R v Carberry
[2018] ACTSC 341
•2 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carberry |
Citation: | [2018] ACTSC 341 |
Hearing Date: | 13 September 2018 |
DecisionDate: | 2 October 2018 |
Before: | Burns J |
Decision: | See [30]-[36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand accompanied by threats – minor theft – three offences of common assault – objective seriousness – psychiatric diagnoses relevant to mental functioning – number of ways in which impaired mental functioning at the time of offending may reduce an offender’s moral culpability – moral culpability for these offences is somewhat reduced – demonstrated remorse – therapeutic community program – literacy program – pleas of guilty – terms of imprisonment imposed – encouraging circumstances – non parole period – recommendation to Sentence Administration Board |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 32(2) Criminal Code 2002 (ACT) s 321 |
Cases Cited: | The Queen v Verdins [2007] VSCA 102; 16 VR 269 |
Parties: | The Queen (Crown) Robert Michael Carberry (Offender) |
Representation: | Counsel Mr P Dixon (Crown) Mr R Cavanagh (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 299 of 2017; SCC 300 of 2017 |
BURNS J:
Robert Carberry, you appear before me today to be sentenced with respect to one offence of making a demand accompanied by threats, three offences of assault and one offence of minor theft. The maximum penalty for the offence of making a demand accompanied by threats, contrary to s 32(2) of the Crimes Act 1900 (ACT) (Crimes Act) is 10 years’ imprisonment. The maximum penalty for the offence of assault contrary to s 26 of the Crimes Act is two years’ imprisonment.
The maximum penalty for the offence of minor theft, contrary to s 321 of the Criminal Code 2002 (ACT) is six months’ imprisonment, a fine of 50 penalty units or both. The charges of common assault and minor theft were transferred to this Court from the Magistrates Court, as charges related to the indictable charges on which you were committed for trial. For convenience, I will refer to the transferred charges by reference to their Magistrates Court numbers.
All of these offences occurred on 11 May 2017. The victim was your former partner MD. On 11 May 2017, she was living at an address in Kingston. At about 9.30 pm that day, she was having a shower at her residence, when she heard movement in the kitchen, and got out of the shower. She went to the kitchen. She saw you. You had used a spare key which you possessed, to enter via the back door. You approached her and demanded that she pay you $50 which you said she owed you. She responded that she did not have the money. You then pulled MD to the ground and climbed on top of her. That is the basis of the first charge of assault, charge number CC2017/5434.
You then produced a long silver square-bladed knife and held it to her throat. MD asked you what you were doing and not to hurt her. You said that you wanted your money. While you were holding the knife to MD’s throat, you slapped her with the back of your other hand, to the side of her face. This is the basis of the second charge of assault, charge number CC2017/5435. Whilst still holding the knife to MD’s throat, you told her to go and speak to a friend and ask her for help. You also said, “[b]e quiet, the police will be here soon, I want my money.”
You then stood up and kicked MD in the stomach twice. Kicking MD is the basis of the third charge of assault, charge number CC2017/5436. You then went to leave the residence and on your way out, you picked up a black handbag containing $472 and other personal items belonging to MD which was hanging on a chair in the kitchen. You then left. This is the basis of the charge of minor theft, charge number CC2017/5432. MD went to her neighbour’s house and told her neighbour what had happened. She was seen to be holding her stomach and her neck and gasping for air. Police were then called. MD was complaining of severe pain in her abdominal region and was conveyed to hospital by ambulance. She was discharged from hospital on 12 May 2017.
You were arrested on 28 May 2017 at the Canberra Hospital. At that time, police seized a vehicle, registered in your name, in which they located a butcher’s cleaver knife with a black handle and items belonging to MD. You have remained in custody since 28 May 2017. It is an aggravating circumstance that at the time you committed these offences, you were on parole for an offence of recklessly inflicting grievous bodily harm.
The objective facts suggest that this is a reasonably serious example of the offence of making a demand with a threat. The offence occurred in the victim’s own home and involved you holding a knife to the throat of the victim. I would assess this as objectively in the mid-range of such offences. The first two offences of assault and the offence of minor theft, whilst not trivial, are towards the bottom of the range of such offences.
The third offence of assault, in which you kicked the victim to her stomach whilst she was lying on the ground, is more serious and would be in the mid-range of such offences. Your counsel submitted that your moral culpability for these offences is reduced by reason of mental deficits referred to in the report of a consultant forensic psychiatrist, Dr Richard Furst. In a report dated 10 September 2018, obtained by your lawyers for the purposes of sentencing, Dr Furst was asked to address a number of questions.
In his report, Dr Furst noted that while you were in primary and secondary school, you were in disadvantaged classes for slow learners and you remain functionally illiterate as an adult, suggesting that you have an intellectual disability or only borderline intellectual functioning. Dr Furst, however, noted that he did not have any formal psychometric testing available to confirm the level of your apparent cognitive impairment.
10. Dr Furst expressed the opinion, after reviewing your history and conducting a mental state examination, that you do not appear to have a major mental illness, such as schizophrenia, bipolar affective disorder or a recurrent major depressive disorder. You also do not appear to have a specific anxiety disorder. He noted that you have a pattern of drug dependence involving regular and heavy use of alcohol and multiple other drugs, since childhood, especially methylamphetamines and heroin. He stated that your dependence on drugs has been chronic and relapsing with a number of your past offences being drug related.
11. Dr Furst stated that your mental state examination indicated that you are generally slow and simple in your manner, with evidence of a slight speech impediment. Those features suggest you have an intellectual disability or only borderline intellectual functioning. He repeated, however, that he did not have any formal psychometric testing available to confirm the level of your apparent cognitive impairment. Dr Furst noted that you have a history of conduct disorder, negative peer associations, dysfunctional relationships, emotional dysregulation, irresponsibility and a propensity towards aggression; features indicative of a personality disorder.
12. Dr Furst was asked whether you may have suffered any past trauma which may have had an effect on your emotional responses and behaviour. He said that it was likely that your father’s drinking and the general dysfunctional home environment you were exposed to, combined with your early exposure to alcohol and other drugs, constituted an insult on your developing brain and emotional regulation, especially as you appear to have started from a low baseline level of cognitive function in the first place. He noted that people with low intellectual functioning and a history of trauma generally struggle to negotiate the challenges of school and life in general, with impairment in information processing, poor judgment and reduced capacity to control themselves, especially in stressful situations.
13. He expressed the opinion that your cognitive and emotional deficits have been compounded by the effects of chronic substance abuse, incarceration and multiple losses of people close to you. He opined that unresolved grief issues are probably a factor maintaining your drug addiction. Dr Furst stated that you meet the criteria for diagnosis of the following mental disorders, likely cognitive impairment [borderline or mild intellectual disability], substance use disorder and personality disorder with anti-social traits.
14. All of these conditions originated in your childhood and adolescence and were active at the time of these offences. Given your age, all of these mental disorders are likely to be chronic. The features of addictive disorders and personality disorders generally ameliorate, to a degree, with advancing age and Dr Furst stated that it would be hoped but not necessarily anticipated that your level of psychological and behavioural dysfunction will improve to some degree over the years ahead.
15. With regard to whether any of the conditions or disorders he identified contributed to the present offences, Dr Furst stated that your low level of intellectual function, unresolved trauma and your underlying personality disorder, likely made it difficult for you to cope in the community. This contributed to you relapsing in to drug and alcohol use. Your impairment in information processing, poor judgment and reduced capacity to control yourself, as a product of your apparent cognitive impairment, coupled with the effects of chronic drug abuse and intoxication are, he stated, the main factors of relevance contributing to your violent offending behaviour. He opined that you were probably also motivated by the need for money to fund your addiction to drugs. Your personality style, having clear anti-social traits and tendencies probably also contributed to the current offences.
16. Dr Furst recommended that you remain under the care of the Winnunga Nimmityjah Aboriginal Health Service over the longer term and that that organisation would be able to coordinate your medical, mental health and drug and alcohol treatment needs. He also identified the need for counselling over grief issues. Anger management and/or other programs targeting aggression and violence were also indicated. Input from disability support services, or psychology services, at the AMC would, he said, also be of assistance in providing a formal assessment of your intellectual function and any necessary interventions for your apparent intellectual disability or borderline intellectual disability. Education and literacy classes would also be of assistance.
17. It is clear, from his report, that Dr Furst has identified a number of psychiatric diagnoses relevant to your mental functioning. As the Court of Appeal of Victoria observed in The Queen v Verdins [2007] VSCA 102; 16 VR 269 (R v Verdins) at [13], the identification of a diagnostic label with regard to an offender should be treated as the beginning and not the end of the inquiry. The sentencing court needs to direct attention to how the particular condition is likely to have affected the mental functioning of the particular offender, in the particular circumstances of the offence, or is likely to affect them in the future.
18. The Court of Appeal identified a number of ways in which impaired mental functioning, at the time of offending, may reduce an offender’s moral culpability (see [26] of R v Verdins). This may be so where the impaired mental functioning had the effect of impairing the offender’s ability to exercise appropriate judgment, impairing the offender’s ability to make calm and rational choices, or to think clearly, making the offender disinhibited, impairing the offender’s ability to appreciate the wrongfulness of the conduct, or obscuring the intent to commit the offence, or contributing (causally) to the commission of the offence. I note that that list is not exhaustive.
19. I am satisfied that your ability to regulate your emotions has been impaired as a result of your childhood environment and your early exposure to alcohol and other drugs, and against a background of low baseline level of cognitive function. This has resulted in an impairment to your ability to exercise appropriate judgment and an impairment of your ability to make calm and rational choices. As such, I am satisfied that your moral culpability for these offences is somewhat reduced.
20. This is not a case in which your mental impairment makes you an unsuitable vehicle for general deterrence but it is a case in which some sensible moderation of that sentencing consideration is called for. I would make the same comment with regard to specific deterrence. There are other sentencing considerations which must be taken in to account, such as the need to protect the public. You have a very lengthy criminal history, involving multiple offences of violence and dishonesty. There is no clear indication, in the report by Dr Furst, of the likelihood of you successfully addressing your intellectual deficits and your drug and alcohol abuse issues.
21. You did not give evidence at the sentence hearing, thereby depriving the Court of an opportunity to assess your willingness to effectively participate in programs and treatments necessary to reduce your risk of reoffending. I accept that you have demonstrated remorse with regard to these offences. It is heartening to note that the Pre-Sentence Report states that testing, in which you participated on 24 August 2018, indicated that you are program ready and may be referred to target programs to address identified risk factors. It is also heartening that you have completed the therapeutic community program in the AMC, as has been evidenced by material which has been provided to me this morning. You told the author of the report that you found the program very helpful.
22. It is also very encouraging to note that you have undertaken a literacy program within the AMC. This morning I was provided with a letter from Anne Kelly, who has been volunteering at the AMC two days a week, since July 2009, helping inmates who seek one on one assistance with literacy. She has been assisting you for some time on and off, depending upon when you were in custody.
23. I note that she refers to significant and steady improvement you have made with regard to your literacy, over the period of time that she has been working with you. In that regard, she said, as well as a marked improvement in your literacy skills she has also observed a much greater ability to concentrate and to work things out for yourself, as well as a marked improvement in your attitude.
24. You have also provided me today with a letter written in your own hand, which is a testament to the advances that you have made in your work with Ms Kelly. In it you speak of your desire to cease the abuse of drugs and to try to put structure in your life and to be there for your children. This must of course be a particular concern for you as their mother is now deceased.
25. So whilst you have a significant criminal history, I must say that there are encouraging signs that you are slowly developing a degree of maturity and understanding, which may assist you in avoiding a return to the abuse of drugs when you are released. It is also quite encouraging to note that in the letter which you wrote and which was handed to me this morning, you refer to the necessity to have a good pre-release plan. That is something which, again, indicates to me that you have given some thought as to how you might avoid falling into the habits that you have fallen into in the past. But ultimately, the real test is going to be when you are released, because it will then be up to you to act upon that commitment.
26. The material which was contained in Dr Furst’s report, together with other material in the Pre-Sentence Report confirms that you had a disadvantaged childhood in which you were exposed to drug and alcohol abuse at an early age and in which you struggled to achieve in the formal education system. The effects of that disadvantage no doubt linger.
27. You have also been subject to serious misfortune in your adult life, with a number of those close to you having passed away. Undoubtedly, this has made it difficult for you to address the disadvantages of your childhood and I take that into account in sentencing you. You are now 35 years old. You have spent a considerable period of your life in custody. There is a risk of you becoming institutionalised.
28. If you do not want to spend most of your life in prison, absent from the lives of your children and your broader family, you must take steps to address your intellectual deficits and in particular, your drug and alcohol abuse, now. If you do not do that now, it is inevitable that upon your release from prison, you will return to your old habits and to serious criminal offending.
29. I am satisfied that nothing less than immediate terms of imprisonment are appropriate with respect to the offences before this Court. Your pleas of guilty to these charges came at a very late stage, being the day on which the trial was due to commence. I accept, nonetheless, that your pleas had utilitarian value and evidence a degree of remorse. I will reduce, by approximately 10 per cent, the sentences that I would have otherwise imposed, in order to reflect your pleas of guilty.
Sentence
30. With regard to the offence of making a demand accompanied by threats (XO2017/31383), I record a conviction and you are sentenced to two years and three months’ imprisonment, commencing 28 May 2017 and expiring on 27 August 2019.
With regard to the offence of minor theft (CC2017/5432), I record a conviction and you are sentenced to two months’ imprisonment, commencing on 28 May 2017 and expiring on 27 July 2017.
32. With regard to the two offences of common assault (CC2017/5434 and CC2017/5435), on each charge I record a conviction and you are sentenced to three months’ imprisonment on each charge; each such sentence commencing on 28 May 2017 and expiring on 27 August 2017.
33. With regard to the final offence of assault (CC2017/5436), I record a conviction and you are sentenced to five months’ imprisonment, commencing on 28 May 2019 and expiring on 27 October 2019.
34. The aggregate sentence which I have imposed is therefore one of two years and five months’ imprisonment, commencing on 28 May 2017 and expiring on 27 October 2019.
In the light of the encouraging circumstances to which I have referred, and particularly, in relation to the advances which you appear to have made in custody, I will set a non‑parole period commencing on 28 May 2017 and expiring yesterday, 1 October 2018. Now that means, as I said, that I have imposed total sentences of two years and five months’ imprisonment but I have set a non-parole period expiring yesterday, so that you are now eligible to apply for parole.
36. Of course, I would recommend to the Sentence Administration Board that serious consideration be given to a pre-release plan and also to structuring your release in such a way as to assist you in avoiding a relapse in to drug and alcohol abuse.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 8 February 2019 |