R v Colefax
[2015] ACTSC 67
•13 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Colefax |
Citation: | [2015] ACTSC 67 |
Hearing Date: | 4 February 2015 |
DecisionDate: | 13 February 2015 |
Before: | Penfold J |
Decision: | See [27] to [31] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for threatening to cause serious harm to a Commonwealth public official – four other offences to be taken into account – offences in breach of earlier good behaviour orders – criminal history consisting mainly of traffic offences and minor assaults – acceptance of responsibility – difficult childhood – history of homelessness since age 14 – mental health problems including chronic psychotic disorder (schizophrenia), and substance use disorders – suicide attempts – four months pre-sentence custody – seven months in residential rehabilitation – no recent drug use – increased insight observed by Pre-Sentence Report author – discount for early plea of guilty – credit given for pre-sentence custody and part of time in residential rehabilitation – offender released on recognizance release order for two years. |
Legislation Cited: | Criminal Code Act 1995 (Cth), s 147.2 Crimes (Sentence Administration) Act 2005 (ACT), s 108 Australian Road Rules, rr 40 and 268(3) |
Parties: | The Queen (Crown) Glen Maxwell Colefax (Offender) |
Representation: | Counsel Mr M Reardon (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 86 of 2014; SCC 87 of 2014 |
Glen Colefax has pleaded guilty to one count of threatening to cause serious harm to a Commonwealth public official, contrary to s 147.2(1) of the Criminal Code 1995 (Cth), an offence which, when the public official is a law enforcement officer, carries a maximum penalty of imprisonment for nine years.
In sentencing Mr Colefax, I am also asked to take into account four other offences as follows:
(a)lighting a fire during a total fire ban under s 116(1) of the Emergencies Act 2004 (ACT), carrying a maximum penalty of a $7,000 fine;
(b)making a U-turn at traffic lights, and travelling in a motor vehicle with part of the body outside the vehicle, respectively under rr 40 and 268(3) of the Australian Road Rules, both carrying maximum penalties of $2;800; and
(c)driving dangerously contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which carries a maximum penalty of 12 months imprisonment and a fine of $14,000, and also a mandatory minimum three-month disqualification.
The incident from which these charges arose took place on 17 January 2014 and is described in the Agreed Statement of Facts as follows:
A total fire ban was in place in the Australian Capital Territory on 17 January 2014.
At about 7.25pm on that date, [Mr Colefax] was travelling westward in his Daewoo Matiz sedan along Belconnen Way, Belconnen in the Australian Capital Territory. [He had] a male passenger.
At the same time, Senior Constable Daniel Williams and Constable Julian Carey were in an unmarked police vehicle that was stationary and facing south on Benjamin Way at the intersection of Benjamin Way and Belconnen Way. This intersection is controlled by traffic lights.
As [Mr Colefax] approached the intersection with Benjamin Way, he recognised the unmarked police vehicle as a police vehicle. [Mr Colefax] and his companion each clenched their fists with the middle fingers extended towards the police officers. [Mr Colefax] was swerving his vehicle erratically, crossing over both westbound lanes of Belconnen Way before performing an illegal U‑turn at the intersection with Benjamin Way and ... travelling eastward on Belconnen Way.
Constable Carey initiated a pursuit of [Mr Colefax’s vehicle], following him with warning devices activated. [Mr Colefax] continued to swerve across both eastbound lanes repeatedly before turning left into Eastern Valley Way. During this time [Mr Colefax] and his companion both extended their arms out of the windows of his vehicle and repeatedly gestured with their middle fingers towards the police vehicle.
[Mr Colefax] turned his vehicle left into Eastern Valley Way, and then Hennesy Street, and then left into Hagon Place, Belconnen. As [he] turned onto Eastern Valley Way, [the vehicle] narrowly missed several stationary vehicles that were waiting to turn left onto Eastern Valley Way.
Hagon Place is a cul-de-sac in a residential area with a footpath at its dead-end. That footpath provides a pedestrian link to Solly Place and Amess Place, Belconnen. The footpath is lined by a nature strip containing vegetation on both sides. That vegetation is largely comprised of weeds, dry bark and dead leaves.
Constable Carey terminated the pursuit after seeing [Mr Colefax] enter Hagon Place and followed slowly behind.
In the meantime, [Mr Colefax] stopped his car and retrieved a blue bottle containing brake fluid and a white container containing chlorine powder. At this time, [Mr Colefax]’s companion left the scene in an unknown direction. [Mr Colefax] waited beside his vehicle for police to arrive.
Constable Carey drove the police vehicle into Hagon Place and parked it approximately twenty metres from [Mr Colefax]. Both Constable Carey and Senior Constable Williams left their vehicle. As they were doing so, [Mr Colefax] began to advance towards the police officers, shaking the items in his hands, while raising them above his head. [He] screamed, ‘fuck off’ repeatedly to the police officers.
When [Mr Colefax] was approximately 10-15m away from Constable Carey he brought the items in his hands together before cocking his left hand back in what appeared to Constable Carey to be a preparation to throw one of the containers at him. At this time Constable Carey observed blue smoke coming from one of the items in [Mr Colefax]’s hands.
Believing that [Mr Colefax] presented an imminent threat of serious injury or death to him, Constable Carey drew his firearm and aimed it at [Mr Colefax] while he and Senior Constable Williams directed [Mr Colefax] to drop the items and lie down on the ground. [Mr Colefax] immediately halted his advance however did not drop any of the items he was carrying. [He] hesitated momentarily before turning and running in the opposite direction, towards the dead end of Hagon Place. Constable Carey and Senior Constable Williams chased after [him].
As [Mr Colefax] reached the pedestrian path leading to Solly Place he threw both containers onto the vegetation. [He] continued down the pedestrian path with Constable Carey and Senior Constable Williams in pursuit.
Both police officers abandoned their pursuit ... when they heard a distinct popping sound and observed a fire about two metres in height that had started where [Mr Colefax] discarded the two containers he had been carrying. The fire was extinguished soon afterwards using fire extinguishers in the police vehicle.
[Mr Colefax] hid in bushes nearby for approximately forty minutes. Some of the mixture of brake fluid and chlorine had seeped into [his] left shoe, causing burning to his foot. [Mr Colefax] returned to Hagon Place, where police officers were securing the crime scene. [He] was arrested and taken to Calvary Hospital for treatment for his foot.
At about 5.45pm on 19 January 2014, [Mr Colefax] participated in an interview with police conducted at the Alexander Maconachie Centre. During that interview, [he] made full admissions to the offences. [Mr Colefax] further explained that at the time of the offending he had been using ‘ice’. [He] had expected to be arrested for ‘pathetic [unrelated] breaches’ before deciding to engage in his conduct on the basis that, ‘if I’m going to come here I may as well come here for fucking something for real.’ [Mr Colefax] admitted to discarding the mixture of chlorine and brake fluid to prevent the police from following him.
I note that the threat charged was constituted specifically by, first, Mr Colefax advancing towards the police officer and shaking the two containers in his hands while raising them above his head, and then by bringing the two containers together and apparently preparing to throw one of them at Constable Carey.
Mr Colefax remained in custody after his arrest until he was released on bail on 19 May 2014 after spending 122 days in custody.
He was committed to the Supreme Court for trial on a charge of causing a bushfire, which under s 405 of the Criminal Code carries a maximum penalty of 15 years imprisonment. In the Supreme Court, the prosecution filed instead an indictment charging the threat to cause harm offence, carrying a maximum of nine years imprisonment in the current circumstances, and Mr Colefax’s trial was set down for 24 November last year. On 19 November, he pleaded guilty to that later charge and the matter was adjourned for sentence.
When the offences were committed, Mr Colefax was subject to three concurrent 12-month good behaviour orders that had been imposed in the Magistrate’s Court on 17 July 2013 in respect of two offences of damage property and one of fail to appear. The damage property offences involved breaking windows in Mr Colefax’s mother’s house, and arose in the context of tensions between Mr Colefax and his mother over her role in caring for Mr Colefax’s daughter under arrangements made by Care and Protection authorities.
As well as the Statement of Facts, the following material is in evidence before me:
(a)Mr Colefax’s criminal history;
(b)a Pre-Sentence Report prepared in March 2014 and an updated Pre‑Sentence Report prepared for the current sentencing;
(c)two CADAS reports and letters from Karralika; and
(d)the statements of facts relating to the earlier offences;
all of which were tendered by the Crown. As well, the defence tendered:
(e)a letter from the Tuggeranong Mental Health Team dated 18 August 2014 and offering mental health support to Mr Colefax;
(f)a forensic psychiatric report prepared by Dr Anthony Barker and dated 20 March 2014;
(g)a certificate evidencing Mr Colefax’s completion in July 2014 of the eight-week Karuna Program run by Karralika; and
(h)a Certificate I in Information, Digital Media and Technology awarded to Mr Colefax.
In considering the objective seriousness of the offence, I have had regard to the following matters:
(a)That this is clearly a serious offence, having regard to the maximum penalty, and that this reflects the importance of protecting police and other public officials as they go about their duties.
(b)That it is irrelevant that Mr Colefax did not put his threat into words and that a threat emerging from conduct in this way may, in fact, make the threat more immediate and more frightening than one only made in words.
(c)That although Mr Colefax, having initially drawn the attention of police officers to himself, appears to have led them into a cul-de-sac, I reject the prosecutor’s submission that I should find that he lured the police officers in with an intention to cause serious harm to them. Rather, I consider that Mr Colefax’s actions in drawing police attention to himself were irrationally stupid rather than rational and calculated. However, Mr Colefax’s comments to the author of the Forensic Psychiatric Report, to which I shall return, do suggest that Mr Colefax hoped to be able to escape from police as a result of setting the fire. That fire cannot therefore be treated as purely incidental to his engagement with the police officers and, of course, the offence of lighting the fire is to be taken into account in the sentence.
(d)Finally, that intentionally putting a police officer into a situation where, as here, he feels compelled to draw his firearm creates an extremely dangerous situation for all concerned.
Mr Colefax’s offence is in my view slightly above the middle range of objective seriousness.
Mr Colefax has not demonstrated anything that could be described as remorse, but in discussions with the Pre‑Sentence Report author in March last year, he accepted responsibility for the offences and agreed that there should be consequences. His discussion with Dr Barker around the same time suggests a certain lack of insight into the gravity of his actions and an attempt to minimise their likely consequences. He told Dr Barker:
... that he mixed the substances together in an attempt to deter police from following him and reported that he thought "They won’t follow me if I put this on the ground." Mr Colefax stated “To me, it wasn’t reckless ... my mate had a house nearby with a hose and a tap” and “in my mind I knew where it was, it was safe, it could be extinguished easy enough”.
I have also had regard in this sentencing to Mr Colefax’s subjective circumstances.
Mr Colefax is 33. His criminal history in the ACT consists mainly of relatively minor traffic offences and failures to appear after bail undertakings, although there are two convictions for assault occasioning actual bodily harm, the most recent in 2006 and, judging by the penalties imposed, not the most serious examples of that offence. There have also been traffic offences in New South Wales. I understand, however, that the pre‑sentence custody following this offence was Mr Colefax’s first experience of prison.
Mr Colefax’s background is described in a forensic psychiatric assessment provided by Dr Barker early last year as follows:
Mr Colefax indicated that he was born in Canberra. He stated that he was unaware of any perinatal complications or whether his developmental milestones had been achieved within normal limits. When I asked Mr Colefax about his childhood he stated "Dad left us when I was six, Mum kicked me out when I was 14” At school Mr Colefax indicated he was the “class clown”. He stated that he was suspended on several occasions but was unable to recall why .... Mr Colefax denied that he was ever expelled, but stated that he was “asked to leave” different schools on 4 occasions. Mr Colefax stated that the reasons for this varied from poor care of his uniform to repeated disruptions in class ("I was just there to have fun”). Mr Colefax denied that the reason he had been asked to leave school was related to any form of physical altercation.
After leaving school, Mr Colefax stated that he began working as an electrical trade assistant at age 17 or 18 and continued this work for the following 13 years. Mr Colefax stated that he is currently qualified as a Level 3 electrical trade assistant and would like to resume this employment in the future.
Mr Colefax said that he was previously in a long‑term relationship which commenced in 2002 and lasted for 4 years. He said that the relationship ended because "we were arguing all the time". Mr Colefax stated that his relationship with his ex‑partner was currently “ok”, although he expressed a sense of disappointment that she had not visited him while he was in custody. Mr Colefax said that when not in custody he tended to see his eldest daughter approximately weekly. He stated that he was currently not able to see his youngest daughter as his mother had taken out a Domestic Violence Order against him. Mr Colefax stated that Care and Protection Services had not put in place any restrictions regarding his ability to have contact with his children.
I understand that Mr Colefax never returned to live at home after the age of 14 and has spent much of the period since “couch-surfing” or living rough. He left school at age 15 and appears to have been unemployed since late 2012.
Dr Barker recorded that Mr Colefax first engaged with mental health services about 18 months before the date of his report, that is roughly September 2012. Mr Colefax has spent six months on a Psychiatric Treatment Order, being treated with anti-psychotic medication. Since then, he has made two serious suicide attempts, about a month apart, which were fortunately unsuccessful. In the second case, Mr Colefax tried to electrocute himself in an electrical substation, but was saved by police who managed to disconnect the power.
Dr Barker provided diagnoses of:
(a)schizophrenia;
(b)substance use disorder involving alcohol, amphetamines and cannabis;
(c)history of substance use disorder involving alcohol and opioids; and
(d)a history of substance-induced psychotic disorder.
He concluded that:
Mr Colefax clearly has a history of psychotic symptoms although previously these appear to have occurred in the context of a drug-induced psychosis. Mr Colefax currently reports experiencing referential ideation in the context of likely current abstinence from illicit substance use. Given Mr Colefax’s previous history of psychotic symptoms and his current delusional ideation I consider that, on the balance of probabilities, his current presentation is most likely indicative of a chronic psychotic illness such as schizophrenia. Despite Mr Colefax’s illness, there is no information currently available which indicates that his illness is causally related to the offences currently before the Court.
Dr Barker recommended treatment with anti-psychotic medication and drug and alcohol counselling.
As to the reasons why these offences were committed, I note Mr Colefax’s explanation to police that he had been using Ice, Dr Barker’s view that the offences were not causally related to Mr Colefax’s mental health problems, but also Dr Barker’s report of Mr Colefax’s identification of several stressful events shortly before the offence was committed, including being evicted from his accommodation and being distressed because he was missing his daughters.
It is apparent that substance abuse has had a major role in Mr Colefax’s offending, and his problems more generally. A 2013 CADAS report indicated a history of alcohol and varied drug abuse from the age of 14 (the point at which he was thrown out of home), with cannabis use continuing until 2013 and amphetamine use apparently being most recently problematic; on the other hand, Mr Colefax claims to use little alcohol these days.
The updated CADAS report prepared for this sentencing recorded Mr Colefax’s claim that he has not used any drugs since before being remanded in custody, which was presumably the remand in January last year. This may be attributable to the fact that he was bailed in May 2014 to participate in residential rehabilitation in the Karralika Therapeutic Community, and has apparently remained there, progressing through the several stages of the rehabilitation process. He is currently in the Karralika Nexus Program, which involves developing and implementing a recovery plan.
Among other things, Mr Colefax has completed parenting and anger management courses, has arranged (under a Mental Health Care Plan) to begin psychotherapy aimed at helping him handle strong emotions and feelings of victimisation, and has begun to look for independent accommodation and part‑time employment.
The author of the updated Pre‑Sentence Report recorded that Mr Colefax seems to have increased insight into his offending behaviour and its causes.
I accept the prosecutor’s submission that general deterrence, personal deterrence, and especially denunciation are required in relation to this offence. I am satisfied that no penalty other than imprisonment is appropriate.
Mr Colefax pleaded guilty to this offence quite late in the overall process, but very shortly after the new charge was laid. The prosecutor accepts that this was an early plea.
Mr Colefax, please stand. I record a conviction on the charge of threatening to cause serious harm to a Commonwealth public official, being a police officer. I also note four scheduled offences of travelling in a motor vehicle with part of the body outside the vehicle, a U-turn at traffic lights, dangerous driving, and lighting a fire during a total fire ban, and I have taken them into account in sentencing.
Next, I note that this conviction puts you in breach of three 12-month good behaviour orders made on 17 July 2013, but in relation to each good behaviour order I take no action on the breach as permitted by s 108 of the Crimes (Sentence Administration) Act 2005 (ACT).
I now sentence you to imprisonment for two years and three months, reduced from three years for your plea of guilty.
The sentence will be backdated to 13 August 2014, which takes account of 122 days of pre‑sentence custody and a further nearly two months in recognition of the nearly seven months you have now successfully spent in rehabilitation. Given the apparent success of your rehabilitation efforts so far, it would be undesirable to require you to serve any more time in custody at this stage, so I direct that you be released forthwith on giving security in the amount of $200, and I order you to sign an undertaking to be of good behaviour for the next two years. The order for your release is also subject to the conditions:
(a)that for such period not exceeding two years as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonably directions of the Director-General, or her delegate;
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and
(c)that within the next two days, so that is before the end of Tuesday, and ideally you would do it today, you attend Corrective Services at Eclipse House to arrange supervision.
Finally, having regard to the dangerous driving offence that has been taken into account in sentencing, and relying on s 63(2) of the Road Transport (General) Act 1999 (ACT) and s 58(2) of the Crimes (Sentencing) Act 2005 (ACT), I order that you are disqualified from holding or obtaining a driver licence for four months starting today.
The good behaviour undertaking will be read to you by the court officials, but in short it means that the remaining 21 months of your sentence will hang over your head for the next two years and so for that period, you need to keep out of trouble, keep in contact with Corrective Services as far as they require you to, and do as your supervisor tells you.
If you commit another offence during that time, or if you breach your supervision conditions, you may find yourself back before this court to be re‑sentenced for this offence, and depending on what brings you back before me for re-sentence, you could easily find yourself serving some or all of the remaining 21 months in full‑time custody.
If you have any questions about those orders, please ask the court officials, or Mr Davies will help you out, I’m sure.
Mr Colefax, you’ve had a fairly difficult time, especially in the last few years, but those difficulties don’t give you any kind of right to stir up trouble around you, and especially not to put a police officer in fear for his life while he is trying to keep the community safe. However, you’ve done well so far in rehabilitation, and that, taken with your recognition of the need to “deal with life on life’s terms”, may mean that you are now really on track to make a better life for yourself. I certainly hope so.
You may sit down.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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