R v Deng
[2022] ACTSC 143
•21 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Deng |
Citation: | [2022] ACTSC 143 |
Hearing Dates: | 31 January 2022; 15 March 2022 |
DecisionDate: | 21 April 2022 |
Before: | Refshauge AJ |
Decision: | 1. Garang Dau Deng be convicted of property damage and be sentenced to 2 years imprisonment, to commence on 15 August 2021 and end on 14 August 2023. 2. Garang Dau Deng be convicted of arson and be sentenced to 3 years imprisonment, to commence on 15 November 2021 and end on 14 November 2024. 3. Garang Dau Deng be convicted of aggravated robbery by joint commission and be sentenced to 5 years imprisonment, to commence on 15 November 2023 and end on 14 November 2028. 4. A non-parole period of 1 year and 6 months be set, to commence on 15 November 2023 and end on 14 May 2025. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – aggravated burglary – damaging property – offending while in custody – childhood disadvantage – parity – rehabilitation – Drug and Alcohol Treatment Order application – application denied – imprisonment |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 118 Crimes Act 1900 (ACT) pt 2, ss 277, 323, 324 Crimes (Sentencing) Act 2005 (ACT) pt 4.4, 5.2, ss 7, 10, 12A, 33, 46J, 63, 64, 65, 72, 118 |
Cases Cited: | Ajax v The Queen [2006] NTCCA 12; 17 NTLR 80 Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | The Queen ( Crown) Garang Dau Deng ( Offender) |
Representation: | Counsel P Dixon (31 January 2022); T Hickey (15 March 2022); C Daly (21 April 2022) ( Crown) T Jackson ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) J De Bruin; Legal Aid ACT ( Offender) | |
File Numbers: | SCC 15 of 2021 SCC 16 of 2021 SCC 302 of 2021 |
REFSHAUGE AJ:
Introduction
While sentencing is one of the hardest tasks of a court (R v Massey [2022] ACTSC 3 at [1]), it has become both more complicated and more flexible, though not unconstrained. This is generally through legislation: see Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 302-3; [1]-[7]. As there noted (at 302-3; [5]), one of the major reforms in this Territory was in the enactment of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which largely codified the law on sentencing. It was also there noted (at 303; [6]), that there is still room for the application of some common law principles, many of which are still being refined or established by the High Court of Australia in decisions such as Lowe v The Queen (1984) 154 CLR 606, Veen v The Queen (No 2) (1988) 164 CLR 465, Mill v The Queen (1988) 166 CLR 59 and Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Relevantly to this decision, the Sentencing Act also introduces a limitation on the structure of a sentence for certain sentences imposed for offences committed in custody: ss 64(2)(e), 72 of Sentencing Act and s 118(2) of the Crimes (Sentence Administration) Act 2005 (ACT).
In 2019, the Act was also amended to introduce the special arrangements for the sentencing of certain offenders who are dependent on alcohol or illicit drugs and whose dependency substantially contributed to their offending: s 12A of the Sentencing Act, creating a Drug and Alcohol Treatment Order (Treatment Order).
Now appearing before the Court for sentence is Garang Dau Deng, who has pleaded guilty to offences of aggravated robbery, damaging property and arson. He has also asked that an offence of attempted aggravated burglary be taken into account under Part 4.4 of the Sentencing Act.
At the sentencing hearing, the Crown tendered without objection its Sentencing Tender Bundle. It contained the required cover sheet, the Indictment containing two of the offences to which Mr Deng had pleaded guilty and the committal documents for the other offences: arson and damaging property to which he also pleaded guilty. It also included two Agreed Statements of Facts, Mr Deng's Criminal History, a Pre-Sentence Report dated 1 November 2021, two Victim Impact Statements, a Damage Assessment and documents relating to Mr Deng's Parole Order to which he was subject at the time of the commission of some of the offences. It also contained a list of additional offences, but at that stage unsigned. It was, in fact, for the wrong offence and a subsequent list containing the correct offence, which Mr Deng had sought to have taken into account, was signed by him and filed in Court.
The Crown Sentencing Tender Bundle further contained a Drug and Alcohol Treatment Assessment dated 4 January 2022, inadvertently noted as 2021 in the cover sheet, prepared by ACT Corrective Services. It was a Drug and Alcohol Treatment Assessment (Suitability Assessment) prepared under s 46J of the Sentencing Act. A further Suitability Assessment together with a Case Plan, being the Drug and Alcohol Sentencing List Suitability Assessment dated 11 January 2022 prepared by Alcohol and Drug Services, was later tendered by the Crown without objection.
Mr T Jackson, counsel for Mr Deng, tendered without objection a Psychological Assessment dated 17 January 2022 by a Ms Leesa Morris; two Pre-Sentence Reports prepared for Court on 23 October 2015 and 30 October 2014; [redacted for legal reasons].
He also tendered without objection a certificate of completion of Stage 1 of the Cognitive Self Change Program conducted in the Alexander Maconochie Centre, a letter from Mr Deng to the Court and a letter from Mr Deng to the victim of the aggravated burglary. The Court was told that the victim would be advised of the letter to her and, if she wished, it would be sent to her. Also filed was a form in which Mr Deng confirmed that the obligations under a Treatment Order had been explained to him and that he consented to the making of such an Order. There was no challenge to the contents of any of these documents.
The Court did suggest that, in the Statements of Facts which were agreed between the parties and so an Agreed Statements of Facts, assertions that “the Crown contends” (for example, that the person committed an offence was the offender) should, on the plea of guilty, not merely be a Crown contention but an assertion of that fact. It was agreed that the Agreed Statements of Facts be appropriately amended.
Both Mr P Dixon, counsel for the Crown, and Mr Jackson provided thoughtful and comprehensive written submissions which were supplemented by valuable oral submissions.
The following findings are made from the contents of this material.
The facts
The offences may conveniently be divided into two parts; the first concerning the events of 12 August 2020 and the second those of 12 May 2021, each the subject of one of the two Agreed Statements of Facts.
Events of 12 August 2020
In 2019, Mr Deng had been sentenced for an offence of aggravated robbery. He was granted parole on 1 July 2020, a little time after the end of the non-parole period. He was, therefore, at conditional liberty on 12 August 2020.
At about 2:20am on that latter date, Mr Deng, together with co-offenders Keith Ernest Frank Carberry 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 3:20am, 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, electrical items and cords, a Rolex and other watches, assorted electrical items, a black handbag, two rectangular PIN code safes and a hard drive of CCTV footage. The offenders also took a hip bag, 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 fingerprints on a box that had contained a box of jewellery. The occupant identified Mr Deng from a Facebook profile photograph. Police later examined the phones of Mr Deng and found incriminating messages on it.
They later found the vehicle they had used in the two incidents and found, on searching it, a number of weapons, apparently those used in the offending, and some of the stolen items from the Gordon unit. They also discovered fingerprints from Mr Deng and Mr Hall in the vehicle.
Police 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 used in the offences.
Mr Deng attended at Woden Police Station on 22 August 2020 and participated in an interview, during which he told the police a number of lies about matters that were closely connected with the offence and were able to be shown to be lies by other evidence available to police. He knew that if he told the truth that would implicate him in the offences.
Following the interview, Mr Deng was arrested. He was later remanded in custody.
Events of 12 May 2021
Mr Deng and Mr Carberry were, on 12 May 2021, 2 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 3:00pm, 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 6:02pm, 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 6:12pm, 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 fire extinguishing. 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 7:10pm, 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 8:30pm, 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.
These were the facts used to support the charge of arson.
Mr Deng and Mr Carberry did not only set fires. At one stage, in a display of disgusting conduct, they spat at Officers. They also yelled threats and threw cups at them, though they missed. They continued causing damage to the property up to about 11:30pm. The damage included damaging the tap of a kitchen, throwing a number of items about including food, kitchen items and other objects off tables, garbage bins, a computer, chairs, a metal gym bar and kitchen appliances.
They damaged the 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 and, with the metal gym bar, hit tables, windows, railings, doors and a CCTV camera. They then 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. The incident was captured on CCTV footage.
These were the facts on which the damaging property was based.
A “Rough Order of Magnitude” estimate was provided by ACT Corrective Services of the cost of rectification and remediation for the unit. That was $4.61 million, inclusive of staffing resources. It further estimated that it would take 12 months to effect the repairs. The figure did not differentiate between the damage caused by the arson and the other damage, but it would seem that the large majority of that damage would be for the damage caused by the fires.
Proceedings
As noted above (at [31]), Mr Deng was arrested for the first offence, aggravated robbery, and the additional offence of attempted aggravated burglary on 22 August 2020. He was charged before the Court on 24 August 2020 with two offences of theft; one offence of threat to kill; attempted aggravated burglary; aggravated burglary; dishonestly taking a motor vehicle without the owner's consent; assault; possessing ammunition; possession of a firearm; and unlawful possession of stolen property. He was remanded in custody.
On 15 September 2020, he pleaded not guilty to these offences. He remained in custody.
On 27 October 2020, when these matters were mentioned, he was further charged with the aggravated robbery offence committed on 22 August 2020. Although no formal record of his plea of not guilty is recorded on the Bench Sheets for the charge, it is clear that he intended to defend the charge as, on 29 January 2021, he filed an alibi notice for the offence.
Mr Deng then, on 29 January 2021, waived his right to a committal under s 88B of the Magistrates Court Act 1930 (ACT) and was committed for trial to this Court on all the indictable charges then preferred against him. The summary offences were then transferred to the Supreme Court under s 90B of the Magistrates Court Act.
An Indictment containing eight counts was filed on 11 June 2021. Mr Deng, after a Criminal Case Conference, agreed to plead guilty to the fewer offences for which he is now to be sentenced. A plea was entered on 4 November 2021. He was referred to the Drug and Alcohol Sentencing List for assessment of whether a Treatment Order should be made. Suitability Assessments were ordered on 5 November 2021 and the matters listed for sentence.
On 14 July 2021, informations were sworn for the charges of arson and damaging property, being the offences of 12 May 2021. He appeared in the ACT Magistrates Court on the return date of 10 August 2021. He remained in custody. The proceedings were adjourned from time to time and he remained in custody. For these offences, Mr Deng pleaded guilty in the Magistrates Court on the 17 December 2021. On that date, both offences were committed to this Court to be considered in the Treatment Order assessment.
It is clear that a number of the offences on which Mr Deng was committed are not to proceed. A notice declining to proceed should be filed for them: Rv DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45]. The summary charges should also be dealt with appropriately.
Mr Deng has been in custody on these charges now for 244 days which will be taken into account on sentence.
The offences
In order to arrive at a 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 the offender R v Kilic [2016] HCA 48; 259 CLR 256 at 266; [19].
This has been codified to some extent in the Sentencing Act, where s 33 sets out matters which the Court must consider. These address the offence and the offender, but also broaden consideration to 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 offences - clearly a central matter. These have already been addressed above (at [12]-[51]).
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 the offence, for the reasons set out in Markarian v The Queen at 372; [30]-[31].
The courts have, however, also identified factors over time which are important to show the seriousness of the offence but aggravating or mitigating the severity of the precise way in which the offence had been committed. These are the matters that should now be addressed.
Aggravated robbery is an offence against s 310 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 25 years imprisonment, 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 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 this Court and has not generally been followed in this jurisdiction: 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 and the robbery was in the victim's home. It was clearly targeted as a unit where there was known to be a drug dealer, although the drug dealer was not there at the time.
While there was no actual violence, the event was clearly terrifying for the victim to the extent that she was threatened with her brains being blown out while a gun was pointed at her head. This led to her being so afraid that she could not call police and was frightened that her parents would do so. She was in a vulnerable position, asleep in bed in the morning. This led to her suffering severe mental trauma and other consequences.
The property taken was quite substantial and valuable. Some, such as jewellery, may have also been of sentimental value, though there was no evidence of this and this cannot be taken into account.
The evidence of planning was limited. From the fact that the offenders had to acquire the weapons and had clearly targeted the property where they had some intelligence that there may be drugs and money, there were clearly some planning and, thus, a significant aggravating feature.
Aggravated burglary is an offence against s 312 of the Criminal Code, which prescribes a maximum penalty of 20 years imprisonment, a fine of $320,000 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.
This 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 to 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 will be 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 that a more severe sentence will result than otherwise may have been imposed - especially as punishment and personal deterrence will be given greater weight. Taking the offence into account is the same as taking into account any other relevant factor, especially those set out in s 33(1) of the Sentencing Act.
Thus, the seriousness of the offence is necessary to consider. 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 offence to have been impossible or doomed to fail or ineptly attempted. The offence attempted is, nevertheless, a serious offence and attracts a severe sentence. The attempt was a relatively effective one; certainly not inept.
The offence of aggravated burglary was the 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 Deng, his dependency on illicit drugs and was 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 concerned, they had the presence of mind to call the police. As nothing was taken, it is difficult to say what could have been taken had the offence have been completed.
Arson is an offence prohibited by s 404 of the Criminal Code which attracts a maximum sentence of 15 years imprisonment, 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 identified in R v Wrigley [2015] ACTSC 114 at [34] and applied many times since then. In addition, part of the seriousness of the crime is that there was, as here, a realistic prospect that life would be endangered: R v Raeyers [2014] ACTSC 134 at [35]. These require a more severe sentence, though the endangering of life makes it a different, more serious offence, for which Mr Deng cannot be punished.
The reason for the offence is somewhat unclear. Mr Deng told the author of the Suitability Assessment of Alcohol and Drug Services that he had consumed ‘prison brew’ of unknown ingredients; of alcohol or other substance content. He did not remember the riot and had ‘blacked out’. There does not seem to be any particular cause or malevolent intent, though obviously some of this must have been present for which Mr Deng's intoxication disinhibited him. 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, persistent and deliberate, especially despite the attempts by Corrections Officers to stop it. It also put other detainees at risk and, indeed, some were actually affected by smoke.
An important factor is the quantum of damage caused. Here the valuation of the damages 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 Court can assume that 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 a situation where the prison seems generally to be frequently full. Rendering a unit, housing 36 detainees, out of service for some time would have put pressure on the prison, but also those detainees, who would have to be housed elsewhere during that time.
It was a 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 has specified a maximum penalty of 10 years imprisonment, a fine of $160,000 or both. The least serious of these offences, it is still a serious offence.
The most relevant factors to the assessment of the seriousness of such an offence are the circumstances in which the damage occurred and the amount of damage caused: see Halden v The Queen (1983) 9 A Crim R 30 at 36, 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, though again, Mr Deng’s disinhibition caused by his intoxication presumably released some frustration at least. The damage was caused during what can only be described as a rampage, which continued for many hours, despite directions to stop and for Mr Deng and Mr Carberry to return to their cells. The amount of damage is not clear, though, given the damaging conduct described and value of repairs, must have been significant at least.
Subjective circumstances
The other critical consideration in determining an appropriate sentence are the personal history and characteristics of Mr Deng, required by a number of paragraphs of s 33(1) of the Sentencing Act.
Unfortunately, Mr Deng is not a perfect historian and some of the dates and other facts are reported slightly differently in the various material available to me. None of the differences were significant.
Mr Deng was born 23 years ago of South Sudanese parentage, the second eldest of six children. He is for sentencing purposes still a young man: see R v Tonna (No 2) [2020] ACTSC 362 [44]-[47]. It appears that he was born in Uganda, though one report suggests it was Kenya.
The first years of his life were lived in a war zone. His early life was spent in a refugee camp in Kenya. Images of his experiences there - of villages burning down, gunshot sounds and his parents, aunts and uncles running with him and his siblings for their lives - have not left him. The camp was in a remote area, overcrowded and under resourced. He does suffer some flashbacks from these experiences.
The family came to Australia as refugees when he was three years old. They settled initially in Sydney but soon relocated to Canberra where he has lived ever since, though he has been appearing in New South Wales courts in Yass, Goulburn and Queanbeyan.
His father was violent to his mother, though there was no alcohol abuse or illicit drug use in the family. His father was not around much of the time and left the family home and went to Perth when Mr Deng was about 11 years old. Mr Deng has had no contact with him since 2015.
Mr Deng has always resided with his family and has a good relationship with his mother and his siblings. He proposes to return to live with her when he is released from custody.
Mr Deng had a disrupted schooling. He exhibited behavioural issues leading to suspension and moving schools. He experienced racism and felt that he did not fit in. He would fight those students who were racist. He also engaged in truancy. He later fell in with anti-social peers [redacted for legal reasons]. He left school in Year 6 or 7. He did, however, later complete Year 10 [redacted]. From the term progress reports (as mentioned at [7]), it is clear he also has certificates in fitness, hospitality and business. Within these reports, all teachers wrote highly of Mr Deng’s ability, particularly in his sport, music and art subjects.
After leaving school, he did gain some employment between periods in custody. He worked for about a year in 2017-2018 as a traffic controller. More recently, he has been employed for periods in construction, working on fencing, demolition and as a bricklayer. He says that he can return to work as a bricklayer when released from custody.
Mr Deng has had one significant personal relationship that lasted about four years. His partner had two children from a previous relationship. The relationship ended last year when Mr Deng was incarcerated. He has no children of his own.
Mr Deng has no severe mental health issues. He has been described, however, as meeting the criterion for anti-social personality disorders. He also has drug use disorders. This limits his capacity to empathise with the impact he makes on others, though, in his letter to me, he did express apparently sincere regret for the effect he had on the victim of the aggravated robbery.
He said that he was “very remorseful to the victims” and especially that the victim of the robbery was “just an innocent person who was looking after her aunties [sic] house”. He added, “it just kills me. She did not deserve that”. The letter to the victim expressed his regret and offered an apology, saying, “it makes me sick what you went through”, and asked for her forgiveness.
Mr Deng has no physical ailments, though he does suffer from asthma.
He has a longstanding engagement with alcohol and other drugs. He uses them to numb his feelings and flashbacks and nightmares.
He began using cannabis at age 10 and by 11 years old was using daily, continuing use since then. He last used in late 2021, at which time he had been using about half an ounce a day.
He commenced drinking alcohol when he was 11 years old. He does not drink much, preferring use of other drugs. His last use was when he drank the ‘prison brew’ at the time of the arson and damaging property offences. He used it largely due to lack of other options.
Mr Deng began smoking tobacco also at age 11 and now smokes about 10 cigarettes a day.
He commenced using methylamphetamines when he was 13 years old. He initially smoked it, but, by age 17, was injecting it. It is now a significant drug of choice. He uses about half an eight ball every day. An “eight ball” is an eighth of an ounce, between 3 and 3.5 grams.
He first used heroin at age 16 and was soon using it regularly. It, too, is now a major drug of choice. He currently uses half to one eight ball a day and had used it on the day of his arrest.
More recently, in the last 12 months, he has begun using GHB, consuming about 4 millimetres per day.
He used cocaine when he was 15 years of age, but now uses it sporadically.
Mr Deng has been diagnosed as having a severe opioid use disorder, a severe cannabis use disorder and a severe stimulant methylamphetamine use disorder.
Mr Deng has had some alcohol, tobacco and other drug treatment. He participated in a day program when he was aged 12 or 13, but was discharged because of anger and fighting and he did not really engage. When he was 15 years old, he completed a three month program at the Ted Noffs Foundation in Dubbo, NSW. A year or two later, he entered the Ted Noffs Foundation facility in Canberra but soon left as a number of the other participants were still using drugs.
Mr Deng's criminal record is long and distressing. [Redacted].
He has 10 offences on his record since he turned 18 years old, but part of that no doubt is because he has been in custody for over 3 years - more than half of that period of his life. His major offending are offences of dishonesty, including serious offences of burglary and robbery. He has also a conviction for damaging property. He has committed an offence of violence, a number of drug offences and a number of traffic offences.
He has breached community based orders, including Parole Orders, and has been convicted for failing to appear in accordance with a bail undertaking. While in custody, he has been disciplined on a number of occasions and has, of course, committed the arson and damaging property offences while he was in custody.
Nevertheless, he has completed a number of courses while in custody. He has completed some education [redacted], and has also recently completed a cognitive self-change program.
Current sentencing practice
In addition to the aggravating and mitigating factors identified for the purpose of determining the objective seriousness of offences, a further consideration required of a court sentencing an offender by s 33(1)(za) of the Sentencing Act requires consideration of actual sentences currently imposed by courts. These do not, of course, set boundaries or limits for the imposition of sentences but are directed to ensuring consistency of sentencing, which is an important characteristic of a just sentence.
This can be done by reference to comparable cases but also, though in a much more limited way, from sentencing statistics as found in the ACT Sentencing Database. The cases, of course, provide an insight into the principles which have led to the imposition of a particular sentence and also usually identify factors of importance that are not shown in the Database, such as the nature of the premises the target of a burglary, the value of property stolen in a theft or robbery or the cost of damage caused.
In this case, however, one of the co-offenders has already been sentenced. Marley Hall, the third co-offender in the attempted aggravated burglary and the aggravated robbery, was sentenced on 14 February 2022. He was sentenced to five years and one month imprisonment for the aggravated robbery offence, with a non-parole period of three years and six months: see R v Hall (No 2) [2022] ACTSC 22. It is very important that this sentence be followed, if at all possible. As was said in Murray v IA [2020] ACTSC 288 at [31]:
The principle of parity is the principle that offenders who are party to the same offending should not be sentenced in a way which is so different so as to create a justifiable sense of grievance on the part of the offender receiving the heavier sentence or give the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606.
Of course, substantial differences in the subject circumstances of co-offenders or in the role played by either would justify a departure from the sentence of one from another: Thompson v The Queen [2018] ACTCA 2 at [24].
As to the offence of arson, neither counsel provided, in their helpful and thoughtful submissions, any comparable sentences. That is not surprising given the particular circumstances of the offence and the cost of the damage done.
In R v Raeyers, a fire was started by Mr Raeyers in custody. The damage done, however, was significantly less than in this case, but his subjective circumstances did not require moderation of the severity as would be required with Mr Deng. Mr Raeyers was sentenced to 12 months imprisonment.
In R v Sidaros (No 6) [2021] ACTSC 24, Mr Sidaros was, after a finding of guilt following a trial, found guilty of arson and attempted arson with intent to endanger life, as well as a number of other offences. The arson was in connection with a serious attack on a residence by four people, including Mr Sidaros. They poured petrol into the living room of the house where there were a number of residents, including a young boy but it appeared not to have ignited. They then lit petrol which they had poured over cars in the carport and lit it but it did not spread to the house. The former constituted the attempted arson and the latter fires in the cars constituted the charge of arson. Mr Sidaros was sentenced to four years imprisonment for the offence of arson and six years for the attempted arson with intent to endanger life. He did not have the subjective disadvantage of Mr Deng. The use of an accelerant is also a serious difference.
In R v Millington (No 2) [2022] ACTSC 9, Mr Millington and other intruders also poured petrol around the lounge room of residential premises which they invaded. They lit the petrol, but the report does not record the damage actually done. Again, there were a number of persons in the premises. Mr Millington was sentenced to five years imprisonment for the offence of arson with intent to endanger life, a more serious offence than that for which Mr Deng is to be sentenced. Again, an accelerant was used and Mr Millington's subjective circumstances were more positive than those of Mr Deng. It was also a much more serious offence with a higher maximum penalty.
In the Sentencing Database, 45% of the 51 sentences recorded are of full time imprisonment. 40% of cases are sentences of imprisonment wholly or partly suspended. Of all the sentences of imprisonment, they range from 3 to 36 months imprisonment. As can be seen, a number of the sentences are not captured in the Database.
So far as the offence of damaging property is concerned, sentences are of a very wide range. Of these recorded in the database, 57% are sentences of full time imprisonment, ranging over terms of 3 months to 18 months imprisonment, though 3 were for 2 years; 3 years and 3 months; 3 years and 6 months.
Sentencing for offences committed in custody
Because the offences of arson and damaging property were committed when Mr Deng was in custody, special rules apply. The effect of relevant provisions has been summarised as follows.
Section 64 of the Sentencing Act excludes sentences of imprisonment for offences committed while in lawful custody (excluded sentences) from, inter alia, the application of Part 5.2 of the Act. Under s 65 within that Part, the court is required, on sentencing an offender, to set a non-parole period for sentences of imprisonment of terms one year or longer. Thus, were the excluded sentences to be for a year or more, or together a year or more, no non-parole period could be set: see Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 at 333; [15].
Noting that, while s 65(5) of the Sentencing Act positively forbids a court setting a non-parole period when imposing a sentence of life imprisonment, s 64 only excludes a sentence, such as an excluded sentence, from the requirement in Part 5.2 of that Act to set a non-parole period and, unlike s 65(5), does not prohibit that, only excludes it as a mandatory requirement. Whether that has the effect of permitting a non-parole period from being set is unclear. This issue has not been the subject of any submissions. Accordingly, unless I am convinced that the decision of Biddle v Gatherer is wrong it should be followed. I am not so convinced.
Section 72 of the Sentencing Act provides that where a sentence is an excluded sentence, the sentence for that offence must be served consecutively with any existing sentence of imprisonment unless the Court directs that it can be a sentence partly concurrently with the existing sentence. It does not authorise the Court to direct that it be served wholly concurrently. There is, however, a limitation on the power of direction for s 72(4) requires that where the offence committed “involves causing harm or threatening to cause harm to a corrections officer” then a direction as to concurrency can only be made if special circumstances apply. There is no definition or explanation of what may be included in special circumstances.
The operation of that section is further affected by s 118 of the Crimes (Sentence Administration) Act 2005 (ACT), whereby if the existing sentence has a non-parole period, even if that period has ended, then the offender is not eligible for parole until the excluded sentence has ended. Effectively, that may mean that such an offender is not at all eligible for parole, for if the excluded sentence cannot be wholly concurrent with the existing sentence, the latter will have ended before the excluded sentence will end, meaning that there is no period in custody for which a Parole Order could be made: see Horan v O'Brien [2021] ACTSC 323 at [3]-[4], where this provision operated in this way.
It is surprising that s 64, despite being legislated in the Sentencing Act when first enacted, though then differently numbered, has not been the subject of consideration. Indeed, Biddle v Gatherer at 335; [27] listed 21 decisions in which a non-parole period was set for an excluded sentence and for none of which had a direction been made. The Court then observed that the section “has clearly been overlooked by counsel and the court. It has, it appears, been honoured more in the breach” at 335; [29]. Nevertheless, since then, at least two sentences have been imposed where there were offences for which excluded sentences had to be imposed.
In Horan v O'Brien, Mr Horan was sentenced for an assault in prison for which he was sentenced to an “unduly lenient” (Horan v O’Brien at [23]) term of imprisonment for six months, but because of the operation of the legislation would spend a manifestly excessive period in prison. The actual circumstances were, however, rather exceptional and he had, between the further offending and the appeal from the Magistrates Court, been granted parole. It, of course, had to be revoked, but the Court found it relevant. In order to meet that excess, the Court varied the sentence by wholly suspending the new sentence, being the excluded sentence. It does appear odd that, for a sentence for an offence committed in lawful custody, a non-parole period cannot be set (and so no Parole Order for any earlier offence can be made until the sentence for that offence has ended) but the sentence can nevertheless be suspended - a very similar order to a Parole Order, though perhaps more lenient. Regardless, that is the position.
In R v Tuifua [2021] ACTSC 298, Mr Tuifua was charged with murder and intentionally causing grievous bodily harm. After being arrested he was refused bail and remained in custody. While in custody, he joined with some detainees in assaulting another detainee and was charged with assault occasioning actual bodily harm. The sentence for that offence was clearly, therefore, an excluded sentence. Ordinarily, sentences are imposed on offences chronologically, but that is a practice alone; there appears to be no rule or law to require that. Indeed, it is customary in cases to impose a longer sentence for a later offence before a shorter sentence for an earlier offence and that allows appropriate concurrency and totality to be achieved. In that case, were the sentence for the assault, namely 12 months imprisonment, to have been imposed consecutively to the sentence for murder, namely 18 years imprisonment, Mr Tuifua would have had to serve a sentence of 20 years - 18 years plus the 12 months plus the 1 year cumulative for the offence of intentionally causing grievous bodily harm without parole - which would likely offend the principle of totality.
In that case, at the Crown's suggestion, the excluded sentence was imposed first, so that it had ended by the time the sentence for murder commenced. The non-parole period was set for only the sentences other than the excluded sentence. It is this approach that has been suggested by the Crown and by Mr Jackson.
Mr Jackson further submitted that it was open to the Court to make a direction under s 72 of the Sentencing Act that, to meet the principle of totality, an order can be made that there be some concurrency between the sentences for aggravated robbery and the excluded sentences, being the sentences for arson and damaging property. He submitted that, despite s 72(4), the offence of arson was not an offence “that involves causing harm, or threatening to cause harm” and so did it not require the special circumstances to be found before such a direction could be given. In the event, this was not found to be so. He did not, however, submit that there were in this case any special circumstances or identify what they were.
This submission relies on the fact that the elements of the offence of arson only require that damage be done “to be a building or vehicle”. This does not refer to harm to any person. Further, the section creating the offence falls within the chapter of the Criminal Code referring to property damage. Other provisions legislate to criminalise offences against the person in Part 2 of the Crimes Act 1900 (ACT).
Mr Jackson relied on the decision of R v Jackson [2021] ACTSC 120, where the Court held that arson was not a serious offence for the purpose of s 324 of the Crimes Act, which requires a person found not guilty of an offence by reason of mental impairment, where the offence is a serious offence, to be detained in custody until the ACT Civil and Administrative Tribunal, if required, accepts jurisdiction over him or her. A serious offence is defined as an offence that is a crime of violence.
In R v Smith [2012] ACTSC 146, it was held that the offence of arson there committed was not a crime of violence because there was no substantial risk of harm or injury from the offence to any other person (at [60]-[61]). See, also, R v Aleer [2016] ACTSC 75.
It is clear that those decisions turned on the fact that the fire was lit in circumstances where no persons were put at risk. It was not because harm to persons was not an element of the offence: see, to similar effect, R v Cross [2017] ACTSC 91 and R v Singsathitsuk [2021] ACTSC 26.
The Court considered in R v Jackson, however, that this was too wide an interpretation and may not have been consistent with the definition of “serious offence” which was, the Court considered at [143], “consistent with the enquiry being as to the nature of the charged offence rather than the factual circumstances of the alleged offending”.
The other interpretation had the risk of expanding the range of offending which is captured by the concept of “a serious offence”: see R v Jackson at [145]. This would expand “the pool of cases in relation to which the provisions of s 324 [of the Crimes Act] apply”, being more restrictive than the alternative in s 323. This would restrict the liberty of mentally ill persons, which raised the principle of legality. The Court, however, came to no final decision on the matter, given that it did not find that there could, on the facts, be such risks to persons as to amount to violence in the factual circumstances.
Mr Jackson supported his submission by noting that arson as an offence is located in Chapter 4 of the Criminal Code, headed “Property Damage and Computer Offences”, whereas offences involved physical injury to persons were located in the Crimes Act in Part 2 headed “Offences Against the Person”. He noted that, in R v Booth [2021] ACTSC 317, the Court had found such headings, which, under s 126 of the Legislation Act 2001 (ACT), are part of the Act, can be used to interpret “offence against the person” in s 277 of the Crimes Act as not to include burglary, which is also found in Chapter 4 of the Criminal Code.
While that is true and there is a need to respect the principle of legality, the circumstances here are somewhat different. There is no definition of “harm”, though it is regularly used in the description of offences, such as “assault occasioning actual bodily harm” or “causing grievous bodily harm”. Even there, the word is not defined in legislation, though cases have done so.
Secondly, the evident intent of providing for excluded offences is to protect Corrections Officers by making offences which might cause injury or damage, that is harm, more serious. Making those penalties refer to offences committed in custody, especially against Corrections Officers, more severe is likely to have greater actual deterrence: Horan v O'Brien at [16].
Thirdly, in the explanatory statement for the Crimes (Sentencing) Bill 2005 (ACT), cl 72(4) is described as one that “qualifies clause 72(3) where a corrections officer is harmed or threatened”, consistent with the factual situation rather than the elements of the offence.
Finally, it is noted that an important and widely recognised aggravating factor is if the fire started in an arson puts persons at risk: see, for example, the careful consideration in R v Glover [2002] NSWCCA 376 at [53]-[57]. See also Ajax v The Queen [2006] NTCCA 12; 17 NTLR 80 at 81-2; [34]. It would be at least strange if the sentence to be imposed could be more severe because a person was harmed or threatened by the fire, but, for the purpose of severity, which is what s 72 of the Sentencing Act is about, the harm could not be considered by requiring any concurrency to be limited to where there were special circumstances.
Here, the facts are more important than the nature of the offence which could well be understood in a different context of ss 323 and 324 of the Crimes Act.
Accordingly, since there was here clearly risk to Corrections Officers who were in the staffed areas from the fires, the offence of arson can only be made concurrent if there are special circumstances. None were noted in the submissions.
That, however, does not apply to the damaging property offence for which a direction is hereby given, as there is, otherwise, a risk of breaching the principle of totality. The offence for damaging property also overlaps and is part of the same conduct considered in the arson offences. There ought, therefore, to be some concurrency.
Childhood disadvantage
Courts have considered, initially in the context of Aboriginal and Torres Strait Islander peoples, the effect that childhood disadvantage and the turbulent and traumatic upbringing with exposure to family violence, abuse of drugs and alcohol, social exclusion and disrupted education are relevant to the subjective culpability of an offender.
These principles were accepted by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. In addition, the Court there made the important point that had, until then, not necessarily been accepted: that the effect of this disadvantage does not diminish over time and that continued exposure to the criminal justice system does not reduce its effect or relevance to the sentencing exercise.
In this case, Mr Deng has described in the evidence a significant problematic childhood. Though much of that was self-reported, there was some other evidence. None of it was challenged and it can be relied on in this Court: Lloyd v The Queen [2022] NSWCCA 18 at [45].
Thus, a person’s moral compass, understanding of appropriate boundaries, feelings of self-worth and a proper approach to violence are expected to be inculcated during the childhood period. Mr Deng’s significant problematic childhood, of course, did not provide this. Instead, he was exposed to the horrors of war, the deprivation of the refugee camps and a fear that was never far away.
In Australia, however, disadvantage continued with his exposure to family violence - a significant factor in normalising violence as a social response - and also his disrupted education. His exposure to racism from school age was also a significant factor that contributes to the hardships Mr Deng has faced.
He was fortunate, perhaps, that his home life did not expose him to alcohol or drug abuse, but this was nonetheless encouraged by his peers and likely used to manage the experiences with which he was living. As such, he began using alcohol at a very early age and drugs a little later, but still early, in his mid-teens when he was not in a position to understand the risks and effects of dependency. These matters are directly relevant to a proper assessment of his moral culpability for the offences in this case.
In essence, the offending was not committed by a person who had the advantage of a stable and secure upbringing guided by good parenting. Thus, his attitudes to society and his anti-social behaviour were inevitably a product of the exposures he had in his formative years when he should have been gaining the necessary skills and attitudes to play a satisfying and productive part in the community.
Research shows that children with deprived backgrounds have difficulty developing executive functioning skills, resulting in inappropriate behaviours and an inability to self-reflect. The evidence adduced did not directly address this, but a careful reading, particularly of the Psychological Assessment, shows that he was clearly, at an early age, developing some of these traits resulting in a Conduct Disorder and an Anti-Social Personality Disorder.
The Crown did not submit that these principles did not apply.
This does not, of course, excuse his offending, but it is particularly relevant to the fair evaluation of his subjective culpability and moderates the severity of the penalty that the community is entitled to exact. It will reduce the sentence. In this sense, too, his understanding of his need for rehabilitation is relevant and is the start of a pathway to reformation.
Parity
In Lowe v The Queen at 610-1, the High Court accepted that consistency in punishment is fundamental to a rational and fair system of justice. It was held that, if other things are equal, offenders who are sentenced to the same offence should receive the same sentence (at 609). Of course, the Court acknowledged that all things are not necessarily equal and that there may be proper and just reasons for disparity between sentences.
As was said in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 472-3; [28]:
‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order’. It has been called ‘the starting point of all other liberties’. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ (Emphasis in original.)
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.
(Footnotes omitted.)
See also Thompson v The Queen at [24], which, by reference to authority, neatly summarises these principles.
Mr Hall, a co-offender, has already been sentenced: R v Hall (No 2). As pointed out in R v Reid [2004] NSWCCA 301; 148 A Crim R 425 at 431; [27], there is a well known principle that “it is highly desirable that co-offenders should be sentenced by the same sentencing judge”.
Indeed, in this case, as with Mr Carberry, the Crown recently submitted that the two cases should be remitted to Elkaim J who had sentenced Mr Hall. That application was refused, as Mr Deng and Mr Carberry had originally sought that a Treatment Order be made. The application was formally made in relation to Mr Carberry, but the two matters were, by consent, proceeding together, though not jointly heard and it was indicated when the application was made in relation to Mr Carberry that both should be remitted.
At the time the application was made and refused, the sentencing hearing for Mr Deng had been completed and Mr Carberry's had been half heard. Thus, the matters were part-heard. No explanation was given as to why the application had not been made much earlier in the proceedings, for example, when originally listed in the Drug and Alcohol Sentencing List. It appears from R v Hall(No 2) at [20] that the other co-offenders were originally thought to be referred to the Drug and Alcohol Sentencing List at an earlier time, prior to February 2022. Though it is preferable, with important advantages, for the judge supervising that List to sentence those who become the participants in that List, it is not required and other judges have made Treatment Orders: see R v Sheather [2021] ACTSC 290 and R v Pearce (No 2) [2022] ACTSC 71.
To refer the matter to Elkaim J at the stage the application was made would substantially delay the proceedings and require at least this matter to fully re-heard. In any event, Mr Deng and Mr Carberry will be sentenced by the same judge. While they were co-offenders with Mr Hall in the aggravated robbery offences, Mr Hall played no part in the arson or damaging property offences. Finally, Elkaim J published detailed reasons for sentence available to the Court.
There is no doubt that there is much similarity in the two offenders, Mr Deng and Mr Hall. The Crown helpfully summarised these as follows:
· Both offenders had a very similar role in the August 2020 home invasion;
· Both offenders had their faces covered and were armed with weapons during the home invasion;
· Both offenders were in their early 20’s at the time of the commission of the instant offences;
· Both offenders pleaded not guilty and were committed to the Supreme Court for trial;
· Both offenders came from low socio-economic backgrounds, had a limited education, and it was submitted on sentence that the mitigatory principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 were applicable;
· Both offenders had developed illicit drug use habits as adolescents, which escalated throughout their teenage years and into their early 20’s;
· Both offenders have significant criminal histories including convictions for aggravated robbery, aggravated burglary and burglary;
· Both offenders were on parole when the instant offence was committed; and
· Both offenders committed the instant offence within 7 weeks of being granted parole.
This shows that the sentence imposed on Mr Hall is very comparable, despite the comments of Elkaim J in R v Hall (No 2) at [20], where the actual sentence will not be affected by being heard in the Drug and Alcohol Sentencing List. The only matter of divergence is that the childhood disadvantage suffered by Mr Deng as described above is much more severe than that of Mr Hall (as to which, see R v Hall [2015] ACTSC 115 at [12]-[14]), but perhaps not too significantly so. Thus, a sentence that does not leave Mr Hall with a justifiable sense of grievance is essential.
Victim Impact Statements
The Court was provided with two Victim Impact Statements, one from the victim of the aggravated robbery, which was read out in Court, the other from a Corrections Officer in the Alexander Maconochie Centre at the time of the arson and damage of property offences were committed, which was merely tendered without objection and admitted into evidence.
The first one was difficult to hear and even more challenging to re-read for this sentence.
The victim showed a variety of emotions. As happens with many victims, she said that there were times when she felt sorry for Mr Deng and hoped that he would over time “work on becoming a better person”. There were times when she realised that nothing excused his choices and that nothing he could do would make what he did “okay”. She saw him breach a trust with which she had assumed that he would comply, when he said that he would not take some of the items in the house, but which were taken regardless.
She described, graphically and heart wrenchingly, her terror in the incident and the ongoing and reliving of the terror that she experiences. She had therapy with psychologists and psychiatrists, but still found it difficult to leave home or to sleep. As she says, “jail is nothing to the trauma I will continue to carry with me every day”. It is hoped that continuing therapy will assist her to address these horrific experiences and their consequences.
The Corrections Officer wrote of the situation in the Alexander Maconochie Centre at the time of the latter offending. He was a veteran of Corrections and took it upon himself to provide comfort and reassurance to other staff and to check on their welfare. He noticed agitation and anxiety increasing for them and that they were really distressed by the offences.
In later days since the event, many of the staff had recovered, but some were still visibly uncomfortable recalling the events. From his own experience, he expected that there would be irritability, anxiety, loss of appetite, sleeplessness and nightmares among some staff as a result of the exposure to the traumatic events.
While there were no Victim Impact Statements provided from detainees, some of whom it appears in the evidence were locked in their cells and one who was hit by a thrown object, it is reasonable to infer that they would have experienced some of the same effects.
Consideration
It is now required that sentences be imposed for those offences committed by Mr Deng. In order to do that, it is important, and indeed required, that a Court sentencing an offender have regard to the purposes for which the sentences are to be imposed. These are set out in s 7 of the Sentencing Act.
The offences committed by Mr Deng were very serious breaches of conduct expected of members of the community and which severely disturb it. Thus, punishment is very important for these breaches of the criminal law, which sets standards of conduct, although not, of course, the only standards of conduct.
Further, the sentences must show that such conduct is unacceptable and thus attempt to deter others from committing such offences, though that is often more a theoretical hope than a realistic expectation. Nevertheless, stern sentences will, at least, denounce the conduct and that is important.
Mr Deng himself, however, must appreciate that these offences are prohibited and the sentence must attempt to deter him from repeating them. That has not so far been successful, but it remains an objective.
Also relevant to the sentence is Mr Deng's rehabilitation, for that is more effective than mere specific deterrence. It is a more certain way to protect the community, though, both objectives are designed to do this.
Finally, it is important to recognise and acknowledge the harm done to the victims. In this regard, the Victim Impact Statements are very important in showing the actual harm done and, significantly, the consequences of the harmful conduct of Mr Deng.
Mr Deng is solely responsible for the offending.
Pleas of guilty to the offences of arson and damaging property were entered in the Magistrates Court, though not until the eighth mention. No plea of not guilty was entered, so there was no need for the prosecution to prepare a Brief of Evidence. This justifies a substantial discount, though the Crown case was no doubt very strong, if not overwhelming, with CCTV footage and many eyewitnesses to the events.
The plea to the offence of aggravated robbery was entered in the Supreme Court, after Mr Deng had been committed for trial on eight charges. These were resolved at the Criminal Case Conference, resulting in only one preferred charge, the aggravated robbery offence, and one charge to be taken into account, the attempted aggravated burglary.
It is noted that Mr Hall also pleaded guilty to two minor transfer charges, taking a motor vehicle without the owner’s consent and theft, both by joint commission: see R v Hall (No 2) at [21]; [25]. These 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 Deng showed enthusiasm for his possible rehabilitation through a Treatment Order, though this has not yet been translated into any action he has taken.
Mr Deng has expressed remorse, as also evidenced by his plea of guilty. He has written a letter of apology to the victim, though the Court has not been informed whether the victim has received that. These must also be taken into account. No remorse was mentioned in the sentencing remarks of Mr Hall, though he pleaded guilty no later than the pleas of guilty of Mr Deng.
The sentences will synthesise these various factors. These include the nature and circumstances of the offence as has been described above, as well as Mr Deng's personal circumstances, including in particular, his childhood disadvantage, his plea of guilty and remorse.
As noted (at [163]-[164]), the sentence imposed on Mr Hall is very relevant, though any differences as noted will also be relevant, as is the early introduction of Mr Deng to drug and alcohol use. The other matters mentioned in these remarks are also relevant including the additional offence, all of which will be taken into account.
Having carefully considered the evidence and all these matters and considering all relevant alternatives, there can be, in this case, no sentence to be imposed that is just and adequate for the offending other than a sentence of imprisonment: s 10 of the Sentencing Act.
There are three offences for which a proper sentence must be imposed and on each of them. Nevertheless, it is important that the length of each sentence be only just and adequate, so that Mr Deng is not punished twice where there are common elements, though not relevantly 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 be also given to whether the sentences should be partly or wholly concurrent with another or each other because of any of these matters, taking into account, of course, the limitations in the Sentencing Act. Nevertheless, any such concurrency must not give the impression that multiple offending requires a discount or permits further offences to be committed with impunity.
The length of the total sense has then to be considered carefully to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality of the offences but no more than that and that the total sentence is not excessive. It should leave open the realistic prospect of Mr Deng being able to engage in reform and to achieve his hopes and goals, particularly in relation to rehabilitation, when he completes his sentence.
In this case, there is a satisfactory basis, also on the ground of totality, for the sentence for the offence aggravated robbery to be partly concurrent on the sentence for the offence of damaging property. The extent of cumulation and concurrency of sentences may result in what may be seen as some leniency, but it is important that the total sentence is proportionate to the total culpability of Mr Deng as well as 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, are given appropriate weight.
The synthesis of these factors must result in a sentence that leaves Mr Deng with some hope for reform, which it is clear that he now currently seeks. The Pre-Sentence Custody of 249 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 the first of these two to be charged from the Court 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 partially concurrently with the sentence for damaging property.
Sentence
[His Honour then spoke directly to the offender]
Mr Deng, please stand.
The Court makes the following orders:
(1) I convict you of damaging property and I sentence you to two years imprisonment, to commence on 15 August 2021 and end on 14 August 2023. Had you not pleaded guilty, I would have sentenced you to two years and six months imprisonment.
(2) I convict you of arson and sentence you to three years imprisonment, to commence on 15 November 2021 and end on 14 November 2024. That is to be cumulative as to one year and three months on the sentence for property damage. Had you not pleaded guilty, I would have sentenced you to four years imprisonment.
(3) I convict you of aggravated robbery by joint commission and I sentence you to five years imprisonment, to commence on 15 November 2023 and end on 14 November 2028. Had you not pleaded guilty, I would have sentenced you to six years imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
Mr Deng has requested that a Treatment Order be made. Since the sentence imposed is longer than four years, which is the maximum a total sentence that can be imposed for anyone subject to a Treatment Order, 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 aggravated robbery must be set: s 65 of the Sentencing Act.
Given the issue of totality and Mr Deng's expressed wish to engage in rehabilitation, it is appropriate to make a shorter non-parole period than is usual. The decision in Horan v O'Brien appears to support this approach.
[His Honour then spoke directly to the offender again]
Mr Deng, please stand.
The Court makes the following further orders:
(4) A non-parole period be set for the sentence of aggravated robbery of one year and six months, to commence on 15 November 2023 and end on 14 May 2025.
Mr Deng, that is the sentence I have imposed and it is important that I explain it to you. These were terrible offences, shocking offences. How horrible for the victim of your robbery to have a gun pointed at her head and threatened to have her brains blown out. How horrible to burn the prison down, not only for the Corrections Officers, but also for the other detainees and to damage property which they use in order to make their life in prison as reasonable as possible.
These are very serious offences and I have assessed that, in all the circumstances, a sentence of seven years and three months is appropriate. Now, I am constrained to some extent by the fact that some of those offences were committed in custody and that has made the sentencing particularly difficult. I have made as short a non-parole period as I can possibly do. That still requires you to be in custody for just over three years before you can apply for parole.
I hope that you use that time productively. The Solaris Program in the Alexander Maconochie Centre is a good program and if you are genuinely committed then you can use that. It is a pity that it will be a long time before you will be back in the community and can live as you should, but it would be wrong for the community and thereby the sentence not to express the seriousness of these offences.
I hope that this will be an opportunity for you to think about where you want to be. Do you want your ordinary address to be the Alexander Maconochie Centre? Or do you want to be out in the community, have a family, do some of the work which you obviously can do and do well and ultimately to be a productive and useful member of the community and your family? You could live a life where you would not have to look over your shoulder wondering whether the police are going to arrest you and you are going back in the Alexander Maconochie Centre.
It is hard, when I am putting you back in custody for a long period of time, for you, perhaps, to appreciate that, but I hope over time that this will be an opportunity for you to reflect on your future. I hope it will also be, of course, a time to reflect on the community and for those victims who, I accept you now understand, have been so terribly hurt by your actions and did not deserve that.
You may be seated.
| I certify that the preceding two hundred and eleven [211] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 10 August 2022 |
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