim expressed a variety of emotions. The overwhelming one was of terror and continuing fear. Triggers, not always appreciated, including the return of mandated mask wearing in the time of the COVID-19 pandemic which brought back the thoughts of the incursion into her home of three masked and armed individuals wielding weapons.
She did feel sorry for Mr Carberry at times, but this was overwhelmed by her pain and trauma for which she had to seek psychiatric and psychological help. She writes of the ongoing feelings that nothing will end the moment of confrontation and that even incarceration is, as she describes it, “nothing to the trauma I carry with me everyday [sic]”.
She does express the hope, as do many victims, that Mr Carberry will “become a better person with better choices”. It may well be that Mr Carberry's letter to her will provide her with some comfort, but she will clearly suffer for a long time to come.
Ms Keaney suggested that much of the statement shows that the causes of the victim's fears were actions that did not flow from those of Mr Carberry. There is some, but very limited truth in this. She did describe his actions and did so accurately. It is true that she refers to him speaking to her while there is no such allegation in the Agreed Statement of Facts. Nevertheless, she did describe accurately that he had a knife which she clearly saw and which added to her terror. These events caused her distress and are part of the joint enterprise for which Mr Carberry has a responsibility.
Order of sentence imposition
In R v Deng at [128]–[151], the issues surrounding the imposing of sentences for offences committed in lawful custody and the difficulty with that are set out. It is not necessary to repeat what is there said and it is incorporated in these reasons.
The conclusion is that the sentence for the offences of damaging property should be imposed first and then the sentence for the offence of arson and these can, as expected, be partially concurrent. Then the sentence for the aggravated robbery will be imposed and a non-parole period can be imposed for that.
There is no reason why the whole sentence cannot be suspended were a Treatment Order to be made.
Current sentencing practice
The aggravating and mitigating factors as identified for the purpose of determining the objective seriousness of the offences by the Court have already been addressed above. Now, s 31(1)(za) of the Sentencing Act requires courts to consider current sentencing practice in the form of actual sentences imposed. These do not, of course, set boundaries or limits for the importance of sentences, but are directed to ensuring consistency of sentencing which is an important characteristic of just sentencing.
This has been addressed in some detail in R v Deng at [118]–[127] who, as a co-offender in all of these offences, faced the same sentencing considerations. It is not necessary to repeat what was there said, but it will be taken into account.
No other material was provided in the submissions of counsel to vary the descriptions of current sentencing practice there given.
Consideration
The Court must now synthesise all these factors, some of which point in different directions, into a sentence for the offences Mr Carberry has committed.
It is helpful in doing that to have a clear consideration for the purposes for which the sentence is to be imposed and this is set out in s 7 of the Sentencing Act, to which regard will and must be had.
The sentences to be imposed are for serious offences, the aggravated robbery being, in the circumstances, one of the most serious ones in the criminal calendar, moderated to some extent by Mr Carberry's personal circumstances. Nevertheless, it is a serious breach of the community's standards of conduct. This requires that the sentence imposes punishment on Mr Carberry to mark the disapproval of that conduct, likely denouncing it and providing the consequences of punishment. That must also be affected by the seriousness of the offences to be taken into account.
Such punishment will also amount to denunciation and, though it is somewhat contested, constitute some deterrence to others in the community who might be minded to behave in the same way.
Mr Carberry should also be deterred from committing such offences again, or, preferably, any other offences.
Perhaps, however, given his recognition that he needs to address the causes of his offending behaviour, rehabilitation will be a better approach. It is, after all, as said in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 536–7; [32], the surest protection of the community.
All these purposes do aim to protect the community.
It is also, however, very important to acknowledge the harm done to the victims of Mr Carberry's offences. It is helpful that the Court has a Victim Impact Statement. While it is not difficult for a court sentencing an offender to appreciate in general terms the effect of the offender's conduct, it is very helpful both for the Court, but also for the offender to appreciate the harm done in a particular case and how the lives of the victim have been impacted.
Of course, Mr Carberry is, while jointly sharing responsibility for the offending, solely responsible for his own part in the offending.
Mr Carberry has entered pleas of guilty to the offences. This is important and required to be taken into account, both as a factor and also to consider whether in specified circumstances it can reduce the sentence to be imposed.
In this case, the pleas of guilty for the offences of arson and damaging property were entered in the ACT Magistrates Court, though at the fifth mention. This is a relatively early plea, although a brief of evidence had already been prepared.
The plea for the offence of aggravated robbery was entered after the Criminal Case Conference in this Court, after pleas of not guilty were originally entered. Nevertheless, the resolution meant that a number of charges did not proceed. Thus, there was significant utilitarian value of all the pleas, though more so for the earlier pleas.
Nevertheless, especially for the offence of arson and damaging property, the evidence of the Crown was very strong, with CCTV footage and many witnesses.
Mr Hall also pleaded guilty to two transferred charges which must have been relevant to the severity of the sentence as they were concurrent with the sentence for the aggravated robbery. This is relevant to the issue of parity.
Mr Carberry showed commitment to his possible rehabilitation through a Treatment Order, though this has not yet been translated into any actual action that he has taken.
Mr Carberry has expressed some remorse and this is also evidenced in his plea of guilty and that must also be taken into account. No remorse was mentioned in the sentencing of Mr Hall, though he also pleaded guilty and that was taken into account.
The sentences will be a synthesis of various factors. These include the nature and circumstances of the offence as they have been described above, as well as Mr Carberry's personal circumstances including, in particular, his childhood disadvantage. As noted, the sentence imposed on Mr Hall is very relevant, as is the sentence imposed on Mr Deng, though there are some differences as noted and they will be relevant to the sentence actually imposed. All the other matters that have been mentioned in these sentencing remarks must be taken into account.
Having carefully considered the evidence and all of these matters, and considering all of the relevant alternatives, no other sentence than a sentence of imprisonment that is just and adequate for the offending is appropriate: s 10 of the Sentencing Act.
There are three offences for which sentence must be imposed and a proper sentence must be imposed on each of those offences. Nevertheless, it is important that the length of each sentence be only just and adequate so that Mr Carberry is not punished twice where there are common elements, though not particularly present here, or that these offences are part of a course of conduct, which is relevant to the arson and damaging property offences.
Careful consideration must also be given to whether the sentences should be partly or wholly concurrent with another or each other because of any of these matters, noting, however, the limits on that in relation to sentences imposed for offences committed in custody.
Nevertheless, any concurrency must not give the impression that multiple offending resulting in a discount permits further offences to be committed with impunity, or that a person who commits one or two offences will be sentenced in the same way as someone who commits seven or eight offences.
The length of the total sentence has then been reviewed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality of the offending, but no more than that, and that the total sentence is not excessive. It should leave open the realistic prospect of Mr Carberry being able to engage in reform and to achieve his hopes and goals when he has completed his sentence.
In this case, there is a satisfactory basis also on the ground of totality for the sentence for the offence of aggravated robbery to be partly concurrent also on the sentence for the offence of damage property.
This may result in what could be seen as some leniency in the extent of cumulation and concurrency of sentences, but it is important that the total sentence is proportionate to the total culpability of Mr Carberry. All the other factors such as the plea of guilty, remorse, prospects of and desire for rehabilitation and the problematic childhood with early drug use and disrupted education must be given appropriate weight. The synthesis of these factors must result in a sentence that leaves Mr Carberry with some hope for reform which it is clear that he currently seeks.
The pre-sentence custody of 473 days must also be taken into account, which will be done by backdating the commencement of the sentence under s 63 of the Sentencing Act.
It is not entirely clear whether s 72 of the Sentencing Act applies to two offences both committed in lawful custody. If so, then a direction is required for making the sentences partially concurrent. Given that the damaging property appears to have been first in time charged (see the charge number), that appears to be the primary offence. A direction will be made under s 72(3) of the Sentencing Act that the sentence for the offence of arson be served partly concurrently with the sentence for damaging property and that the sentence for aggravated robbery be partially concurrent with the sentence for arson because of the particular circumstances.
Sentence
[His Honour then spoke directly to the offender]
Mr Carberry, please stand.
The Court orders that:
(1) You are convicted of damaging property and sentenced to 27 months imprisonment, to commence on 10 January 2021 and end on 9 April 2023. Had you not pleaded guilty, you would have been sentenced to two years and seven months.
(2) You are convicted of arson and sentenced to 38 months imprisonment, to commence on 10 January 2021 and end on 9 March 2024. That is to be cumulative as to 11 months on the sentence for damaging property. Had you not pleaded guilty, you would have been sentenced to four years and one month.
(3) You are convicted of aggravated robbery and sentenced to 4 years and 10 months imprisonment, to commence on 10 March 2023 and end on 9 January 2028. That is to be cumulative as to 3 years and 10 months on the sentence for arson. Had you not pleaded guilty, you would have been sentenced to 5 years and 10 months.
Please be seated.
Mr Carberry has requested that a Treatment Order be made. Since the sentence imposed is one of seven years imprisonment, he is ineligible to serve his sentence in such a way. See s 12A(1) of the Sentencing Act.
Accordingly, a non-parole period for the sentence for the offence of aggravated robbery must be set: s 65 of the Sentencing Act. A non-parole period cannot be set for the other sentences. Given the issue of totality and Mr Carberry's expressed wish to engage in rehabilitation, it is appropriate to make a shorter non-parole period than usual. The decision in Horan v O'Brien [2021] ACTSC 323 appears to support this approach: see [23].
[His Honour then spoke directly to the offender again]
Mr Carberry, please stand.
The Court further orders that:
(4) A non-parole period of one year and four months be set, to commence on 10 March 2023 and end on 9 July 2024.
Mr Carberry, that is the sentence I have imposed on you. Unfortunately, it is too long to justify a Treatment Order, but I hope that nevertheless you will continue to seek out rehabilitation and there are options in custody including, if you wish, the Solaris program which has some similarity to residential drug rehabilitation which would have been likely to be where you would have had to have served much of your Treatment Order if that were possible.
I have made a short non-parole period although you have been in custody now for well over a year and there is still quite a long time for you to go before you are eligible for parole. Make good use of the time in custody because at the end of the day you have got a daughter who needs you and unless you reform yourself and address those issues, which are difficult and you may require counselling for the trauma that you suffered, although you seem to be managing that, but only by using drugs and you need to stop if you want to be a father to your daughter.
I hope that this sentence has been constructed to allow you to recognise that these were very serious offences, quite unacceptable in our community, but that you have an opportunity to redeem yourself if you work hard and do so. If not, you are likely to be spending much time in prison which is nowhere to be a father to your daughter as you understand.
You may be seated.
| I certify that the preceding two hundred and nine [209] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge. Associate: Date: 17 October 2022 |
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