R v Forster-Jones (No 2)
[2019] ACTSC 286
•15 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Forster-Jones (No 2) |
Citation: | [2019] ACTSC 286 |
Hearing Date: | 15 October 2019 |
DecisionDate: | 15 October 2019 |
Before: | Elkaim J |
Decision: | See [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Multiple offences for violence – Murder – Guilty pleas |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12, 21, 23, 24 Criminal Code 2002 (ACT) ss 45A, 310, 312 |
Cases Cited: | Azzopardi v R [2011] VSCA 372; 35 VR 43 |
Parties: | The Queen (Crown) Peter Forster-Jones (Offender) |
Representation: | Counsel A Williamson (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 113 of 2018 |
ELKAIM J:
On 17 June 2019 the offender pleaded guilty to eight out of nine counts in an Indictment dated 4 June 2019. The offender pleaded not guilty to Count 7 of that Indictment which related to a charge of murder.
On the second day of his trial (19 June 2019) the offender changed his plea in relation to the murder charge, to guilty, satisfying the indictment in full.
The plea to the charge of murder was accepted on the basis that the offender had acted with reckless indifference when he killed the deceased.
The crimes to which the offender pleaded guilty, and their maximum penalties are as follows:
(a)Count 1: Aggravated burglary (CC2018/3161), contrary to s 312 of the Criminal Code 2002 (ACT), by virtue of s 45A of the Criminal Code. The maximum penalty is a fine of $300,000, 20 years imprisonment or both.
(b)Count 2: Assault occasioning actual bodily harm (XO2018/31386), contrary to s 24 of the Crimes Act 1900 (ACT), by virtue of s 45A of the Criminal Code. The maximum penalty is 5 years imprisonment.
(c)Count 3: Wounding (XO2018/31387) contrary to s 21 of the Crimes Act, by virtue of s 45A of the Criminal Code. The maximum penalty is 5 years imprisonment.
(d)Count 4: Assault occasioning actual bodily harm (XO2018/31388) contrary to s 24 of the Crimes Act, by virtue of s 45A of the Criminal Code. The maximum penalty is 5 years imprisonment.
(e)Count 5: Inflicting actual bodily harm (XO2018/31389) contrary to s 23 of the Crimes Act, by virtue of s 45A of the Criminal Code. The maximum penalty is 5 years imprisonment.
(f)Count 6: Assault occasioning actual bodily harm (XO2018/31390) contrary to s 24 Crimes Act, by virtue of s 45A of the Criminal Code. The maximum penalty is 5 years imprisonment.
(g)Count 7: Murder (CC2018/3162) contrary to s 12 of the Crimes Act. The maximum penalty is life imprisonment.
(h)Count 9: Aggravated robbery (XO2018/31391) contrary to s 310 of the Criminal Code, by virtue of s 45A of the Criminal Code. The maximum penalty is a fine of $375,000, 25 years imprisonment or both.
By virtue of the offender’s plea of guilty to the murder charge, Count 8, being the alternative count of manslaughter is now no longer relevant.
The offending occurred on two separate days, 22 September and 3 November 2016 respectively. The facts of the offences naturally fall into two categories aligned with the offences committed on the different days. I think the appropriate way to approach sentencing is to treat the offences on 22 September with a good deal of concurrency because the principles of totality are important in this case. The events of 3 November 2016 will obviously be dominated by the murder, but there are elements to the robbery that mean the extent of concurrency that might have otherwise been applicable are not appropriate.
I begin my comments on the facts by observing that all of the facts are pervaded by the evil of drug use. The deceased, otherwise and obviously a very decent young man, was a purveyor of illicit drugs. The offender and his associates were users and purchasers of drugs.
On 22 September 2016 the offender, and two others, went to the deceased’s residence. Between them they carried a gun, a machete and a metal pole. They forced entry into the deceased’s unit where a co-offender struck the deceased to his head. The offenders demanded drugs. The deceased was struck on the right wrist by the machete. Other occupants were also assaulted and threatened.
Count 1 refers to the burglary of the property. It is properly described as a home invasion which carries with it all of the aggravating factors normally associated with events of this type. As observed by Murrell CJ in R v Minnis [2014] ACTSC 268, at [20]:
Home invasions are abhorred by the community and it is important to send a strong message in relation to the unacceptability of such conduct.
I observe here that I have sentenced one of the other home invaders previously (R v Sikounnabouth [2019] ACTSC 119). Although principles of parity might be thought applicable, I accept the Crown’s submission that the involvement of the offender here was significantly more culpable than that of Mr Sikounnabouth. The sentence to be imposed on this offender will exceed that of Mr Sikounnabouth, even though the latter had a significantly greater criminal record. The same approach will be taken in respect of Count 9.
Count 2 relates to the injury inflicted on Mr Waugh by the striking of his head. Count 3 is the significant wounding to Mr Waugh’s arm. Count 4 refers to the head injury inflicted on a Mr Cajuna. Count 5 relates to Mr Cajuna jumping out of a window and fracturing a part of his spine. There is no evidence of any long-term effect.
Count 6 concerns a head injury to a Mr Baxter.
On 3 November 2016 the offender and the same two co-offenders again attended the deceased’s residence. The offender was armed with a shortened shot gun. He also had a machete inside a bag. He was disguised within a hoodie, gloves and a balaclava. The offenders knocked on the front door and tried to enter. The offender fired a shot through the wooden front door near the door handle. The ammunition penetrated the door and struck the deceased causing him to suffer fatal injuries. These events constitute the murder charge, Count 7.
The front door was then forced open. The offenders gained entry into the unit in their search for drugs. They needed to step over the body of the deceased which they did with little regard for him. This is Count 9. This is the factor that affects concurrency of the sentence for the robbery with that for the murder.
The offender was born in 1995. He is still a young man. Not surprisingly the offender had a dysfunctional childhood with exposure to drug and alcohol abuse and violence. He lost a brother to suicide in 2005 and also another brother some years later. He maintains a positive relationship with his mother.
The offender was expelled from school due to non-attendance. He has however completed a Year 10 certificate through the Canberra Institute of Technology. He has had very little paid employment.
The offender has a long history of problems with drugs and alcohol. He began drinking when he was very young. This led to some health problems. He is a long-time user of drugs and blames them for his conduct. He has completed a drug use program while in custody although he apparently does not place much faith in programs of this type.
The offender has suffered mental health problems since he was a child but he does not seem willing to take part in regular treatment. His physical health is good although there is a suggestion of renal failure and asthma.
I have been provided with a report from a psychologist, Dr Clout. She says that his “mental health has been significantly impacted by several factors in his background history. The factors considered most likely to have had an ongoing impact on his mental health include stints of exposure to emotional and physical abuse during his upbringing, the suicide death of his brother when he was 11, and the overdosing death of another brother when he was 17.” She says he needs extensive treatment to improve his mental health and functioning and to reduce the likelihood of reoffending after release.
There is also a report from a psychiatrist, Dr Singh. She sets out the mental health problems suffered by the offender including attention deficit hyperactive disorder, major depression, post-traumatic stress disorder and a substance induced psychotic disorder. She joins with Dr Clout in suggesting future treatment. She also says that “imprisonment is more onerous for patients with mental illnesses, especially when their symptoms are untreated, enduring and cause significant functional impairment” she thinks that “the imposition of full-time imprisonment will, therefore, be more onerous for Mr Forster-Jones because of his mental health disorders”.
There was considerable debate between the Crown and the defence as to whether or not the mental conditions of the offender should be seen as a cause of his offending. I do not think they should and certainly do not think his mental conditions enliven the principles set out in R v Verdins [2007] VSCA 102; 16 VR 269. However I do think these conditions can be taken into account pursuant to s 33(1) of the Crimes (Sentencing) Act 2005 (ACT).
I would add that this is a case where the following words of Besanko J in R v King [2008] ACTCA 12, at [27], are applicable:
There was no evidence that he acted without knowledge of what he was doing and, to some extent at least, of the gravity of his actions.
According to the pre-sentence report the offender has a very high likelihood of reoffending. While the decision about the likelihood of reoffending is to some degree a technical exercise, I find it very difficult to accept that any prediction can be made about reoffending where an offender is likely to be in prison, as is the case here, for many years to come.
Perhaps surprisingly the offender has very little of a criminal record. There is only one minor matter recorded prior to the commission of these offences.
The offender wrote a letter to the court (Exhibit 5) in which he expresses considerable remorse and apologises for his actions. The Crown submitted that I should pay little regard to the letter because it has not been tested and fits within the description of such evidence as was referred to in Imbornone v R [2017] NSWCCA 144, at [57], where the New South Wales Court of Criminal Appeal said:
This court has frequently said that untested out of court statements made to third parties should be treated with caution.
I do treat the letter with caution. The words just quoted however apply equally to the excerpts from the transcript of a conversation with an undercover officer that were relied upon by the Crown to show the offender’s lack of remorse and attitude to the offences. I place little weight on the transcript. I think it reflects an attitude of bravado and a desire to impress which does not necessarily reflect the offender’s true attitudes. I also note, as pointed out by the defence, that there are parts of the transcript which convey a different picture, for example at page 53 where the offender states:
Like, well, that’s the thing, I’m conflicted about it, just because, like, no one - no one really deserves to- like, for that to happen to ‘em in their own house.
In relation to the offences occurring in the deceased’s own home, the Crown submitted that this was an aggravating feature, generally, and in particular in relation to the home invasion offences. I agree. Further, although the unit was being used for the distribution of drugs, that does not excuse the actions of the invaders. The criminal underworld may think it acts according to its own rules, but it does not. It is equally answerable to the laws of the land as is every citizen. As stated by Burns J in R v Le Clair; R v Yeboah [2016] ACTSC 126 at [62]:
People who engage in the drug trade cannot expect to live in their own subculture where they mete out punishment for failure to perform deals made in this illicit trade according to their respective strength. The drug trade is pernicious in itself but also because it encourages a separate culture of punishment, and often violent punishment, for the perceived failure to perform agreements made in the course of the trade.
The offender has been in custody since his arrest on 23 February 2018. Thus far he has been in prison for 599 days.
I was urged by Mr Davies to take into account the age of the offender. He referred me to the sentencing principles concerning youth which are set out in Azzopardi v R [2011] VSCA 372; 35 VR 43, at [34]. These principles say that a court should take into account that young offenders are immature, that there is a potential for them to be redeemed and rehabilitated and that they will suffer the effects of incarceration in an adult prison. I think all of these factors apply to this offender and I will take them into account. I have already said that I was surprised by this offender’s lack of criminal record. Persons who carry out crimes of this type are more often than not seasoned criminals. Unfortunately this offender was swept up by the effects of the drugs he was taking and his obvious desire to impress the unsavoury persons with whom he associated.
I also take into account, as referred to in Douglas v R (1995) 56 FCR 465 at 470, that:
The age of an offender when he or she became addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct.
I regard all of the offences as objectively serious. Murder of itself attains this categorisation although I do accept that individual circumstances can increase the severity of the offence.
I have identified a number of features of a subjective nature which I can take into account and which to some degree ameliorate the extent of the sentences that should be imposed. However I recognise that my approach must not diminish the severity, callousness, cowardice and unnecessary violence that is inherent in each of the crimes that has been committed and which deserve punishment accordingly.
I have listened to the victim impact statements from the deceased’s parents. They are a plaintive appeal for an explanation of the senseless murder of their son. They correctly do not comprehend why it was necessary for their son to be shot. They do not comprehend why the offender, having shot their son, callously stepped over his body and continued to pillage his home.
Finally I was urged to take into account, under s 35A of the Crimes (Sentencing) Act, the assistance to the administration of justice provided by the offender in his plea of guilty to the murder charge. It was also pointed out that the offender had indicated that he did not challenge the facts making up the shooting of the deceased, but that his defence concentrated on his intent. I see little distinction between the discount suggested and that which arises from a plea of guilty. I intend to approach this matter by allowing a discount of 10% for the pleas of guilty, except for the murder charge where the discount will be 5%. All of these discounts, with some rounding off, have been factored into the sentences which I will now impose.
In setting the non-parole period I have taken into account the offender’s youth and the hope that the many years he will now stay in prison will put him on a path of rehabilitation, which perhaps he has already commenced as described by the certificates making up Exhibit 6.
Orders
I make the following orders:
(a)For Count 1, Aggravated burglary (CC2018/3161), the offender is sentenced to 7 years imprisonment, starting on 23 February 2018 and ending on 22 February 2025.
(b)For Count 2, Assault occasioning actual bodily harm (XO2018/31386), the offender is sentenced to 2 years imprisonment, starting on 22 February 2024 and ending on 21 February 2026.
(c)For Count 3, Wounding (XO2018/31387), the offender is sentenced to 2 years imprisonment, starting on 21 February 2025 and ending on 20 February 2027.
(d)For Count 4, Assault occasioning actual bodily harm (XO2018/31388), the offender is sentenced to 1 year imprisonment, starting on 20 August 2026 and ending on 19 August 2027.
(e)For Count 5, Inflicting actual bodily harm (XO2018/31389), the offender is sentenced to 1 year imprisonment, starting on 19 February 2027 and ending on 18 February 2028.
(f)For Count 6, Assault occasioning actual bodily harm (XO2018/31390), the offender is sentenced to 1 year imprisonment, starting on 18 August 2027 and ending on 17 August 2028.
(g)For Count 7, Murder (CC2018/3162), the offender is sentenced to 24 years imprisonment, starting on 16 August 2028 and ending on 15 August 2052.
(h)For Count 9, Aggravated robbery (XO2018/31391), the offender is sentenced to 8 years imprisonment, starting on 15 August 2050 and ending on 14 August 2058.
(i)The total sentence is 40 years, 5 months and 23 days imprisonment.
(j)I set a non-parole period of 25 years commencing on 23 February 2018 and ending on 22 February 2043.
| I certify that the preceding thirty six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 15 October 2019 |
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