R v Denniss

[2019] ACTSC 283

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Denniss
Citation:	[2021] ACTSC 15
Hearing Date:	3 February 2021
Decision Date:	3 February 2021
Before:	Mossop J
Decision:	See [39]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery by joint commission – arson – low end of mid range objective seriousness – offending occurred while in custody – deprived childhood – various mental health diagnoses – history
of illicit substance use – extensive criminal history including offending of the same type – sentences of imprisonment
Legislation Cited:	Crimes (Restorative Justice) Act 2004 (ACT), s 24 Crimes (Sentencing) Act 2005 (ACT), s 72 Criminal Code 2002 (ACT), ss 45A, 310, 404
Cases Cited:	R v Chevalier [2021] ACTSC 14 R v Denniss [2018] ACTSC 239 R v Denniss [2019] ACTSC 283
Parties:	The Queen (Crown)
Tian-Jarrah Denniss (Offender)
Representation:	Counsel
M Dyason (Crown)
K McKee (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 183 of 2020
SCC 184 of 2020
MOSSOP J:
Introduction

1.    The offender, Tian-Jarrah Denniss, pleaded guilty to the following offences:

(a) count 1: joint commission aggravated robbery (CC2019/11525), contrary to ss 310 and 45A of the Criminal Code 2002 (ACT), the maximum penalty being

25 years’ imprisonment, 2500 penalty units or both; and

(b) count 2: arson (CC2020/2166), contrary to s 404(1) of the Criminal Code, the

maximum penalty being 15 years’ imprisonment, 1500 penalty units or both.

2.   The two offences arise out of two different incidents which occurred at the Alexander Maconochie Centre (AMC) while the offender was under sentence for other offences. In relation to count 1, the offence occurred by joint commission with Manoa Chevalier, who I

am sentencing at the same time. Count 2 is a separate charge arising from the offender’s

conduct while by himself in his cell.

3.    Unfortunately, this is not the first time that I have had to sentence Mr Denniss. I previously sentenced him in 2018 for an aggravated robbery and failing to return to custody: R v Denniss [2018] ACTSC 239. I subsequently sentenced him for two offences of arson committed whilst in custody: R v Denniss [2019] ACTSC 283.

Facts

4.    The facts in relation to count 1 were agreed. They were summarised in my reasons in R v Chevalier [2021] ACTSC 14 at [4]-[12].

5.    The facts in relation to count 2 were agreed and are summarised as follows. On 22 January 2020 the offender was housed in a cell in the crisis support side of the Management Unit at the AMC and was under constant observation. At approximately 12:30pm, while alone in his cell, the offender covered the window of the cell door with a towel. A corrections officer who was observing the offender attempted to remove the towel. Two other corrections officers attempted to assist, however, they were prevented from doing so when the offender spat on them.

6.    Approximately 10 minutes later the first corrections officer noticed flames on the towel and

called a “code red”. Two other corrections officers attended the Management Unit with

breathing apparatus while a fourth corrections officer prepared an emergency fire hose. A

fire and dark smoke were observed through the window of the offender’s cell. Corrections

officers extinguished the fire through the cell door hatch.

7.    The offender eventually placed his hands through the cell door hatch and was handcuffed. He was later strip searched, although nothing was located.

8.    On 23 January 2020 police attended the unit and inspected the cell. They observed pieces of burnt fabric and bedding, as well as rolled up pieces of toilet paper which were burnt on the edges. Police also observed two tightly rolled pieces of aluminium from a shaving cream tube. They had been fashioned into prongs and inserted into the power point inside the cell.

Objective seriousness

9.    So far as the aggravated robbery is concerned, I have identified the relevant features in the reasons given in relation to Mr Chevalier, the co-offender: R v Chevalier [2021] ACTSC 14. Although Mr Denniss initiated the violence directed to the victim and Mr Chevalier acted as a lookout, Mr Chevalier subsequently joined in the infliction of violence upon the

victim. It is not possible to apportion the victim’s injuries as between the two offenders.

Mr Denniss did leave with the victim’s tobacco in his possession. It is not possible to say

from the agreed facts whether one or other of the offenders initiated the plan to rob the victim. For those reasons I have treated the culpability of each offender as being similar. The objective seriousness of the offending puts it at the low end of the mid range for an aggravated robbery.

10. So far as the arson is concerned, there was no evidence as to the cost of repairing the damage caused. Photographs of the damage which were tendered indicated that the damage was largely confined to the door itself. There was no intention to harm others although there was a risk created of harm to officers and other inmates. Given the wide range of circumstances covered by s 404 of the Criminal Code, the offending in the present case was at the low end of objective seriousness for this offence.

Subjective circumstances

11. The personal circumstances of the offender are described in a pre-sentence report dated 29 January 2021.

12. The offender is 31 years old and was 28 and 29 at the time of the two offences. He is the

sole child of his parent’s union and has 19 half and step siblings from his parent’s previous

relationships. He is an Aboriginal man of the Wiradjuri people. He was born in Wagga Wagga and moved to Tamworth with his mother at the age of five. He experienced family violence and sexual assault as a child at the hands of an adult family member.

13. He first met his father when he first entered custody in New South Wales (NSW) and has had intermittent contact with his father since then. He has no contact with his extended family, with the exception of a sister and brother who live in Wagga Wagga. The offender reported a very close connection with his maternal grandmother. He previously resided with her, although has recently had difficulties making contact with her. His grandmother reported to the author of a pre-sentence report in 2018 that many family members did not wish to have contact with the offender due to his illicit drug use, theft of their medications and other criminal behaviour.

14. He is currently single and has no children.

15. He has expressed a desire to reside with his sister in Wagga Wagga upon release from the AMC and she confirmed her willingness to provide the offender with accommodation.

She has concerns about the offender’s mental health conditions and illicit drug use but was

of the opinion that she has previously encouraged the offender’s abstinence or treatment.

She also confirmed that she has discussed with the offender his desire to enter residential rehabilitation after he leaves custody.

16. The offender was home schooled by his maternal grandmother. He later completed Year 12 education while in custody. Records indicate that his education was affected by a diagnosis of attention deficit hyperactivity disorder and a mild intellectual disability.

17. He has not previously been employed and is dependent upon Centrelink payments when in the community.

18. Apart from the family members he remains in contact with, the author of the pre-sentence report was of the opinion that the offender lacks prosocial influences and his associates tend to hold antisocial or criminal beliefs.

19. The offender asserted that he had “used just about every illicit drug there was”. He commenced using cannabis at the age of 14, and this has been his “drug of choice” since

that age. He first used heroin at the age of 24 years. Until he was 25, he used heroin every three or four days. He stated that he was not dependant on heroin, however, he has previously been prescribed methadone and is currently being prescribed Buvidal. The offender has made contact with the Riverina Calvary Drug and Alcohol Centre to express an interest in residential rehabilitation upon his release. The Centre advised that it will conduct an intake assessment of the offender and it noted that his current Buvidal treatment would not render him unsuitable.

20. The offender reported no engagement with prosocial activities while in the community.

21. ACT Corrective Services records indicate that the offender has received the following mental health diagnoses:

(a)	schizoaffective disorder (bipolar type);
(b)	antisocial personality disorder;
(c)	borderline personality disorder;
(d)	psychoactive substance related disorders;
(e)	mild intellectual disability; and
(f)	attention deficit hyperactivity disorder.

He is currently medicated for his mental health conditions and has not experienced any auditory hallucinations since being prescribed such medications. He has a significant history of self-harm or suicide attempts.

22. Although he appeared to dispute some of the details in the case statement, the offender did not dispute his culpability for his current offences. He explained his conduct as occurring in the context of illicit drug intoxication and untreated mental health conditions. He reported that one of his triggers in the AMC is access to tobacco. The author of the pre-sentence report noted that he did not express empathy for the victim, although this may be attributable to his mental health conditions.

23. The author of the pre-sentence report was of the opinion that:

[The offender] is an Aboriginal man who appears disconnected from immediate and extended family members, other than those cited in this report, as a consequence of his criminal conduct and illicit drug use. His criminal history appears to show that he has not had a great deal of experience in living in the community, and furthermore, his social network may not be encouraging of attempts he may make in terms of pro-social behaviours.

Criminal history

24. The offender has an extensive criminal history. As indicated in my previous sentencing decision in R v Denniss [2018] ACTSC 239 at [26]-[28], the offender has served sentences of imprisonment in NSW for shoplifting, larceny, breaking and entering, common assault, reckless or furious driving, taking and driving a conveyance without the consent of the owner, unlicenced driving, driving under the influence, armed robbery, damaging property, receiving property, dishonestly obtaining property by deception and assaulting a law officer.

25. In the ACT, the offender has had sentences of imprisonment for minor theft, burglary, theft, attempted burglary, attempted obtaining financial advantage by deception, being unlawfully at large, aggravated robbery with an offensive weapon and arson. I sentenced the offender for these last offences, which involved two counts of arson for setting fires in his cell at the AMC: R v Denniss [2019] ACTSC 283.

26. Unfortunately, having regard to the sentences which I have previously imposed upon him, it is no longer possible to say that he has not previously committed offences of the type for which he must now be sentenced: cf R v Denniss [2018] ACTSC 239 at [28] and R v Denniss [2019] ACTSC 283 at [13].

Plea of guilty

27. The offender pleaded guilty to count 1 in the Supreme Court on 11 November 2020. The joint trial for this offence was listed to commence in the week of 16 November 2020. His co-offender, Mr Chevalier, pleaded guilty at the same time. Notwithstanding the strength of the Crown case, it is appropriate that he receive a discount of 10% on the sentence that he would otherwise receive.

28. The offender pleaded guilty to count 2 in the Magistrates Court on 13 August 2020. This was on the ninth mention and prior to the provision of a brief of evidence. Having regard to the early stage at which the plea was made and the absence of the need to prepare a brief of evidence, it is appropriate that he receive a 25% discount on the sentence that would otherwise be imposed.

Time in custody

29. The offender has spent no time in custody attributable solely to these offences as he has been serving sentences of imprisonment for other offences when he committed the current offences.

Consideration

30. There is not a great deal that can be added to what I have said previously about the

offender’s pattern of offending conduct. Regard must be had to his deprived and

dysfunctional childhood and his mental health conditions. I accept that his mental health conditions make his time in custody somewhat more burdensome than would otherwise be the case. While he is a less suitable vehicle for general deterrence, his ongoing offending in custody illustrates that community protection remains a significant issue. While there must still be hope for rehabilitation at some stage in the future, other sentencing considerations must predominate.

31. I have considered the issue of parity. I do not consider that the objective circumstances of the offending or the subjective circumstances of Mr Denniss provide a basis upon which to impose a different sentence to that imposed upon Mr Chevalier in relation to the aggravated robbery. Similarly, the mental health conditions and the deprived upbringing of the offender do not warrant a different sentence having regard to his lengthier criminal history and the need for community protection.

32. In relation to the arson, I do not accept the submission that I should find on the balance of

probabilities that Mr Denniss’ intention was to commit suicide although, as I have indicated

earlier, there is no evidence of an intention to harm others.

33. Clearly custodial sentences involving full-time detention are the only appropriate sentences for each of these offences.

34. In relation to the aggravated robbery, the starting point is a sentence of 40 months reduced to three years on account of the plea of guilty.

35. In relation to the arson, the starting point is a sentence of 16 months, reduced to 12 months on account of the plea of guilty.

36. Although the starting point must be that the sentences are cumulative, both because of the operation of s 72 of the Crimes (Sentencing) Act 2005 (ACT) and because they involved separate and distinct offending, totality requires some degree of cumulation. The offender is still serving the sentence imposed by me in 2018. The last of the sentences imposed in 2019 ends on 2 December 2023. Some modest degree of accumulation is appropriate in my view to achieve an overall sentence which is appropriate. The aggravated robbery sentence will be made concurrent as to three months with the existing sentence and the arson sentence will be made concurrent as to six months with the aggravated robbery sentence, leaving six months to be cumulative. The aggregate sentence that I will impose today will be of three years and six months, three years and three months of which will be cumulative upon the existing sentences.

37. It is also necessary to reset the non-parole period which previously ended on 2 December 2021. I will maintain the relationship between non-parole period and head sentence that existed in the existing sentence, namely 62.5%. That adds an additional 24 months to the non-parole period which will therefore start on 3 August 2018 and end on 2 December 2023.

38. Mr Denniss requested a referral to restorative justice. While I have some doubts as to how far the process will proceed, I will make such a referral in case it is of assistance to the victim of the offending.

Orders

39. The orders of the Court are:

1.       On charge of aggravated robbery (CC2019/11525) the offender is convicted and sentenced to imprisonment for a period of three years commencing on 3 September 2023 and ending on 2 September 2026.

2.       On the charge of arson (CC2020/2166) the offender is convicted and sentenced to imprisonment for a period of 12 months commencing on 3 March 2026 ending on 2 March 2027.

3.       The non-parole period commences on 3 August 2018 and ends on 2 December 2023.

4. The offence of aggravated robbery (CC2019/11525) is referred under s 24 of the Crimes (Restorative Justice) Act 2004 (ACT) for restorative justice.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 11 February 2021