R v Evans; R v Reid
[2020] ACTSC 169
•29 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Evans; R v Reid |
Citation: | [2020] ACTSC 169 |
Hearing Date(s): | 13 December 2019, 6 March 2020, 30 April 2020 |
DecisionDate: | 29 June 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [129]-[130] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – circumstances of violence – significant injuries to victim – knowingly concerned in taking vehicle without consent – attempt to pervert the course of justice – five co-offenders – whether offenders were OMCG members at time of offending – pleas of guilty – whether impact of COVID-19 leads to more onerous conditions while incarcerated |
Legislation Cited: | Criminal Code 2002 (ACT) ss 44, 45A, 310, 318, 713 Criminal Code Act 1995 (Cth) s 474.17 Crimes Act 1990 (NSW) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 |
Cases Cited: | Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 Brown (aka Davis) v The Queen [2020] VSCA 60 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Butters v R [2010] NSWCCA 1 Cranfield v The Queen [2018] ACTCA 3 DPP v Brooks [2008] VSCA 253 DPP v Kotiau [2020] VSC 245 Fusimalohi v The Queen [2012] ACTCA 49 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hogarth v The Queen [2012] VSCA 302; 37 VR 658 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Mun v R [2015] NSWCCA 234 O’Brien v The Queen [2015] ACTCA 47 R v Bourne [2014] ACTSC 401 R v Bourne [2015] ACTSC 181 R v Bourne [2018] ACTSC 35 R v Despotovski [2020] NSWDC 110 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hodge [2015] ACTSC 214 R v Jones [2019] ACTSC 124 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Lockwood [2018] ACTSC 288 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Martin [2007] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Mumberson [2011] NSWCCA 54 R v Murray [2016] ACTSC 173 R v Pishdari & Anor [2018] SASFC 94 R v Stott (No 2) [2020] ACTSC 62 R v Summers; R v Miller (No 2) [2019] ACTSC 11 R v Toumo’ua [2017] ACTCA 9 R v Wright [2009] NSWCCA 3 Robb v Uren [2018] ACTSC 312 Scott v R [2020] NSWCCA 81 Thompson v The Queen [2018] ACTCA 2 Van Zwam v R [2017] NSWCCA 127 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) David Micheal Evans (Offender) Dean Reid (Offender) |
Representation: | Counsel K Lee (Crown) J Moffett (Offender - Evans) T Sharman (Offender - Reid) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender - Evans) Sharman Robertson Solicitors (Offender - Reid) | |
File Number(s): | SCC 147 of 2019 (Evans) SCC 144 of 2019 (Reid) |
LOUKAS-KARLSSON J
Introduction
On 26 November 2019 David Evans (the offender Evans) pleaded guilty to a charge of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) (maximum penalty 25 years imprisonment a fine, or both).
On the same day Dean Reid (the offender Reid) pleaded guilty to the following charges:
(a) Aggravated robbery by way of joint commission contrary to s 310 of the Criminal Code pursuant so s 45A of the Criminal Code (maximum penalty 25 years imprisonment a fine, or both);
(b) Being knowingly concerned in the taking of a motor vehicle contrary to s 318 of the Criminal Code pursuant to s 45A(1) of the Criminal Code (maximum penalty 5 years imprisonment, a fine, or both); and
(c) Attempting to intentionally pervert the course of justice contrary to s 713(1) of the Criminal Code pursuant to s 44 of the Criminal Code (maximum penalty 7 years imprisonment, a fine, or both).
Agreed Facts
On 10 January 2019 the offender Reid and the offender Evans attended Oaks Estate with the offenders Collier, Stott, and Watson. Ms Stott wanted to speak to Mr Goward (the victim) who resided there. She understood that the victim had a gun and she wanted to get it. The other offenders knew this. Ms Stott and others had attended the victim’s residence before, and because of their history Ms Stott knew that the victim would not let her into his unit, but she believed he would let others in.
CCTV captured Mr Watson and Mr Collier walking to the front door of the victim’s unit and speaking to him through the locked screen door. He would not let them inside and they left. They returned a short time later with the offender Reid and the offender Evans. The offender Reid spoke to the victim through the front door and the victim let him in. The other men followed the offender Reid inside.
Once inside the offender Reid disarmed the victim of a knife that he had been holding for his protection and forced him to the floor. He then held the knife to the victim’s throat and made threats of violence to, and demands of him. At some point the offender Reid caused a 45mm incised wound to the victim’s left thigh and caused a small 5mm incised wound to the victim’s hand.
The offender Evans picked up an electric guitar and hit the victim with it 8-10 times, breaking his right leg. The offender Evans also picked up a speaker box and dropped in on the victim, fracturing three of his ribs, and kicked and punched him.
Around this time Ms Stott entered the residence and demanded that the victim give her a gun, which she understood he had in his unit. Mr Collier went into the bedroom and found a number of gun parts including a barrel and wooden stock and then handed them to Ms Stott. At some point one of the co-offenders picked up a metal bar and struck the victim’s right leg with it.
Approximately 21 minutes after the four males had gained access to the victim’s apartment all of the co-offenders left the unit. Ms Stott was carrying the gun parts wrapped in a blanket taken from the victim’s unit, Mr Collier carrying two laptops, and Mr Watson was carrying a steel bar. Two sets of car keys were also taken, one of which belonged to a black Holden Commodore that had been sold to the victim by Ms Stott. The offender Evans took two of the victim’s mobile phones.
Ms Stott had known the victim for 20-25 years. At some stage they had a falling out and were no longer friends. According to Ms Stott the victim had not paid for the Commodore and owed her ‘six grand’. According to the victim he owed Ms Stott $750 in payment for the vehicle and for drugs which he claimed she had sold him.
Police and ambulance services attended a short time later and the victim was transferred to Canberra hospital. The victim was examined and found to have a large number of injuries, including the knife wounds, a serious leg fracture which required surgical intervention, fractured ribs, a splenic parenchymal laceration, and a large number of bruises and abrasions. The nature of the fracture and subsequent surgery on the vicitm’s leg will result in permanent scarring and may have longer term complications such as ongoing pain and altered sensation.
Further agreed facts in relation to the offender Reid
At some point during the course of the robbery the offender Reid claimed to be the president of an outlaw motorcycle gang (OMCG). During a search warrant conducted at the offender Reid’s premises on 25 January 2019, police found clothing and paraphernalia relating to Satudarah OMCG and the Rebels OMCG. These items included a Satudarah vest with a patch labelled ‘President’. The offender Reid was not wearing clothing affiliated with Satudarah at the time of the robbery.
On the evening of 10 January 2019 the offender Reid signed in for bail at Belconnen Police Station. His appearance and some of his clothing matched the clothing shown on CCTV from Oaks Estate.
When the offender Reid was arrested on 25 January 2019, the shoes he was wearing were seized. Forensic testing revealed apparent blood on his left shoe. Analysis of the DNA profile taken from that shoe provided ‘extremely strong support’ for the proposition that the victim was the source of the DNA profile obtained.
At approximately 4am on 11 January, several residents of the victim’s unit complex were woken by noises coming from the victim’s garage. The garage door was open and two men could be seen in and around the garage. At about 1pm later that day two men opened the garage and asked one of the victim’s neighbours for a car jack. The neighbour observed the men putting wheels onto the victim’s Commodore, and later saw it driving from the complex.
Later that day the offender Reid sent Ms Stott an MMS video showing the victim’s Commodore driving into the street where the offender Reid lived at that time. Ms Stott and the offender Reid communicated further via text message with respect to the vehicle that evening.
At approximately 11am on 15 January 2019 the offender Reid attended Canberra Hospital and made his way to the victim’s room. The victim immediately recognised the offender Reid as being one of the men who had robbed and assaulted him. The offender Reid stood at the foot of the victim’s bed and said he would get the victim his vehicle back if he dropped his statement to the Police. The victim, feeling frightened and unsafe, agreed to the offender Reid’s request. The offender Reid left after about one minute.
Later that day, the offender Reid presented to the Belconnen Police Station to sign in pursuant to his bail conditions. He was observed to be wearing identical clothing and with the same tattoos as captured on CCTV footage at the Canberra Hospital earlier that day.
Further agreed facts in relation to the offender Evans
Police seized a black electric guitar from the victim’s residence and subjected it to forensic testing. A mixed DNA profile was obtained from a swab taken from the back of the neck of the guitar. DNA analysis provided ‘extremely strong support’ for the proposition that the offender Evans was a contributor to that DNA profile.
The Offences
The offender Reid has pleaded guilty to aggravated robbery by way of joint commission on the basis that he used force, or threatened to use force upon the victim while in possession of an offensive weapon and while his co-offenders committed the thefts. As such the offender Reid is to be sentenced as if he had committed the offence himself in accordance with s 45A(9) of the Criminal Code. The charge is statutorily aggravated on the basis that he was in company and that he did at that time have an offensive weapon with him (PWS [10]).
The offender Evans pleaded guilty to the charge of aggravated robbery on the basis of his conduct alone. He committed theft by taking two mobile phones from the victim and at about the time the theft was being committed he used force upon the victim with intent to commit theft. The charge is statutorily aggravated on the basis that he was in company and that he did at that time have an offensive weapon with him (PWS [11]).
Objective Seriousness
Prosecution submissions (Reid)
The prosecution submitted that the aggravated robbery offence was aggravated on the basis that the offence was committed in company, and at the time of the offence both offenders had an offensive weapon. It was submitted that the conduct of the parties together makes up the physical elements of the joint offence to which the offender Reid has pleaded guilty.
The prosecution submitted that the offenders used offensive weapons during the robbery and were accompanied with actual, sustained and serious violence inflicted upon the victim while he was in a vulnerable position and which resulted in the significant injuries described in the agreed facts. It was conceded that neither offender had a weapon when they entered the unit and that the victim originally had the possession of the knife for his own protection (T 48.35-45; T 53.25-35).
It was submitted that rather than simply disarming the victim, the offender Reid then chose to use it against the victim to inflict the injuries (T 49.1-5). The prosecution submitted that “applying its common sense and life experience” that this Court would find that the wound inflicted to the victim’s leg by the offender Reid would be likely to cause a scar (PWS [22]; T 51.25-30). The prosecution accepted that the incised wound could not be described as a “stab wound” and as such was a “neutral consideration”, rather than an aggravating factor given the way in which it was inflicted could not be proven beyond a reasonable doubt (T 51.29-40). It was agreed in the Statement of Facts that the serious fracture to the victim’s right leg will result in permanent scarring and may also result in long term complications.
Prosecution Submissions (Evans)
It was submitted that the separate charges of inflicting grievous bodily harm by way of joint commission had been discontinued as a result of the resolution of this matter, but that the details of the injuries contained in the agreed facts may be taken into account in considering the objective seriousness of the robbery. Counsel for the prosecution submitted that this was a particularly serious example of an aggravated robbery.
With respect to the objective seriousness of the conduct of the offender Evans, it was submitted that it was a sustained attack upon a man who was on the ground in his own home. It was submitted that it involved the offender Evans picking up a speaker box and dropping it on the victim, causing serious injuries including fracture ribs and a splenic injury. It was submitted that the offender Evans’ aggravated robbery is one which is charged on the basis of his conduct alone, as his conduct included both a theft and an assault (T 79.10-15). This was distinguished by the prosecution as the offender Reid is being dealt with by way of joint commission under s 45A of the Criminal Code.
The prosecution submitted that while the offender Evans is to be sentenced with respect to his conduct alone, the conduct of others is still relevant to the nature and circumstances of the offence under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). It was submitted that while the offender Evans is not liable for what the co-offenders did, their conduct is still relevant to the circumstances in which the offence took place (T 88.4-8)
With respect to the planning of the offence it was submitted that there was a degree of planning and premeditation to gain entry to the unit in order to assist the offender Stott in taking something that did not belong to her (T 58.12-13). The prosecution noted that it was the offender Reid who talked his way into the unit.
Prosecution further submissions on range
With respect to the value of the property taken, it was submitted that there is no direct evidence of the value of the property. The prosecution accepted that the value of the property was unlikely to be very high. It was submitted that, as noted in DPP v Brooks [2008] VSCA 253 (Brooks) and Hogarth v The Queen [2012] VSCA 302; 37 VR 658 (Hogarth), the financial loss will often be the least serious consequence of the offence.
It was submitted that this was a much more serious case than a ‘common case’ as described in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (T 60.25-35). It was submitted that the offence having taken place in the victim’s home seriously aggravates the offence (T 49.10-12). Counsel for the prosecution referred to a number of cases including R v Hodge [2015] ACTSC 214 (Hodge), R v Murray [2016] ACTSC 173 (Murray), and R v Lockwood [2018] ACTSC 288 (Lockwood) to support the submission that the aggravated robberies with respect to both offenders were at the higher end of the range of objective seriousness (T 60.40-45; 61.1-30).
In relation to the offence of being knowingly concerned in the taking of a motor vehicle counsel for the prosecution accepted that the role played by the offender Reid was not clear (T 61.35-36). It was submitted that he was relevantly concerned only because of the fact that he had filmed someone else driving the car soon after it had been taken, and that he had offered to return the car to the victim in return for the victim dropping his statement to the police (T 61.36-41).
The prosecution described the attempt to pervert the course of justice offence as a serious example of that offence. It was submitted that it was an attempt by the offender to have a key and only witness drop their statement, in circumstances where the victim was vulnerable and suffering from a number of injuries which had been inflicted on him only days beforehand. It was submitted that notwithstanding that the victim had given a record of interview, his evidence given in court would have been essential to the case (T 62.33-40). It was submitted that this offence was clearly premeditated and an offence of this type requires general deterrence as a sentencing factor as it “strikes at the heart of the administration of justice” (T 64.24-25). Counsel submitted that this offence was towards the mid-range of objective seriousness for offences of this type (T 63.29-31) and referred the Court to the comparable cases of R v Jones [2019] ACTSC 124 (R v Jones) and R v Summers; R v Miller (No 2) [2019] ACTSC 11 (R v Summers; R v Miller).
The prosecution submitted and counsel for the offender Reid conceded that that due to their interrelated nature there would be some level of concurrency between the aggravated robbery and the motor vehicle offence, and a relatively limited level of degree of concurrency with respect to the perverting the course of justice offence given that it is an offence of a completely different type (T 62.5-30).
Submissions for the offender Reid
Counsel for the offender Reid conceded that nothing other than an immediate term of custody should be imposed in relation to the offences. It was submitted that ultimately the head sentence to be imposed would be one which does not make him eligible for any other form of disposition such as an Intensive Corrections Order (T 42.5-35).
Counsel submitted with respect to the aggravated robbery offence occurred in circumstances where the violence was perpetrated by the offender before the intent to take the victim’s possessions had been formed. It was submitted that the timing of the formation of intent was important, as it attracts “a different level of culpability to the premeditation which is reflected in the NSW offence” (T 46.5-10). It was submitted that the offender was let into the victim’s home following a conversation, none of the offenders had weapons with them at this time, and was not a typical premeditated home invasion (T 79.35-46).
It was submitted that the weapon which was used by the offender had initially been in the hands of the victim, and that the physical interaction involving the disarming of the victim was “not insignificant” (T 80.1-5). Counsel submitted that what followed in terms of the offender’s actions and the actions of those around him was a “gross overreaction” to the fact that the victim had the knife in his possession when they entered his home (T 80.5-10).
Counsel acknowledged that the violence was at a very high level, but submitted that the offence occurred in a context “where things got out of control” and there was not a level of premeditation to cause an aggravated robbery. Counsel submitted that the offender did not take anything from the victim, and that his plea is “on the basis that at the point where he was continuing to be with the [victim] and have the knife in his hand, that he had an acquiescence to the actions of Ms Stott and [the offender] Evans”. In counsel’s submission the objective seriousness of the offence is reduced from the higher end down to the middle when this context is considered (T 80.10-30).
Counsel sought to distinguish the offence as it is expressed in the Criminal Code from its equivalent offence in the Crimes Act 1990 (NSW) on the basis that a robbery offence under the NSW Act requires a level of premeditation which is not required under the Criminal Code. It was submitted that the Criminal Code offence encompasses a different aspect where the violence initially had nothing to do with any design or intent to steal. It was submitted that the offence to which the offender has pleaded guilty “developed in the course of an interaction which started with the disarming of the [victim] and this should bring the offence to the middle of the range of objective seriousness (T 80.35-47).
With respect to the offence of being knowingly concerned in the taking of a motor vehicle counsel submitted that the link to the vehicle was based on circumstances where the offender was involved in the use of the car the following day. On that basis this offence was submitted to be at the lower end of objective seriousness (T 81.15-17).
With respect to the offence of attempting to pervert the course of justice counsel agreed with the prosecution’s assessment of that offence as being towards the mid-range of offences. Counsel conceded that it will carry a sentence of imprisonment and would attract a level of accumulation (T 81.18-26).
Submissions for the offender Evans
Counsel submitted that as the offender Evans has pleaded to the offence of aggravated robbery simpliciter he may only be sentenced on the basis of his conduct alone (T 87.30-46). Counsel accepted that the offence was an example of very serious criminality and that a period of immediate imprisonment was the only sentencing option available (T 88.33-46).
Counsel submitted that the objective seriousness of the offending sat somewhere between mid and high-range (T 89.13-17). Counsel submitted that the offending has had significant and everlasting consequences for the victim in terms of physical and psychological injuries.
Consideration as to range
The question of range and objective seriousness is an important matter to be determined: see R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. It must also be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]). Labels can occasionally obfuscate more than they illuminate.
I accept the submissions of the prosecution as to the objective seriousness of the offences committed by the offender Evans and the offender Reid as the submissions accord with my view of the facts in this case and the relevant identifying features described above.
Relevance of OMCG Membership
Counsel for the prosecution submitted that OMCG membership was not an aggravating feature but was relevant to sentence, even where that membership is not directly related to the offending for which sentence is to be imposed. It was submitted that while the offender Reid was not wearing clothing affiliated with the Satudarah OMCG at the time of the offending, he was previously a member of the Rebels OMCG and was at the time of the offence a member of the Satudarah OMCG. The prosecution submitted that the offender had claimed to be the president of an OMCG during the course of the incident, and that police had located OMCG paraphernalia including a Satudarah vest with a patch labelled “President” during a search warrant later executed at his premises.
It was submitted that membership of an OMCG is relevant to prior character and suggests that a member is not generally of good character. It was submitted that this limits prospects of avoiding re-offending and is relevant to prospects of rehabilitation, and as such specific deterrence and denunciation should be afforded greater weight (T 66.5-11).
The prosecution referred the Court to R v Pishdari & Anor [2018] SASFC 94 at [21]-[25] in which the South Australian Court of Criminal Appeal indicated that OMCG membership was relevant to character and prospects of rehabilitation. In Robb v Uren [2018] ACTSC 312 at [8] Burns J noted that the comments made by the South Australian Court were made in the context of an offence relating to participation in a criminal organisation which has no equivalent in this jurisdiction:
I observe that the above comments by Nicholson J were made in the context of identifying relevant sentencing considerations with regard to an offence of participating in a criminal organisation contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (SA), an offence that has no equivalent in the ACT. In the proceeding before the Magistrate, and in the present appeal it was not suggested that the principles stated by Nicholson J did not apply in sentencing the appellant for the offence of assault occasioning actual bodily harm.
R v Bourne [2014] ACTSC 401, R v Bourne [2015] ACTSC 181, and R v Bourne [2018] ACTSC 35, cases concerning the same offender, each dealt with an offender’s prospects of rehabilitation in circumstances in which he remained an OMCG member.
It was submitted that there was no evidence to establish that the offender Evans was at the time of the offending or contemporaneously remains a member of an OMCG (T 89.28-35). It was submitted that any evidence which might indicate the offender was a member of an OMCG was dated no later than 2018 (T 90.40-45).
Counsel for the offender Reid submitted that there was no evidence that the offences were referrable to the expectations of a motorcycle club, and that references to the offender’s ongoing association with the Rebels or Satudarah go to prospects of rehabilitation. Counsel accepted that these associations would have an impact on those prospects (T 86.9-20). Counsel for the prosecution accepted that this offence was not related to the offender’s associations with these clubs (T 86.20-30).
Taking the submissions and the relevant law into consideration it is appropriate that the Court indicates that the background of OMCG membership can be taken into account only to a limited extent, that is, regarding rehabilitation. It cannot be said to be of significant weight in this case regarding either offender.
Victim Impact Statement
In evidence before me were three Victim Impact Statements. The Victim Impact Statement written by the victim was read onto the record by the prosecution at the sentence hearing (T 38-40, 26.11.19). The two other Victim Impact Statements were written by the victim’s partner and his daughter. They were tendered in Court but not read onto the record.
Much of the Victim Impact Statement is addressed toward the circumstances that surrounded the offence and the ongoing effect that the assaults have had on the victim’s long-term physical health and mental well-being. The following passages are extracted from the Victim Impact Statement:
The first thing that comes to mind is the pain, the pain of my leg that was continually smashed by [Evans], even after the first or second hit from the electric guitar had most definitely broken my leg. I could feel the bone breaking through the skin after that. The next six or eight times from way above head height, as I lay on the ground, with a very large knife at my throat, [Reid] which I was holding it back from cutting my throat. The pain from my leg was the most intense pain I have ever felt, I have ever known. My skin crawls at the thought. I remembered I wanted to die right then.
…
All I wanted was the pain to end. I was helpless as they ransacked my home. I couldn't really see what they were taking or doing to things that mattered to my life. I knew that if I was going to survive that I would never physically be the same again.
…
When they finally left I was helpless on the floor, unable to move, and I had the realisation that I was stuck.
The following is extracted from the Victim Impact Statement of the victim’s daughter:
Because of what happened he worries about his children’s and grandchildren’s and partners safety a lot. He had to use crutches for about 3 months so he felt like he couldn’t protect us if they came back to get him.
The following is extracted from the Victim Impact Statement of the victim’s partner:
It’s been so sad to watch the man I love second guess himself and unsure of his capabilities. He is constantly looking over his shoulder and has anxiety attacks if he has to leave the confines of his flat. He is supposed to look for work, but he can’t catch public transport or be out in public without the constant panic of wondering and worrying about other around him.
The extent of the impact upon the victim was made clear by the Victim Impact Statements. The reading of the Victim Impact Statement of the victim by the prosecution is important as the offenders heard the words of the victim through the prosecution. Courts know the extremely serious effects of offences such as this. Nevertheless, it is valuable to hear the words of the victim. The injuries were serious. The consequences for the victim must be underlined.
Subjective Factors (Reid)
An Intensive Corrections Order report dated 17 August 2016 was tendered. It was not prepared in relation to the present offences. It notes that the offender was raised by his father after his parents separation when he was four years of age. It also notes some of the difficulties he faced during his childhood, including being raised in circumstances of chronic alcohol abuse and other mental health issues. The offender completed Year 12 and prior to the period of incarceration to which the report relates was employed as a labourer.
Counsel conceded that the offender does have a criminal history and that this clearly limits the leniency which can be afforded. Counsel described the offender’s prospects of rehabilitation as “middling” (T 81.31-42). Counsel drew attention to evidence suggesting that the offender’s association with OMCG was a product of his family, his step-father, and other relationships with those associated, and he had otherwise been an outstanding athlete and was in employment, but conceded that the offender is no longer a young man being 32 years of age (T 82.1-10).
It was submitted that while the offender’s prospects of rehabilitation are not outstanding, nevertheless there was enough evidence before the Court to instil some level of confidence that the effect of the sentence will have a rehabilitative effect despite previous ICO breaches. On this basis it was submitted that the Court could take this into account when determining an appropriate non-parole period (T 84.5-15; T 85.9-10). Counsel submitted that the offender had a number of protective factors such as his former partner.
References (Reid)
A character reference written by the offender Reid’s former partner was tendered. The former partner also gave oral evidence at the sentencing hearing. The reference included the following passages:
Dean did dissociate himself from the Rebels after he was arrested in 2014. Dean has always expressed how he felt used and let down and how he wanted to leave Canberra and start fresh somewhere else, unfortunately he was still completing parole and was not able to do this.
I know Dean as a wonderful person who has so much more to offer in life. I have seen him be a contributing member of the Canberra community, always working hard, and often volunteering in boxing gyms around Canberra. Passionate with his training and extremely driven, Dean loved working with children and passing on his boxing skills, and keeping in touch with his indigenous community through Winnunga.
The letter also speaks of the trauma suffered by the offender after finding his father who had passed away in his home shortly after the offender’s release from the Alexander Maconochie Centre (AMC) in 2017. The letter describes this incident as having a crippling effect on his mental health and wellbeing. The letter also states that the former partner will continue to support the offender and assist him with engaging with mental health services upon his release from the AMC.
The former partner was called to give further oral evidence at sentencing hearing and was cross-examined by the prosecution on a number of issues arising from her letter of support. In particular she was questioned in relation to the offender’s association with the Rebels and his attempts to disassociate himself from the club, breaches by the offender of his conditions, and his history of violence. It was not put to the former partner and the prosecution made it clear that it was not submitting that she had lied, “or anything to that nature” (T 72.9-10).
In relation to the evidence which was given by the former partner the prosecution made a number of submissions with respect to the weight that should be given to the written reference in evidence. It was submitted that this reference “should be given little weight” when seen in the context of the objective evidence which in the prosecution’s submission was inconsistent with the offender Reid’s statements to his former partner that he had made attempts at various points in time to disassociate himself from OMCGs (T 71.35-47; 72.1-15). It was submitted that the evidence of the offender Reid’s breach history indicated that Corrective Services had not dealt with the offender as poorly as may have been suggested in the former partner’s evidence. It was submitted that the offender’s Intensive Correction Order had been cancelled after a number of breaches and had chosen not to recommend cancellation on occasions due to extenuating circumstances (T 74.5-10).
More significantly, in the prosecution’s submission, were the comments made with respect to the offender disassociating himself from the Rebels OMCG at various times following his arrest in 2014 (T 74.34-36). It was submitted that the information contained in a 2016 Intensive Corrections Order report indicates that he had not in fact disassociated from OMCG membership despite anything that he may have said to the former partner, and as such her evidence should be taken with “a grain of salt”. (T 76.23-30).
Counsel for the prosecution made further submissions with respect to the offender’s remorse expressed to the former partner not having been expressed to the Court by the offender himself, and the limitation to be placed on evidence that he had not brought violence into their home given that there was clear evidence of the offender acting violently elsewhere (T 77.1-10).
Counsel for the offender noted that the former partner had given her evidence in support of the offender in the context of a long association with him and that it could be accepted that he did not bring any violence or associated conduct into her home. Counsel noted her evidence that upon his release she will be supportive of him and welcomed the prospect of a continuing relationship but only if he addressed his associations and drug use (T 82.35-46). It was submitted that the evidence indicates that the offender has the capacity to do so despite his unsuccessful attempts to do so in the past (T 83.5-20). It was submitted that there is no evidence to suggest that his use of drugs has continued while in custody (T 83.34-46).
The letter of his former partner includes the following:
Dean admits his life completely fell apart after his father’s death and contributed to a number of serious and damaging life choices which he regrets. I personally would not be visiting Dean and committing to being in his life if I were not certain he was trying to do right by his mistakes and be true to himself. He has proven this to me by staying clean in jail, seeking help, completing his grievance programs, addressing his past mental health issues and even getting a job in jail to support himself. Dean has told me he wants to seek employment as soon as he is released and has severed ties with the people he met when he was in that dark place. I know that Dean can lead a crime free life, and I want to be able to pursue a loving and happy relationship again with him in the future. I truly believe that Dean can achieve this if given the opportunity to, and I will be by his side to support him in any way he needs. I am also in a financial position to assist Dean upon his release from custody, Dean and I have spoken about a continued mental health plan upon his release.
Also tendered were letters of support written by the offender’s mother and sisters. All three of these letters express support for the offender, acknowledge his problems with drug use and mental health. The references included the following from his mother:
When Dean was five years old he went to live with his father Stephen Reid (Steve) on a full time basis and I was not present in his life for a long period of time. I have lived with the guilt and regret of not being in my sons life for the most important parts and I feel this made a significant impact on his emotional development. I reconnected with Dean in 2005 when he was 18 years old and I had just commenced a relationship with his father Robert Cameron. Robert was at that time the president of the rebel’s OMCG.
…
Since being in jail and free of the drug ice he has been able to work on his emotional turmoil and rehabilitate himself from [drugs] while in jail. He admits when he is having a hard day and talks to me about his feelings. Dean has always been caring and is a valuable member of my family. I have seen the positive change in Dean this year, he has dealt with his past and grief and is working hard [to] move forward with his life. Dean has expressed disappointment in himself and for the impact this has had on his family. I will always be here to support Dean and I hope that he is given the chance to be a productive member of society.
The following is a statement from the offender’s eldest sister:
My name is [redacted] Dean’s eldest sister. I have 2 children and I work in the public service and have done so for 16 years, I also own my own home.
…
I know his time in jail has made him stay clean and think straight. I know Dean wants to make right and start a family, and be the son, brother and uncle that we all know Dean to be.
Dean is not the big tough guy he is made out to be he was always been a follower and was used and led down a path when he was in a vulnerable state. For him to be in Jail for a long time will only make things worse for, Dean is working hard to better himself while in AMC, I am so proud of him for seeking help in jail, acknowledging his mistakes and choices, accepting them and wanting to better himself.
The following is a statement from another of the offender’s sisters:
Dean is trying to get his life back on track and he is proving this by seeking counselling, staying clean and getting work through the jail. I know he would love a family of his own and this won’t be possible with a longer sentence.
My husband and I would love to help guide him and make sure he is staying on the right track. We’d love for Dean to be more involved in our kids lives, and in ours. I know he wants this too. I believe Dean wants a normal “crime free” life and I truly believe he will achieve this given the opportunity and right influences on the outside.
Subjective Factors (Evans)
A Pre-Sentence Report (PSR) dated 30 November 2017, an update to that PSR dated 28 March 2018, and a Court Duty Report dated 3 June 2019 were tendered for the purpose of placing the offender’s subjective circumstances into context (T 92.23-30). No PSR was prepared in relation to the current offences.
In these reports the offender described his childhood in positive terms but left school in before completing Year 10. He reported that his employment history includes casual labouring positions. He reported no mental health issues but did report ongoing treatment for pain associated with physical injuries he sustained in 2015. He reported no alcohol related issues but did described issues relating to methamphetamine use commencing when he was 21 years of age.
Reference (Evans)
In evidence was a letter written by the offender Evans’ partner dated 27 November 2019. The letter states that she has been in a relationship with the offender for eight years, and that the offender has become a father figure to her four children who are not the children of the offender. It describes the offender as an understanding and loving partner, and as being supportive of both herself and her children. The letter states that the offender has been open about his addiction to drugs and states that in the months before the offender’s arrest the offender had displayed a change in appearance and behaviour, which his partner attributes to a relapse in his drug use. The letter includes the following:
David is a very loving person with a big heart he is a kind supportive partner. I have now been diagnosed with bipolar disorder, David has always been my support through the hardest of times him being incarcerated is effecting my mental health extremely as I don’t have any other support but him.
Please take this letter into consideration as a big part of our life is missing. I do not condone the charges he has pleaded guilty to today, I am saddened by this but I do feel that drugs have been a very big impact for his behaviour.
Counsel for the offender submitted that the impact of the offender’s drug use, while not excusing the conduct, does provide some context as a factor which may provide some explanation for that conduct (T 92.5-11)
Evidence of AMC telephone records and statement of facts
At the sentencing hearing on 30 April 2020 the prosecution tendered a statement of facts in relation to charges brought against the offender Evans while in the AMC. The statement was tendered over the objection of counsel for the offender. There are seven charges of using a carriage service to menace, harass, or cause offence under s 474.17 of the Criminal Code Act 1995 (Cth). The complainant in those matters is the offender Evans’ partner who provided the reference referred to above. The offender pleaded guilty to these charges in the Magistrates Court and is awaiting sentence. The statement of facts contains extracts from transcripts of a number of telephone conversations between the offender and his partner which were recorded between 31 July and 6 August 2019.
The prosecution submitted that the content of these telephone conversations was relevant both to the offender’s OMCG membership and to the weight which should be afforded to the statements in the character reference provided by the offender’s partner (T 30.4.20;17.15-35). The prosecution submitted that the statement of facts indicates that at the time of the offence the offender was a member of an OMCG and remained a member for some time after despite being remanded in custody in relation to these offences and as such was relevant to prospects of rehabilitation. It was accepted that it did not shed light on whether he remained a member at the date of the sentencing hearing (T 30.4.20;19.44-47).
In the prosecution’s submission the statement of facts was also relevant in that the conversation transcripts provided context between the offender and his partner (T 30.4.20; 21.15-20). The threats and offensive language directed toward the offender’s partner were submitted to be relevant to the weight to be given to the statements in the character reference as to the offender’s loving and supportive nature in that relationship (T 30.4.20;23.20-35). It was submitted that this was also evidence of further offending which had occurred after the aggravated robbery offence and as such was also relevant to prospects of rehabilitation.
Counsel for the offender submitted that there was nothing in the statement of facts or the statement of Senior Constable Williams which could establish beyond a reasonable doubt that the offender was at the time of the offences or immediately afterwards was associated with OMCGs (T 30.4.20; 27.1-35). Counsel submitted that there was no evidence to suggest that the language used in the extracts of the telephone conversations was not the nature of the relationship between the offender and his partner. It was submitted that any conversations which indicated a loving relationship would not have been included as they would not have been relevant to the charges. It was submitted further that if there had been some animosity between them it had clearly been resolved by the time that the character reference had been written (T 30.4.20;30.9-15). It was submitted that if the statement of facts were to be exhibited that it should be given negligible weight.
Taking into account the submissions and the relevant law in this area it is appropriate that the Court indicates that these further offences can only be taken into account in a limited respect, that is going to rehabilitation. The weight is therefore limited.
Remorse
The courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18], Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ, Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 at [44], Mun v R [2015] NSWCCA 234 (Mun) at [36] and R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18], Mun at [37] and Van Zwam v R [2017] NSWCCA 127 at [6], [110]. Accordingly, I do not ascribe significant weight to the remorse expressed in references.
COVID-19
On 8 April 2020 the Court invited the parties to provide further submissions on sentence in light of the COVID-19 pandemic and its potential relevance to any sentence imposed.
Prosecution submissions
The prosecution submitted that the impact of the pandemic may be relevant to sentencing, but the extent to which it may be taken into account, if at all, is to be resolved having regard to the particular facts of the case at hand (citing Brown (aka Davis) v The Queen [2020] VSCA 60 at [48] (Brown (aka Davis)). It was submitted that the impact of the pandemic on a particular offender is not a matter about which judicial notice can be properly taken, as its relevance will depend upon any evidence demonstrating the impact, or potential impact the pandemic may have on that particular offender. It was submitted that the specific impact upon the AMC or specific detainees was not properly the subject of common knowledge such that judicial notice could be taken.
The prosecution tendered a letter under the hand of Ms Karen Grace, the Executive Director of Mental Health, Justice Health, and Alcohol and Drug Services dated 15 April 2020. It addresses the Justice Health Services response to the pandemic. The letter outlines screening and management measures implemented at the AMC, and particular measures being taken in relation to identified ‘High-risk or Vulnerable Clients’. The prosecution submitted that the measures that have been put in place in conjunction with the powers available to respond to a potential outbreak were appropriate, and that there is no evidence to suggest that there is any impact or risk of becoming infected particular to either offender. The prosecution accepted that contact visits have been suspended and are now being conducted via audio visual link and that this would have some impact upon the offenders (T 30.04.20;5.15-45).
Defence submissions
Counsel for the offender Reid provided brief written submissions. These submissions were adopted by counsel for the offender Evans. Counsel for the offender Reid submitted that detainees will suffer a greater apprehended risk of infection and mortality. It was submitted that while it was not appropriate or practicable to take a mathematical approach to an allowance for the more onerous conditions associated with the pandemic, that it should still be seen as a relevant consideration and taken into account to the benefit of the offenders.
Consideration
In relation to the impact of COVID-19 it is necessary in the individual case to take into account both health consequences and social consequences. On the evidence before the Court it appears the AMC is managing the health risks appropriately at this stage. There is no evidence before the Court that the offenders Evans and Reid are in a high-risk category in relation to physical health consequences. The social consequences are nevertheless of significance in this case. In particular the Court notes R v Stott (No 2) [2020] ACTSC 62 where Elkaim J stated the following in relation to bail which is equally apposite to sentence at [13]:
… I think the curtailment of visiting rights is a relevant factor and, personal to the applicant, does amount to a change of circumstances. Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits. In particular, contact with family is an important element in the life of a person resident at the AMC.
Courts around Australia have made a number of statements concerning COVID-19 and sentencing. Suspension of visits make incarceration more onerous: Scott v R [2020] NSWCCA 81 at [166]. Prison systems remain free; community infection rates are trending downwards – However, it is acknowledged that while the risk of infection remains and related restrictions are in place the consequences for prisoners are significant: DPP v Kotiau [2020] VSC 245 at [75]. Absence of visits from family and friends is an additional hardship that must be synthesised along with other matters: R v Despotovski [2020] NSWDC 110. See also Brown (aka Davis) at [48].
This absence of visits from family and friends is an additional hardship that it is appropriate to synthesise along with the other matters both objective and subjective relevant to both offenders as discussed above and conceded by the prosecution (T 30.04.20;5.15-45). I take this into account with respect to both offenders.
Criminal History
It was submitted by the prosecution that the offenders Evans and Reid were neither young nor do they have a limited criminal history. It was submitted that both offenders have previously been sentenced to terms of imprisonment and that Evans’ criminal history is substantial. It was submitted that the offender Reid’s criminal history includes offences involving violence, though the most recent violent offences occurred in 2014. Evans’ ACT criminal history contains multiple convictions for offences of dishonesty including theft and obtaining property by deception. In NSW the offender Evans has a conviction for assault occasioning actual bodily harm committed in 2015 and for drug supply in 2010.
The offender Evans has multiple convictions for offences of dishonesty, he was sentenced for a theft offence and for a breach of a Good Behaviour Order attached to a suspended sentence in January 2019. For the breach he was re-sentenced to 7 months and 4 days imprisonment backdated to commence on 5 February 2019 and to end on 4 January 2020. For the theft offence he was sentenced to 14 months imprisonment to commence on 9 July and conclude on 8 September 2020. The total head sentence was 19 months and 4 days imprisonment, with a non-parole period of 11 months. The non-parole period was ordered to commence on 5 February 2019 and end on 4 January 2020. The offender Evans also has a conviction for taking a motor vehicle without consent in 2018, obtaining property by deception in 2015, and many other theft and driving offences committed in the ACT.
The offender Reid has a criminal history which includes violent offences. The most recent of those violent offences occurred in October 2014. On 8 September 2016 he received a sentence of 20 months’ imprisonment to be served by way of an intensive correction order in conjunction with a non-association order with respect to OMCG members. He has also been dealt with for a number of traffic offences, for failing to appear, and for obstructing a Territory official.
Pleas of guilty
The offenders pleaded guilty to the charges to which these offences relate on the first day of trial following negotiations with the prosecution. Counsel for the prosecution submitted that no pleas had been indicated at the Criminal Case Conferences which were held on 21 October and 24 October 2019 (PWS [72]-[73]).
It was submitted that by the time the pleas were entered, the prosecution was ready to proceed to trial and as such many of the utilitarian benefits associated with early pleas arising from these conferences had been lost. Counsel for the prosecution did concede that some utilitarian value remained, noting that the victim had been relieved of the requirement to give evidence.
It was submitted that the pleas came in the face of a strong prosecution case, given that the offenders were captured on CCTV entering the victim’s unit and leaving with items which did not belong to them, with the victim suffering his injuries during that time. It was submitted than it these circumstances, and while always in the discretion of the Court, a discount in the range referred to in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 and Cranfield v The Queen [2018] ACTCA 3 with respect to a ‘last-minute plea’ would be appropriate.
Counsel for the prosecution submitted that there was no reason why a discount different the 10 per cent afforded to the co-offenders should be granted to the offenders Reid and Evans (T 69.13-21).
Counsel for the offender Reid submitted that a discount of 10 per cent would be appropriate. Counsel for the offender Evans submitted that a discount of between 10 to 15 per cent would be a “starting point” on the basis that the plea avoided the need for a trial involving multiple offenders, and precluded the victim from the need to give evidence and be cross-examined (T 91.5-20).
Taking into account these submissions I am of the view that a discount of 10 per cent is appropriate for both the offender Evans and the offender Reid.
Time in custody
The offender Reid was arrested and taken into custody on 25 January 2019. The prosecution submitted that whatever sentence is to be imposed may be backdated to that date.
The offender Evans has been in custody since 5 February 2019 in relation to another matter. He was sentenced on 3 June 2019 in relation to a theft offence and a breach of a good behaviour order attached to a suspended sentence. He was re-sentenced.
A non-parole period of 11 months was imposed from 5 February 2019 and to conclude on 4 January 2020.
The total head sentence was 19 months and 4 days imprisonment, with a non-parole period of 11 months. As stated above the non-parole period was ordered to commence on 5 February 2019 and conclude on 4 January 2020. In written submissions the prosecution submitted that the sentence imposed on the offender Evans may commence at the conclusion of his existing sentence on 8 September 2020 [PWS 84]. In oral submissions counsel for the prosecution accepted that it would be appropriate to backdate the sentence, but not to 5 February 2019. It was submitted that the offender’s non-parole period will have to be cancelled and reset (T 78.20-40).
Counsel for the offender Evans accepted the prosecution’s submissions in relation to the question of totality and the resetting of the non-parole period, accepting that neither the sentence nor the non-parole period should start on the date that he was taken into custody (T 93.15-30).
Comparable Cases
Aggravated Robbery
The prosecution referred to Lockwood, Hodge, and Murray.
Lockwood was sentenced in relation to an aggravated burglary charge. The offender had been permitted to enter the victim’s house. Other men then entered, the victim was stabbed under the left collarbone with half of a pair of scissors and property was taken. The offender was a 53-year-old Aboriginal man with an extensive criminal history. The offender was sentenced to two years and nine months imprisonment with a non-parole period of two years.
Hodge was a sentence in relation to an aggravated robbery charge. It related to an incident in which three co-offenders forced their way into the victim’s home and assaulted the victim. Ms Murray had a knife. Co-offender Ms Wedge was carrying a chair leg. They pushed the victim into the house and demanded money, drugs, and keys to the victim’s motorbike. The victim ran from the house and was chased by Ms Murray with the knife in her hand. The victim grabbed her by the wrist. The offender Mr Hodge approached and hit the victim to the head, who fell to the ground. The Court found that there was a degree of planning but it was not a sophisticated robbery. The Court noted that a person who is on the ground is in a vulnerable position and characterised the offence as one of “significant objective seriousness” (at [13]). Photographs were taken shortly afterwards of abrasions to the victim’s head and forearm. The Court noted that “[t]he community abhors offences in the nature of home invasion. The violent invasion of a person’s home is one of the worst type of offences” (at [36]). Mr Hodge received a sentence of two years and eight months imprisonment after a 40 per cent reduction for the offender’s plea of guilty and assistance to authorities.
Murray was a sentence relating to the same incident as that in Hodge. The Court noted that Mr Hodge had been sentenced on slightly more serious facts. The facts upon which Ms Murray was sentenced did not indicate that she had a knife and she was sentenced on the basis that the offence was aggravated because she was in company and a co-offender was armed with a chair leg. Ms Murray received a sentence of two years and three months’ imprisonment, suspended after six months after a 25 percent reduction for a plea of guilty.
Counsel for the prosecution submitted that the present offences are more serious than the comparable cases which were referred to both in terms of the violence inflicted and the injuries suffered by the victim.
Perverting the course of justice (Reid)
In R v Summers; R v Miller the offender was charged with perverting the course of justice after attempting to convince a witness to change her statement to police. Murrell CJ stated at [34] that general deterrence was an important sentencing consideration but in that case it was diminished due to the offender’s mental health condition. Specific deterrence was a relevant consideration in that case due to the offender’s criminal history.
In R v Jones the charge of perverting the course of justice was found to be at the lower end of objective seriousness. Murrell CJ stated with respect to that matter (at [44]):
The offence of attempting to pervert the course of justice is of lower objective seriousness. While it involved several interactions and an attempt to influence a young person, it did not involve the delivery of any serious threat and was unlikely to have overborne the victim given that the relationship was over and the offender was incarcerated at the time of most aspects of the attempt. Further, it was unlikely to have had a significant impact on the administration of justice as, at the time of most aspects of the attempt, C had already given her evidence-in-chief interview.
The prosecution sought to distinguish R vJones from the present circumstances relating to the offender Reid on the basis that in the present matter the victim had not given an interview with police which would have been admissible as evidence. It was submitted further that Reid’s offending was conducted in person and as such would be more confronting than receiving Facebook messages, as was the case in R v Jones.
Parity
The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:
[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).
The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32].
The application of the parity principle can depend on findings of facts about the role of individual offenders in a crime. It is often appropriate to differentiate between the relative culpability amongst co-offenders by reference to the conduct of each in the joint criminal enterprise: R v JW [2010] NSWCCA 49; 77 NSWLR 7. However, there are limits to which this can occur with respect to the objective seriousness of the offence, because of the existence of the common purpose to commit the offence: R v Wright [2009] NSWCCA 3 applied. Counsel for the prosecution accepted that there is a difference in the active roles that each offender played whilst inside the victim’s unit (T 50.25-45).
Counsel for the prosecution submitted that there would be “justifiable disparity” between the sentences that are to be imposed upon the offenders Reid and Evans and the sentences which have been imposed on the offenders Watson and Collier. It was submitted that this was due to their conduct during the incident and the offences to which that have pleaded guilty (T 68.40-47). Counsel for both offenders accepted this submission (T 69.7-12).
Statutory and other considerations
In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view for either offender in light of the seriousness of the offences.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].
The Court must take into account totality in relation to any previous sentence and total period in custody: Mill v The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic v The Queen [2016] ACTCA 53 at [71]; O’Brien v The Queen [2015] ACTCA 47.
Members of this community are entitled to feel and remain safe in their homes and the Courts must play their part through the sentencing process to ensure that this right is vindicated: (Brooks at [22]).
Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
In R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [15]-[18] the Court identified two matters that are considered under the totality principle. The first is that:
The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence.
I take all these principles into account in determining sentence.
Sentence
It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him. Both the short and long-term consequences of being the victim of these offences must be acknowledged.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, and subjective matters, and parity as between the co-offenders Evans and Reid and the other co-offenders Collier, Watson, and Stott.
In respect of the offender Evans, the appropriate sentence for the offence of aggravated robbery is 5 years 6 months reduced by 10% on account of the discount for the plea of guilty to 4 years 11 months 12 days.
In respect of the offender Reid, the appropriate sentence for the offence of aggravated robbery is 5 years reduced by 10% on account of the discount for the plea of guilty to 4 years 6 months.
The appropriate sentence for the offence of being knowingly concerned in dishonestly taking a motor vehicle is 1 year and 4 months reduced by approximately 10% on account of the discount for the plea of guilty to 1 year 2 months.
The appropriate sentence for the offence of attempting to pervert the course of justice is 1 year and 8 months reduced by 10% on account of the discount for the plea of guilty to 1 year 6 months.
For the purposes of totality discussed above the sentences will be partially concurrent.
Orders
I make the following orders in respect of David Micheal Evans:
(a)On the charge of aggravated robbery (CC2019/2643), I impose a sentence of 4 years 11 months and 12 days commencing from 25 August 2019 and expiring on 5 August 2024.
(b)I set a new non-parole period to expire on 24 May 2022.
I make the following orders in respect of Dean Reid:
(a)On the charge of aggravated robbery (CC2019/1436), I impose a sentence of 4 years 6 months commencing from 25 January 2019 and expiring on 24 July 2023.
(b)On the charge of being knowingly concerned in dishonestly taking a motor vehicle (CC2019/2270), I impose a sentence of 1 year 2 months commencing from 1 November 2022 and expiring on 31 December 2023.
(c)On the charge of attempting to pervert the course of justice (CC2019/1439), I impose a sentence of 1 year and 6 months commencing from 25 June 2023 and expiring on 24 December 2024.
(d)I set a non-parole period to expire on 24 May 2022.
| I certify that the preceding one-hundred-and-thirty [130] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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