R v Fairclough (No 2)
[2020] ACTSC 134
•30 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fairclough (No 2) |
Citation: | [2020] ACTSC 134 |
Hearing Dates: | 27 March 2020 |
DecisionDate: | 30 April 2020 |
Before: | Burns J |
Decision: | See [42]-[43] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally and unlawfully using an offensive weapon likely to endanger human life or cause a person grievous bodily harm – plea of guilty – excessive self-defence – prospects for rehabilitation guarded |
Legislation Cited: | Crimes Act 1900 (ACT) s 27(3)(c) |
Cases Cited: | R v Fairclough [2019] ACTSC 215 R v Verdins [2007] VSCA 102; 16 VR 269 |
Parties: | The Queen (Crown) Christian Fairclough (Offender) |
Representation: | Counsel A Jamieson-Williams (Crown) J Masters (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Marjason & Marjason (Offender) | |
File Number: | SCC 91 of 2016 |
BURNS J:
Christian Fairclough, you appear before me today via video link for sentence on one charge of intentionally and unlawfully using an offensive weapon likely to endanger human life or cause a person grievous bodily harm (CC16/02435). The offensive weapon which was used was a knife. This offence was committed on 12 February 2016 and the victim was a man to whom I will refer as TD.
The offence is contrary to s 27(3)(c) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years' imprisonment.
Procedural history
This matter has a sorry procedural history. You were originally charged in the ACT Magistrates Court on 13 February 2016 with intentionally wounding TD, intentionally inflicting grievous bodily harm on him and same offence to which you have now entered a plea of guilty. You entered pleas of not guilty to all charges and on 3 May 2016, you were committed for trial to this Court on all three charges. Bail had originally been refused on 13 February 2016 but on 11 March 2016, you were granted bail in the ACT Magistrates Court. It was a condition of that bail that you reside with your father in Victoria.
On 1 June 2016, the Crown filed an indictment containing two charges. The principal charge was alleging that you had intentionally inflicted grievous bodily harm on TD, an offence carrying a maximum penalty of 20 years' imprisonment. On 22 August 2016, Murrell CJ directed that the matter be listed for trial in the week commencing 20 March 2017. Unfortunately, the matter was not reached during that week and it was relisted for trial on 17 July 2017 with priority.
On 6 April 2017, your bail was varied to permit you to reside at an address in South Australia. On 12 July 2017, your lawyers sought and were granted leave to withdraw as your solicitors on the record. You were bailed to attend Court on 12 July 2017 but you failed to appear. Murrell CJ ordered that a warrant be issued for your arrest but the warrant was to lie in office until the following day. Directions were given designed to inform you of the orders made by Murrell CJ. On 13 July 2017, you appeared before Murrell CJ without legal representation and effectively applied for the trial date to be vacated. Murrell CJ confirmed that the trial was to commence on 17 July 2017.
On 14 July 2017, another solicitor appeared on your behalf, noting that he had only received a grant of Legal Aid sometime after 4:00 pm on 13 July 2017. Murrell CJ postponed the commencement of the trial from 17 July to 18 July 2017. Your new lawyer instructed Ms Warrick of counsel to appear to represent you at the trial.
In my earlier decision rejecting an application by you to withdraw your plea of guilty (R v Fairclough [2019] ACTSC 215), I considered evidence given by you and Ms Warrick regarding her advice to you and your instructions to her in the days preceding 18 July 2017. Relevantly for present purposes, I was satisfied that you told Ms Warrick that you had been acting in self-defence when you stabbed TD but Ms Warrick told you it was very likely that a jury would find that you had gone beyond what was reasonably necessary to defend yourself. You subsequently instructed Ms Warrick in writing that you would plead guilty to the second count on the indictment, the charge which is now before me.
On 18 July 2017, the scheduled first day of your trial, you entered a plea of guilty to the present charge and the Crown accepted that plea in full satisfaction of the indictment. A document headed Statement of Facts was tendered as part of Exhibit 1 by the Crown on sentence. The proceeding was then adjourned to 15 September 2017 for a sentence hearing before Elkaim J. A Pre-Sentence Report and a Mental Health Report were ordered.
On 11 September 2017, Ms Warrick and your solicitor were granted leave to withdraw from the matter on the basis that you had been remanded in custody on other charges in Victoria and would be unable to attend the sentence hearing listed for 15 September 2017. The date for the sentence hearing was vacated. On 23 October 2017, a warrant was issued for your arrest as you remained in custody in Victoria.
You next appeared in this Court on 11 December 2018. I presume that you were extradited in custody to the ACT upon your release from prison in Victoria. The sentence proceeding was listed before Elkaim J on 8 February 2019. Your previous bail was revoked and you were remanded in custody. You were represented by a solicitor during that appearance.
On 30 January 2019, the sentence date of 8 February 2019 was vacated. Your solicitor filed a notice of ceasing to act and you appeared without legal representation. You told the Court that you wanted to withdraw your plea of guilty and that you were in the process of seeking new lawyers. The matter was listed for directions on 8 February 2019 at which time your present solicitor appeared. Directions were given for the filing and service of any application to withdraw your plea of guilty. The application was duly filed and came before me on 20 May 2019. On that date, Mr Masters of counsel appeared on your behalf. On 19 August 2019, I ordered that the application be dismissed and published my reasons.
The matter was then listed for a disputed fact hearing before Elkaim J on 18 October 2019. The disputed fact hearing did not proceed on that date because the Crown submitted that you had entered your plea of guilty on the basis of the Statement of Facts tendered as part of Exhibit 1 on 18 July 2017 and you should be bound by those facts. Elkaim J correctly observed that I had, in my reasons for refusing the application to withdraw your plea of guilty, referred to the fact that you had always maintained that you were acting in self-defence when you stabbed TD and that you would have the opportunity to raise excessive self-defence in mitigation of sentence.
The matter was subsequently placed before me on 29 January 2020 at which time you gave evidence. I note that you had previously given evidence about this offence on 20 May 2019 as part of the application to withdraw your plea of guilty. I adjourned the sentence proceeding from 29 January 2020 to 27 March 2020 to give the Crown an opportunity to present evidence on the disputed fact hearing. The Crown called no evidence on that date.
Much but not all of the inordinate delay in finalising this matter is your responsibility. One may be slightly critical of the Crown for not proceeding with and completing the disputed fact hearing before Elkaim J on 18 October 2019 but the balance of the delay is your responsibility.
Your plea of guilty was always a late plea, being entered on the first day of your trial but it nevertheless possessed some utilitarian value. That value has been significantly eroded by your subsequent actions and, in particular, your attempt to withdraw your plea of guilty. I make it clear that I do not include in the list of actions which eroded the utilitarian value of your plea your dispute containing the facts alleged by the Crown. I propose to reduce by approximately 15 per cent the sentence that I would otherwise have imposed by reason of your plea of guilty.
In submitting that you should be bound by the Statement of Facts, tendered as part of Exhibit 1 by the Crown on 18 July 2017, the Crown referred to the written instructions from you to Ms Warrick dated 17 July 2017 in which, in addition to instructing Ms Warrick that you would plead guilty to the present charge, it was written “I admit the prosecution facts”. I am satisfied that this statement is misleading because I am perfectly satisfied on the basis of the evidence given by Ms Warrick that you were pleading guilty based upon her advice concerning excessive self-defence.
Ms Warrick also gave evidence that she understood that the negotiations between her instructing solicitor and the representatives of the Crown had reached an agreement that you would plead guilty on Count 2 on the indictment but you would be permitted to put excessive self-defence as a submission on sentence.
Whatever one may say about the clarity of that agreement, it appears clear that you continued to assert that you had been acting in self-defence, albeit that you accepted that what you had done went beyond what was reasonably necessary for that purpose. I do not accept the Crown's submission that you are bound by the contents of the Statement of Facts tendered as part of Exhibit 1 on 18 July 2017, nor that the evidence that you gave on 20 May 2019 and on 29 January 2020 should be discounted because of the statement in your written instructions to Ms Warrick that you accepted the prosecution facts.
It would undoubtedly have been clearer if the written instructions had instructed your lawyers to consent to the tender of the Crown's Statement of Facts as constituting the Crown's case but instructing your lawyers to proceed at the sentence hearing on the basis that significant aspects of that statement were incorrect and that you were acting in self-defence at the time of the offence, although you accept that you went beyond what was reasonably necessary for that purpose.
I accept that this is a counsel of perfection. The written instructions to Ms Warrick were never intended to be used for any purpose other than recording your instructions to her. It was not intended that the document be read or interpreted by a wider audience.
The facts
There are aspects of your version of events regarding the offence which are unsatisfactory. For example, your assertion that TD followed you from the unit to your car after you had stabbed him was highly improbable because of the nature of the injuries sustained by TD and the forensic evidence which tended to contradict your assertion.
You have a tendency to exaggerate and embellish the facts. The suggestion that TD followed you from the unit and continued to present a threat to you until you drove away was clearly designed to justify the ferocity of your attack on him. However, in the absence of evidence to the contrary, I will generally accept your evidence that you stabbed TD because you were afraid that you were going to be killed or seriously injured.
I accept that on 12 February 2016, you went to a unit in Howie Court in Belconnen, ACT as part of a drug deal. You intended to sell cannabis at that unit to a person who I will refer to as JE. The unit was usually occupied by TD. Inside the unit was TD, JE and JE's girlfriend. I accept that you were robbed at knifepoint by JE and that at some point, he and his girlfriend left the unit, leaving you to be guarded by TD. TD was armed with a knife. Threats were made to you while you were in the unit which made you scared for your well-being. As well as holding a knife while he was guarding you, TD also had a knife placed on the floor beside him.
On the balance of probabilities, I accept that you were able to take TD by surprise and gain possession of the knife from the floor. TD lunged at you with his knife and you stabbed him on multiple occasions. In the evidence which you gave on both 20 May 2019 and 29 January 2020, you professed having little recollection of what happened when you were stabbing TD. This is inconsistent with the evidence given by Ms Warrick on 20 May 2019 that you told her in conference words to the effect that you were not going to stop stabbing TD until he stopped moving. I accept the evidence of Ms Warrick that you made such a statement to her and that this reflected what you did on 12 February 2016.
Further support for this proposition is found in the report of Dr Amanda Van Diemen dated 19 August 2016. She reviewed the medical records regarding TD's hospital treatment following this offence and prepared a report setting out the injuries he sustained. The medical records show that TD sustained 16 individual sharp-force wounds to his scalp, face, torso, left and right arms and hands. No less than seven of these wounds were to his back. At the same time, you suffered no injuries. This satisfies me that you quickly overcame TD and that many of the wounds inflicted on TD were inflicted after he was overcome. One or more of the stab wounds penetrated TD's chest cavity. Dr Van Diemen stated that such injuries are very serious and without immediate specialist medical intervention may have resulted in death.
It follows from what I have said that I am satisfied that you were not the instigator of the events that led to the wounding of TD on 12 February 2016. I am satisfied that the offence was not pre-meditated and was not the subject of any planning. The offence was spontaneous and a reaction to the circumstances in which you found yourself.
Subjective features
You do not have a prior criminal history in the ACT. You have a relatively minor criminal history in Queensland. On 26 May 2017, you committed an offence of dangerous driving to escape police pursuit in South Australia. You also committed an offence of damaging a police motor vehicle. On 7 June 2017, you were sentenced in the Magistrates Court of South Australia to a term of imprisonment of two months and 12 days, commencing 26 May 2017 for those offences. Your driver's licence was disqualified for a period of two years.
On 7 September 2017 you committed an offence of intentionally causing injury to a 79‑year-old man in rural Victoria. On 27 July 2018, you were sentenced in the County Court of Victoria to a term of 15 months' imprisonment for that offence, backdated 322 days to allow for pre-sentence custody. In sentencing you, Gamble CCJ accepted that the offence occurred in the context of complex mental health issues and longstanding drug addiction. It was accepted that the Verdins principles ([2007] VSCA 102; 16 VR 269) were engaged to the extent that your moral culpability was reduced to a moderate degree and the weight to be attached to deterrence and denunciation was moderated.
The offence which occurred in Victoria was committed after the offence which is currently before me and I cannot treat it as a prior offence. It does, however, place the present offence in context in that it demonstrates that the present offence is not an isolated incident of violence. I observe, however, that the circumstances in which the two offences occurred are very different. The difference in the circumstances in which the offences occurred and the evidence which was before the County Court which convinced Judge Gamble that your moral culpability was somewhat reduced by reason of mental impairment leads me to conclude that this is not a case in which personal deterrence is prominent as a sentencing consideration. That is not to say, of course, that it is irrelevant.
A Pre-Sentence Report was prepared for the sentence hearing on 27 March 2020. The Report notes that you have been subject to official disciplinary action in the Alexander Maconochie Centre (AMC) for fighting with another detainee on one occasion since being remanded in custody in 11 December 2018.
I note the family history set out in the Report. Your parents separated when you were approximately five years old. You resided with your mother. Your mother later re‑partnered but her new partner was a violent alcoholic. You moved to Queensland with your mother when you were 11 years old and stayed there for six years before returning to Adelaide. You moved to Canberra at the age of 34 years.
The author of the Report notes that you intend to leave the ACT upon your release from prison. You told the author of the Report that you maintain a close relationship with both of your parents who reside interstate. You also have a close relationship with your sister. Another younger sister passed away when you were 27 years old which was very difficult for you. You have not been in a significant relationship for over seven years and you have no children. You completed your secondary education to the end of Year 12 and then worked in a variety of different positions and industries. You have not worked for over three years due to being held in custody in the ACT and in Victoria.
The use of alcohol was problematic for you in your youth, but this has not been the case for many years. You first smoked cannabis at the age of 16 years and you used that substance consistently for a period of six months before ceasing its use. You told the author of the Report that you did not use any illicit substances then until you reached the age of 30 years.
In the context of experiencing fatigue associated with glandular fever, you started using methamphetamine. You quickly became addicted to the substance and used it as often as possible for the next three years. You noted the impact of the substance on your physical and mental health and you ceased using methamphetamine when you were 33 years old. You returned to frequent methamphetamine use while the subject of bail in the present matter and while residing with your father in Victoria. You continued to use that substance until about three months before you returned to custody in South Australia. You told the author of the Report that you had not used illicit drugs since that time.
You reported continuing back pain from an old injury which impedes your movement and is managed with medication when you are in the community. You have suffered mental health issues for a number of years. You first began suffering panic attacks at the age of 25 years. You have engaged with psychologists and medical practitioners and you have been prescribed anti-depressant medication in the past which you have taken sporadically throughout your life. You stated that you have consistently taken anti-depressants for the past 30 months and you believe that this medication is working appropriately for you. You said that you will continue to take this medication once you are released from custody.
Your father told the author of the Report that the death of your sister and an incident in your youth when you were assaulted have had a heavy impact on your mental health. He believed that you never fully recovered from the death of your sister and he believed that you suffered Post-Traumatic Stress Disorder from the assault.
I do not give weight to the opinions of the author of the Pre-Sentence Report relating to your attitude to the offence because those opinions are significantly based upon your failure to agree with aspects of the Crown's Statement of Facts and, in particular, your continued assertion that you were acting in self-defence. As I propose to sentence you on the basis that you were acting in excessive self-defence at the time of this offence, I accept that it was appropriate for you to maintain that position when you spoke to the author of the Report. Similarly, I exercise caution in accepting the assessment that you are a medium risk of general re-offending but, of course, it appears that your failure to accept the contents of the Crown's Statement of Facts was factored into that assessment.
The Crown tendered a report dated 24 March 2020 from Ms Leesa Morris, a forensic psychologist. Ms Morris diagnosed you as suffering from a Stimulant Use Disorder, Severe, in sustained remission in a controlled environment and probable personality disorder or disorders. The opinions of Ms Morris must also be approached with caution because she was unable, in the limited time available to her, to undertake any psychological testing. In addition, it appears that, at least in part, her opinions were influenced by your disagreement with the Crown's Statement of Facts which she interpreted as an ongoing denial of responsibility. Her assessment of your risk of recidivism is for this reason unreliable.
I have seen little by way of general remorse from you for this offence. I accept that it would be natural for you to harbour resentment against the victim and others involved in the events of 12 February 2016 for having created the situation in which the offence occurred, but you continue to lack appreciation of the extent to which your actions went beyond what was reasonably necessary for the purpose of self-defence and resulted in potentially deadly wounds to the victim. There is no evidence that any underlying mental health condition from which you may suffer materially contributed to the commission of the present offence. I will accept, based upon the finding to this effect by Judge Gamble, that your underlying mental health problems will make imprisonment more onerous for you than for others without such affliction. I regard your prospects of rehabilitation as guarded.
I am satisfied that your actions on 12 February 2016 went well beyond what was necessary in order to defend yourself in the circumstances that existed at that time. You inflicted potentially deadly wounds on the victim. A moderate reduction in your moral culpability is appropriate, bearing in mind the circumstances of the offence, but it nevertheless remains a serious example of this type of offence. This is also not a case where general deterrence should be entirely discounted as a sentencing consideration by reason of mental impairment. Similarly, personal deterrence is still relevant although it is not the predominant sentencing consideration. In my opinion, nothing less than an immediate term of imprisonment is appropriate.
In setting the commencement date of the term of imprisonment, I take into account the need to consider the totality of the aggregate sentence constituted by the sentence imposed by the County Court in Victoria and the sentence which I will impose. I must also take into account the periods which you spent in custody with regard to the present charge prior to being released on bail.
Sentence
You are convicted and sentenced to three years and six months' imprisonment, which I have reduced, as I have said, by approximately 15 per cent by reason for your plea of guilty. That will commence on 11 March 2018 and expire on 10 September 2021.
I set a non-parole period, commencing on 11 March 2018 and expiring today, 30 April 2020.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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