R v Forrest (No 2)
[2021] ACTSC 259
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Forrest (No 2) |
Citation: | [2021] ACTSC 259 |
Hearing Date: | 11 October 2021 |
DecisionDate: | 12 October 2021 |
Before: | Murrell CJ |
Decision: | Total new sentence of 12 years and 10 months’ imprisonment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – damaging property – burglary – theft – obtaining property by deception – ride in motor vehicle taken without consent – assault occasioning actual bodily harm – unauthorised possession of firearm – driving while disqualified – incitement to commit offence of taking prohibited things into correctional centre – driving unregistered vehicle – driving uninsured vehicle – where offender experienced traumatic upbringing – where offender on conditional liberty at time of offending – concurrency of sentences where one offence committed in lawful custody |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 161 Crimes (Sentencing) Act 2005 (ACT) ss 64, 70, 72, pt 4.4 Road Transport (Vehicle Registration) Act 1999 (ACT) s 18 |
Cases Cited: | Biddle v Gatherer [2021] ACTSC 236 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Johnstone (No 2) [2019] ACTSC 39 |
Parties: | The Queen ( Crown) Michael Paul Forrest ( Offender) |
Representation: | Counsel ACT Director of Public Prosecutions ( Crown) Legal Aid ( Offender) |
| Solicitors K McCann ( Crown) S McLaughlin ( Offender) | |
File Number(s): | SCC 46, 47, 48, 80 of 2021 |
MURRELL CJ:
Introduction
The offender pleaded guilty to 12 offences, relating to six incidents.
The incidents occurred on 6 October 2019, 27 October 2019, 3 November 2019, 4 November 2019, 5 November 2019 and 5–8 November 2019.
The offences are:
(a)Three counts of aggravated robbery, or attempted aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code).
The maximum penalty for each offence is 25 years’ imprisonment, a fine of $400,000, or both.
(b)One count of damaging property, contrary to s 403(1) of the Criminal Code.
The maximum penalty for this offence is 10 years’ imprisonment, a fine of $160,000, or both.
(c)One count of burglary, contrary to s 311 of the Criminal Code.
The maximum penalty for this offence is 14 years’ imprisonment, a fine of $224,000, or both.
(d)One count of theft, contrary to s 308 of the Criminal Code.
The maximum penalty for this offence is 10 years’ imprisonment, a fine of $160,000, or both.
(e)One count of obtaining property by deception, contrary to s 326 of the Criminal Code.
The maximum penalty for this offence is 10 years’ imprisonment, a fine of $160,000, or both.
(f)One count of riding in a motor vehicle taken without consent, contrary to s 318(2) of the Criminal Code.
The maximum penalty for this offence is five years’ imprisonment, a fine of $80,000, or both.
(g)One count of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT).
The maximum penalty for this offence is five years’ imprisonment.
(h)One count of unauthorised possession of one firearm, contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT).
The maximum penalty for this offence is five years’ imprisonment.
(i)One count of driving while disqualified as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).
The maximum penalty for this offence is one year’s imprisonment, a fine of $16,000, or both. There is also an automatic driver disqualification period of 24 months for a repeat offender.
(j)One count of incitement to commit the offence of taking prohibited things into a correctional centre, contrary to s 47(1) of the Criminal Code.
The maximum penalty for this offence is one year’s imprisonment, a fine of $48,000, or both.
Pursuant to pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), two additional offences are to be taken into account when sentencing the offender for the offence of driving while disqualified:
(a)Driving an unregistered vehicle, contrary to s 18 of the Road Transport (Vehicle Registration) Act 1999 (ACT).
The maximum penalty for this offence is a fine of $3,200.
(b)Driving an uninsured vehicle, contrary to s 17 of the then Road Transport (Third Party Insurance) Act 2008 (ACT).
The maximum penalty for this offence is a fine of $8,000.
History of the pleas and custody
But for the count of attempted aggravated robbery (Count 1), the offender entered pleas of guilty in the Magistrates Court.
In each case, the Crown case was strong. It included forensic evidence such as DNA or fingerprint evidence that implicated the offender (Series 1 and 2), CCTV footage depicting the offender (Series 3 and 4) and intercepted communications and CCTV footage (Series 6). However, the primary factor guiding the level of discount to be given is the timing of pleas and the associated utilitarian value: Cranfield v The Queen [2018] ACTCA 3 at [36]–[38].
For Count 1, the plea was entered in the Supreme Court after I had decided that coincidence evidence should be admitted, and I will allow a discount of approximately 15 per cent on the sentence that I would otherwise have imposed. For Count 2, I will allow a discount of approximately 20 per cent. In relation to Count 3, an early plea was entered. The appropriate discount is 25 per cent. In relation to Counts 4 and 5, the appropriate discount is 20 per cent. In relation to Counts 6 and 7, early pleas were entered, and the appropriate discount is 25 per cent. For the offences committed on 5 November (Counts 8–11), following an initial plea of not guilty, pleas of guilty were entered in the Magistrates Court after the Crown had disclosed evidence including admissions made by the co-offender. The appropriate discount is 20 per cent.
When the offences were committed, the offender was on parole in relation to sentences of imprisonment that had been imposed by Refshauge J: R v Forrest (No 3) [2017] ACTSC 168; 12 ACTLR 155.
The offender was arrested following the offences committed on 5 November 2019. He has been in custody since that date. On 12 November 2019, the Sentence Administration Board cancelled the offender’s parole. Consequently, the period of imprisonment from 12 November 2019 to 20 October 2022 is not referable to the present offences. The offender has spent seven days in custody referable to the present offences (5 November 2019 to 11 November 2019).
Series 1—6 October 2019
Count 1—Attempted aggravated robbery
At 5:00AM on 6 October 2019, Mr Preston (a pseudonym) and Ms Paige (a pseudonym) were inside a residence in Downer. Ms Paige was asleep in the loungeroom. Mr Preston was awake, as he was doing some painting work. The security door at the back of the residence was ajar a few centimetres but it was locked.
At approximately 5:10AM, Mr Preston heard a rattling noise at the security door. The noise woke Ms Paige, who had been sleeping on a couch very close to the front door. Mr Preston called out “Who is that?” and received no response.
He called out again. The offender said, “Are you the one who robbed my money?” or “Are you the one who owes me money?”. Mr Preston replied, “You have got the wrong person mate”.
The offender attempted unsuccessfully to gain entry through the security door.
A few moments later, Mr Preston heard the offender attempting to gain access through the loungeroom window. He went into the loungeroom, where he saw the offender and an unidentified female co-offender at the window. The offender was wearing dark clothing and a cap. His face was covered with a red bandana. He was carrying what appeared to be a sawn-off firearm 20 centimetres in length.
The offender pointed the firearm towards Mr Preston’s stomach. He demanded that Mr Preston give him his car keys and made threatening gestures with the firearm.
Mr Preston responded by shouting, “Well, give it a go mate”.
The offender paused and said “Fuck, fuck, fuck”. He then ran away with the female co-offender.
Vehicles belonging to Mr Preston and Ms Paige were parked at the front of the residence. They had been ransacked.
Police attended the residence and conducted a forensic examination. The material that was obtained was insufficient to enable identification. The offender was later identified because of the similarities between this offence and Count 2.
Victim impact statements
As one would expect, the offence has had a serious impact on Mr Preston and Ms Paige.
Mr Preston has experienced psychological impacts such as anxiety, nightmares and feelings of detachment and depression. He has taken time off work with consequent loss of income and has undergone counselling. His personal and professional relationships have been impacted.
Ms Paige has suffered profound psychological effects such that she has been unable to maintain her job. Initially, she feared leaving her home. She continues to experience panic attacks, sleeplessness and nightmares, a sense that she has lost the capacity to control her own safety, and disturbing fears when in public areas. Her concerns have been exacerbated since mask-wearing has been mandatory in public places. She is concerned for her safety when visiting friends. Her psychological condition has created tensions in her relationships with family and friends and has led to the breakup of a partner relationship.
Count 2—Aggravated Robbery
At 5:30AM on 6 October 2019, Mr Garrett (a pseudonym) and his housemate were asleep in a Downer residence about 750 metres from the site of the first offence. Mr Garrett’s Volkswagen Polo vehicle was parked at the front of the residence.
He was woken by a loud knock at the front door. He opened the door. The offender attempted to push through the door. The offender was holding what appeared to be a shortened shotgun.
Mr Garrett told the offender to leave and tried to close the door but was unsuccessful. The offender and an unidentified female entered the residence.
The offender forced Mr Garrett into a corner near the front door. The offender gestured with the firearm towards Mr Garrett and yelled “Where are the keys to the Polo?”. Mr Garrett told the offender that he did not know, but that they may be in the bedroom. The female unsuccessfully searched for the car key in Mr Garrett’s bedroom and the kitchen. The offender told Mr Garrett “You go grab and find the keys”. Mr Garrett went to his bedroom, found the keys, and gave them to the offender. The offender and his female companion left immediately in Mr Garrett’s Volkswagen Polo vehicle. Mr Garrett called police.
Mr Garrett’s housemate was woken during the incident. He heard yelling to the effect of “Where is it?” and “Give us your keys”. He fled the residence and called police.
Police located the offender’s left palm print on an external timber door.
On 9 October 2019, Police observed the Volkswagen Polo vehicle parked in Yarralumla. The vehicle was seized and searched. The offender’s fingerprints and DNA were located inside. A red and black bandana in the vehicle contained the offender’s DNA.
Objective seriousness series 1
Each of these offences is a serious offence of its type. Offences involving an attempt may be less serious, but in this case the circumstances of the attempted aggravated robbery make it very serious; it was only because of the victim’s resistance that the offence was not realised.
For each offence, the aggravating feature was the possession of an offensive weapon. The offensive weapon was a firearm, a very intimidating type of offensive weapon. Not only was the firearm in the possession of the offender, but it was used in a very threatening fashion. It is not known whether the firearm was loaded.
In addition, in each case the offender was in company with a female companion who played little active role. However, her presence could only have exacerbated the fears of the victims.
The offences involved entry or attempted entry into the homes of the victims in the early hours; these were not daytime robberies, nor did they occur in a public place.
There was a degree of planning; the offender was in possession of a firearm and was wearing a face covering.
In the case of each offence, there was one immediate victim but also a second person present, who was impacted by the offence. All four people suffered psychological harm.
Count 2 involved the taking of the victim’s vehicle, an item of significant value.
Series 2—27 October 2019
Count 3—Damage property
At 12:00PM on 27 October 2019, Mr Norman (a pseudonym) parked his vehicle in the carpark of his apartment complex.
Sometime later, Mr Norman’s partner observed that the passenger window had been smashed, and the glove box had been emptied. The internal fuse compartment under the steering wheel had been opened. The damage cost approximately $8,000 to repair.
Blood that was found on the driver seat and on a receipt inside the glovebox was matched to the offender’s DNA.
Objective seriousness series 2
This offence is of low to moderate objective seriousness, having regard to the nature and value of the damage caused. In addition to the financial cost of the damage, it is likely that the damage was associated with the loss of use of the vehicle for a period. I infer that the motive was to obtain valuables, very likely to purchase drugs, rather than to cause gratuitous damage.
Series 3—3 November 2019
Counts 4 and 5—Burglary and theft
On 2 November 2019, Ms Thompson (a pseudonym) parked a Honda Civic vehicle in the secure basement carpark at her unit complex in Wright. The vehicle belonged to her neighbour.
At about 3:15AM on 3 November 2019, the offender gained access to the secure carpark by forcing open a secure door with a long-shafted screwdriver. He walked around the carpark, stopping at several vehicles and testing their door handles.
The offender gained access to the Honda Civic vehicle by smashing the driver side window. He removed two mobile telephones valued at approximately $500 and then left the carpark. The incident was captured on CCTV.
Objective seriousness series 3
The burglary is of lower objective seriousness as the entry was to a non-residential part of the premises at a time when it was likely that no one would be present. Nevertheless, it involved forced entry to a secure door using a screwdriver, indicating a degree of planning.
The theft involved generic items of relatively low monetary value. However, the loss of a mobile telephone may cause considerable inconvenience because of the contents on the phone. Further, the offence was associated with damage to the vehicle.
Series 4—4 November 2019
Counts 6 and 7—Obtain property by deception and ride in motor vehicle taken without consent
On 3 November 2019, Mr Fisher (a pseudonym) parked his Toyota Hilux vehicle in a Queanbeyan Street, leaving the keys in the ignition and the doors unlocked for a matter of minutes while he entered a shop. When he returned, the vehicle was gone.
At about 5:10AM on 4 November 2019, a wallet containing a driver licence and credit card was stolen from another vehicle.
At 7:17AM on 4 November 2019, the offender and an unidentified male co-offender were captured on CCTV at the McDonald’s fast food drive-through outlet at Weston. The co-offender was driving Mr Fisher’s vehicle. The offender was in the front passenger seat.
Using “PayWave” on the credit card that had been stolen earlier that morning, the offender paid $47.70 for food.
At 7:26AM, the offender was captured on CCTV entering a service station in Weston. He used the credit card to pay $60.75 for cigarettes.
Before 8:00AM, the owner of the credit card checked his internet bank account, realised that the card had been used for two transactions, found that the wallet that had contained the credit card was missing and reported the theft to police.
Objective seriousness series 4
The offence of riding in a motor vehicle taken without consent was of relatively low objective seriousness; the evidence indicates that the offender was riding in the vehicle for a short time as a passenger. It would appear the vehicle was being used as a matter of convenience.
Similarly, the offence of obtaining property by deception is of relatively low objective seriousness; although it involved two transactions, the transactions occurred within a short timeframe and the total value of the items obtained was low.
Series 5—5 November 2019
Counts 8, 9, 10 and 11—Assault occasioning actual bodily harm, attempted aggravated robbery, unauthorised possession of one firearm, drive while disqualified, additional offences
At 8:00AM on 5 November 2019, Ms Watkins (a pseudonym) parked her vehicle at a carpark in Forrest. She was sitting in the driver’s seat.
The offender parked a blue Hyundai Getz vehicle opposite her. He was in the driver’s seat. There was a female passenger. When the offender observed Ms Watkins’ car enter the carpark, he said to his passenger “I’m just going to get this car”. He had decided to replace the vehicle that he was then driving. The prosecution does not allege that, at this stage, the passenger was acting in concert with the offender.
The offender removed a firearm from the rear passenger seat, exited the vehicle, and approached Ms Watkins at the driver side window. He was wearing a face mask with a white motif. He was holding a long-barrelled rifle, which he pointed at her. He ordered her to “get out the fucking car”. Because of the extreme shock that she experienced, either Ms Watkins did not hear this direction, or she did not later remember hearing it.
The offender’s passenger moved to the driver’s seat of the Hyundai Getz.
The offender used the tip of the rifle to tap on Ms Watkins’ window. She heard a muffled bang and the sound of the window cracking. She turned to face the offender. The offender discharged the weapon, causing the driver’s window to shatter. Ms Watkins felt immediate pain to the right side of her face. It was only later that she learned that, rather than suffering a glass injury, she had suffered gunshot wounds to her right forehead and neck.
Ms Watkins was deeply shocked, but she managed to start her vehicle and accelerate out of the carpark. She wanted to draw the offender away from a school area where students would soon be dropped. The Hyundai Getz vehicle seemed to follow her for a short distance, although I am not satisfied that the vehicle intentionally pursued Ms Watkins’ vehicle. Nevertheless, the apparent pursuit would have exacerbated Ms Watkins’ state of terror.
Ms Watkins stopped her vehicle at Manuka, contacted 000 and was taken by ambulance to The Canberra Hospital.
At The Canberra Hospital, doctors located a bullet that had lodged in Ms Watkins’ neck. It had struck a tooth. Ms Watkins underwent several procedures to remove foreign material (glass and bullet fragments) from the right side of her neck and cheek.
As a result of the shooting, Ms Watkins sustained the following injuries:
(a)A puncture wound approximately 0.5 centimetres in diameter on the right forehead.
(b)A puncture wound measuring approximately 1 centimetre in diameter on the right upper neck.
(c)Multiple abrasions, puncture wounds, bruising and swelling to her face, right upper neck and right shoulder.
At 10:35AM on 5 November 2019, police were conducting mobile patrols in Rivett. They observed a blue Hyundai Getz that did not have numberplates attached. When police approached the vehicle, they saw the offender in the driver’s seat, slumped over the steering wheel. He was arrested.
In the vehicle, the police located a long arm .22 rifle containing ammunition that matched a .22 calibre shell casing found at the Forrest carpark. They also found a 12-gauge shotgun.
Part of the incident had been filmed on a mobile telephone by a nearby resident.
On 5 December 2019, the offender’s passenger participated in a police record of interview in which she described the offender’s actions. She was not charged with an offence.
The Hyundai Getz was unregistered and uninsured. At the time of the offence, the offender was disqualified from driving (from 10 May 2017 to 9 November 2019). He is a repeat offender.
Victim impact statement
The offences have had a profound and long-lasting effect on the victim, who is deeply scarred, both physically and psychologically.
The victim was hospitalised for a week and thereafter she was unable to work for a significant period. She has experienced permanent scarring both from the penetrating gunshot wound to the right side of her neck and from the surgery required to treat the injury. There is some loss of sensation and ongoing pain. More than a year after the incident, she continues to receive treatment to remove shrapnel.
Despite receiving input from trauma psychology and social worker teams, inevitably the incident has had a devastating impact on the victim’s self-confidence. Because of her inability to concentrate, she was unable to complete further training that she had commenced. She has lost trust. She experiences anxiety and is readily overwhelmed by conflict situations. Only now is she beginning to return to some of her previous activities. There are some activities to which she will never return.
Because of the impacts on Ms Watkins, her family and work colleagues have also suffered.
Objective seriousness series 5
The offence of attempted aggravated robbery was a serious offence of its type.
The offender was armed with the most serious sort of offensive weapon, a loaded firearm, which he used to point in a threatening manner at the victim for the purpose of effecting a “carjacking”. It is likely that the commission of the offence and the choice of victim were not planned but opportunistic; the offender wanted to use a vehicle other than the one that he had been driving and it seems that he carried firearms as a matter of course. I infer that the offender chose the victim because she was relatively vulnerable, being alone in her car in an empty car park. While terrifying, the incident was brief.
The offence of assault occasioning actual bodily harm could hardly have been more serious. The means by which the injury occurred was the discharge of a loaded firearm at close range towards the face of the victim. The result could well have been fatal. It was sheer good luck that the victim did not suffer a more severe injury.
The injury was a very serious form of actual bodily harm, having a degree of permanence. It required hospitalisation, surgical intervention and ongoing treatment.
Inevitably, both offences were deeply traumatic to the victim.
The unauthorised possession of a firearm relates to the possession of the 12-gauge shotgun that was found in the vehicle when the offender was arrested, i.e. one firearm rather than the two firearms that may be the subject of such an offence. Nevertheless, it was a very serious offence of its type. The firearm was unsecured in a vehicle at a time when the offender was slumped over the wheel and had no control over the firearm. Having regard to the offender’s use of another firearm earlier on the day in question and his use of firearms over the previous month, I am satisfied beyond reasonable doubt that the purpose for possessing the firearm was to engage in criminal activity.
As to the drive while disqualified offence, on the evidence the offender drove for only a limited period and the driving occurred a matter of days prior to the expiry of the disqualification period. The additional offences are to be taken into account when sentencing for the offence of driving while disqualified. Overall, the episode of driving was of some seriousness.
Series 6—5–8 April 2020
Count 12—Incitement to commit the offence of taking a prohibited thing into custody
Between 5 and 8 April 2020, the offender was remanded in custody at the Alexander Maconochie Centre (AMC). On 7 April 2020, Corrective Services lawfully intercepted several emails and phone calls between the offender and others relating to the offender’s attempt to secure a delivery of drug-related items into the AMC.
Between 6 and 7 April 2020, the offender emailed a friend. He sought to arrange for a Mr Sanders (a pseudonym) to obtain cannabis for him, stating:
Ask him if he can do any I with the grrwen for my bday or md and let me no yeah
The offender arranged for Ms Bannister (a pseudonym) to drive Mr Sanders to the AMC in exchange for $100. He told Ms Bannister to “put the jack and jills (pills) in there” (in the car).
At 10:54 AM on 8 April 2020, the offender called Ms Bannister. He reminded her “don’t forget about this arvo” and inquired whether she wanted “fifty or a hundred”. Ms Bannister confirmed that she wanted $100. The offender instructed her to “ring old mate by 3:30PM”.
At 5:00PM, Ms Bannister drove a second person (inferentially, Mr Sanders) about 2 kilometres past the AMC, before turning onto an unnamed dirt road leading to a dog boarding facility.
A short time later, the vehicle re-emerged. Ms Bannister was driving, and she was the only occupant. She drove to the residence of the offender’s sister in Griffith.
At 6:00PM, Ms Bannister left the sister’s residence. She drove back to the unnamed dirt road.
A person wearing black clothing walked from the vicinity of the dog boarding facility, across a paddock and towards the fence surrounding the AMC (inferentially, Mr Sanders). At 6:16PM, Corrective Services notified police that a male in black clothing had thrown three tennis balls into the AMC. The balls had landed near the offender, who had been standing between the outer fence and inner yard. The balls contained eight snap-lock bags. Inside were 7.2 grams of cannabis and six capped syringes.
Objective seriousness
The offender’s legal representative submitted that the objective seriousness of the offence was not such that a sentence of imprisonment was the only appropriate penalty.
I accept that the offence was not particularly sophisticated and that it involved the introduction of cannabis and syringes rather than, for example, weapons.
However, the offence was orchestrated by the offender and it involved some planning over a period of three days. It was further aggravated by the fact that the offender was in lawful custody at the time that he committed the offence. When sentencing for such offences, general deterrence and protection of the prison population are prominent sentencing purposes.
Consequently, I have concluded that a sentence of imprisonment is the only appropriate penalty.
Subjective features
The offender is a 29-year-old Aboriginal man. Except for Count 12, the offences occurred when he was 27 years old.
The offender has an extensive criminal history.
At the time of the offences, the offender was on conditional liberty, having just been released to parole in relation to similar offences. On 1 October 2019, he was granted parole. Five days later, on 6 October 2019 he committed the first of the offences before the Court.
As stated above, he was arrested on 5 November 2019 and on 12 November 2019, the Sentencing Administration Board cancelled the offender’s parole and he became liable to serve imprisonment from 12 November 2019 to 20 October 2022.
The offender has committed numerous prior offences like those before the Court. Relevantly, the offender’s adult criminal history includes:
(a)Eight convictions for burglary.
(b)Three convictions for aggravated burglary.
(c)One conviction for aggravated robbery.
(d)16 convictions for theft, attempted theft or procuring a theft.
(e)11 convictions for damaging property.
(f)Four convictions for riding or driving a motor vehicle without consent.
(g)Five convictions for driving while disqualified.
(h)One conviction for common assault.
(i)One conviction for possessing a prohibited weapon.
On 22 September 2015, the offender was sentenced by Robinson AJ for offences of burglary, aggravated burglary, and various dishonesty offences to 20 months’ imprisonment (11 April 2015 to 10 December 2016) with a nonparole period of 14 months’ imprisonment (to June 2016): R v Forrest [2015] ACTSC 283.
On 6 March 2017, the offender came before Refshauge J for sentence on 38 offences committed in July 2015, when he was on parole: R v Forrest (No 2) [2017] ACTSC 83. His Honour imposed a deferred sentence order to allow the offender to undertake drug rehabilitation at Karralika. The offender was discharged from the program and a warrant was issued for his arrest. While the warrant was outstanding, he committed other offences, including riding or driving a motor vehicle without consent. On 10 May 2017, Refshauge J sentenced the offender to seven years and one month’s imprisonment, with a nonparole period of four years and one month’s imprisonment: R v Forrest (No 3) [2017] ACTSC 168; 12 ACTLR 155. As mentioned, the offender had just been released to parole for these offences when he committed the offences for which I am to sentence him.
The offender was born in Canberra. He is the oldest of three children. He now has positive relationships with his parents, grandmother, and siblings.
The offender’s behavioural and attentional difficulties were evident from early childhood. He was disruptive and aggressive towards other children. At the age of seven, he was diagnosed with Attention Deficit Hyperactivity Disorder, but he was not medicated for the disorder.
He struggled academically, although he achieved better results in practical subjects such as woodworking and physical education. He attended two primary schools and three high schools. He was expelled from high school twice and left school before completing Year 10 because he was struggling with behavioural and learning problems.
As a child, the offender was subjected to frequent physical and verbal abuse by his father and, from the age of seven or eight years, he was also abused by his uncle. Between the ages of six and 14, he resided with his grandmother for much of the time. Although this provided a respite from his father’s abuse, the offender’s abusive uncle frequently lived with the offender’s grandmother. At 13 or 14 years of age, he left his grandmother’s home because of the imminent return of his abusive uncle. For several years thereafter, he couch surfed with friends as he lacked a stable home.
The childhood abuse has had an enduring effect on the offender. At age eight or nine, he self-harmed. This behaviour continued until he was aged 11 or 12. He still experiences nightmares and flashbacks concerning the abuse. He suffers from high levels of emotional instability and experiences mood-swings, irritability and a fear of abandonment. In addition to the trauma suffered at the hands of family members, during his adolescence the offender was held at gunpoint, stabbed twice, and shot twice.
Since 2009, the offender has received the Disability Support Pension, in relation to mental health problems. He has difficulty finding and maintaining employment and has mainly worked in manual roles such as a builder’s labourer, landscaper, fencer, and paver. He was last employed in 2013, working as a fencer. He works as a barber in the AMC. He would like to return to employment when released into the community.
The offender has a nine-year-old son. The offender was the primary carer for his son during the child’s infancy. He is separated from his son’s mother and is frustrated when he is unable to have contact with his son. He said that this was a reason for his relapse into drug use in October 2019. He now speaks to his son daily by telephone. The offender’s relationship with his son provides him with a strong motive to rehabilitate.
The offender has a significant history of substance abuse. At the age of 10 or 11, he first smoked cannabis. His use increased, continuing until he was arrested in 2014. At the age of 13, he used methylamphetamine for the first time. The substance was provided to him by his uncle. At the age of 17, he commenced using heroin. When arrested in September 2014, the offender was using approximately 4 grams of methylamphetamine and 1 gram of heroin per day. Between the ages of 14 and 17, he engaged in binge drinking. However, he ceased alcohol consumption in 2013.
The age and the circumstances in which the offender was introduced to illicit substances mean that his longstanding and entrenched substance abuse problem is not the product of mature “choice”.
In 2015, the offender entered the ‘Triple Care Farm’ rehabilitation facility. He remained for approximately six weeks before being asked to leave for abusive behaviour towards another resident. In November 2015, while in custody, he successfully completed the Solaris Program and became a mentor for other detainees. Later, he repeated the Solaris Program with success.
However, in 2017, he failed to engage with the Karralika Therapeutic Community Program when given the opportunity to do so on bail. After six days, he was discharged from the program for using methylamphetamine.
Following his release from custody in September 2019, the offender resided with his parents. Within days, he ceased taking prescribed medication and began to use illicit substances, including methylamphetamine, MDMA, heroin and gamma-hydroxybutyrate. He was frustrated because he was experiencing difficulties in seeing his son and he ceased taking prescribed medication. He was further destabilised when he learned that there was an active warrant for his arrest, and this prompted him to leave the family home. His use of illicit drugs rapidly escalated.
The offender reported no recollection of the current offences as he was under the influence of illicit substances at the time.
Dr Furst, a forensic psychiatrist, diagnosed the offender with longstanding:
(a)Substance use disorder (cannabis, methylamphetamine, opiates and GHB).
(b)Post-traumatic stress disorder.
(c)Personality disorder (antisocial and borderline features).
(d)Attention deficit hyperactivity disorder.
There is a strong nexus between the offender’s traumatic upbringing, mental disorders, illicit substance abuse and offending behaviour. The effects of profound childhood deprivation do not diminish with the passage of time and may continue to explain recidivist offending: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44]. Dr Furst opined that:
extensive childhood trauma history and mental disorders evident in Mr Forrest have led to a chronic pattern of drug use/drug addiction, setting the foundation for his offending is [sic] a juvenile and throughout his 20s. That core trauma-related deficits described above, together with his temperamental problems and personality disorder, also help to explain his fairly rapid decline/relapse into drug abuse when released into the community and the lack of effectiveness of previous rehabilitation efforts, both in custody and in the community.
Although Mr Forrest was conscious of his offending actions in 2019 and 2020 and was aware of the wrongfulness of those actions, his offending was drug-related/addiction-related.
Dr Furst recommended that the offender undergo opioid replacement therapy such as a monthly Buvidal injection, and he is now receiving that treatment.
During his recent period in custody, the offender has completed various short substance abuse programs. He intends to return to the Solaris Program before he is released. In addition, he has undertaken general health programs, an anger management program, a conflict resolution program, and programs designed to make him employment-ready. The authors of the pre-sentence report noted that the offender’s engagement with various AMC programs has been positive, indicating a willingness to address concerns once he is released. The report notes the importance of a supported return to the community.
In the AMC, the offender has voluntarily engaged with Custodial Mental Health Services (CHMS). He is regularly reviewed by a CHMS treating psychiatrist. He is to commence fortnightly trauma counselling. This will be the first time that he has undertaken ongoing counselling for the problems that may inform his substance abuse and offending behaviour.
He told the author of the pre-sentence report that he appreciated the seriousness of his actions and was disappointed in his behaviour. He expressed empathy towards the victims and stated that he has had time to reflect on his actions while in custody.
The author of the pre-sentence report assessed the offender as at medium/high risk of general re-offending.
Other sentencing considerations
The Court was referred to cases involving aggravated robberies that were said to be somewhat comparable. The cases of R v Baker [2020] ACTSC 186 (Baker) and R v Johnstone (No 2) [2019] ACTSC 39 (Johnstone) warrant particular mention.
In Baker, the offender pleaded guilty one month before the trial to one count of possessing a firearm, aggravated robbery by joint commission, using a firearm, using an offensive weapon and assault occasioning actual bodily harm. The aggravated robbery involved the offender and a co-offender approaching the complainant outside a workplace and threatening the victim with firearms. The offender’s subjective features included an “appalling criminal history” with many armed robbery offences and a “very difficult and disadvantaged childhood”: at [60], [65]. The offender was sentenced on the aggravated robbery count to four years’ imprisonment (after a 20 per cent discount for his guilty plea), and a total sentence of 10 years’ imprisonment.
In Johnstone, the offender was found guilty by a jury of one count of aggravated robbery, ride in a stolen motor vehicle and assault occasioning actual bodily harm. The aggravated robbery involved the offender entering a residence with a sawn-off gun, demanding money and striking two victims with the butt of the gun. The offender was an Aboriginal man who had experienced a dysfunctional upbringing, had a significant criminal history and was on conditional liberty at the time of the offences. A sentence of four years’ imprisonment was imposed for the aggravated robbery charge, and the total sentence was four years and six months’ imprisonment.
The limitations of statistical information are well-known. However, for what it is worth, the ACT Sentencing Database shows that, for offences of aggravated robbery, sentences are frequently in the range of two and a half to four years’ imprisonment.
Pursuant to s 72(1)(a) and (2) of the Sentencing Act, as the offence of incitement was committed while the offender was in lawful custody, unless the Court directs otherwise, the sentence must be served consecutively with an “existing sentence” of imprisonment.
The import of s 64(2) of the Sentencing Act, which makes a sentence that is imposed for an offence committed while the offender was in lawful custody an “excluded sentence of imprisonment” to which the nonparole provisions of the Sentencing Act do not apply, was recently discussed in Biddle v Gatherer [2021] ACTSC 236 (Biddle). The constraints of that provision can lead to unfair, and probably unintended consequences, particularly when an offender is being sentenced for multiple offences.
A similar problem arises in the present case. It should be noted that the meaning of “existing sentence” differs between pt 5.2 of the Sentencing Act (which governs the imposition of nonparole periods) and pt 5.3 (which governs concurrency between sentences). In pt 5.3, the definition of “existing sentence” is broader. In Biddle, the issue concerned pt 5.2. In this case, it concerns pt 5.3.
Within pt 5.3, relevantly s 70 of the Sentencing Act provides as follows.
(1)This part applies to a sentence of imprisonment (a primary sentence) imposed by a court on an offender if—
(a)any of the following apply in relation to the offender:
(i) when the primary sentence is imposed, the offender is serving another sentence of imprisonment (an existing sentence);
…
(iii) the offender is sentenced to another sentence of imprisonment (also an existing sentence) in the same proceeding; and
(b)the existing sentence is for an offence against a territory law; and
…
Section 72 of the Sentencing Act provides:
(1)This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a)an offence committed while the offender was in lawful custody;
…
(2)In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3)The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4)Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.
The parties agreed that it was appropriate for the incitement sentence to be served consecutively on the sentences for which parole was revoked, as the incitement offence was committed while the offender was serving those sentences; in a practical sense, they were “existing sentences”.
However, an issue arises as to whether, regardless of the order in which I impose the sentences on Counts 1–12, the sentences of imprisonment on Counts 1–11 involve the imposition of a sentence “in the same proceeding” as the proceeding in which the offender is sentenced on Count 12. If so, s 72 applies and the incitement sentence must be the last sentence in time.
The Legislation Act 2001 (ACT) defines “proceeding” as follows:
proceedingmeans a legal or other action or proceeding.
Although the incitement offence was not part of the same criminal episode as any of Counts 1–11, and was not charged on the same indictment, it is arguable that, in relation to all counts, the offender is being sentenced “in the same proceeding”. Indeed, when the matter was drawn to the attention of the parties after the conclusion of the sentencing hearing, both said that the sentences imposed on Counts 1–11 were “existing sentences” for Count 12 sentencing purposes. If so, then absent a direction under s 72(3) of the Sentencing Act, the effect of s 72(2) would be that the offender received a very lengthy sentence to which no nonparole period attached.
Without deciding, I will assume that, in relation to Count 12, the sentences imposed on Counts 1–11 are “existing sentences”. For the purpose of achieving a just overall sentence and one that recognises the sentencing purpose of rehabilitation, I will make a direction under s 72(3) enabling the sentence imposed on Count 12 to be served concurrently with the “existing sentences” that are to be imposed on Counts 1–11.
As the offences for which I am to sentence the offender are serious offences that were committed soon after he was released to parole, parole time credit is not to be taken into account unless warranted by special circumstances: s 161(1)(a) Crimes (Sentence Administration) Act 2005 (ACT). In the present case, there was no suggestion of special circumstances.
Except for the offence of incitement, all offences occurred within a period of one month. The offending incident on 5 November 2019 is the most serious incident, but the offences that occurred on 6 October 2019 were also extremely serious. In relation to these two series of offences, an important sentencing purpose is the recognition of harm to the victims.
Personal deterrence and protection of the community are important sentencing considerations, given that the offences included serious offences of violence that were committed just after the offender had been released to parole.
All offences, but particularly those that involved threatening others with firearms, call for a strong message of general deterrence.
There is no evidence that rehabilitation is likely; the offender’s criminal history and several failed attempts to engage in residential rehabilitation provide no cause for optimism. After committing offences in late 2019, while in prison the offender incited others to commit the offence of taking a prohibited drug and syringes into a custodial environment.
However, it is possible that the offender will rehabilitate. On previous occasions, he has attempted rehabilitation from substance abuse with mixed success. Treatment by monthly injections gives some hope for sustained recovery following release into the community. During the present period of incarceration, he has undertaken substance abuse programs. He is to commence regular counselling to address the underlying problems that seem to be related to the commencement of substance abuse. He has some employment history and, while in custody, he has shown interest in programs that may make him employment-ready. It is difficult to know whether, following an extended period in custody, he may have changed sufficiently that it is relatively safe and appropriate to release him into the community.
Sentences
Pursuant to s 72(3) of the Sentencing Act, I order that the sentence imposed on Count 12 is to be served concurrently with the “existing sentences” imposed on Counts 1–11.
I convict the offender and impose the following sentences:
(a)Count 1: Attempt aggravated robbery—Three years and 10 months’ imprisonment (reduced from four years and six months’ imprisonment), from 21 March 2024 to 20 January 2028.
(b)Count 2: Aggravated robbery—Three years and seven months’ imprisonment (reduced from four years and six months’ imprisonment), from 21 May 2026 to 20 December 2029.
(c)Count 3: Damage property—Four months’ imprisonment (reduced from six months’ imprisonment), from 21 December 2022 to 20 April 2023.
(d)Count 4: Burglary—10 months’ imprisonment (reduced from 12 months’ imprisonment), from 21 October 2023 to 20 August 2024.
(e)Count 5: Theft—Three months’ imprisonment (reduced from four months’ imprisonment), from 21 July 2024 to 20 October 2024.
(f)Count 6: Obtain property by deception—Three months’ imprisonment (reduced from four months’ imprisonment), from 21 February 2023 to 20 May 2023.
(g)Count 7: Ride in motor vehicle without consent—Three months’ imprisonment (reduced from four months’ imprisonment), from 21 April 2023 to 20 July 2023.
(h)Count 8: Assault occasioning actual bodily harm—Three years and two months’ imprisonment (reduced from four years’ imprisonment), from 21 June 2032 to 20 August 2035.
(i)Count 9: Attempted aggravated robbery—Three years and seven months’ imprisonment (reduced from 4 years and six months’ imprisonment), from 21 January 2030 to 20 August 2033.
(j)Count 10: Unauthorised possession of firearm—One year and seven months’ imprisonment (reduced from two years’ imprisonment), from 21 March 2029 to 20 October 2030.
(k)Count 11: Drive disqualified (including additional offences)—Five months’ imprisonment (reduced from six months’ imprisonment), from 21 June 2023 to 20 November 2023.
(l)Count 12: Incitement to commit an offence—Three months’ imprisonment (reduced from four months’ imprisonment), from 21 October 2022 to 20 January 2023.
The total additional sentence that I have imposed is 12 years and 10 months’ imprisonment (21 October 2022 to 20 August 2035), bringing the total overall sentence to just under 15 years and 10 months’ imprisonment (effectively, 5 November 2019 to 20 August 2035).
I fix a nonparole period that is designed to mean that the offender is imprisoned for eight years and six months (from 5 November 2019 to 4 May 2028) before he is eligible for parole.
In relation to Counts 1–11, I fix a nonparole period from 21 December 2022 to 4 May 2028.
| I certify that the preceding one hundred and forty-two [142] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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