R v Facer
[2020] ACTSC 342
•13 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Facer |
| Citation: | [2020] ACTSC 342 |
| Hearing Dates: | 11 and 13 November 2020 |
| Decision Date: | 17 December 2020 |
| Before: | Loukas-Karlsson J |
| Decision: | See [104] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – first time offender – rehabilitation – moral culpability – offender’s role |
| Legislation Cited: | Criminal Code 2002 (ACT) s 312 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 35, 35A, 36 and 37 |
| Cases Cited: | Barlow v The Queen [2008] NSWCCA 96; 184 A Crim R 187 Beale v The Queen [2015] NSWCCA 120 CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Jovicic [2001] VSCA 43; 121 A Crim R 497 GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Munda v Western Australia [2013] HCA 38; 249 CLR 600 R v Blackman and Walters [2001] NSWCCA 121 R v Campbell; R v Wray [2017] ACTSC 386 R v Collier [2019] ACTSC 358 R v Ellis (1986) 6 NSWLR 603 R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 R v Hanrahan [2020] ACTSC 10 R v Hill [2016] ACTSC 310 R v Hopkins [2004] NSWCCA 105 R v Hoschke [2001] NSWCCA 317 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Lattouf (unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996) R v Lockwood [2018] ACTSC 288 R v Mauger [2012] NSWCCA 51 R v McCauley [2020] ACTSC 12 R v Minnis [2014] ACTSC 268 R v NQ [2019] ACTSC 275 R v Pham [2015] HCA 39; 256 CLR 550 |
| R v Saipani (No 2) [2020] ACTSC 228 | |
| R v Tauiliili [2020] ACTSC 11 | |
| R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 | |
| R v UG [2018] ACTCA 64; 14 ACTLR 70 R v Wright [2009] NSWCCA 3 Stanford v The Queen [2007] NSWCCA 73 Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 Veen v The Queen (No 2) (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CLR 584 | |
| Parties: | The Queen (Crown) Morgan Facer (Offender) |
| Representation: | Counsel |
| K Marson (Crown) B Morrisroe (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Boxall Legal (Offender) | |
| File Number: | SCC 197 of 2020 |
| LOUKAS-KARLSSON J: | |
| Introduction |
1. On 31 August 2020, Morgan Facer (the offender) pleaded guilty to one offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 20 years of imprisonment, 2,000 penalty units, or both.
2. The offence was committed on 10 July 2020.
Agreed Facts
3. The agreed facts are set out in the Agreed Statement of Facts, which form part of the Crown Tender Bundle. The agreed facts may be summarised as follows.
4. At about 10pm on 9 July 2020, the offender attended Wanderlust club with Mr Jordan Knight. At the club, the offender and Mr Knight met up with Ms Tianna Robb, Ms Leita Humphries, and Mr Dylan Crick. CCTV footage from the club shows the five of them speaking with a male in the main area of the bar.
5. At about 1.45am on 10 July 2020, the offender, Ms Robb, Ms Humphries, Mr Crick, Mr Knight, and the male are seen exiting Wanderlust and entering a small white hatchback vehicle, which subsequently drives away.
6. At about 1.50am on 10 July 2020, Mr George Fangaiuiha (the victim) was at his
mother’s house in Spence with his sister and his mother. At that time, the victim heard
a car door slam. This was followed by banging on the front door and the sound of
breaking glass.
The victim entered his mother’s bedroom and asked: “Did you hear that?” As his mother
walked out of her bedroom to investigate, she saw five people in the lounge room. It was accepted by the prosecution that the offender remained outside and was never inside the house.
8. One of the males who entered the premises pushed the victim’s mother up the hallway, stating “If you don’t shut up, I’ll knock you out”. The same male pushed the victim’s
sister into her mother’s bedroom. The victim’s sister stated to the male that she was
pregnant, as he was pushing her with force in the upper body; he did not cease pushing
her following this statement.9. Upon entering the bedroom with others, the unknown male swung his arm towards the victim in an attempt to punch him. The punch did not make contact; however, it caused the victim to land on his back on the bed in his attempt to evade the strike.
10. Whilst the victim was on the bed, Mr Knight held him down on the bed, holding his hands behind his back. Mr Crick punched the victim twice to the head, connecting once in the left eye and once in the head.
11. Mr Knight let the arms of the victim go and proceeded to punch him in the ribs and the back of the head from behind. Mr Crick stood over the top of the victim on the bed. Mr
Crick said: “Where is your phone? Where is your phone?”
12. The unknown male picked up a decorative glass plate nearby and smashed it on the
back of the victim’s head. This caused the victim to feel instant pain and caused a small
laceration. Ms Robb and Ms Humphries were in the bedroom at this time.
13. Mr Crick grabbed the victim’s black mobile telephone, as well as a white mobile
telephone and a gold coloured iPod. Mr Crick, Mr Knight, the unknown male, Ms Robb and Ms Humphries left the premises via the front door. The victim subsequently heard a vehicle leave the front of the premises.
ACT Ambulance Service attended the house and assessed the victim’s injuries. The
victim declined to be transported to the hospital or receive medical treatment. His sister was transported to the Calvary Hospital for observations due to her pregnancy and returning a high blood pressure reading.
15. At about 2.19am, 10 July 2020, the offender, Ms Robb, Ms Humphries, Mr Crick, Mr Knight, and the unknown male are seen on Wanderlust CCTV footage exiting a small white hatchback vehicle and re-entering the Wanderlust club, where a further incident occurs concerning a mobile phone.
16. Three days later, on Monday 13 July 2020 at about 4pm, the offender and Mr Knight attended the City Policy Station after seeing posts on social media regarding the incident.
17. After seeking legal advice, the offender participated in a digital record of interview with police that evening. During the record of interview, the offender stated that she was the driver in the incident. She stated that she was at the club with the other people and one of the girls became upset and claimed that the man that lived at the house in Spence had raped her. She said that they all got in the car and turned up to the house. The offender stated that one of the males in the car was directing her, and that, at first, she did not realise they were going to Spence.
18. In the record of interview, the offender stated that, when they arrived, she stood in the
driveway. She returned to the car once the window got smashed as she didn’t want to
go inside, and she remained in the car until the others returned. The offender stated that she was in the car with the windows down and she could hear yelling from inside. She then saw all the others come running out the front. She drove everyone back to Wanderlust.
19. The offender stated that she did not know what was going to happen when they arrived
at the victim’s house, but she felt bad about what happened. She said she knew
something bad would happen once the window was broken but she did nothing to stop it. The offender stated that she was a friend of the victim at the time and had known him for approximately five months. They no longer have any relationship.
Victim Impact
20. While there is no Victim Impact Statement before the Court, the Court acknowledges that the commission of this offence would have been very frightening for the victims. The prosecution submitted that the Court could infer emotional and psychological injury would have been suffered by the victims, and I do so infer.
21. Courts understand the serious effects of such offences as this on the victims. The Court acknowledges the significant impact that this offence has had, and will continue to have, on the victims.
Objective Seriousness
Offender’s Role in the Offending
22. The prosecution conceded that the offender’s role in the offence was one of lesser
culpability as she pleaded guilty on the basis of accessorial liability (T 16.19-22). The co-offenders in the matter have additionally been charged with further offences occurring inside the home, including aggravated robbery, common assault, and assault occasioning actual bodily harm.
23. It was accepted by the prosecution that the Court could not take into account the physical injuries of the victims beyond the psychological harm and stress associated
with a home invasion, as “Ms Facer’s knowledge of what occurred and what was to occur was very limited” (T 19.21-25). It was also noted that the offender pleaded guilty
to aggravated burglary with the intention to steal, not to cause harm (T 20.39-41).
24. The prosecution noted the statement of Mossop J in R v Tauiliili [2020] ACTSC 11
(Tauiliili) at [26] that: “the objective seriousness of aiding and abetting an offence may
range from equivalent seriousness to the principal offending to a relatively minor
contribution”. The prosecution further noted the statement in R v Campbell; R v Wray
[2017] ACTSC 386 at [24] that “as a general rule, a person who acts as the ‘getaway
driver’ will be treated in the same way as a person who breaks into the premises”.
25. In Tauiliili at [26], Mossop J found the objective seriousness of the offence was reduced
due to “the lack of advance intention to harm any person, the lack of proven
involvement in any physical act other than being present and the lack of any proven
motivation on his part which might make his presence more significant”. The
prosecution correctly submitted that this was relevant in the present case.
Objective Seriousness of the Offence
26. The prosecution accepted that any premeditation was minimal; however, it was submitted that, once the offender realised where she was being directed, she had the power to intervene and stop driving the group there.
27. The prosecution referred to a number of the features of the offending, including:
(a) The offender admitted to police that, once the window was broken, she “knew something bad was going to happen” and “didn’t do anything to stop
it”. She also moved her car closer to the driveway to make it easier to get
away. From where the offender stood on the driveway, she was able to hear
the victim’s sister yelling that she was pregnant, as referred to in the agreed
facts. I take these factors into account.
(b) The offence is serious due to the fact it was a “home invasion” style offence. I note that this cannot be considered anything other than a serious offence.
(c) The offender’s actions in driving the group to and from the house were instrumental in the commission of the offences. I take this into account.
(d) The offending involved property damage to the door and window of the home. I take this into account. (e) The offending involved the exercise of “vigilante justice” based on an accusation that the victim had raped one of the co-offenders. I take this submission into account and note that vigilante justice is the opposite of what is required in a civilised society and a civilised justice system.
28. It must 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
at [24].I accept the features identified by the prosecution as set out above.
Subjective Circumstances
29. In evidence before me is a pre-sentence report (PSR) prepared for the offender which
includes the following in relation to the offender’s subjective circumstances.
30. The offender is 25 years of age and was 25 years of age at the time of the offence. She was born in Toowoomba, Queensland, and was raised by both of her parents until their separation when she was aged four. At that time, the offender moved with her mother to the ACT and she has primarily resided in Canberra since that time.
31. The offender has four half siblings that reside in Queensland with whom she does not maintain contact. She has two siblings under the age of 12 who reside in Canberra and with whom she has regular contact. The offender has a continued relationship with her father, who resides in Queensland; however, this has been affected by her involvement in the offence before the court. She is supported by her mother and grandmother.
32. Following the loss of employment in 2020, the offender reported engagement with anti- social peers, which she considered a contributing factor to her offending. She reported that she has removed herself from these peers and mostly associates with her pro- social partner and immediate family.
33. The offender currently resides in private rental accommodation with a temporary housemate. She reported that she needs to secure employment in order to remain at her current address.
34. The offender reported some behavioural issues in her schooling that led to a change in high school and engagement in counselling for anger management. She subsequently completed Year 12. Since completing high school, the offender reported several periods of employment in childcare and government positions. She noted that her most recent period of employment ended in the months prior to the offence, following an unsuccessful probationary period. She reported that these circumstances impacted her wellbeing and decision making.
35. The offender stated that she commenced consuming alcohol socially from the age of 18 and noted that alcohol as a factor on the night of the offending. Leading up to the offence, the offender reported daily use of cocaine, as well as one off use of MDMA and ketamine. She stated that the last time she had used illicit drugs was in the days following the offending.
36. In relation to her attitude to the offending, the offender accepted the police statement of facts and expressed regret about her poor decision-making when choosing to go along with the actions of her peers. The report states that the offender recognised her engagement with anti-social peers, drug and alcohol use, and loss of employment as contributing to the offending behaviour, while accepting responsibility for her actions.
37. The PSR concludes that the offender has a medium-low risk of reoffending. A number of protective factors were identified, including stable accommodation, family support, and the undertaking of treatment to address mental health concerns. Finally, the report states that the offender has been assessed as suitable for a community service condition.
38. Counsel for the offender tendered medical records showing that, as at August 2020, the offender was taking medication for anxiety; she was also receiving psychological treatment for adjustment disorder with depressed and anxious mood.
In relation to the offender’s employment, at the sentence hearing, counsel for the
offender stated that, despite significant efforts, the offender has not been able to find another job. She has, however, undergone training and was expecting to finish her
traffic control course in November 2020. Counsel stated that “unfortunately as a
relatively young women with a particular set of training, finding work through the course
of a pandemic has been exceptionally difficult for her” (T 8.2-4).
The prosecution conceded that, in terms of subjective circumstances, it “can be said
that everything goes in Ms Facer’s favour” (T 11.16-19). The prosecution further stated
(T 11.23-26):
She has very strong subjective circumstances in terms of, as I have already mentioned, the lack of a criminal history, her youth, her rehabilitative prospects, which are made out, the Crown concedes, by the materials tendered by my learned friend.
41. This submission is undoubtedly correct. The offender has made significant and substantial progress in her rehabilitation since the offence.
References
42. Three references were tendered on behalf of the offender.
43. A signed reference under the hand of Ms Vivian Lu dated 11 August 2020 includes the following:
Ms Facer and I met at Virgin Australia and we have continued to remain close friends since.
… I believe she is sorry for her actions, she is willing to do whatever it takes to make
reparations.
I can say in the time I have known Ms Facer, I have never known her to be a violent or aggressive person. She has always been a bubbly happy person who brought a positive attitude to the people around her. I believe the behaviour she displayed that caused her to be charged was a one off event.
44. A signed reference under the hand of Mr Bradley Peterson dated 14 August 2020 includes the following:
In my role as a Team Manager at ACT Government – Shared Services, I manage two
different pay teams and have responsibility for fifteen team members which includes two
supervisors. … I managed Morgan between the period August 2019 to January 2020,
Morgan was employed as a Payroll Officer at Shared Services within ACT Government.
Morgan was part of a team of seven who paid roughly 3000 ACT Government employees.
…
Whilst Morgan was in my team I recognised that she had good general behaviour and was able to stick to the expectations that I had set for her and the team. She got along with her
co-workers and was non-confrontational. From my experience as Morgan’s manager, I
believe she had good decision-making abilities.
During my time as Morgan’s manager I developed a friendship that expanded outside of work
and I feel that I got to know her on a personal level. The way Morgan acted and behaved
outside of work was the same as she did at work.
I recently learnt of Morgan’s charge which took me by surprise as she generally had made
good decisions. Based on my experience with Morgan as her manager and her friend I
believe this charge is out of her character.
I only surround myself with well behaved law-abiding citizens and would not be writing this
letter if I didn’t … have a good sense of character and trust in Morgan.
45. A reference under the hand of Ms Megan Shain, mother of the offender, is dated 5 November 2020 and includes the following:
I knew at the time Morgan had been struggling with losing her job only a couple of weeks before. This had impacted her confidence greatly and she was embarrassed that she had failed us and herself in some way. I had tried talking to her to reassure her this was not the case, however she asked me to leave her alone so she could process what had happened and deal with her own failure. I was used to Morgan ringing me every couple of days or
coming over for a weekly dinner. She became distant and I wasn’t hearing from her as much
and I began to worry. …Up until that point I had not heard of the other people involved in the incident, nor was I aware that Morgan had ever taken drugs. I had met one of the co-accused briefly when Morgan came by the house briefly to pick something up and a young girl was with her. I am still struggling to this day to understand how Morgan got to the point that she became involved in this incident. Morgan has been raised in a good home surrounded by family who love and support her. We talk about our feelings and emotions so we can help each other. I raised Morgan as a single parent for over 10 years and was used to her telling me things. She has one of the biggest hearts I know and always wants to help people, sometimes, unfortunately people take advantage of this.
Morgan attended good schools growing up and completed Year 12 while also completing a school-based apprenticeship in early childhood. We were so proud of her achieving this and
working doing something she loved – working with children. She has always held good jobs and had a good work ethic. … She has always moved to new jobs of her own volition and
had never been terminated from a position before losing her job with the ACT Government.
I can’t begin to understand what sort of state of mind she was in to think drugs and alcohol
were a solution to dealing with her pain and emotions of losing her job, especially during a
pandemic when jobs were scarce.Since that night at the police station, I have seen Morgan become more mature and she has started communicating with me openly again. She is not afraid to tell me things. At the same
time, she has been in a state of constant regret, humiliation and embarrassment. … She has
admitted her role and owned it and for that I am very proud of her. She has shown, in order to move forward, she has to accept responsibility and learn from her mistakes and not let it define her. Our family knows that this behaviour was not Morgan. This was a lapse in her judgement brought about by terrible circumstances and excessive use of drugs and alcohol.
She is an intelligent woman who works hard and always has other people’s best interests at
heart. I am so proud when friends and family always comment on her generous soul and nature, the promotion she won and the award for recognising her hard work and great customer service. I have told Morgan she needs to focus on these things and be the person she knows she is in order to move forward.
46. I take these positive references into account on sentence.
Letter of Remorse
47. The offender provided a signed letter dated 4 November 2020, expressing her remorse for the offending. The letter includes the following:
Words cannot begin to describe how sorry I am for my behaviour and actions on the night of
10 July 2020.
It isn’t just what happened that night but the impact that [the incident] has had on all involved
since when which I regret.
I understand that my actions resulted in a serious crime. I regret doing it and I understand
the harm it has caused. Knowing how I feel, I can’t begin to imagine how horrendous George
and his family feel after such a traumatic experience. If I hadn’t driven that night, none of
these actions would have been put into place. Georg and his family could go to sleep feeling safe and secure in their home, not knowing what it is like to have someone break into their home and cause them harm.
Once I saw that the other parties involved were breaking into the house, I should have called for help or tried to stop them. Instead, as my thinking was impaired because of the drugs and
alcohol I had consumed, I froze, I panicked and I didn’t do enough to stop it or make sure
George and his family were ok.
…
On telling my Mother, I felt sick to the stomach on the embarrassment I had brought on her and my family. I have two younger siblings who should be able to look to me as a role model and I have caused them to be uncertain about me and my behaviour. I am working hard to
regain my family’s trust again. They had raised me to always be a good person, who abides
by the law, thinks of others and to do the right thing by others.
…
Since the incident I have not taken any drugs and no longer have contact with the other parties involved in the incident. I made a commitment to myself and my family and friends I would never do that to myself or impact their lives where they felt ashamed, scared and worried about me ever again. I am communicating more with my family and being more open with them about my emotions, my feelings and what is going on in my life. I know with their support and understanding they will help me through this.
…
I have always tried to be a responsible person. I have held a full time job since I completed Year 12 in 2012, and have also undertaken extra study to further my personal growth and career. My employment has involved working with vulnerable people in childcare and holding
security clearances to work in places where security was of utmost importance – The
Canberra airport and with the ACT Government. I have always loved working with children and people. I was held in high regard at my previous work places for my commitment to work and my customer service.
Now more than ever I understand that the results of my actions on that night not only impacted George and his family but my future.
I accept that with a criminal conviction I won’t be able to work in the childcare industry or with
vulnerable people. The one thing I love doing and know that I am good at. This significantly changes my future plan and forms part of the regret I feel every day. I have since tried to get volunteer work and contacted the RSPCA and the National Zoo and Aquarium; however these both require working with vulnerable people checks.
I believe personal matters led me to consume substances and make poor decisions on the night. I applied for and won a permanent position in the ACT Government as a Ministerial Liaison Officer and moved into this role on 28 January 2020. I was very proud of this opportunity. Six weeks later we were put into working from home arrangements, which given I had just started in the role, I found it difficult to undertake the work I was required to do without more support and guidance. The work which required me to write and review Ministerial Briefs was more difficult than I anticipated. On 2 July 2020 I was advised that I was not going to pass probation in respect of my position and my position was terminated. I had never been without a job in my life. I felt humiliated and ashamed like I had failed. At that time, with the impact of the pandemic, work was scarce for everyone and there were few opportunities.
I think this led me to excessive cocaine and alcohol consumption on the night. Stupidly, I wanted to blow off some steam. I thought it would make me feel better. I was with a friend
and some people I didn’t know so well and consumed to excess.
I continue to seek work and I have undertaken trial work doing landscaping work and was up front with my potential employer about my actions on the night of 10 July 2020. I understand my potential employer has a right to know the person they are employing.
I will continue to work hard to better myself and make sure this never happens again. I will continue to be open and communicate with my family, engage with my psychologist, look for work and socialise with positive people like my boyfriend and not my co-offenders.
48. Counsel for the offender submitted that she showed “raw and genuine remorse”. This
was accepted by the prosecution (T 12.1). It was also agreed between parties that the
offender’s remorse was demonstrated through her admissions to police and early plea
of guilty (T 12.10-15). I accept these submissions as they accord with my view of the
evidence. The offender is clearly remorseful.
Criminal History
49. The offender has no prior criminal history. I accept that she is a person of prior good character.
Plea of Guilty
50. The offender entered a plea of guilty on 31 August 2020, at the second mention in the Magistrates Court. She also made full admissions to police. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
51. If I were considering imprisonment, in accordance with s 35 I would allow a 25% mathematical discount for the plea of guilty. In this case, I take the early plea into account in consideration of the matters under ss 33.
Assistance to the Administration of Justice
52. In the course of the sentence proceedings, submissions were made by both the prosecution and defence that the offender should receive a benefit for her admissions to police being of assistance to the administration of justice, pursuant to s 35A of the Sentencing Act. Further submissions were made on 17 December 2020 in relation to s 36. It was accepted that the assistance could properly be characterised under both ss 35A and 36, while also noting double counting was to be avoided and a single discount was appropriate.
53. Section 37 of the Sentencing Act relevantly provides:
Reduction of sentence – statement by court about penalty
(1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence – guilty plea), section 35A (Reduction of sentence – assistance in administration of justice) or section 36 (Reduction of sentence – assistance to law
enforcement authorities).
(2) The court must state–
a. The penalty (including any shorter non-parole period) it would otherwise have imposed; and b. If the lesser penalty is imposed under section 35A or section 36 – the reason for the imposition of the lesser penalty.
54. The requirement to make a pronouncement pursuant to s 37 was addressed by the Court of Appeal in Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 (Urlich). The Court concluded at [53] that:
In this case, the sentencing judge did refer to the admissions and their impact on the administration of justice, finding that the length of the trial was greatly shortened and the number of witnesses therefore reduced, and thereby purported to exercise the relevant discretion. In doing so, however, he did not comply with the terms of section 37 and did not
state the “penalty [he] would otherwise have imposed”. This is a specific error of significance
as underlined in UG.
55. In R v UG [2018] ACTCA 64; 14 ACTLR 70 (UG), the Court said, at [48]:
Usually, the benefits that flow from the provision of assistance to authorities differ from, and are additional to, those that flow from the entry of an early plea of guilty. The clear identification of an additional discount supports the public policy of encouraging confessions for the purpose of achieving these outcomes. Greater clarity about the extent of sentencing discounts also supports public confidence in the sentencing process. Of its nature, sentencing is opaque; to the extent that it is possible, transparency is desirable.
56. Both UG and Urlich emphasise the important public policy considerations which underpin the requirement to specify the discount for assistance.
57. Both parties agreed therefore that it is appropriate for the Court to give a discount and state the penalty that would otherwise have been given. It was agreed that the reasons for such an approach in relation to the admissions include:
(a) The facts relevant to the circumstance of the offence are now known to police as a result of the offender’s admissions; and
(b)
Those admissions have strengthened the prosecution case against the co- accused.
58. It was accepted as between the parties that this was separate and additional to the benefits flowing from the early plea of guilty. See also R v Ellis (1986) 6 NSWLR 603 and CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346.
Submissions on behalf of the offender on s 37
59. Counsel for the offender submitted that, if the Court intends to take account of the admissions made by the offender to police as being assistance to the administration of justice (as urged by both the prosecution and the offender), the Court must identify the penalty that otherwise would have been imposed and the reason for the imposition of the lesser penalty.
60. In the circumstances of this matter, it was submitted that the Court could find that without the admissions on the part of the offender and the assistance that they have provided, together with her early plea of guilty, a custodial sentence (suspended or otherwise) would have been imposed. However, taking account of the assistance provided, a non-custodial penalty is appropriate.
61. The reasons for such an approach in relation to the admissions include those set out above at [57].
Prosecution Submissions on s 37
62. The prosecution agreed that pursuant to s 35A or s 36 of the Sentencing Act, the offender is entitled to a discount for her assistance to the administration of justice.
63. The prosecution agreed with counsel for the offender’s characterisation of that
assistance, as set out at [57].
64. The prosecution submitted:
Section 35A (2) allows the Court to impose a lesser penalty having regard to the degree of assistance provided in the administration of justice. Notwithstanding that, as counsel for the offender has correctly articulated, the circumstances of the principal offence(s) are better
known to the Crown due to the admissions in the offender’s Record of Interview, the
assistance itself will only be realised if the offender gives evidence at any trial for the co-
accused.65. The prosecution noted that counsel for the offender submitted that the process identified in UG and Urlich could be undertaken by this Court to find that a term of imprisonment would have been imposed, but that a lesser penalty of a non-custodial sentence is warranted due to the plea of guilty and the assistance. The prosecution did not cavil with the submission that the operation of sections 35, 35A, 36 and 37 provides that avenue to this Court. This applies whether the assistance is properly characterised under either s 35A or s 36.
Conclusion – s 37
66. Ultimately, the point of difference as between the parties devolved into whether the s 10 threshold had been crossed. Submissions, in summary, were as follows:
(a)
Counsel for the prosecution submitted that a term of imprisonment fully suspended would be appropriate (T 13/11/20 11.1-3 and 11/11/20 25).
(b)
Counsel for the offender submitted that a good behaviour order with a community service condition should be imposed (T 13/11/20 11.4-6 and 11/11/20 5).
67. If I were considering imprisonment, in accordance with s 37 and the matters discussed above, I would allow a 10% mathematical discount for the assistance to the administration of justice. I have considered the matters set out in s 35A(3) and s 36(3) and (4). In this case, I would have imposed a fully suspended term of imprisonment but, in light of the relevant assistance and other matters, a lesser penalty of a good behaviour order and community service is appropriate, as discussed later in this judgment at [77]-[100].
Comparable Cases
68. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied
mechanically … given that the factors that must be taken into account are incommensurable,
and … in many respects, inconsistent.
The following cases from this jurisdiction provide a “yardstick” as referred to by the High
Court in relation to this sentencing exercise: Hili at [53]-[54].
70. I was referred to the following cases by the prosecution:
(a)
R v McCauley [2020] ACTSC 12 (McCauley) The offender pleaded guilty to one count of aiding and abetting aggravated burglary, committed in the context of a home invasion. The burglary was committed in company and the offender was reckless as to the intention of the co-offenders to cause harm. The offender kicked down the door of the residence but did not enter the residence; he was injured by the shattering glass door. The offender had some prosocial influences and had experienced a disruptive and traumatic childhood. He was 25 years of age when sentenced and had an extensive criminal history. The offender was sentenced to 27 months of imprisonment, with a non-parole period of 16 months. He received a 10% discount for his plea of guilty.
(b)
Tauiliili: The offender, a co-offender of Mr McCauley, pleaded guilty to one count of aiding and abetting aggravated burglary. The offender entered the backyard of the residence and was physically present while his co-offenders broke down the door and threw items at the occupants. The offender had prosocial influences and stable employment. He had two prior convictions in NSW that
resulted in fines. Mossop J found that, notwithstanding the offender’s limited involvement in the offending, only a custodial sentence was appropriate having regard to the gravity of the offence provision: at [48]. The offender received a 10% discount for his plea of guilty and received a sentence of 4 months and 15
days’ imprisonment, which amounted to the time served on remand. Mossop J noted that, had the offender not spent time in custody already, a differently
structured sentence may have been appropriate.R v Campbell; R v Wray [2017] ACTSC 386: Ms Campbell was sentenced for two counts of aiding and abetting aggravated burglary and two counts of unlicensed driving. She received a discount of 25% for her pleas of guilty. Ms Campbell had a traumatic upbringing and had been involved in alcohol and drugs for many years; she had also been homeless on a number of occasions. Ms Campbell drove the co-offenders, her brother and boyfriend, to a Post Office and service station, where the burglaries took place. While in custody on remand, Ms Campbell took advantage of rehabilitation programs and expressed
a desire to turn her life around once released. Elkaim J stated, at [24]: “Although, as a general rule, a person who acts as the ‘getaway driver’ will be treated in
the same way as a person who breaks into the premises there are, as conceded by the Crown, special circumstances in Ms Campbell’s case which entitle her to a more lenient approach. In particular, she has made real attempts to improve her life since the offences were committed”. Ms Campbell was sentenced to 12 months of imprisonment on both aggravated burglary accounts. The sentences
were partially concurrent, and she served a non-parole period of 9 months.71. The prosecution additionally provided the cases of: R v Lockwood [2018] ACTSC 288, R v Saipani (No 2) [2020] ACTSC 228, R v Collier [2019] ACTSC 358, and R v Hanrahan [2020] ACTSC 10. It was noted that each of these cases are more serious than the present case and are in respect of principal offenders for aggravated burglaries.
72. In respect of the aid and abet cases, the prosecution noted that the offender’s
subjective circumstances are significant points of difference from the above cases. In relation to McCauley, the prosecution accepted that the role of the offender in this case was significantly more serious than in the present matter.
73. Counsel for the offender submitted that Tauiliili is the most relevant of the comparable
cases. Counsel submitted that the offender’s subjective circumstances can still,
however, be distinguished as the offender is younger and has no criminal history. The
prosecution accepted the submissions in this respect (T 10.29-31).74. Counsel for the offender submitted that the other cases in the prosecution bundle, listed
above at [71], “involve much more serious conduct combined with persons who had
not insignificant criminal histories” (T 9.35-37).
75. In relation to the cases of aiding and abetting aggravated burglary, the prosecution noted that all involved terms of imprisonment. Therefore, the prosecution submitted that imprisonment, albeit fully suspended, was appropriate in this matter (T 11/11/20 13.41-47 and 13/11/20 11.1-3).
76. In addition to the cases discussed by the parties, I note the case of R v NQ [2019] ACTSC 275 (NQ). In this case, the offender was sentenced for two counts of burglary committed against the same victims two days apart. While the offender was not sentenced for aggravated burglary, the case shares a number of similarities with the matter presently before the Court. In NQ, the offender attended a residence on two occasions after consuming alcohol. The offence involved an element of vigilante justice, as the offender believed that one of the occupants had upset and abused his sister. On both occasions, the offender damaged the front door but remained on the porch and at the front entrance. He remained at the residence for some minutes yelling at the occupants. The occupants of the property included two young children. The offender had no adult criminal history, he was young, and he had ongoing and gainful employment within a local Aboriginal organisation. The offences occurred following a
relationship breakdown in the offender’s life, in which he turned to alcohol. The offender
was supported by prosocial family and friends, as well as his employer. The offender pleaded guilty to the first Count on the first day of trial; he offered a plea of guilty to burglary in satisfaction of the second Count, however, this was rejected. He was tried for aggravated burglary and ultimately found guilty of burglary. The offender was convicted of both offences. In relation to the first offence, he entered into a 12-month good behaviour order. In relation to the second offence, he entered into a 2-year good behaviour order.
Relevant Statutory & Other Sentencing Considerations
Sections 6, 7 and 33
77. 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.
78. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. 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.
General Deterrence & Maximum Penalty
79. General deterrence is of considerable importance in the context of home invasion style offences: R v Minnis [2014] ACTSC 268 at [20].
80. In respect of vigilante justice, in Barlow v The Queen [2008] NSWCCA 96; 184 A Crim R 187 at [40], McCellan CJ, Hall and Price JJ held that:
Such conduct, as the sentencing judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms.
81. I note the case of DPP v Jovicic [2001] VSCA 43; 121 A Crim R 497 for the proposition that burglary offences are a serious violation of the sanctity of the home.
82. 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.
Criminal Responsibility & Moral Culpability
83. Although participants to a joint criminal enterprise are equally liable for the offence committed, as a matter of criminal responsibility, it is nevertheless the task of the Court to address the moral culpability of each individual offender. An assessment of moral culpability as distinct from criminal responsibility, where the evidence does differentiate between the acts of offenders, is appropriate: see Beale v The Queen [2015] NSWCCA 120.
84. Further, it is often appropriate to differentiate between 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. See also: R v Wright [2009] NSWCCA 3, R v Hoschke [2001] NSWCCA 317 at [8], R v Goundar [2001] NSWCCA 198; 127 A Crim R 331, and GAS v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198. Here the role of the offender, as discussed above, was limited. The prosecution correctly
submitted that this was a “particularly nuanced sentencing exercise” (T 11/11/20
18.44).
Rehabilitation
85. Counsel for the offender submitted that rehabilitation is a central consideration, and the
offender has shown herself to be “very motivated and very committed” to her
rehabilitation.
86. The prosecution accepted that the principles of specific deterrence and protection of the community are less relevant in relation to the offender, as her rehabilitative prospects are promising.
Rehabilitation is an important consideration having regard to the offender’s youth. I
draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at
[32] : Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
88. I also note the following observation of Murrell CJ in R v Hill [2016] ACTSC 310 at [48]:
Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the Court also addresses likely future harm to the community and protection of the community.
89. In this context, the following observation by the NSW Court of Criminal Appeal in R v Hopkins [2004] NSWCCA 105 at [22] is relevant:
Where two highly relevant considerations are so totally incompatible as are the two considerations involved here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative.
Section 10
90. As stated above at [66], the key area of dispute between the parties in this case was whether or not the s 10 threshold has been crossed. The prosecution submitted that, notwithstanding the strong subjective circumstances, the objective seriousness of the offence warrants a custodial sentence. It was noted that the prosecution did not wish to be heard against a fully suspended sentence.
91. Counsel for the offender, on the other hand, submitted that it would be appropriate to impose a conviction and a good behaviour order with community service. It was submitted in this regard that a number of factors support the offender, including:
(a} The offender has expressed genuine remorse; (b} The offender made full admissions to police and pleaded guilty at the second
mention of the matter in the Magistrates Court;(c} The offender has a supportive family; (d} Up until the offending, the offender was a productive member of society, had
gainful employment and had no criminal record;(e) The offender has made efforts to address her behaviour and has pursued
treatment for her mental health with a psychologist;(f) The offender has made efforts to find further employment and is currently
undergoing traffic control training;(g) The offender has taken full responsibility for her actions; and (h) The offender has remained drug-free since the offending.
Section 33(r)
92. Counsel for the offender submitted that a conviction will be significant for the offender as she has previously held a Working with Vulnerable People card and has worked
with children. Counsel stated: “she understands that the consequence of this offending
will be that she may not be able to obtain those qualifications ever again in the future
or certainly that, if she does, there will be a please explain to accompany it” (T 8.8-14). It was submitted that the conviction alone will be “a significant consequence for her” (T
8.32). Counsel noted, however, that the evidence was not such that this factor was
necessarily extra-curial punishment as such.93. Rather, counsel noted s 33(r) of the Sentencing Act in this regard:
In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
…
(r) whether the recording of a conviction or the imposition of a particular penalty would be likely to cause particular hardship to the offender.
94. On 17 December, both counsel agreed it was appropriate to take this matter into account in deciding whether the matter could be dealt with by way of a good behaviour order and community service or fully suspended sentence.
Conclusion
95. Taking into account all of the above, I have come to the view that it is appropriate to impose a good behaviour order for this offence, for this offender. The offender has very good prospects of rehabilitation. By supporting those prospects in this sentence, the Court also protects the community because rehabilitation in this case is the most durable guarantor of community protection.
96. In Veen v The Queen (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ stated at 476:
… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing
discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation
from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
(Emphasis added).
97. Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19]. The appellant is a person with a very low risk of re-offending: R v Mauger [2012] NSWCCA 51 at [39].
The balance struck by a sentencer as an ‘instinctive synthesis’ is not used to “cloak the
task of the sentencer in some mystery, but to make plain that the sentencer is called
on to reach a single sentence which … balances many different and conflicting
features”: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75], cited in Munda v
Western Australia [2013] HCA 38; 249 CLR 600 at [59] and Markarian at [37].
99. General deterrence is important, and so is individualised justice. General deterrence is not undermined in this case by imposing a good behaviour order with substantial community service requirements, as opposed to a fully suspended sentence of imprisonment, as I consider that this is an exceptional case: see R v Blackman and Walters [2001] NSWCCA 121 at [40]-[42].
100. As Mahoney ACJ stated in R v Lattouf (unreported, NSW Court of Criminal Appeal,
Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996), “if justice is not individual,
it is nothing”.
Sentence
101. It must be recognised by the Court that the offence committed against the victims has had a serious and significant impact upon them all. Both the short and long-term consequences of being a victim of this offence must be acknowledged.
102. 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 of the offender.
103. The appropriate sentence for the aggravated burglary is a good behaviour order for the period of two years. As a condition of the good behaviour order, the offender will be required to undertake 200 hours of community service.
Orders
104. In respect of the offence of aggravated burglary (CC 9141/2020), I make the following orders:
(a) I record a conviction. (b)
The offender is to enter into a good behaviour order for a period of 2 years with the following additional condition:
i. The offender is to undertake 200 hours of community service. I certify that the preceding one hundred and four [104]
numbered paragraphs are a true copy of the Reasons
for Sentence of her Honour Justice Loukas-Karlsson.
Associate:
Date: 18 December 2020
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