R v EC; R v KT; R v Sharp
[2019] ACTSC 364
•5 April 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EC; R v KT; R v Sharp |
Citation: | [2019] ACTSC 364 |
Hearing Date: | 1 April 2019 |
DecisionDate: | 5 April 2019 |
Before: | Burns J |
Decision: | See [61]-[65]; [67]-[68]; [70]-[71] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three co-offenders – Cameron Sharp charged with aggravated burglary and assault occasioning actual bodily harm – EC charged with being knowingly concerned in the offence of aggravated burglary – KT charged with aiding and abetting the offence of aggravated burglary – pleas of guilty – reasonable prospects for rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT) s 312 Crimes Act 1900 (ACT) s 24 |
Parties: | The Queen (Crown) EC (Offender) KT (Offender) Cameron Owen Sharp (Offender) |
Representation: | Counsel P Burgoyne-Scutts (Crown) K Ginges (Offender) J Sabharwal (Offender) J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) Sharman Robertson (Offender) Boxall Legal (Offender) | |
File Numbers: | SCC 169 of 2018; SCC 218 of 2018; SCC 185 of 2018 |
BURNS J
Cameron Sharp, you have entered pleas of guilty to charges of aggravated burglary and assault occasioning actual bodily harm. These offences occurred on 17 March 2017. The circumstance of aggravation with regard to the burglary offence was that you were in company and that you and one of your co-offenders were armed with weapons. You possessed a machete and your co-offender, Andrew Fifita was in possession of a firearm.
EC, you have entered a plea of guilty to one offence of being knowingly concerned in the offence of aggravated burglary. This offence of aggravated burglary is the same offence in which Mr Sharp and Mr Fifita were the principal offenders and, as I have said, took place on 17 March 2017.
KT, have entered a plea of guilty to one charge of aiding and abetting the offence of aggravated burglary by other persons. The offence of aggravated burglary, which you aided and abetted is that which was committed by Mr Sharp and your co-offender Mr Fifita.
The maximum penalty for the offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code), is 20 years' imprisonment, a fine of $300,000, or both. The offence of being knowingly concerned in aggravated burglary is punishable as if the person had committed the offence of aggravated burglary: s 45(6) of the Criminal Code. The offence of aiding and abetting aggravated burglary is also punishable as if the person had committed the offence of aggravated burglary: s 45(6) of the Criminal Code. The maximum penalty for the offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) is five years' imprisonment.
The facts
Between 10 and 17 March 2017, you, Mr Sharp, had a discussion with your then partner in which you told her that you intended to raid a house because you were aware that there was approximately $40,000 worth of drugs stored there. On 17 March 2017 at about 10.40 pm, both of you, together with KT and Mr Fifita attended the premises of the victim in Watson, ACT. You believed that the victim possessed a substantial amount of money as well as illicit drugs. The plan was for you to invade the victim's home and to steal any drugs or money you could find.
For that purpose you, Mr Sharp, armed yourself with a machete and Mr Fifita armed himself with a loaded shotgun. The four of you, and perhaps some other associates, travelled to the victim's home in two motor vehicles. When the vehicles stopped in front of the victim's home, gloves and t-shirts were taken from the back of one of the vehicles and provided to a number of the persons present. The t-shirts were to be wrapped around your heads, effectively used as balaclavas.
You, Mr Sharp, together with Mr Fifita, approached the front door of the victim's home. At that time the victim, his mother and two of their associates, were in the house. There was also a Pitbull terrier. At this time, the outer screen door of the premises was locked, but the wooden front door was partially opened. You, Mr Sharp, were armed with the machete and knocked aggressively on the front door, while Mr Fifita stood behind you armed with a shotgun. You were also armed with an OC pepper spray can.
The Pitbull terrier ran to the front door and began barking aggressively at you. You, Mr Sharp, administered the pepper spray downwards towards the dog through the locked screen door. You then forced and pulled open the screen door, and attempted to enter through the front door. You and those with you began yelling as you forced entry. At this time, the victim pulled open the wooden door and Mr Fifita pointed the gun at him. The victim then attempted to force the wooden door shut. You, Mr Sharp, made your way between the screen door and the wooden door, and sprayed at the victim with the pepper spray.
A melee then occurred in which you and Mr Fifita entered the premises. You, Mr Sharp, grabbed hold of the victim's jaw and forced his head through glass panels adjacent to the doorway. The victim sustained a laceration to the right side of his head. This is the basis of the charge of assault occasioning actual bodily harm. The Pitbull terrier then bit you on your right upper leg and you swung the machete towards it. Mr Fifita discharged a single shot into the premises, wounding the dog and leaving a hole in the lower part of the hallway wall.
A substantial portion of the dog's left ear was removed and required attention. It suffered a significant amount of blood loss. Veterinary records suggest that the wound to the dog was probably caused by the gunshot.
You, EC, remained behind Mr Sharp and Mr Fifita as they approached the front door of the premises, but you did not enter.
You, KT, remained in one of the vehicles parked in front of the victim's house. Shortly after, Mr Sharp, Mr Fifita and EC all ran from the house and drove away in the two cars with KT.
The shotgun used in this offence was later surrendered to police in Sydney by the father of Mr Sharp [redacted]. It is accepted that there are legitimate reasons to distinguish between the roles played by each of you in this offence.
You, Mr Sharp, were intimately involved in the planning of these offences, including recruiting others to participate. You were also in possession of a weapon. You anticipated taking a share of any money or drugs stolen from the premises. You also, of course, actually entered the house and engaged in violence therein.
You, EC, were not involved in the planning of these offences and you did not possess a weapon on the evening. You did not enter the premises and you were not involved in any actual violence. There is no evidence that you were to receive any share of the proceeds of this offence. You must, however, have been aware that your co-offenders were armed and that there was a potential for violence.
You, KT, had some involvement in the planning of this aggravated burglary and you undoubtedly were also aware of the fact that Mr Sharp and Mr Fifita were carrying weapons.
The offence of aggravated burglary revealed by the facts in this case is a serious example of this type of offending. It involved forcible entry by multiple armed persons into a residential premises at night. It also involved the use of actual violence, aside from that which resulted in the offence of assault occasioning actual bodily harm and in which both the machete and the firearm were actually used. Thankfully, no injuries were occasioned to the human occupants of the premises through the use of these weapons. There was, nevertheless, very substantial potential for severe injury or even loss of life.
Subjective features
Cameron Sharp
I would assess the offence of aggravated robbery committed by you, Mr Sharp, as in the mid-range of such offences.
I will now deal with the subjective factors in relation to Mr Sharp. You have a prior criminal history. In August 2017, you were convicted of three offences of assault and one of offence of contravening a protection order. You were sentenced to terms of imprisonment which were wholly suspended. On 17 October 2018, you were convicted of offences of forcible confinement and making a demand with a threat to endanger the health of another and sentenced to terms of imprisonment.
These offences occurred on 9 April 2017, almost a month after the present offence. A successful Crown appeal was lodged from the sentences imposed on 17 October 2018 and the final aggregate sentence to which you are currently subject is one of 2 years and 11 months' imprisonment, commencing 9 May 2018 and expiring 8 April 2021, with a non-parole period commencing 9 May 2018 and expiring on 8 November 2019.
There is little by way of leniency that I can extend to you with regard to the present matter based on your prior criminal history. You originally pleaded not guilty to the present charges and one other charge. It was not until the Criminal Case Conference on 15 February 2019 that you indicated that you would plead guilty to the present charges. On 27 February 2019, you were arraigned on a fresh indictment and pleaded guilty to each of those offences. There was, nevertheless, a very significant utilitarian value to your plea. I will reduce by approximately 15 per cent of the otherwise appropriate sentences in order to reflect your pleas of guilty.
[Redacted].
[Redacted] in my opinion, it is still appropriate that I nominate a discount that I will apply to your sentences on the basis of [redacted]. I will allow a substantial discount of 25 per cent for this purpose, making an aggregate discount of 40 per cent for both [redacted] and your pleas of guilty.
You are currently 22 years old and your previous compliance with community based orders has been described as satisfactory. You are one of four children and you reported a stable and positive childhood. You continue to enjoy supportive relationships with both your parents and your siblings. You reported to the author of the Pre‑Sentence Report that you have been in a relationship with your current partner for approximately 12 months. She has visited you regularly in the Alexander Maconochie Centre (AMC). You have one child aged approximately two years of age from a previous relationship, but you have currently no contact with that child. [Redacted].
Prior to entering custody, you were residing with your parents in New South Wales and you intend to return to live with them once released from custody. You completed Year 11 and then commenced a plumbing apprenticeship. You had difficulties focusing at school due to Attention Deficit Hyperactivity Disorder (ADHD) which affected your ability to concentrate and focus. You have not completed your apprenticeship and you plan to resume that apprenticeship when you are released. You apparently have an offer to work with a plumbing company close to your family's home in New South Wales. You were employed in construction positions in Sydney until you relocated to the ACT before being placed in custody.
You have previously belonged to an outlaw motorcycle gang, but you told the author of the Report that you left that organisation in May 2017. This appears to be confirmed by police information that you are no longer associated with such a gang.
You commenced using cocaine at 18 years of age. You initially used on weekends, but this gradually increased to daily use of approximately 3.5 grams per day. You told the author of the Pre-Sentence Report that you have abstained from illicit drug use since May 2017 when you entered custody. You have been subject to urinalysis testing on two occasions during your current period in custody and both samples were negative for illicit substances.
You did, however, commence methadone treatment approximately three months ago. While not being an opiate user in the community, you started using unprescribed methadone and buprenorphine in custody. You then decided to commence methadone treatment. You are currently prescribed methadone, but you intend to cease use of that substance when you are released into the community. You have in the past engaged in binge drinking.
You engaged with counselling services in New South Wales with regard to your substance abuse and anger management issues during a period when you were on bail between August 2017 and May 2018. You reportedly found these sessions helpful in understanding your substance abuse and how this was relevant to your anger management. You stated that you are interested in continuing engagement with support services when you are released.
You have no physical health issues. You have been medicated for ADHD since you were four years old, but this medication was ceased when you entered custody. You said that you intend to look at alternative medication options in the community once you are released.
You told the author of the Pre-Sentence Report that you agreed with the contents of the Statement of Facts and you accepted responsibility for your actions. You said that at the time these offences occurred, you were using illicit substances heavily and you were experiencing feelings of loss after you lost contact with your son and also a family member passed away. You acknowledge the negative impacts of your behaviour for the victim.
You were assessed as being at a medium risk of general reoffending. Your primary risk factors relate to your lack of consistent employment, financial issues and mental health issues. The author of the Report expressed the opinion that you would benefit from further counselling and programs in relation to these areas.
I take into account the letter from your parents. They speak of the difficulty that you had in sleeping as a young child which resulted in extensive medical investigations. Between the ages of five and seven years, you were diagnosed with ADHD, Asperger's Syndrome and autism. You were prone to acting impulsively.
Subsequently, you were placed on medication which helped mitigate your behaviour for approximately eight hours per day while you were at school. Despite the assistance of sympathetic teachers, you still missed quite a lot of school. You found the change in routine between primary and high school difficult to adapt to. This often led to you becoming upset and you were frequently required to miss school.
You subsequently entered into a distance education program whereby you continued your schooling at home. You also undertook some employment during that period. Unfortunately, you were unable to continue in that program after you turned 14 years old and you had to return to a traditional school where you had the same problems that you had previously encountered. After leaving school and starting your apprenticeship, you joined a gym where you then met and became involved with members of a motorcycle gang which provided you with steroids. Your parents noticed a change in your attitude, and you ceased taking your medication for ADHD. You subsequently moved out of your family home.
Your parents speak of your close bond with your grandmother who passed away in November 2016. They speak of how this significantly affected you. Your partner at that time was due to give birth to your first child in December 2016. Your parents described your relationship with your partner at that time as very fragile and the combination of the fragility of that relationship with the death of your grandmother, in their view, took a toll on your mental health. They believed that you were not taking your medication and that you were using cocaine on a regular basis.
You have discussed the present charges with your parents and told them that you wanted to pay for what you have done and then concentrate on a brighter future. They refer to you attending weekly group and private sessions for anger management and drug and alcohol rehabilitation whilst you were in the community. You also worked full-time during the 10 months that you resided with them. Your parents confirm that you have the continuing support of your family, which is a very important matter in determining your prospects for rehabilitation.
I also take into account the character reference provided by QE. He is a construction manager for a tier builder in the construction industry in Canberra. QE has known you since he was six years old and has seen you working in the construction industry since you were 14 years old. He speaks highly of your work ethic and was shocked to hear of your involvement in these offences. He was prepared to offer you employment in the future.
I also take into account the reference from XC and JC. They have known you since your birth. Both of them have spoken in detail with you about these offences and state that you have demonstrated deep regret for your involvement and you have shown an understanding of the consequences of this type of behaviour.
I note that you were arrested on 8 May 2018 and you have been in custody since that time. On 17 October 2018, you were convicted and sentenced to terms of imprisonment, to which I have already referred. The commencement dates for those sentences was 9 May 2018, in effect, taking into account all but one day of the period that you have been in custody prior to sentencing for the present charges.
EC
I will now turn to the subjective matters relating to EC. You, EC, also have a criminal history. You were previously recorded for aggravated burglary, possession of knives without reasonable excuse, trafficking in controlled drugs other than cannabis, trafficking in cannabis and assault, [redacted]. Your previous criminal history disentitles you to any significant leniency in these proceedings. You originally pleaded not guilty to charges of aggravated burglary and intention in unlawfully discharging a firearm so as to cause another person reasonable apprehension for their safety. Both offences were charged by way of joint commission and were set down for trial to commence on 8 April 2019.
You participated in a Criminal Case Conference on 13 February 2019 in which you offered to plead guilty to a charge of aggravated burglary on an accessorial liability basis and on the facts as now alleged by the Crown. The Crown at that time rejected the offer in the belief that you were the person who had entered the victim's residence and discharged the firearm. Subsequently, and independently [redacted]. The Crown subsequently accepted your offer to plead on an accessorial basis and on the facts now asserted.
On 13 March 2019, you were arraigned on a fresh indictment containing the present charge and you entered a plea of guilty. I will treat your plea of guilty as if it had been entered at the time of the Criminal Case Conference and I will reduce by approximately 15 per cent the otherwise appropriate sentence in order to reflect your plea of guilty.
You are currently 19 years of age and you were 17 years old at the time of this offence. You were arrested and remanded in custody on 10 April 2018 until you were released on bail on 18 January 2019. You were subsequently arrested on fresh charges and have remained in custody since 16 February 2019. It is agreed that in order to reflect the periods that you have spent in custody prior to sentencing, any sentence of imprisonment which I impose should commence on 7 May 2018.
You are one of two children and reported a positive childhood and continuing good relationships with your parents and your sibling. You are single with no dependants. You were residing with your family prior to the current remand. You left school in Year 11 and have subsequently held positions in hospitality and in the construction industry. You were unemployed prior to your current remand.
You reported that you began using illicit drugs at 13 years of age and that you have experienced most drugs. You were smoking cannabis every few days prior to your current remand. You were referred to alcohol and drug related programs when you were released on bail in January 2019, however, you had not engaged with those services before being remanded in custody again. You reported that you were formally diagnosed with a mental health condition in 2018, but you did not always comply with the treatment prescribed for that condition.
While you admitted to being knowingly concerned in the aggravated burglary, it was the opinion of the author of the Court Duty Report that you had little insight into your actions, their seriousness and the impact on the victims. You were deemed suitable for a medium level of community supervision based on your substance abuse, mental health, employment and anti-social influences.
While in custody, you have undertaken a number of courses, including courses directed towards rehabilitation from drug and alcohol abuse. I also take into account the character reference from your mother. She states that she first noticed your mental health deteriorating when you were 12 years old, around the time that you started high school. You started skipping school and your grades were dropping and you generally did not seem yourself. She found out that you started using drugs when you were around 13 or 14 years old. Your parents tried unsuccessfully to get you help.
In 2018, you were taken to hospital for a mental health assessment following an attempt at suicide. You have the continuing support of your family. Your mother gave evidence at the sentence hearing. She referred to the fact that when you were on bail in January 2019, a Mental Health Plan was organised through your general practitioner so that you could see a psychologist. She said that you told her that you wanted to continue with that program when you are released.
You also gave evidence at the sentence hearing. You provided some limited insight into the nature of your mental health condition. You referred to ongoing problems with anxiety and fear, and stated that drugs made you feel more calm. You expressed remorse and shame for your actions. You expressed a desire to find employment which you feel distracts you from your other problems. You stated that you have a small job lined up for when you are released.
KT
I will now turn to the subjective matters relating to KT. You, KT, are also currently 19 years of age and you were 17 years old at the time of this offence. You have no previous criminal history. You are in a relationship of two years' duration in which you and your partner have been cohabitating for the past 12 months. You maintain regular contact with your parents [redacted]. You have a supportive relationship with your two sisters, who both reside in Canberra.
You obtained a Year 10 certificate and you are currently studying for qualifications in carpentry, as well as building and construction, which you are expected to complete by the end of this year. You are employed full-time as an apprentice carpenter.
You reported cannabis use from the age of 16 years. You ceased use in 2017 due to the influence of your current partner. You reported no physical health concerns. You stated that you were previously on medication for depression and anxiety, but ceased using this medication in 2017 in consultation with your general practitioner.
The author of the Pre-Sentence Report noted that you agreed with the Statement of Facts, but you appeared to attempt to minimise your culpability and involvement in the offence by placing blame on your co-accused. You were able to verbalise regret and express a level of victim empathy. The author of the Report noted that you have a number of protective factors and minimal risk factors. You are currently assessed as at low risk of reoffending.
I take into account the testimonial from your current partner. She has known you for eight years and you remained in closed contact prior to commencing a romantic relationship some two years ago. She described the present offence as being completely out of character for you. She describes you as a very kind and caring person. She stated that you have resided with her at a home in Gungahlin whilst you have been on bail and you have expressed great remorse for your involvement in this offence. She refers to the continuing support that you have from your family. She is also willing to continue to support you and provide you with whatever assistance you need.
I also take into account the reference from your father which refers to you having completed three years of TAFE study in carpentry and having commenced an associate diploma in construction management. You are the youngest of four children. Your father described you as having an inseparable bond with your brother. [Redacted]. Your father states that you have positive plans for the future and you have expressed remorse for your involvement in this offence.
I also take into account the reference from [redacted], which repeats many of the themes found in the other references. With regard to a further character reference provided by [redacted], who speaks of your work ethic and your ability to work as a team member. He also speaks of your remorse with respect to your involvement in this offence.
Finally, I take into account the letter from your mother which speaks of your very close relationship with your brother. Your mother also speaks of your current positive and supportive relationship with your partner and your work ethic. She also speaks of you having expressed deep remorse for your actions.
Sentences
Cameron Sharp
Mr Sharp, your counsel properly conceded that terms of imprisonment are the only appropriate sentences with respect to these offences. I note that you are still a relatively young man and that rehabilitation must still be a very important consideration in sentencing, but any sentences I impose must also take into account the need to deter other people from committing this particularly serious form of offending.
I am satisfied that you have reasonable prospects for rehabilitation. You obviously have a great number of very positive characteristics and it is a shame that up to this point, you have not made the most use of your abilities. I hope that having spent a period in custody and, indeed, having now to spend a further period in custody, you will reflect upon that and when you are released from custody, you will put your obvious abilities to better use.
I will record convictions with regard to both of the offences against you, Mr Sharp. My starting point with regard to the offence of aggravated burglary (CC 2018/6243) is five years' imprisonment, which I will reduce to three years in order to reflect your plea of guilty and [redacted]. My starting point with regard to the offence of assault occasioning actual bodily harm (XO 2018/31410) is 16 months' imprisonment, which I will reduce to nine months to reflect your plea of guilty and your [redacted].
In my opinion, a period of four months of the sentence of nine months' imprisonment for the offence of assault occasioning actual bodily harm should be consecutive upon the sentence of three years' imprisonment for the offence of aggravated burglary.
The aggregate sentence will therefore be one of three years and four months' imprisonment. I acknowledge the need to give effect to the principle of totality in setting the commencement date of these offences and, in effect, fixing the aggregate sentence which you are liable to serve.
In my opinion, the sentences which I impose should commence on 9 November 2019 and expire on 8 March 2023, making an aggregate sentence, with the sentences which I impose and those which you are already serving, of 4 years and 10 months' imprisonment.
Your current non-parole period expires on 8 November 2019 and represents just over 50 per cent of the head sentence of the sentence that you are currently serving. I will reset the non-parole period at 32 months, commencing on 9 May 2018 and expiring on 8 January 2021.
EC
EC, you are to be sentenced by reference to the principles relevant to sentencing juveniles, as you were under 18 years of age at the time of this offence. I note that your counsel indicated that [redacted], but that you were not seeking a discrete discount on that basis. I will nevertheless bear in mind [redacted] in determining your prospects for rehabilitation. You have reasonable prospects for rehabilitation, but you must address your drug and mental health issues.
I will record a conviction with regard to the offence of being knowingly concerned in an aggravated burglary (SCCAN 9/2019). Bearing in mind your age, your lesser role in this offence and the desirability of giving greater weight to rehabilitation than to deterrence in sentencing young people, my starting point is one of three years' imprisonment. I will reduce this by approximately 15 per cent to two years and five months' imprisonment in order to reflect your plea of guilty.
That sentence will commence on 7 May 2018 and expire on 6 October 2020. I order that the period commencing on 7 May 2018 and expiring on 4 April 2019, that is yesterday, be served by way of full-time imprisonment. The balance of the sentence will be suspended with a Good Behaviour Order for a period of two years with conditions:
(a)firstly, that you accept the supervision of the relevant Director-General, or that person's delegate, for that period of two years or such lesser period as deemed appropriate by your supervising officer; and
(b)secondly, that you are to obey all reasonable directions of the Director-General, or that person's delegate, and, in particular, you are to undertake such counselling or treatment as directed by the Director-General or that person's delegate, particularly in regard to drug abuse and mental health issues.
KT
KT, you also are to be sentenced by reference to the principles relevant to sentencing juveniles. You also indicated through your counsel that [redacted], but again your counsel did not seek a discrete discount on that basis. As with your co-offender, EC, I will take this fact into account in determining your prospects for rehabilitation. Bearing in mind your age, your employment, your stable current relationship and the fact that you have no prior convictions, I accept that you have excellent prospects for rehabilitation.
In arriving at an appropriate sentence, I also take into account the strict bail conditions that you have been subject to and with which you have been compliant. I record a conviction with regards to the charge of aid and abet aggravated burglary (CC 2018/5142). Bearing in mind your lesser role in the commission of this offence, my starting point is one of two years' imprisonment. I will reduce this by approximately 15 per cent to 20 months' imprisonment to reflect your plea of guilty. That sentence will commence today, 5 April 2019, and expire on 4 December 2020.
That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of two years from today with conditions:
(a)firstly, that you accept the supervision of the relevant Director-General, or that person's delegate, for that period of two years or such lesser period as deemed appropriate by your supervising officer; and
(b)secondly, that you are to obey all reasonable directions of the Director-General, or that person's delegate, including undertaking such programs or counselling as directed.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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