R v Featherstone
[2019] ACTSC 218
•16 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Featherstone |
Citation: | [2019] ACTSC 218 |
Hearing Dates: | 15 and 24 July 2019 |
Decision Date: | 16 August 2019 |
Before: | Mossop J |
Decision: | See [89] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possess prohibited firearm – aggravated robbery – take motor vehicle without consent – aggravated burglary – damage property – driving motor vehicle without consent – possess knife without reasonable excuse – possess ammunition – sentencing of co‑accuseds – extensive criminal history – history of mental illness – dismissal of other charges |
Legislation Cited: | Crimes Act 1900 (ACT), ss 17, 27(3)(c), 34, Dictionary Criminal Code 2002 (ACT), ss 310, 312, 318(1), 318(2), 403(1) Crimes (Sentencing) Act 2005 (ACT), s 17 Firearms Act 1996 (ACT), s 177(2) |
Cases Cited: | R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Williams [2016] ACTSC 389 |
Parties: | The Queen (Crown) Damien Featherstone (Offender) |
Representation: | Counsel A Williamson (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Numbers: | SCC 164 of 2018 SCC 165 of 2018 SCC 166 of 2018 |
MOSSOP J:
Introduction
After a jury trial, the offender, Damien Glenn Featherstone, was found guilty on a charge of using against a person an offensive weapon likely to endanger human life or cause a person grievous bodily harm (CC2018/5352). This was a contravention of s 27(3)(c) of the Crimes Act 1900 (ACT), the maximum penalty being imprisonment for 10 years. He was also found guilty of forcible confinement (XO2018/31432). This was a contravention of s 34 of the Crimes Act, the maximum penalty being imprisonment for 10 years.
The offender had pleaded guilty to 10 other charges, namely:
(a)two counts of possess a prohibited firearm contrary to s 177(2) of the Firearms Act 1996 (ACT) (CC2018/5353 and CC2018/4113), the maximum penalty being 1000 penalty units, imprisonment for 10 years or both;
(b)one count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (CC2018/4112), the maximum penalty being 2500 penalty units, imprisonment for 25 years or both;
(c)one count of take motor vehicle without consent contrary to s 318(1) of the Criminal Code (CC2018/4114), the maximum penalty being 500 penalty units, imprisonment for five years or both;
(d)one count of aggravated burglary contrary to s 312 of the Criminal Code (CC2018/4115), the maximum penalty being 2000 penalty units, imprisonment for 20 years or both;
(e)one count of damage property contrary to s 403(1) of the Criminal Code (CC2018/4116), the maximum penalty being 1000 penalty units, imprisonment for 10 years or both;
(f)one count of riding in a motor vehicle without consent contrary to s 318(2) of the Criminal Code 2002 (CC2018/3354), the maximum penalty being 500 penalty units, imprisonment for five years or both;
(g)possessing a knife without reasonable excuse contrary to s 382(1) of the Crimes Act (CC2018/3357) the maximum penalty being 10 penalty units, imprisonment for six months or both; and
(h)two counts of possessing ammunition contrary to s 249(1) of the Firearms Act, the first on 25 February 2018 (CC2018/5355) and the second on 26 February 2018 (CC2018/5354), the maximum penalty being 10 penalty units.
Facts
Mr Featherstone and his wife had come to Canberra on 1 February 2018. Mr Rodney Bloxsome had arranged accommodation for them. Mr Bloxsome is the uncle of Mr Featherstone’s wife. Mr Featherstone was a methamphetamine dealer and user.
As at 25 February 2018, Mr Featherstone and his wife were staying at the house where Justin Diaz lived in Narrabundah. MX, a friend of Justin Diaz’s, came to visit him. She was dropped off by a vehicle that contained a number of men. Mr Featherstone, who had a significant quantity of methamphetamine in his possession, believed that the men
in the vehicle that dropped off MX were going to rob him by doing “a run through” of the house.
He contacted Mr Bloxsome and asked him to come and help him. Mr Bloxsome in turn rang Dominic Dimitrov, a young man who was the friend of one of his sons, and asked him to drive him somewhere urgently. Mr Dimitrov and his sister drove to Mr Bloxsome’s house. Mr Dimitrov and his sister then drove Mr Bloxsome and his three sons in two cars to the Narrabundah house.
At the Narrabundah house was Mr Featherstone, his wife, NQ (the younger sister of Mr Featherstone’s wife), Mr Diaz and MX. Mr Bloxsome told Mr Dimitrov’s sister and two of his sons to go home. Mr Dimitrov was told to stay because he was needed. One of Mr Bloxsome’s sons, Raymond Russell, also stayed.
During the time there, MX attempted to inject Mr Diaz with methamphetamine. She was unsuccessful and Mr Diaz was agitated. Mr Bloxsome finished the job. Both Mr Featherstone and Mr Bloxsome had consumed methamphetamine. Mr Featherstone was agitated about the possibility that there was going to be a “run through” of the premises by the men in the vehicle that dropped off MX. A shotgun had been seen on the front seat of the car in which MX arrived.
In the early hours of 26 February 2018, Mr Featherstone instructed people in the house to collect weapons and go to the car. Mr Russell was carrying a machete. Mr Diaz asked him to return it as it was his. Mr Diaz who was at that point sitting in a wicker chair in the living room said that he did not want to go with them. Nor did MX, who wished to stay with her friend Mr Diaz. Mr Bloxsome and Mr Featherstone were getting annoyed with Mr Diaz’s refusal to depart with them. Mr Featherstone told Mr Diaz to get in the car. Mr Diaz stood up with the machete in his hand, which was by his side. Mr Featherstone shot Mr Diaz in the left thigh with a .32 calibre pistol that he was holding in his hand. This gives rise to the charge of using an offensive weapon likely to endanger human life or cause grievous bodily harm (CC2018/5352). Mr Diaz cried out in pain. Mr Bloxsome told him to shut up but he did not. Mr Bloxsome then stabbed him with the knife that he was holding, causing a laceration to the inside of his right forearm and to his left hand below the thumb.
The verdict of the jury necessarily involves a conclusion, beyond reasonable doubt, that the Crown had excluded self-defence in relation to the shooting and the stabbing.
It is not possible to exclude, beyond reasonable doubt, the possibility that Mr Featherstone in his drug affected state perceived Mr Diaz standing up in the manner that he did to be a threat and believed that it was necessary to take violent action against him. The possibility was that he believed that he or Mr Bloxsome was going to be assaulted in some manner using the machete. However, I am satisfied beyond reasonable doubt that Mr Diaz did not “lunge” at them with the machete.
I am satisfied beyond reasonable doubt that the Crown has excluded the possibility that there were reasonable grounds for believing that the shooting was necessary for the purposes of Mr Featherstone defending himself or defending Mr Bloxsome. The Crown has proved that the act of shooting Mr Diaz was clearly excessive for the purposes of defending himself or Mr Bloxsome in the circumstances as Mr Featherstone perceived them to be.
I am satisfied beyond reasonable doubt that the stabbing occurred after the shooting. As a result, any possibly perceived threat had passed because Mr Diaz had slumped back into the wicker chair and was no longer holding the machete. The Crown established beyond reasonable doubt that even in his intoxicated state Mr Bloxsome did not believe that the conduct was necessary in order to defend himself or Mr Featherstone. Further, even if the Crown had not established that fact, the Crown had established that there were not reasonable grounds for Mr Bloxsome to believe that the stabbing was necessary for the purposes of defending himself or Mr Featherstone.
The possession by Mr Featherstone on 25 February 2018 of four cartridges for the pistol constitutes the offence of possessing ammunition not authorised by a licence permit or otherwise under the Firearms Act (CC2018/5355).
Mr Bloxsome and Mr Featherstone then left the house along with the others and drove to an address in Casey. When leaving the house Mr Russell had grabbed MX and forced her into the car. Mr Diaz was left in the house and subsequently obtained medical help.
From this point on the morning of Monday, 26 February 2018, MX was detained against her will by Mr Bloxsome and Mr Featherstone, acting jointly (XO2018/31432).
At the Casey house, MX was told to sit at the kitchen table and not say a word. At some point, Mr Featherstone, his wife and NQ went for a drive.
When they were gone, Mr Bloxsome told MX to go to the garage with him. In the back of a vehicle which was parked in the garage Mr Bloxsome tied MX’s hands together using cable ties. He then committed an act of sexual intercourse without consent which gives rise to an offence of sexual intercourse without consent committed by Mr Bloxsome.
When MX returned to the house, Mr Featherstone interrogated her in relation to her ex‑partner. She was struck in the face by Mr Featherstone with a broom. She was struck on the head by NQ and Mr Featherstone’s wife. Associated with this process of violence and interrogation, Mr Russell put a knife to her throat in a manner sufficient to break the skin and leave marks across her neck.
Later she was directed by Mr Bloxsome to go upstairs into a spare bedroom and he committed an act of sexual intercourse without consent. This gives rise to a second offence of sexual intercourse without consent committed by Mr Bloxsome.
On the afternoon of 26 February 2018, Mr Bloxsome, NQ, Mr Featherstone and MX had driven to Ernest Jacky’s house. Mr Jacky was outside the house. There was an argument with Mr Bloxsome or Mr Featherstone. Mr Featherstone got out of the car and pointed his gun at Mr Jacky. Mr Featherstone subsequently said, in the presence of Mr Dimitrov, that he did not shoot Mr Jacky because his son was there and regretted not shooting him. The evidence of this incident was given only because the Crown alleged that during this period MX was still forcibly detained by Mr Bloxsome and Mr Featherstone. MX’s evidence, which was challenged in cross-examination, was that when in the passenger seat of the car her hands were cable tied during this incident. Having regard to the failure to refer to the tying of her hands using cable ties on this journey in her evidence in chief interview conducted with police, I am not satisfied of that fact beyond reasonable doubt. However, I am satisfied beyond reasonable doubt that she continued to be forcibly detained during this period.
The car used in the expedition to Mr Jacky’s house was abandoned at the Lyneham shops. The party returned to another house in Lyneham.
The possession of the pistol by Mr Featherstone on 26 February 2018 constitutes the offence of possessing a prohibited firearm (CC2018/5353). The possession by Mr Featherstone on 26 February 2018 of four cartridges for the firearm constitutes the offence of possessing ammunition not authorised by a licence, permit or otherwise under the Firearms Act (CC2018/5354).
On Tuesday, 27 February 2018, MX offered to assist Mr Featherstone and Mr Bloxsome to steal a car. Her evidence was that this was done because Mr Featherstone and Mr Bloxsome asserted that she “owed them” a car and she formed the view that cooperation with them was the best way out of her situation. The attempts to steal a car involved cruising inner north suburbs of Canberra looking for vehicles to steal. I am not satisfied beyond reasonable doubt that MX remained confined during this period. That is not because I do not accept her evidence generally, but because the uncertain chronology of events, the period spent roaming through Civic that day, the provision of Suboxone to her by Mr Featherstone that day and her participation in the attempted thefts, the robbery and the subsequent burglary give rise to a doubt about the nature of the relationship between her and Mr Bloxsome and Mr Featherstone after the Monday.
Two attempts were made by MX to hotwire cars but with no success. Initially, Mr Dimitrov was driving the black Commodore but then Mr Bloxsome drove. There was a brief period during which the group was at the house in Lyneham. The group then travelled in the black Commodore to an area outside Ainslie Football Club. At about 3:29pm the closed-circuit television (CCTV) shows three elderly people leaving the Ainslie Football Club and walking to their car. The black Commodore can be seen driving along the road in the distance. Mr Bloxsome was driving. Mr Dimitrov was in the front passenger seat. Mr Featherstone, NQ and MX were in the back seat. There was discussion about obtaining a vehicle. Mr Bloxsome identified the vehicle knowing that one or other of the elderly people had possession of the vehicle. The discussion in the vehicle was sufficient to give rise to a verbal agreement or non-verbal understanding that the taking of the vehicle would involve a robbery. NQ and MX approached the group of elderly people and NQ threatened them with a knife. Mr Featherstone ran up to the elderly people brandishing the pistol. At the request of one of the persons being robbed, Mr Featherstone threw her handbag out of the vehicle. These events give rise to the offence of aggravated robbery (CC2018/4112) and the offence of taking a motor vehicle without consent (CC2018/4114). The possession of the pistol by Mr Featherstone on 27 February 2018 constitutes the offence of possessing an unregistered prohibited firearm (CC2018/4113).
The group then went back to the Casey house. There they planned to rob what Mr Featherstone believed to be a gun shop in Fyshwick.
Shortly after 3.00am on Wednesday, 28 February 2018 Mr Bloxsome, Mr Featherstone, NQ, Mr Russell and MX drove in the stolen vehicle to the Military Shop in Fyshwick. Mr Dimitrov had previously transferred from that car to the Black Commodore. Mr Featherstone broke the glass of the shop and then MX and Mr Featherstone entered the shop followed by NQ and Mr Russell. Mr Bloxsome remained in the car. The glass display cabinets were smashed and knives obtained. MX exited the premises first followed by NQ, Mr Russell and Mr Featherstone. The whole incident took only a few minutes. These events give rise to the offences of aggravated burglary and damage property against Mr Featherstone (CC2018/4115 and CC2018/4116) and Mr Bloxsome.
Later on 28 February 2018, Mr Featherstone rode in a motor vehicle namely a white Toyota Camry which had been stolen from Mr Yang Liu (CC2018/3354).
Subsequently on 28 February 2018, Mr Featherstone was arrested at the Kambah playing fields and had in his possession two military style folding knives and a black “Leatherman” style knife. That constitutes the rolled up offence of possessing a knife in a public place without reasonable excuse (CC2018/3357).
Objective seriousness
At the time of the offending, Mr Featherstone was on parole in relation to a sentence imposed in New South Wales (NSW). The fact that he was on conditional liberty at the time of the offending is an aggravating feature of the offending.
In assessing the objective seriousness of the offence of using against a person an offensive weapon likely to endanger human life or cause a person grievous bodily harm (CC2018/5352) it is relevant to take into account the nature of the offensive weapon used, the conduct engaged in with the offensive weapon, the reason for offending, the offender’s conduct at the time of the offending and the fact that it was committed in company.
A wide range of items fall within the definition of “offensive weapon” in the Dictionary to the Crimes Act. A firearm is clearly at the upper end of seriousness of offensive weapons. The conduct engaged in with the offensive weapon was very serious. The offender shot Mr Diaz at point blank range in the leg. There was a high risk that an artery may have been hit. While the nature of the conduct is less serious than if the weapon had been discharged into Mr Diaz’s chest, the certainty that he would be hit and the part of the body at which the shot was directed both indicate that the offending was in the upper range of objective seriousness. However tending against that is that the shot was fired as a response to a perceived threat from Mr Diaz, albeit an excessive one. While the conduct at the time of the offending was associated with Mr Featherstone’s possession of illicit drugs, I do not consider it as increasing the objective seriousness that he failed to take steps after the commission of the crime to aid Mr Diaz. The offence was completed once the bullet had struck Mr Diaz. I do take into account the fact that it was committed in company as emphasising the excessiveness of the response to any perceived threat from Mr Diaz. Overall, I would assess this conduct as being above the mid range of objective seriousness for this offence.
He was also found guilty of forcible confinement (XO2018/31432). The factors to be considered when assessing the objective seriousness of the offence of forcible confinement are described in R v Williams [2016] ACTSC 389 at [53]. In this case, the length of time which I was satisfied beyond reasonable doubt for which MX was detained was between the departure from the Narrabundah house until the end of that day. I am satisfied that she was detained until sometime on the Tuesday morning. Therefore, the period in question is approximately 24 hours. The most significant period in terms of the seriousness of the offence is that up until the return to the Casey house following the confrontation with Mr Jacky. That is a period of approximately 12 hours. During that period MX feared for her life, having seen her friend Mr Diaz being shot, stabbed and abandoned. She was interrogated by Mr Featherstone. She was assaulted by NQ, Mr Featherstone’s wife and Mr Russell. Mr Featherstone was aware of that but was not himself responsible for that conduct. It is during the period of confinement that Mr Bloxsome sexually assaulted MX.
The initial confinement was not premeditated but rather the consequence of an impulsive decision after the shooting and stabbing of Mr Diaz. Clearly, having regard to the period over which the confinement continued, there was an opportunity to reconsider it.
The purpose of the confinement was to interrogate MX and thereby provide some security from the threat perceived by Mr Featherstone to exist. The confinement was committed in company.
Care must be taken not to punish Mr Featherstone for the crimes committed within the period of forcible confinement. Having said that, the forcible confinement is above the mid range of objective seriousness for the offence.
In relation to the two counts of possess a prohibited firearm contrary to s 177(2) of the Firearms Act (CC2018/5353 and CC2018/4113), the nature of the prohibited firearm in question would put it at the lower end of the range of seriousness for this offence. However, the purpose for which it was possessed is also a relevant consideration. It was possessed by a drug dealer in order to facilitate his work. There was nothing innocent about the purpose for which he possessed it. I consider each offence to be in the mid range of objective seriousness for this offence. Obviously the two possession offences are closely related, being possession of the same gun on two different days.
The charge of aggravated robbery in this case (CC2018/4112) illustrates the proposition that armed robbery is not simply a crime against property but rather a crime against persons: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [99]. In this case it is clear that the objective seriousness of the offending was high. The robbery involved Mr Featherstone using a firearm which is inherently more dangerous and threatening than a knife or other implement. Mr Featherstone was on parole at the time of the offending in relation to a NSW offence committed in October 2017. He was in company with others who were also armed. The property stolen (the car) was of very significant value. The victims were elderly people vulnerable to such a crime. There was a degree of planning involved but the extent of that planning involved the targeting of people who would be particularly vulnerable to such a crime. In my view, the offending is above the mid range of objective seriousness for the offence.
The charge of taking a motor vehicle without consent (CC2018/4114) is very closely associated with the aggravated robbery. Care must be taken that the offender is not punished twice for the same conduct. For that reason I would assess this offence as being in the mid range of objective seriousness.
The aggravated burglary on the Military Shop (CC2018/4115) was a robbery of commercial premises at night when nobody was present or likely to be present. It was planned in advance. Although there was damage caused to the premises and within the premises, that damage was incidental rather than gratuitous. The purpose of the offending was to obtain firearms even though they were not obtained. It is relevant that the offender was the instigator of the offending and involved two minors as part of that scheme. I would assess it as being in the mid range of objective seriousness for this offence.
The damage property charge (CC2018/4116) relates to the smashing of the glass cabinets within the Military Shop. Given the unlimited scope of this provision I would assess the conduct as being below the mid range of objective seriousness.
The offence of riding in a motor vehicle without consent (CC2018/3354) involves riding in the motor vehicle after it was stolen from Mr Liu. The offender was aware that it had been stolen from Mr Liu. This is in the mid range of objective seriousness for this offence.
The charge relating to knives (CC2018/3357) is in the mid range of objective seriousness and those relating to ammunition (CC2018/5355 and CC2018/5654) are in the low range of objective seriousness for their respective offences.
Subjective circumstances
The evidence concerning Mr Featherstone’s personal circumstances comes from a pre‑sentence report and a report of Dr Douglas Boer, a clinical psychologist. Dr Boer was cross-examined on his report.
Mr Featherstone is 31 years old. He was born in Wollongong and identifies as being of Aboriginal descent with ties to the Aboriginal community in the Wollongong region. His parents separated when he was young. His mother commenced a relationship with his stepfather who was violent and had alcohol dependency issues. He witnessed and experienced violence perpetrated by his stepfather.
Mr Featherstone reported that his involvement with the criminal justice system began when he was 11 years old.
He only attended school up to Year 5. He reported literacy difficulties and that he had never held employment. He reported that he had been approved for a disability support pension prior to his remand.
Most of his friends and acquaintances are involved in criminal activities. He is connected to a criminal gang. He converted to Islam in 2009. He has been in relationship with his current partner for three years and they have a newborn child. His partner has two children from a previous relationship. Prior to coming to Canberra he resided with his partner and her children in their government housing property in Wollongong.
He has a history of illicit drug use which began with cannabis at the age of 10. Prior to his arrest he was smoking up to six points of methamphetamine and taking non‑prescribed buprenorphine daily. He has never attended any programs or counselling in relation to drug use. He is on the methadone program while in custody.
He suffers from serious mental health problems. The report of Dr Boer outlines his history of mental health problems in greater detail. Past diagnoses have included attention deficit disorder with hyperactivity, severe conduct disorder and a possible learning disorder as well as obstructive sleep apnoea. In 2006 his history was recorded as including “schizophrenia disorder, paranoid type (as well as) conduct disorder, borderline intellectual functioning and polysubstance dependence”. Dr Boer applied the Historical Clinical Risk-20 (V3) assessment tool according to which his risk for violent recidivism was high. Dr Boer expressed the opinion that his elevated risk for violence is related to active symptoms of mental illness and substance use subsequent to being non-compliant with his medication. He noted that there are some positive signs in relation to his assessed level of risk, namely, his hopes to work in the community, the stability of his relationship and his desire to attend residential rehabilitation for his drug use problems. The basis for Dr Boer’s report appears to involve him placing some weight upon the prognostically positive statements by the offender to the effect that:
(a)he is very committed to getting out of prison to help his spouse with raising the children;
(b)that he had no interest in the therapeutic community program organised at the Alexander Maconochie Centre (AMC) and that he would prefer programs that would help him readjust into the community;
(c)he could not foresee any problems with treatment or supervision compliance upon his release;
(d)he did not feel the need to be placed on a psychiatric treatment order to maintain his compliance with oral medication;
(e)he could not foresee any problems with being compliant with supervision including ongoing drug testing;
(f)he had a plan to avoid future problems by avoiding gang affiliation, drug use and going back into crime;
(g)his conversion to Islam while in custody made him more eager to stop doing drugs and crime.
Having regard to the offender’s criminal history it would be unsafe to sentence him on the basis that he will be able to conduct himself consistently with what he told Dr Boer. I do however accept Dr Boer’s opinion that previous opinions which expressed that Mr Featherstone has borderline intelligence need to be treated with caution.
Dr Boer did express the opinion that Mr Featherstone’s elevated risk for violence is related to active symptoms of mental illness and substance use subsequent to him being non-compliant with his medication. This limits his insight into his behaviour and causes him to act impulsively at times. His opinion was “Mr Featherstone’s impaired mental functioning at the time of the alleged offending conduct due to his self-reported active psychotic symptoms contributed [to] his impaired ability to exercise appropriate judgment at the time, as well as impairing his ability to make calm and rational choices, or to think clearly at the time, as well as making him disinhibited and impulsive, as well as impairing his ability to appreciate the wrongfulness of his alleged conduct, as well as obscuring the intent to commit the alleged offences, and finally contributing (causally) to the commission of the alleged offences”.
I am satisfied on the balance of probabilities that the offender was suffering some symptoms arising from his schizophrenia at the time of the offending. However that resulted from his decision to cease taking his antipsychotic medicine. Further, his condition at the time of the offending was significantly contributed to by the fact that he was on an ice “bender”. The offender has not proved on the balance of probabilities that his conduct was significantly contributed to by his underlying mental health condition as distinct from his ice use or his deliberate decision to cease taking his medication. Therefore his mental health condition does not significantly reduce his moral culpability for his offending.
Dr Boer’s opinion was that at the time of the offending the relevant diagnosis was schizophrenia, multiple episodes, in an acute episode. Presently, the relevant diagnosis was schizophrenia, multiple episodes, currently in partial remission. He referred to the fact that many persons who have offended during a state of mental impairment have their symptoms alleviated as a result of medical treatment during incarceration, but that
the potential loss of relationships, absence of family and loss of opportunities to rebuild connections in the community commonly result in adverse impacts on the person’s mental health conditions. He expressed the view that “given Mr Featherstone’s aspirations for community reintegration, he would be one such person on whom a lengthy period of incarceration would have such an adverse impact.”
While I accept as a general matter that there will be cases where benefits from the stability that exist as a result of medical treatment whilst in custody are outweighed by the mental health impacts of imprisonment and loss of social connection, I do not accept that this is a significant factor in the present case. The social connections that the offender has are largely those associated with illegal activity. He has spent most of his adult life in prison. The evidence is not such as to provide any reliable foundation for a conclusion that he has the capacity to alter his life so as to be able to live it in a lawful manner. While a further substantial period of imprisonment will have a significant effect upon his partner and child, that is only one consideration amongst many and cannot be given dominant weight.
The author of the pre-sentence report expresses the following pessimistic opinion:
Mr Featherstone is a 31 year old man with an extensive criminal history, who has been assessed as high risk of general reoffending. His criminogenic needs include antisocial attitudes, substance abuse, mental health, lack of employment, lack of prosocial influences and accommodation. He appears to have no protective factors in the community, although he has the support of his partner.
While Mr Featherstone agreed with the facts for some of his offences, he provided little insight into his behaviour. His risk of reoffending is unlikely to reduce if he cannot commit to addressing his criminogenic needs and amend his antisocial attitudes.
He is assessed as unsuitable for community service work and the author of the pre‑sentence report indicates that he is unlikely to comply with a good behaviour order involving supervision.
Those pessimistic assessments are consistent with his reported conduct prior to and during his current period of custody. His conduct whilst in custody does not alter the picture presented by his criminal history. The Crown tendered disciplinary records from the AMC which indicated that he has been violent and threatening towards staff, has possessed contraband within the prison and appears to be unresponsive to disciplinary measures taken in relation to his conduct. His conduct whilst in custody described in the evidence indicates that he has been a very difficult inmate, demonstrating a dangerous pattern of non-compliance, volatility, threats and violence towards staff at the prison. The hopeful sign that appears from his disciplinary history is that the records tendered show a significant reduction in non-compliant behaviour in the period since December 2018. That is consistent with the offender’s own recognition that the AMC is an environment more conducive to rehabilitation than some of his previous custodial environments. In evidence he said “[t]hey [the prison officers] don’t bash you, and they talk to you like a human being not like an animal. So if you get treated like an animal you’re going to act like one, aren’t you pretty much.”
When remanded at the AMC he was being supervised by Wollongong Community Corrections by whom he was assessed as a high-risk offender. His compliance under prior community supervision was considered to be poor. He had been subject to breach actions and failed to comply with directions and engage in the interventions required to address his criminogenic needs.
Pleas of guilty
The offender had pleaded guilty in the Magistrates Court to:
(a)riding in Mr Liu’s motor vehicle without consent (CC2018/3354);
(b)aggravated robbery (CC2018/4112);
(c)possessing an unregistered prohibited firearm on 26 February 2018 (CC2018/5353);
(d)possessing a knife without reasonable excuse (CC2018/3357);
(e)possessing ammunition on 25 February 2018 (CC2018/5355) and on 26 February 2018 (CC2018/5354);
(f)possession of an unregistered prohibited firearm on 27 February 2018 (CC2018/4113); and
(g)dishonestly taking a motor vehicle without consent (CC2018/4114).
In relation to each of these, the plea involves an acceptance of responsibility. Although the pleas of his co-offender and the other charges to which he pleaded not guilty meant that there was not a great reduction in the scope of the trial, his pleas did have some utilitarian value.
In relation to each of the charges of aggravated burglary (CC2018/4115) and property damage (CC2018/4116) he pleaded guilty on the first day of the hearing.
The offender was found guilty of the charges of using an offensive weapon to inflict grievous bodily harm and forcible confinement by the jury after a trial. He is not entitled to any discount arising from a plea of guilty on these charges.
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Criminal history
The offender was born in 1988. Unfortunately, his history of offending in NSW commences in 1998. Between 1998 and 2006 he has an extensive record which includes convictions for shoplifting (2), destroying or damaging property (15), breaking and entering (6), entering enclosed lands (2), common assault (11), offensive behaviour (2), larceny (5), possessing implements to enter or drive a conveyance (2), taking and driving a conveyance without consent (2), stealing a motor vehicle (1), having goods in custody reasonably suspected of being stolen (4), failing to appear (1) robbery (1), robbery in company (1), armed robbery (2), assault with intent to rob (5), attempting to or escaping from lawful custody (4), possessing housebreaking implements (1), taking or detaining with intent to obtain an advantage (1), assault occasioning actual bodily harm (2), assaulting a law officer (2), carrying a cutting weapon (1) and dangerous driving (1).
As an adult he has an equally extensive and serious criminal record. He has convictions for common assault (4), going armed with intent to commit an indictable offence (2) resisting an officer in execution of duty (1), destroying or damaging property (2), larceny (3), assault occasioning actual bodily harm (1), assaulting a law officer (3), damaging property by fire (1), attempting to or escaping lawful custody (1), concealing a serious indictable offence of another (1), being an unlicensed driver (1) and dangerous driving (1). Each of the convictions resulted in sentences of imprisonment except the conviction for unlicensed driving. In 2007 he committed armed robbery for which he was given a head sentence of five years and six months. In 2011 he again committed armed robbery and was given a sentence of five years’ imprisonment. The sentences of imprisonment imposed upon him have not been effective deterrents against further offending.
The extensive criminal history and the type of offending which it discloses indicates that he is a person in relation to whom the protection of the community must be a significant sentencing consideration.
Time in custody
The offender has been in custody since his arrest on 28 February 2018. The custodial sentences that are imposed will be backdated to this date in order to take this period into account.
Consideration
The offender presents an unusual combination of circumstances. He has had an upbringing involving dysfunction. He has, at a very early age, commenced a life of crime which has only been interrupted by lengthy periods in custody. His mental health condition and drug use contribute to his offending behaviour. His criminal history means that he is not entitled to any leniency. His offending in the present case involves numerous examples of very serious offences. It indicates that he can represent a serious threat to the community. Having regard to his mental health, drug use and criminal history, the starting point is that there must be real doubt about his capacity to rehabilitate himself.
Not unlike many offenders, he has expressed a willingness to take steps in the right direction. In his oral evidence that he gave at the sentencing hearing he appeared to recognise that his path towards rehabilitation is unlikely to be smooth. His conduct in recent months is reflective of the fact that there is at the least the possibility of some hope for the future.
Save in respect of the charges for possessing a knife and ammunition, each of the other offences is such that no sentence other than a sentence of full-time imprisonment would be appropriate.
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On the charge of possessing a knife and the two charges of possessing ammunition, counsel for the Crown indicated in the light of the other matters for which the offender was to be sentenced they were not to be pursued. These were each matters in relation to which a plea of guilty had been entered. In those circumstances the Crown invited the court to dismiss the charges under s 17 of the Crimes (Sentencing) Act 2005 (ACT). Such a course does not involve the usual application of s 17. However having regard to the breadth of s 17(4) and the threshold for the operation of that provision, namely that, under s 17(2)(a) (“the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender”), it is a course which is available to deal with the present circumstances. Therefore, in relation to each of these charges the order will be that they be dismissed.
The sentences that will be imposed are as follows. On the charge of use offensive weapon to inflict grievous bodily harm the sentence will be one of 25 months. On the charge of forcible confinement the sentence will be 29 months, 16 of which will be cumulative upon the previous sentence. On the first charge of possession of a prohibited firearm the sentence will be one of 12 months, three months of which will be cumulative. On the second charge of possession of a prohibited firearm the sentence will be one of 12 months, one month of which will be cumulative. On the aggravated robbery charge the sentence will be 50 months, 25 months of which will be cumulative. On the charge of take motor vehicle the sentence will be 14 months, three months of which will be cumulative. On the burglary charge the sentence will be 29 months, 14 months of which will be cumulative. On the damage property charge the sentence will be seven months, three months of which will be cumulative. On the ride motor vehicle without consent charge the sentence will be seven months, three months of which will be cumulative.
This gives a total aggregate sentence of 93 months which is seven years and nine months. The non-parole period will be five years and two months which is 67% of the head sentence. The sentences will commence on 28 February 2018.
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Orders
The orders of the Court are:
1.On the charge of using against a person an offensive weapon likely to endanger human life or cause grievous bodily harm (CC2018/5352) the offender is convicted and sentenced to imprisonment for 25 months commencing on 28 February 2018 and ending on 27 March 2020.
2. On the charge of forcible confinement (XO2018/31432) the offender is convicted and sentenced to imprisonment for 29 months commencing on 28 February 2019 and ending on 27 July 2021.
3. On the charge of possessing a prohibited firearm (CC2018/5353) the offender is convicted and sentenced to imprisonment for 12 months commencing on 28 October 2020 and ending on 27 October 2021.
4. On the charge of possessing a prohibited firearm (CC2018/4113) the offender is convicted and sentenced to imprisonment for 12 months commencing on 28 November 2020 and ending on 27 November 2021.
5. On the charge of aggravated robbery (CC2018/4112) the offender is convicted and sentenced to imprisonment for 50 months commencing on 28 October 2019 and ending on 27 December 2023.
6. On the charge of take motor vehicle without consent (CC2018/4114) the offender is convicted and sentenced to imprisonment for 14 months commencing on 28 January 2023 and ending on 27 March 2024.
7. On the charge of aggravated burglary (CC2018/4115) the offender is convicted and sentenced to imprisonment for 29 months commencing on 28 December 2022 and ending on 27 May 2025.
8. On the charge of damage property (CC2018/4116) the offender is convicted and sentenced to imprisonment for seven months commencing on 28 January 2025 and ending on 27 August 2025.
9. On the charge of riding a motor vehicle without consent (CC2018/3354) the offender is convicted and sentenced to imprisonment for seven months commencing on 28 April 2025 and ending on 27 November 2025.
10. The charge of possessing a knife without reasonable excuse (CC2018/3357) is dismissed.
11. The charge of possessing ammunition on 25 February 2018 (CC2018/5355) is dismissed.
12. The charge of possessing ammunition on 26 February 2018 (CC2018/5354) is dismissed.
13. The non-parole period starts on 28 February 2018 and ends on 27 April 2023.
I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 28 August 2019
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