R v Evans
[2020] ACTSC 285
•15 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Evans |
Citation: | [2020] ACTSC 285 |
Hearing Date: | 30 September 2020 |
DecisionDate: | 15 October 2020 |
Before: | Burns J |
Decision: | See [21]–[26] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – unlawful confinement – intentionally inflicting actual bodily harm – making a demand accompanied by a threat – lengthy criminal history – poor prospects of rehabilitation – consideration of general deterrence |
Legislation Cited: | Crimes Act 1900 (ACT) ss 23(1), 32(2), 34 |
Cases Cited: | R v Evans; R v Stott [2020] ACTSC 220 |
Parties: | The Queen (Crown) David Micheal Evans (Offender) |
Representation: | Counsel K Lee (Crown) J Moffett (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 156 of 2019 |
BURNS J:
David Evans, you appear before me today to be sentenced for one offence of
unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT) (the Crimes Act) by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code), one offence of intentionally inflicting actual bodily harm, contrary to s 23(1) of the Crimes Act by virtue of s 45A of the Criminal Code, and one offence of making a demand accompanied by a threat, contrary to s 32(2) of the Crimes Act by virtue of s 45A of the Criminal Code. All offences occurred on 18 January 2019.
The offences of unlawful confinement and making a demand accompanied by a threat carry a maximum penalty of 10 years’ imprisonment. The offence of intentionally inflicting actual bodily harm carries a maximum penalty of five years’ imprisonment.
I found these offences proved after a trial by judge alone which took place in May and June 2020. I handed down my findings on 14 August 2020: R v Evans; R v Stott [2020] ACTSC 220.
In brief, I am satisfied that as part of a joint criminal enterprise you and your co-offender, Sharon Stott, unlawfully confined the victim at an address in suburban Canberra for approximately one hour on 18 January 2019. During this unlawful confinement,
Ms Stott made demands of the victim that he pay her the sum of $20,000. She represented to the victim that this was a debt which he had owed her for 10 years. I am satisfied that there was no debt and she invented the supposed debt as a pretext to extort money from the victim. You were armed with a baseball bat and made multiple threats to cause serious physical injury to the victim during the period that he was unlawfully confined and during which Ms Stott was demanding that he pay the $20,000. As I said in my judgment on 14 August 2020, I am satisfied that you and Ms Stott were acting in concert as part of an agreement to stand over the victim, by which I mean that there was an agreement that Ms Stott would make demands that the victim pay money while you made threats to the victim with a view to encouraging him to meet the demands. This plan unravelled when you attacked the victim with the baseball bat, resulting in the victim moving into the kitchen of the premises and obtaining a knife. You then retreated from the premises with Ms Stott. Not long afterwards you were picked up by unknown third parties and driven away. Ms Stott remained on the scene, no doubt because she was known to the victim and he had disabled her car. You were not previously known to the victim or the occupant of the premises. As I said on 14 August 2020, I was not satisfied that it was part of your agreed plan with your co-offender to cause injury to the victim. The offence of intentionally inflicting actual bodily harm is one of which you are solely guilty.
Objective seriousness
In assessing the objective seriousness of the offence of unlawful confinement, I take into account that the period of the confinement was approximately one hour and that the purpose of the confinement was to commit a further offence, that is, making a demand accompanied by a threat. I am satisfied that the victim was terrified during the period in which he was held against his will. Indeed, the whole purpose of the exercise was to terrify the victim into agreeing to the demands. I do not take into account the injuries that were sustained by the victim, as they will be taken into account in sentencing you for the offence of intentionally inflicting actual bodily harm. I would assess the present offence as falling in the lower end of the mid-range of such offences.
In assessing the objective seriousness of the offence of making a demand accompanied by threats, I take into account that the threats were to cause serious injury to the victim by use of a baseball bat, to further restrain the victim using
cable ties and to transport him in the boot of Ms Stott’s car to her house. There was a further veiled threat that Ms Stott may use her dogs to attack the victim at her house. I am satisfied that the victim was terrified by the threats that were made. I acknowledge that it is important not to double punish you with regard to the three offences by reason that the victim was terrified by your actions in committing the three offences, and those of your co-offender with regard to those offences which formed part of the joint criminal enterprise. I take into account that multiple demands were made as well as multiple threats over the period of one hour.
It was submitted that these offences were opportunistic and were not the subject of any significant planning or premeditation. I accept that your choice of victim was opportunistic, but I cannot accept the proposition that these offences did not involve any planning or premeditation. The way in which the offences unfolded from the moment that you and Ms Stott entered the premises with the victim speaks of a
pre-existing plan. I have no doubt that you were aware, possibly through your co-offender, that the occupant of the premises was a small-time heroin supplier. If you waited in the premises, there was a likelihood that someone would attend for the purpose of purchasing heroin. Alternatively, the occupant of the premises could be subject to threats and extortion. Such people are relatively easy targets for this type of offending because they are less likely to go to the police and report any intimidation or extortion. Even if they do, their credibility can be attacked and, as occurred here, it can be suggested that they were drug affected. There are possible scenarios which may explain your arrival at the premises at the same time as the victim, but I accept that they are speculative. I will sentence you on the basis that your arrival at the same time as the victim was coincidence. Whatever the correct scenario, the evidence speaks of a pre-existing plan.
There were no verbal communications between you and Ms Stott about demanding money from the victim, or the use of a baseball bat, or the making of threats from the time that you and Ms Stott entered the premises in the company of the victim, until you locked the front door and picked up the baseball bat, and Ms Stott sat down and started to make her demands. This speaks very clearly of a pre-existing arrangement in which Ms Stott would make demands of somebody in the premises and you would act as her muscle. I am satisfied that cable ties were brought with you in Ms Stott’s car; some were left on the front seat and some were in the boot. I am however satisfied beyond reasonable doubt that you went to the premises with Ms Stott for the purpose of engaging in the conduct which you did ultimately engage in should the opportunity arise. I accept that the choice of victim was opportunistic. I would assess this offence as in the upper end of the mid-range of such offences.
In assessing the objective seriousness of the offence of intentionally inflicting
actual bodily harm, I take into account that a weapon, a baseball bat, was used. I take into account that multiple blows were inflicted on the victim. As I said on 14 August 2020, I cannot be certain how many blows were struck, but I am satisfied it was closer to the figure of three or four times as first reported by the victim than the greater estimate he later gave in his evidence. In a report dated 5 March 2019, Dr Amanda Barry expressed the opinion that the victim sustained a 5 cm left-sided parieto-occipital laceration with a surrounding 3 cm haematoma which required suturing, as well as multiple bruises and swellings to his upper limbs and upper chest. These are not insignificant injuries, but they are not the worst injuries that may fall within the description of actual bodily harm. I would assess this offence as in the mid-range of such offences.
Subjective features
You have a lengthy criminal record for offences of violence and dishonesty. You have served prior terms of imprisonment. You are not entitled to any leniency based on your prior criminal record.
You are currently 34 years old. You are currently serving a term of imprisonment expiring on 5 March 2026 for other offences. You are currently eligible for parole on
24 March 2023. A Pre-Sentence Report states that your response to community-based orders in the past has generally been poor, and you have a habit of reoffending while on community-based orders.
You were born in Queanbeyan, New South Wales before your family relocated to Queensland. When you were 10 years of age your parents separated, and you subsequently lived mostly with your mother and brother. You returned to Queanbeyan when you are 18 years old and lived with your father who had already returned. You reported having a stable and supportive childhood and advised that you have a continuing close relationship with your brother, father and mother.
You told the author of the Pre-Sentence Report that you have been in a positive and supportive relationship with your current partner for approximately 10 years. You left school after completing Year 9 and then completed two out of four years of an apprenticeship. You worked in demolition for a short period. You have been receiving government benefits for most of your adult life.
You commenced cannabis use at approximately 13 years of age, and then commenced methamphetamine, heroin and MDMA use when you were approximately 19 years of age. You told the author of the Report that prior to being remanded in custody in February 2019 you had been using methamphetamine and heroin. You claimed not to have used any illicit substances since that time, however it is unclear whether this is the truth. Since some time in 2020, you have been prescribed an
Opioid Maintenance Therapy medication consisting of monthly injections. This appears to have been generally beneficial.
The Pre-Sentence Report notes that in 2015 you were assaulted in custody. A psychiatric report dated 31 December 2017, referred to by the author of the
Pre-Sentence Report, says that you were diagnosed with an acquired brain injury, trauma related mood disorder with anxiety and depression, and substance use disorder. No evidence was placed before me to suggest that these conditions, if they continue to afflict you, have any connection to the present offending or are likely to make a sentence of imprisonment more onerous for you.
On a more positive note, you have completed the First Steps Alcohol and Drug Program, and the Introduction to Recovery Program while in the
Alexander Maconochie Centre.
Plea and remorse
You told the author of the Pre-Sentence Report that you did not accept that you were guilty of any of the offences of which you have been convicted. You have demonstrated no remorse for your offending. You maintained pleas of not guilty to all charges, which you were entitled to do. You are not to be punished for having maintained your pleas. You are not, however, entitled to any discount on sentence for the utilitarian value of a plea of guilty.
Evidence was tendered at the sentence hearing which indicates that you have connections, either by membership or otherwise, with an Outlaw Motorcycle Gang in the ACT. Your association with such a gang and/or its members is relevant to your prospects for rehabilitation. Your prospects for rehabilitation at the present time are poor.
Current sentences
As I understand it, you have been in custody now since 5 February 2019. Your current sentences of imprisonment are due to expire on 5 March 2026 and your current
non-parole period expires on 24 March 2023. In sentencing you for the present offences, I must set a commencement date for the sentences I impose, taking into account the principle of totality, and I must also take that principle into account in resetting the earliest date upon which you will be eligible for parole. I note that the current ratio of your non-parole period to your head sentence is approximately 58 per cent. Some increase in that ratio is warranted.
Consideration
It was rightly conceded by your counsel that full-time imprisonment is the only sentence appropriate for the present offences. Your counsel suggested that the evidence was consistent with you being drug affected at the time of these offences, but there is no evidence to support this assertion. In any event, self-induced intoxication by illicit drugs does not act as a significant mitigating factor in the present offences. General deterrence is the predominant sentencing consideration for these offences. Those who commit offences of this type must know that they will be subject to significant penalties if they are convicted. In addition, your continued lack of remorse demonstrates that individual deterrence is also important. I do not neglect rehabilitation, but the process of rehabilitation may be commenced in custody if you choose to do so.
All of the present offences occurred as part of the one criminal enterprise, such that significant concurrency in sentencing is justified.
Sentences
On Count 1 on the indictment, the charge of unlawful confinement (CC2019/4029),
I record a conviction and you are sentenced to three years’ imprisonment, commencing 5 September 2024 and expiring on 4 September 2027.
On Count 3 on the indictment, the charge of making a demand accompanied by threat (CC2019/4030), I record a conviction and you are sentenced to
three years and six months’ imprisonment, commencing on 5 November 2024 and expiring on 4 May 2028.
On Count 2 on the indictment, the charge of intentionally inflicting actual bodily harm (CC2019/4028), I record a conviction and you are sentenced to
two years’ imprisonment, commencing on 5 January 2027 and expiring on
4 January 2029.
The aggregate sentence which I have imposed is therefore one of
four years and four months’ imprisonment, commencing on 5 September 2024 and expiring on 4 January 2029.
The total sentence of imprisonment which you are now liable to serve, taking into account the sentences that you are currently serving, is one of
9 years and 11 months’ imprisonment.
I reset your non-parole period to six years and five months, commencing on 5 February 2019 and expiring on 4 July 2025.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |