R v Goolagong (No 2)
[2021] ACTSC 131
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Goolagong (No 2) |
Citation: | [2021] ACTSC 131 |
Hearing Date(s): | 3 February 2021, 27 April 2021 |
DecisionDate: | 25 June 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [156] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act endangering health – aggravated furious or dangerous driving – attempted aggravated robbery – drive motor vehicle without consent – unlawful possession of stolen property – drive while unlicensed – common assault – attempted aggravated burglary – joint commission aggravated burglary – joint commission damage property – minor theft – breach of Good Behaviour Order – suspended sentence – re-sentence – Verdins principles – Bugmy principles – significant criminal history – totality – institutionalisation – guilty plea |
Legislation Cited: | Criminal Code 2002 (ACT) ss 44, 45A, 310, 312, 318, 324, 326, 403 Crimes Act 1900 (ACT) ss 26, 28 Road Transport (General) Act 1999 (ACT) s 63 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Dyer v R [2011] NSWCCA 185 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Jackson v R [2010] NSWCCA 162 Jinnette v R [2012] NSWCCA 217 Kelly v The Queen [2021] ACTCA 15 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 O’Brien v The Queen [2015] ACTCA 47 O'Brien v The Queen [2015] ACTSC 47 R v Beattie [2019] ACTSC 12 R v Bennett; R v Simonds [2020] ACTSC 221 R v BI (No 4) [2017] ACTSC 71 R v Bright [2017] ACTSC 328 R v Carmody [2016] ACTSC 382 R v Forrest (No 2) [2017] ACTSC 83 R v Goolagong [2020] ACTSC 67 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Holt [2020] ACTSC 311 R v Horne [2017] ACTSC 36 R v Irwin [2019] NSWCCA 133 R v Johnstone [2016] ACTSC 112 R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 R v Kumar [2019] ACTSC 263 R v Lockwood [2018] ACTSC 288 R v Martin [2007] VSCA 291; 20 VR 14 R v McCurley [2020] ACTSC 140 R v Meyboom [2012] ACTCA 48 R v Miller [2018] ACTSC 244 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Morales [2019] ACTSC 88 R v Muell [2019] ACTSC 77 R v Simonds [2013] ACTCA 13 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 The Queen v PM (No 2) [2015] ACTSC 358 Veen v R (No 2) (1988) 164 CLR 465 Williams v R [2018] ACTCA 4 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Jermaine Troy Goolagong (Offender) |
Representation: | Counsel R Christensen (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Number(s): | SCC 7 of 2019; SCC 326 of 2019; SCC 129 of 2020; SCC 130 of 2020; SCC 144 of 2020; SCC 241 of 2020 |
LOUKAS-KARLSSON J
Introduction
On 25 November 2020, Jermaine Troy Goolagong (the offender) pleaded guilty to the following offences before Murrell CJ (the Series One offences) which occurred on 10 March 2020:
(a) One count of act endangering health, contrary to s 28(2)(e) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is five years imprisonment.
(b) One count of aggravated furious, reckless, or dangerous driving, contrary to ss 7(1) and 7A of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Safety and Management Act). The maximum penalty for this offence is 5 years imprisonment, a fine, or both, and automatic disqualification from holding or obtaining a drivers licence for 12 months, or a longer period as the Court considers appropriate.[1]
[1] Road Transport (General) Act 1999 (ACT) s 63(3).
(c) One count of attempted aggravated robbery, contrary to s 310 of the Criminal Code by virtue of s 44 of the Criminal Code. the maximum penalty for this offence is 25 years imprisonment, a fine, or both.
(d) One count of drive motor vehicle without consent contrary to s 318(2) of the Criminal Code. The maximum penalty for this offence is 5 years imprisonment, a fine or both.
(e) One count of unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code. The maximum penalty for this offence is 6 months imprisonment, a fine, or both.
(f) One count of driving while unlicensed, contrary to s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act). The maximum penalty for this offence is a fine of 20 penalty units.
(g) One count of common assault, contrary to s 26 of the Crimes Act. The maximum penalty for this offence is 2 years imprisonment.
On 18 November 2020, the offender pleaded guilty to the following offences before Murrell CJ (the Series Two offences) which occurred between 16 and 19 March 2020:
(a) One count of drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code), the maximum penalty for this offence is five years imprisonment, a fine, or both;
(b) One count of aggravated furious, reckless, or dangerous driving, contrary to ss 7(1) and 7A of the Safety and Management Act, the maximum penalty for this offence is five years imprisonment, a fine, or both;
(c) One count of attempted aggravated burglary, contrary to s 312 of the Criminal Code, by virtue of s 44 of the Criminal Code, the maximum penalty for this offence is 20 years imprisonment.
(d) Two counts of joint commission aggravated burglary, contrary to s 312 of the Criminal Code, by virtue of s 45A of the Criminal Code, the maximum penalty for this offence is 20 years’ imprisonment, a fine, or both;
(e) One count of joint commission damage property, contrary to s 403 of the Criminal Code by virtue of s 45A of the Criminal Code, the maximum penalty for this offence is 10 years’ imprisonment;
(f) Two counts of minor theft, contrary to s 326 of the Criminal Code, the maximum penalty for this offence is 6 months’ imprisonment; and
(g) One count of driving while unlicensed, contrary to s 31(1) of the Driver Licensing Act, the maximum penalty for this offence is a fine of 20 penalty units.
On 3 February 2021 the offender came before me for sentence and the matter was adjourned for a report to be prepared. The offender underwent psychometric testing, and a psychological assessment report was produced by Dr Danielle Clout, a clinical psychologist.
Agreed Facts
Series One Offending – 10 March 2020
At approximately 6:30pm on 10 March 2020 Ms Amanda Hall observed a person, later identified as Ms Lisa Seville, lying motionless on the front lawn of a premises in Rivett. Ms Hall observed an unidentified female and the offender present on the lawn. The offender was observed dragging Ms Seville on the ground by her arms. Ms Hall began filming, using her phone, while her husband called 000 and reported the incident to police.
At 6:45pm, a number of police units responded to the incident, with the address being identified as Ms Seville’s residence. Upon arrival at the Rivett premises, police observed a silver BMW, stopped partially on the road, and on the kerb in front of the residence.
The offender was dragging Ms Seville, who was lying motionless in the front yard of the residence approximately four metres from where the silver BMW was parked. The offender looked directly at the police officers, before letting go of Ms Seville and running to the silver BMW. Detective Sergeant Denley, and Senior Constable Nabukete, each manoeuvred their marked police vehicles in an attempt to prevent the BMW from leaving. Unfortunately, they were unsuccessful. The offender swerved the BMW to the left, and then drove the vehicle forward with both the front and rear tyres moving over the top of Ms Seville, who was still lying motionless on the ground. The BMW was observed to impact with Ms Seville’s leg and thigh area (Transfer Charge CC2020/10468 – Common assault). Ms Seville was later transferred by ambulance to Canberra hospital for assessment, where she was observed to have sustained minor injuries, including superficial abrasions, as a result of the offender driving over her with the vehicle.
The BMW then began to swerve right, towards the road. Senior Constable Nabukete directed the offender to stop the vehicle, however the offender accelerated heavily away (Count 2: SCCAN2020/122 – Aggravated furious, reckless or dangerous driving).
Detective Sergeant Denley pursued the offender in a marked police vehicle. The police vehicle remained at a distance of 30-50m behind the offender’s vehicle. The silver BMW reached a speed of 100km/h in a 60km/h zone (continuation of Count 2). The offender veered, and braked heavily on a number of occasions, requiring the officer to take evasive action. The offender caused his vehicle to collide with the passenger side of the police vehicle on a number of occasions, causing significant damage to the vehicle (Count 1 – CC2020/3598 – act endangering health). The pursuit was continued by a different fully marked police vehicle, which disengaged due to public safety concerns after the offender was observed driving at speeds in excess of 100 kilometres per hour in a residential area (continuation of Count 2).
At approximately 7:15pm on the same date, Ms Deborah Hellyar was driving her vehicle in the vicinity of Narrabundah shops. Ms Hellyar had parked on the side of the road to search for something in her bag. Ms Hellyar observed a silver BMW which appeared dinted, and “bashed up”. The BMW came around to the front of her vehicle and parked her in. The offender and an unidentified female exited the BMW and attempted to enter Ms Hellyar’s vehicle. They were both in possession of knives, putting the knife blades into the vehicle’s windows in an attempt to open the doors. The offender bashed at the windscreen of Ms Hellyar’s vehicle and kicked at the driver’s door (Count 5 – attempted aggravated robbery).
Ms Hellyar attempted to drive her vehicle, whilst the offender and his companion continued hitting the vehicle in an attempt to enter. The offender jumped in front of the vehicle, blocking it from driving forward. Ms Hellyar reversed her vehicle, then accelerated forward and back on to the road. Ms Hellyar observed the offender and his companion return to the BMW and begin to follow her vehicle as she drove away.
The BMW was identified via its vehicle identification number to belong to a Mr White. At no time did Mr White give the offender permission to drive his vehicle (Count 9: SCCAN2020/123 – Drive motor vehicle without consent). The numberplates attached to the BMW had been reported to the police as having been stolen on 10 March 2020 (Transfer Charge CC2020/4800 – Unlawful possession of stolen property).
Series Two Offending – 16 – 19 March 2020
On 16 March 2020, Mr Schulze, a resident of a property in Conder heard a vehicle drive from the shared driveway of his building complex some time after 10:45pm. The next morning Mr Schulze discovered that his red Toyota Camry had been stolen from his garage. On 18 March 2020, police observed the offender driving the red Camry, passing their marked vehicle (Count 1: SCCAN2020/134 – Drive motor vehicle without consent). Police commenced a pursuit of the vehicle. The offender attempted to evade police, driving in excess of the speed limit in the suburbs of Florey and Belconnen, failing to stop when signalled to do, and driving through a red light onto Joynton Smith Drive in Belconnen. The offender drove at speeds in excess of 110 kilometres per hour on Coulter Drive, a road signposted at 80 kilometres per hour (Count 2: SCCAN2020/135 – Aggravated furious, reckless, or dangerous driving).
Liquorland – Phillip
Between 3:45am and 4:00am on 19 March 2020, the offender and BS (the Young Person) attended the carpark adjacent to Liquorland at Westfield Woden in Phillip driving the red Camry. The offender and the Young Person had their faces covered and appeared to be wearing gloves.
The offender and the Young Person exited the red Camry and moved towards the Liquorland, before using an object to strike the glass in the front door of the store (Count 3: SCCAN2020/137 – Attempted aggravated burglary). An unknown person approached the Liquorland, and the offender and Young person returned to the vehicle and drove away. This incident was captured on CCTV at multiple locations.
Coles Supermarket – Curtin
At approximately 4:08am on 19 March 2020, the offender and the Young Person used the red Camry to ram the front glass sliding doors of Coles Supermarket at Curtin. This allowed the offender and the Young Person to gain entry to the Coles Supermarket, causing significant damage to the glass sliding doors (Count 4: SCCAN2020/139 – Joint commission aggravated burglary). Minor damage was also caused to the rear of the vehicle (Count 6: SCCAN2020/143 – Joint commission damaging property).
The offender and the Young Person searched the kiosk counter inside the supermarket, breaking open a cigarette drawer and causing damage to the change master, a machine which dispenses cash, by attempting to force it open. The offender and the Young Person stole three cartons of cigarettes from the kiosk, valued at $600 (Transfer Charge: CC2020/4812 – Minor Theft). This incident was captured on CCTV, and caused an estimated $10,000 in damage to the store.
Supabarn Supermarket – Kingston
At about 4:40am on the same date, the offender and the Young Person attended Supabarn Supermarket in Kingston, again driving the red Camry. They used an object, and their feet to smash the front entrance doors of the supermarket, before entering the store (Count 5: SCCAN2020/141 – Joint commission aggravated burglary). The offenders stole a number of bottles of alcohol, value at $600 (Transfer charge: CC2020/4815 – Minor Theft). The incident was captured on the CCTV, and caused an estimated $1,000 of damage to the store.
Arrest of the Offender
At approximately 1:45pm on the same date, police attended the residence in Rivett. The offender was arrested at this location and a search of the residence was conducted. A pair of shoes matching those worn by the offender during the Liquorland, Coles, and Supabarn incidents were located. A jumper belonging to Mr Schulze was also recovered.
On 21 March 2020, the red Toyota was located in Monash, with stolen numberplates affixed to the vehicle. The vehicle was seized, and a forensic examination conducted. Fingerprints matching the offender and the Young Person were subsequently identified on the vehicle. A pair of gloves were also located within the vehicle. The offender’s DNA was found on the interior of these gloves.
At the time of committing the above offences, the offender did not hold a current ACT drivers licence. The offender was disqualified from holding or obtaining a drivers licence from 16 November 2017 to 15 November 2018, and did not apply for a probationary licence after the end of the disqualification period (Transfer charge: CC2020/4801 – Unlicensed driver; Transfer charge: CC2020/4802 – Unlicensed driver).
Victim Impact Statements
In evidence before me were the Victim Impact Statements of Ms Hellyar and Detective Sergeant Denley. Ms Hellyar’s statement was read onto the Court record by her partner Mr Miller.
Ms Hellyar’s Victim Impact Statement included the following:
The Narrabundah Shops, where this attack took place, was my local shops. I visited there nearly every day, for groceries and the restaurants. Vocal House, a centre for Victims of Crime, was across the street from where I was parked at the time of my attack. I used to feel safe there. There was something reassuring about parking near Vocal House, knowing it was supposed to be a haven for victims of crime, manned by professionals who dealt with people who had been traumatised by crimes, likely violent crimes. Fleetingly I would sometimes think that to need a service that required professional attention for people to cope with injuries afflicted by crime, that the trauma inflicted must have been significant. Now here, right next to that safe place, I was being attacked and traumatised. That illusion of safety was violated. That nearby bubble of sanctuary had been breached. This irony has given me feelings of extreme mistrust, as if nowhere is now safe. My familiar stomping grounds, combined with beacons of signage alluding to healing and addressing social disease, is now tainted with a never ending internal scream of fight and flight, where my palms sweat, my pulse increases and becomes noisy, my stomach goes nauseous, and I just don’t want to be there.
…
The ensuing emotions that surfaced have become distracting. My work has suffered, resulting in the premature ending of my work-contract at the end of July 2020. This has resulted in an increased challenge in finding a new contract, exasperated by reduced opportunities and increased isolation due to the current COVID-19 pandemic. Stuck at home with these emotions of injustice, fear, sadness and anger until October 2020 was excruciating and long. My current contract has provided some relief, however still working from home in Narrabundah proves difficult. Knowing one of my attackers is in custody and has pleaded guilty has provided some relief, yet the memory of the attack and subsequent unfinished justice still permeates my life every waking moment.
Detective Sergeant Denley’s Victim Impact Statement included the following:
My husband and adult son attended the hospital after receiving a phone call that no family member ever wants to receive, causing both of them a degree of anxiety. Policing is a dangerous career, but even Police have a right to go home in the same condition they come to work in. The physical and mental issues surrounding both the incident, along with the aggravation of a previous back injury is something I am still trying to work through. My son regularly rings me to check on how I am, as he struggles with the fact a person deliberately did this to me. This was a sad reality check for him, as to the unfortunate actions some people will take against police but more importantly his mother.
I have had to make considerable changes to my personal and professional lifestyles as a consequence of the actions this incident has caused. The on-going ‘what if’ questions regularly consume my thoughts. Moving through the medical process, medication and rehabilitation to resume my lifestyle pain free has been long and disruptive to my home and work life.
Whilst I returned to my regular duties, medical advice and my own physical and mental well being have since led to a change in my duties whilst I consolidate both.
Prosecution Submissions – Victim Impact
Common Assault – Ms Seville
It was correctly submitted by the prosecution that while Ms Seville did not provide a statement, it could be inferred that physical and psychological trauma would have been experienced as a consequence of the offending conduct. I accept this submission.
Act Endangering Health – Detective Sergeant Denley
Counsel for the prosecution correctly submitted that the Victim Impact Statement outlines the significant impact that the offending has had on Detective Sergeant Denley both personally and professionally. It was submitted that these physical and mental health impacts continue to be experienced by herself and her family. I accept this submission.
Attempted Aggravated Robbery – Ms Hellyar
It was correctly submitted by the prosecution that Ms Hellyar’s statement reveals a significant level of suffering as a result of the offender’s conduct, particularly psychological and emotional trauma. I accept this submission.
Drive Motor Vehicle Without Consent / Damage Vehicle
Counsel for the prosecution noted that Mr Schulze, the owner of the red Camry, has provided information relating to the insurance claim and associated financial loss experienced due to the offending conduct.
Conclusion on Victim Impact
The extent of the impact upon the victims was made clear by the Victim Impact Statements. The reading of the victim impact statements is important as the offender heard what the victims had to say. Courts know the extremely serious effects of these offences. It is additionally valuable to hear the words of the victims.
The Court acknowledges the significant impact that the offences have had and continue to have on the victims. The Victim Impact Statements were eloquent. The Victim Impact Statements were read, understood, and appreciated by the Court.
Objective Seriousness
Common Assault
The prosecution submitted that the charge of common assault was committed in a family violence context. It was submitted by the prosecution that the offender and Ms Seville are partners and therefore considered to be family members pursuant to s 9 of the Family Violence Act 2016 (ACT). It was submitted that Ms Seville sustained minor injuries, including superficial abrasions as a result. The prosecution accepted that, consistent with the charge of common assault, the injuries sustained “can be described as no more than trifling and transient” (written submissions at [11]). I accept the prosecution submissions.
The prosecution submitted that the offender knew that Ms Seville was lying prone in the front garden of the residence, as he had previously been attempting to move her from the lawn. It was submitted that the offender demonstrated wilful disregard for Ms Seville’s wellbeing by driving the stolen vehicle over her body.
Counsel for the offender submitted that there had been nothing untoward with respect to the offender’s attempts to move his partner from the front lawn to the house as she was passed out. It was accepted that the offence had been a reckless act by the offender in driving the car. It was submitted that the offending conduct had not been intentional, and that there was no evidence to support ongoing psychological trauma suffered by the victim as a consequence of the assault (T22.15-30 3.2.21). Counsel for the offender nevertheless accepted that this was a serious offence, falling within the mid-range of offending for an assault (T23.40-47 3.2.21).
On the evidence, I accept the submissions of the prosecution and the defence. The submissions are broadly aligned.
Aggravated Furious, Reckless, or Dangerous driving
Section 7A(1)(a)–(b) of the Safety and Management Act sets out the circumstances in which an offence of furious, reckless or dangerous driving is aggravated. An offence is an aggravated offence if:
(a) any of the following circumstances existed at the time of the current offence:
(i) the person failed to comply, as soon as practicable, with a request or signal given by a police officer to stop the motor vehicle;
(ii) the person was driving with the prescribed concentration of alcohol in their blood or breath;
(iii) the person was driving with a prescribed drug in their oral fluid or blood;
(iv) the person was driving while under the influence of intoxicating liquor or of a drug to such an extent as to be incapable of having proper control of the vehicle;
(v) the person was driving at a speed that exceeded the speed limit by more than 30%;
(vi) the person was driving in a way that put at risk the safety of a vulnerable road user;
(vii) the person was driving with a person younger than 17 years old in the vehicle; or
(b) the person is a repeat offender.
The prosecution submissions noted a number of ways in which the two offences were aggravated. The offender was a repeat offender at the time of committing each offence: s 7A(1)(b).
10 March 2020 Offence
The prosecution submitted that the first offence involved the offender failing to comply with a police request or signal to stop the vehicle, and the offender driving at speeds exceeding the speed limit by more than 30 per cent: ss 7A(1)(a)(i), 7A(1)(a)(v). It was submitted that the offender drove at speeds in excess of 100km/h in the residential suburbs of Rivett and Duffy which were signposted 60km/h zones, whilst being pursued by police. It was submitted that the police were required to end their pursuit of the offender as they deemed it to be unsafe to drive at a speed equal to that of the offender.
16 March Offence
The prosecution submitted that the second offence again involved a failure to comply with a police request or signal to stop the vehicle, and driving at speeds exceeding the limit by more than 30 per cent. It was submitted that the offender was pursued by police throughout the suburbs of Belconnen and Florey, and that the offender had failed to stop at a red light. It was submitted that the offender was driving in excess of 110km/h on a road signposted at 80km/h.
The prosecution submitted that the similarities between each of the offences render them of comparative objective seriousness, given that they both involved relatively high speeds in suburban areas, and involved extended period of police pursuit. I accept the submissions of the prosecution.
Counsel for the offender submitted that neither the length of time over which these driving offences occurred, nor the presence of any other traffic could be determined on the evidence. Counsel submitted, again, that these offences fell into the mid-range of objective seriousness. Counsel for the prosecution accepted that neither the length of time had been included in the agreed facts, but submitted that both offences had been agreed to have occurred across residential suburbs (T25.9-47; 26.1-5 3.2.21).
Counsel submitted that there was no evidence to suggest that the offender had stolen the red Camry, only that he had been driving the stolen vehicle, and prior to the police pursuit that there had been nothing in the manner of his driving which had drawn the attention of the police to him at that time (T31.32-47 3.2.21). Counsel for the offender accepted that the offender had driven through a red light during the course of the pursuit, and that it had been fortunate that this had not resulted in any more serious offending (T32.10-20 3.2.21).
Again, I accept the submissions of the prosecution and the defence as they are broadly aligned and accord with my view of the evidence.
Act Endangering Health
The offence of act endangering health covers a broad scope of conduct, encompassing an array of arguably distinct acts. Counsel for the prosecution referred to the matter of R v Kumar [2019] ACTSC 263 (R v Kumar) at [10], in which Elkaim J made an assessment of the objective seriousness of two acts of endangering health involving interference with a conveyance in circumstances submitted to be similar to the present matter, later stating at [25]:
The police officer who placed his own life at risk in the second dangerous driving incident was doing so in the service of the public and in an effort to stop the offender committing crimes against other innocent people. The officer suffered some injuries, fortunately not extensive. Nevertheless the potential to have seriously hurt, or even killed him, existed.
I endorse these comments.
The offender’s conduct in this matter was objectively more serious than the conduct demonstrated in Kumar and included the following salient features of the present matters:
(a) The offender rammed a fully marked police vehicle on at least three occasions, rendering the vehicle unable to be driven, rendering the officer driving the vehicle unconscious.
(b) The officer involved sustained injuries requiring medical treatment and subsequently take weeks of leave to recover.
(c) The offender was driving a stolen motor vehicle while unlicenced.
Counsel for the offender emphasised that there was no evidence that the offender had been intentionally aiming his vehicle at Detective Sergeant Denley, submitting that the offender had aimed his vehicle at the passenger side of the police vehicle. Counsel for the offender accepted that the psychological impact would have been very serious, submitting that the offence fell into the mid-range of objective seriousness (T24-25 3.2.21). Counsel for the prosecution submitted that the statement of facts acknowledged that the offender had aimed his vehicle at the police vehicle (T26.9-25 3.2.21). I accept this submission.
Offence of Attempted Aggravated Robbery
Counsel for the prosecution referred to the matter of R v BI (No 4) [2017] ACTSC 71 (R v BI) at [40] in relation to the applicable principles in respect of offences involving an ‘attempt’, and the NSW Court of Criminal Appeal authority of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (R v Henry) in relation to the offence of robbery. Having regard to those principles, counsel for the prosecution noted the following salient features of the attempted aggravated robbery offence:
(a) The offence involved two offenders.
(b) The co-offenders were both armed with knives.
(c) The co-offenders attempted to gain entry to Ms Hellyar’s car by attempting to open the doors, and putting the knife blades into the windows and doors.
(d) The offender bashed and kicked the vehicle in an attempt to get her to unlock the vehicle, and jumped in front of the vehicle in an attempt to prevent her from driving away. Had the vehicle not been locked there is a significant likelihood that the offender’s attempt to enter would have been successful.
(e) The offender followed Ms Hellyar’s vehicle in a stolen vehicle for a period of time.
(f) This was a serious attempt, and not one which was doomed to fail.
Counsel for the offender accepted that this offence was objectively serious, but drew a distinction between this offending and the comparable case of R v Muell [2019] ACTSC 77 (R v Muell) referred to by the prosecution, and summarised below. Counsel for the offender submitted that the offending conduct in R v Muell had been described by the Court in that matter as being in the mid-range of offending, and was objectively more serious than the present offending (T28.26-46 3.2.21). Counsel for the prosecution accepted that R v Muell would be regarded as a more serious example of an offence of this type (T29.5-17 3.2.21).
Drive Motor Vehicle Without Consent
Counsel for the prosecution referred to the matter of R v Booth [2017] ACTSC 191 at [11] in which Penfold J held that the offence of drive motor vehicle without consent is aggravated in circumstances where the vehicle is used in the furtherance of other criminal conduct and becomes involved in a police pursuit.
It was submitted that these aggravating circumstances were present in respect of both the offending concerning the silver BMW, which involved a police pursuit and attempted aggravated robber, and the red Camry, in which the vehicle was also involved in a pursuit by the police, and was subsequently used as a battering ram to gain entry to the Coles Supermarket. Counsel for the prosecution submitted that the offence involving the silver BMW was objectively more serious than the red Camry offending, in light of the harm inflicted, but emphasised that both offences contained numerous aggravating features.
Counsel for the offender submitted that the offender had not been charged with stealing the silver BMW, and that the circumstances of aggravation such as the manner in which he was driving were encapsulated in a number of the other offences before the Court (T29.25-47 3.2.21). Counsel for the prosecution did not cavil with this submission, and submitted that it would be open for the Court to impose a complete period of concurrency, or a very small cumulation for this charge (T30.19-40 3.2.21). I propose to deal with this matter on the basis of concurrency.
Counsel for the prosecution accepted that the transferred charges of possession of stolen property, being the stolen registration plate attached to the silver BMW, and the charge of driving while unlicensed could be dealt with concurrently, and by way of fine with no time to pay respectively (T31.17 3.2.21).
I propose to deal with these matters in this manner.
Aggravated Burglary
Counsel for the prosecution submitted that the two offences of joint commission aggravated burglary and the offence of attempted aggravated burglary exhibited the following similar features relevant to the assessment of the objective seriousness of the offences:
(a) The offender was in company with a Young Person.
(b) The offences occurred at commercial premises, namely Liquorland Woden, Coles Curtin, and Supabarn Kingston.
(c) The offences occurred in a short period of time on 19 March 2020 between the hours of 3:45am and 4:40am, whilst the premises were unoccupied.
(d) The offender and the Young Person had their faces covered, and the offender appeared to be wearing gloves during the Liquorland and Supabarn offences in an attempt to avoid detection.
(e) Significant damage was caused to gain entry to two of the premises, a stolen motor vehicle being used to ram the doors of the Coles supermarket, and objects and feet used to break the doors of the Supabarn.
(f) The offences involved a degree of planning, although were relatively unsophisticated and were inevitably captured on CCTV.
(g) The items stolen during the successful aggravated burglaries were of moderate commercial value.
Counsel for the prosecution submitted that approximately $10,000 of damage was caused to the Coles as a result of the ram raid, with the offender and Young Person appropriating approximately $600 worth of cigarettes. The Supabarn was submitted to have suffered approximately $1,000 of damage, and $600 worth of alcohol stolen.
Counsel for the prosecution submitted that the aggravated burglary at Coles was of a higher level of objective seriousness in comparison with the Supabarn aggravated burglary due to the use of the motor vehicle and the significant damage caused. The attempted burglary at the Liquorland was submitted to be of lower objective seriousness than the Supabarn offence. I accept this submission.
Counsel for the offender submitted that the attempted burglary at Liquorland being commercial premises, had been unsophisticated, unplanned, and had been caught on CCTV. It was submitted that there was no evidence in relation to this offence as to the level of damage which had been caused to the door (T32.28-47 3.2.21). Counsel for the offender submitted that this offence was within the low range of this type of offending. Counsel for the prosecution did not cavil with that assessment (T33.1-10 3.2.21). I accept this submission.
Counsel for the offender submitted that the aggravated burglary at Coles was not highly sophisticated offending. It was submitted that regard could be had to this being commercial premises, in the view of CCTV, that no staff or members of the public were present at the time, and that the circumstance of aggravation was due to being in company, rather than being in possession of an offensive weapon. Counsel for the offender submitted that this offence fell within the mid-range of objective seriousness (T33.10-30 3.2.21). It was submitted that the minor theft from the supermarket, being the $600 in cigarettes, was at the low end of objective seriousness (T33.40-45 3.2.21). I accept this submission.
Counsel for the offender submitted that the aggravated burglary at the Supabarn had similar features to the Coles offending, being commercial premises and captured on CCTV, the aggravation being that the offender was in company, and there being $1,000 of damage to the store, and $600 of alcohol taken, being the minor theft offence. Counsel for the offender submitted that this offending was in the low range of objective seriousness for this type of offending. Counsel for the prosecution did not cavil with this assessment (T34.1-25 3.2.21). I accept this submission.
Damaging Property (Red Camry)
It was submitted by the prosecution that the circumstances and the amount of damage caused were relevant to the assessment of the objective seriousness of the damage property offence: see R v Carmody [2016] ACTSC 382 at [62]. Counsel for the prosecution submitted that it was relevant that the damage was caused in the ‘ram raid’, which was the aggravating feature of the aggravated burglary offence. Counsel for the offender submitted that the property damage caused by the ramming of the red Camry into the sliding door of the Coles supermarket, described as minor in the agreed facts, was in the low end of objective seriousness (T33.34-40 3.2.21). I accept this submission.
Counsel for the offender generally accepted the submissions of the prosecution, noting that they were “generally even-handed” (T21.1-15 3.2.21). I accept the submissions of the prosecution and the defence, which are broadly aligned.
Conclusion on Objective Seriousness
It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]). The identifying features of all offences are identified as I have discussed above.
Subjective Circumstances
In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender. Also before me are a number of certificates of completion relating to various programs completed by the offender since he was remanded in custody, being the ‘First Steps Alcohol and Drug Program’, ‘Introduction to Recovery’, ‘Goal Setting’, ‘Keeping Myself Well’, and ‘Self-Esteem’. A suitability report and a Forensic Mental Health Assessment which were prepared in relation to the possibility of the offender’s participation in the Drug and Alcohol Sentencing list in relation to unrelated matters were also tendered.
The offender is an Aboriginal man, 27 years of age, and one of sixteen siblings. The offender was adopted by his maternal aunt at two years of age. His adoptive mother also has two sons and a daughter. The offender reported a continuing supportive relationship with his adoptive family, and limited contact with his biological family. The offender reported a childhood with no exposure to domestic violence or substance abuse. However, he advised he began to spend more time with his older cousins and other negative peers in his early teenage years, commencing illicit drug use and criminal activities.
The offender has been in a de facto relationship since he was 17 years of age. The offender described his relationship in positive terms and reported he has three children (currently aged four, five and seven). The children reside with his partner and he enjoys a good relationship with them.
The offender reported completing Year 8 of High School and stated he left school due to difficulty reading and writing. He was consuming alcohol by the age of 13 and reported problematic use, including binge pattern of drinking by the age of 17. The offender reported problematic use of cannabis, methamphetamines, and cocaine from 18 years of age. The offender intends to engage with drug and alcohol rehabilitation upon his release. He stated that his partner has given him an ultimatum to choose his children or drugs.
The offender acknowledged he was abusing alcohol and drugs when most of his offences occurred. The PSR author notes that he did not offer it as an excuse for his behaviour but rather stated that his state of intoxication at the time impaired his decision-making ability.
The offender acknowledged the correlation between his illicit substance use and his offending behaviour. He recognised his poor decisions and expressed regret. The offender disclosed that he was associating with negative influences and acknowledged the need to abstain from illicit substance use to prevent further re-offending. The offender stated that he understood the seriousness of his offending behaviour and recognised its impact on his victims and the community.
The PSR concluded with the following opinion:
Mr Goolagong is a 27-year-old Aboriginal man with a complex family history who continues to receive support from his adoptive mother. His current offending behaviour appears to be a reflection of his poor self-control capacity, poor decision-making skills, alcohol and drug dependency issues.
This situation is unlikely to change unless Mr Goolagong is prepared to genuinely commit to treatment and address his alcohol and other drug issues. It will also be crucial for Mr Goolagong to take the necessary steps towards resolving any psychological or behaviour problems that may continue to undermine his capacity to lead a lifestyle free from crime in the community.
Mr Goolagong may benefit from an intensive program to address his alcohol and other drug use. He may also benefit from attending assessments to ascertain his degree of intellectual disability and engaging in a specialised treatment to maximise his responsivity given his disability.
Psychological Assessment Report by Dr Danielle Clout
When this matter first came before the Court on 3 February 2021 it became apparent in light of comments made in the PSR, that further investigation in relation to the offender’s cognitive ability and mental health would be important in relation to rehabilitation. The matter was adjourned, and the offender subsequently referred for psychological assessment. A report was produced by Dr Danielle Clout, a clinical psychologist, which is now in evidence before me (the Clout Report). Dr Clout’s assessment was based on interviews with both the offender and his adoptive mother.
The offender’s adoptive mother advised that when the offender was a child he was taken to a paediatrician, who diagnosed Attention-Deficit/Hyperactivity Disorder (ADHD), however the offender refused his medication after one week. The offender’s adoptive mother advised that the offender’s biological mother was also a heavy drinker, and he was diagnosed with Foetal Alcohol Syndrome when he was approximately five years of age. She said that diagnosis was confirmed a few times throughout his childhood and adolescence, although she cannot recall the details. She advised that the offender struggles with short-term memory and comprehension, and expressed concern that the offender has become “very institutionalised”, and that it has been difficult to connect him in with NDIS support, as he is never out of custody for long enough to access the service.
Using the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV) Dr Clout determined that the offender’s overall cognitive ability “falls in the profoundly impaired range, below 99.9% of his same aged peers”. Dr Clout administered psychometric tests to make an assessment of the offender’s intellectual ability and overall cognitive ability, including assessments of the offender’s ability to process information, his verbal reasoning, and working memory, all of which were found to be profoundly impaired: Clout Report at [18]. Dr Clout’s report states further (including at [28]; [19]; [24]; [33]):
[The offender’s] ability to exercise appropriate judgment is impaired by only being able to consider information superficially and his very limited ability to hold information in mind to allow him to apply reasoning skills. His ability to make rational and consequential decisions is more limited than the general population, by way of his cognitive deficits and the combination of cognitive deficits and poor impulse control likely means that his default decision making occurs without using reasoning. There are clear impairments in social judgment evident in his repeat offending with substance abuse further compounding his existing deficits.
…
As processing speed is the speed at which the attention system can operate and how much it can process at one time, low processing speed can be debilitating as it impacts attention, working memory, flexible thinking, organisation and planning, behaviour, and social skills. Low processing speed also impairs executive functioning ability, which is an overarching term for a range of cognitive processes that enable people to regulate, control, and manage their behaviour.
…
Throughout his childhood, adolescence, and adulthood, there is evidence of significant cognitive impairments including difficulties with comprehension, memory, judgement, consequential thinking, processing speed, school/vocational learning, and the ability to apply learnt knowledge.
…
[The offender’s] intellectual disability, ADHD symptomology and substance abuse represent long-standing difficulties and predate the current offences.
The Clout Report made a number of recommendations in relation to the offender, including the following (at [29]):
(a) It is imperative that the offender receive support to access NDIS services, including assistance with case management, support with independent living, and occupational therapy to enhance his daily living skills and adaptive functioning.
(b) Whether through the NDIS or through a separate referral, the offender needs to be supported to connect with a specialist Disability Employment Service.
(c) Specialist drug and alcohol treatment with the offender should ideally be done on an outpatient and individual basis taking into account the offender’s cognitive and functional impairments which would cause difficulties in residential rehabilitation environments.
(d) Given the extent of the offender’s cognitive limitations, he would benefit from psychiatric evaluation to determine the appropriateness of pharmacological therapy to address some of his executive functioning and behavioural disturbances, particularly in the context of his ADHD symptomology.
(e) In the community, the offender would benefit from a referral while in custody to the ACT Mental Health Service for people with an intellectual disability. Dr Clout opined that It is imperative for the offender that these wrap around supports are in place for him, particularly if he is not being released into supported accommodation.
Prosecution Submissions
Counsel for the prosecution correctly submitted that the seriousness of both series of offending would need to be balanced against the offender’s subjective circumstances and the impact that those circumstances upon the objective seriousness of the offences and the offender’s moral culpability (T15.36-41 27.4.21).
On 1 June 2021 counsel for the prosecution provided further information in relation to Dr Clout’s recommendations and confirmed that the AMC Disability Liaison Officer can also work with the offender, the Sentence Management Team and other relevant stakeholders to navigate and engage supports including through the NDIS, ACT Mental Health or other culturally appropriate services. The offender’s AMC Case Manager advised that the offender has accepted he needs support to stop the cycle of recidivism and the Case Manager is confident the offender will consent and engage in the process of getting supports.
Counsel for the prosecution correctly submitted that the principal factor of concern in relation to ongoing supervision of the offender following his release from custody would be his continued engagement with support services in the community. Counsel for the prosecution submitted that including a condition that there be no illicit drug use and alcohol use may be unhelpful, in the sense that it would be setting the offender up to fail. Instead, it was submitted that a condition that the offender avoid these substances in conjunction with engagement with drug and alcohol support services would be significant (T19.43-47 27.4.21).
Defence Submissions
Counsel for the offender noted that there was some disparity in the reports which had been tendered with respect to the offender’s age when he ceased attending school. The Drug and Alcohol Sentencing List reports record the offender leaving school at the end of Year 6, whereas the PSR indicates that the offender left school in Year 8. Counsel submitted that these were both very young ages to cease formal education, regardless of which of these is correct (T37.10-15 3.2.21).
Counsel for the offender correctly submitted that while ordinarily the use of and addiction to illicit drugs is not a mitigating circumstance on sentence, it would be appropriate to take into account given that the exposure to these substances began at a very young age (T38.13-30 3.2.21). It was submitted that such factors were one of a number which could be taken into account in accordance with the principles elucidated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). Counsel for the prosecution correctly accepted that Bugmy principles were relevant to the present circumstances (T42.14-15 3.2.21).
In relation to the question of mental impairment and moral culpability, at the sentence hearing prior to the receipt of the Clout report, counsel for the offender did not submit that the facts were enough to support the principles articulated in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) (T45.13-30 3.2.21) however, counsel referred the Court to the decision of R v Lindsay [2020] ACTCA 25 at [35] which adopted the approach to causal connection and moral culpability in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, and Ngata v The Queen [2020] ACTCA 18, where the Court of Appeal stated at [21]:
In order to find that an offender’s moral culpability is lessened, there must be a real or causal connection between the mental impairment and the offending. It may be made out by evidence which establishes that the offender’s mental impairment affected his ability to appreciate the wrongfulness of his conduct, obscured his intent to commit the offence, impaired his ability to make calm and rational choices or to think clearly at the relevant time.
(citations omitted)
Subsequently, on the basis of the Clout Report, counsel for the offender submitted that the evidence now established that the principles in Verdins are clearly engaged in respect of the offender, particularly in reducing the moral culpability of the offending conduct, and to moderate the requirement for deterrence. Counsel for the prosecution did not cavil with this submission in light of the opinion expressed in the Clout Report at [33], extracted above at [71] (T10.24-45 27.4.21). I accept these submissions.
Counsel for the offender correctly submitted that a very structured and intensive support network will be required to assist the offender with rehabilitation, including assistance with foundational skills which would not be available in the AMC. It was submitted that the Clout report had indicated that the offender did not present as fundamentally antisocial, by way of attitude. It was submitted that the offender’s diagnoses, cognitive capacity, and impulse control led to his antisocial behaviour whilst in the community (T6.34-47 27.4.21). Again, on the evidence I accept these submissions. I note that the offender has now learnt the alphabet at the AMC (T3.8-9 27.4.21).
Counsel for the prosecution submitted that the Court should consider the sentencing principles of specific and general deterrence, denunciation, accountability and recognition of the harm caused to the victims, Ms Hellyar, Ms Seville and Detective Sergeant Denley, as being of particular relevance. It was submitted that emphasis should be placed upon the principle of specific deterrence, in light of the significant criminal history of the offender for similar offending and persistent non-compliance with previous court orders.
I take these submissions into account.
Remorse and Rehabilitation
In evidence before me was a handwritten letter of remorse by the offender which was read onto the record by counsel for the offender. The letter included the following passage:
I’m willing to give rehab a go so I can get over my addictions for my kids and my self this time I have been in jail I had the most scariest thing happened to me. The worker came up and told me that my son was in ICU and he was unconscious from an operation that he had it was very scary and me not being there has really woken me up this time I really want to make it up to my children for all the times I’ve let them down buy comeing back to jail I want to make a life better for my self and kids. Jail is not a life I want to be liveing I no youse keep seeing me comeing back here but I want to show everybody that Im a new man now and I want to change so if you could gave me this opportunity of letting me out all sending me to rehab you will never see me in he again Im all up for what you are going to do today its becoz of the things Ive done in the pass I’ll say it again I so sorry for want I done and if I could say sorry to them one’s who I scary on the out side I would.
The offender requested, and was granted the opportunity to apologise directly to the victim Ms Hellyar at the sentencing hearing on 3 February 2021. The offender stated the following (T17.43-47):
I just want to take the time to say, I know what I've done was wrong, and I feel so sorry for the stuff like, impact on you. And, yeah, I'm so sorry that you can't feel comfortable in Narrabundah. And, yeah, just, just sorry for what I've done and yeah, I'm paying for my mistake. So sorry for what I've done.
Counsel for the prosecution accepted remorse was demonstrated.
Counsel for the prosecution submitted that the material would suggest that the offender’s prospects of rehabilitation remain guarded, given the offender’s lengthy criminal history, his repeat offending, and the breach of the offender’s good behaviour order (T15.43-46 27.4.21; 16.1-2 27.4.21). This submission must be accepted.
It must be stated that prospects for rehabilitation in the offender’s case remain at best guarded. Much support will be required for rehabilitation, both in custody and on parole.
Conditional Liberty
The offender was under a good behaviour order in conjunction with a suspended sentence at the time of the offences.
In R v Tran [1999] NSWCCA 109 at [15] Wood CJ at CL discussed breach of community based orders, stating:
Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.
The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.
References
In evidence before me was a letter from the offender’s adoptive mother and maternal aunt, dated 26 January 2021, in support of the offender, which included the following:
During Jermaine’s current incarceration his youngest child Ty had a operation to remove his tonsils and adenoids. Ty had a bad reaction to the anaesthetic administered and was rushed to the Canberra ICU. Ty remained in ICU for approximately two days. Jermaine was informed of this and he later told me he was never so worried in his life and that this was a big reality check. He stated that he needed to change his life completely to be with his children and stop his illegal behaviour. I believe that given the opportunity and with the support from Lisa [his partner] and my family he can achieve this goal.
I take this reference into account on sentence.
Criminal History
The offender has an extensive criminal history, predominantly with respect to driving and property offense, and failures to comply with community-based orders.
Counsel for the offender submitted that while this history was not an aggravating feature, it would indicate that there cannot be any leniency which might have otherwise been afforded (T11.1-3 27.4.21).
Pleas of Guilty
The offender was committed to the Supreme Court for trial on 18 June 2020. Two Criminal Case Conferences were held on 2 November and 6 November 2020, following which negotiations between the parties led to a resolution being reached.
On 25 November 2020, the offender was arraigned and entered pleas of guilty to the offences currently before the Court. Consequently, a pre-trial application listed for 7 December 2020 and a trial listed to commence in the week of 14 December 2020 (for SCC 129 of 2020, SCC 130 of 2020 and SCC 241 of 2020) were vacated.
Counsel for the prosecution submitted that the pleas of guilty entered in relation to SCC 129 of 2020, SCC 130 of 2020 and SCC 241 of 2020 ought not to be regarded as early pleas. It was submitted that the offender pleaded guilty to these matters approximately two and a half weeks before the trial was scheduled to commence, and significant resources had been directed towards the conduct of the trial by this time.
Counsel for the prosecution accepted that there was a utilitarian value to the pleas of guilty, as a five-day trial had been avoided, as was the need for a second trial to be run for the SCC 144 of 2020 matters.
Counsel for the offender submitted that as the pleas of guilty followed negotiations with the prosecution, and considering that the trial dates had been set at the same time as the case conferencing listings, the appropriate discount for the pleas would be in the realm of 20 per cent (T12.5-15 27.4.21).
Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].
In Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 it was noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
I will allow a 20 per cent discount for the pleas of guilty: see Blundell v The Queen [2019] ACTCA 34.
Time in Custody
The offender has remained in custody since his arrest on 19 March 2020 solely referable to the present charges.
Counsel for the offender submitted that it would be appropriate to commence the sentence from 19 March 2020, with a non-parole period in the lower range closer to 50 per cent, in light of the offender’s need for support in rehabilitation (T14.10-20 27.4.21). Counsel for the prosecution did not cavil with this submission (T18.6 27.4.21).
I agree it is important to ensure a significant period on parole to assist in rehabilitation.
Concurrency and Totality
Counsel for the offender referred to Sirl v The Queen; The Queen v Sirl [2020] ACTCA 37 at [247] where the Court of Appeal noted that the “the overall sentence must not be crushing nor stultify the respondent’s opportunity for rehabilitation”. Reference was also made to the principles set out in O'Brien v The Queen [2015] ACTSC 47 (O’Brien v The Queen) at [26]. Counsel for the offender submitted that should be a level of concurrency for the offences which were in the same course of conduct, or series of offending (T13.32-47; 14.1-5 27.4.21). I accept this submission.
Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent
I was referred to the following cases from this jurisdiction, which provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
Offence of Aggravated Furious, Reckless or Dangerous Driving
In R v Collins [2019] ACTSC 302, I sentenced the offender for a series of offences including property damage, traffic offences, obtain property by deception, and the offence of aggravated, furious, reckless or dangerous driving. The offender was driving a stolen motor vehicle. The offender disobeyed a verbal direction from the police to stop, driving away at high speed on a footpath, causing a pedestrian to jump out of the way. The offender was 28 years old, had a criminal history, was in breach of a suspended sentence good behaviour order. The offender was sentenced to 1 year and 3 months’ imprisonment for the reckless driving charge, of a total 2 years imprisonment.
In R v Williams [2017] ACTSC 298 the offender drove through a residential area in a dangerous manner while attempting to evade police, and failed to stop when directed by police to do so. A number of pedestrians were in the vicinity at the time. The offender was a 34 year old Aboriginal man with an extensive criminal history and long term illicit drug use. The offender was in breach of a suspended sentence good behaviour order and was and was sentenced for a series of offences including burglary, property damage, hindering police and various traffic offences. The offender was sentenced by Mossop J to 5 months’ imprisonment for the reckless driving offence, in a total sentence of over 9 years. On appeal, a mathematical error was detected and subsequently corrected, reducing the sentence in respect of a charge of culpable driving causing grievous bodily harm by two months. The appeal was otherwise dismissed: Williams v R [2018] ACTCA 4.
Offence of Act Endangering Health
R v Kumar involved two incidents of acts endangering health, both of which involved the use of a motor vehicle. In the first incident, the offender rammed the victim’s vehicle, before conducting a U-turn and ramming the vehicle again before driving away. In the second incident, police attempted to conduct a traffic stop. The offender then rammed the police vehicle, causing injuries to a police officer. The offender was 29 years of age, had a history of illicit drug use, and no criminal history. The offender was sentenced by Elkaim J to two years’ imprisonment for each of the endangering health offences. The offender was also sentenced for the offences of for drive motor vehicle without consent, drive unlicensed, and driving with prescribed drug in blood. The total term of imprisonment was three years, with a non-parole period of 18 months.
Counsel for the prosecution submitted that of the comparable cases provided, the facts of the act endangering health in Kumar were the closest in relation to the present matter, although the subjective circumstances and the criminal history differed (T24.1-7 27.4.21)
Offence of Attempted Aggravated Robbery
In R v Holt [2020] ACTSC 311 (R v Holt) two co-offenders approached the victim in a car park at night as she was placing groceries in her car. The co-offenders were armed with a knife and a copper pipe, and made demands for money. The victim ran at the co-offenders, yelling at them to ‘get away’, which they did. Burns J found that the offending involved a degree of planning and premeditation and was at the ‘lower end of the mid-range’ of objective seriousness. The offender was 19 years of age, had a ‘not insignificant’ criminal history, and had entered into a good behaviour order three days prior to the offence. The offender received a sentence of 2 years’ imprisonment reduced from 2 years and 8 months’ on account of the plea of guilty.
In discussing the case, counsel for the offender submitted that the making of “slashing movements” towards someone who is outside of a vehicle is objectively more serious than the use of a knife in an attempt to enter a vehicle (T22.1-2 27.4.21). Counsel for the prosecution distinguished R v Holt on the basis that in the present matter, the attempted robbery came to an end because the victim fled (T24.15-20 27.4.21).
In R vMuell the co-offenders approached a taxi driver in the early hours of the morning and pointed a handgun and a knife through the driver’s side window and demanded the driver hand over his money and his wallet. The offender opened the door and threatened the driver, at one point holding the gun to the driver’s head and counting down from five while the co-offender, also armed with a knife, kept a lookout. The driver said that he did not have any money. The co-offender’s fled, and no money or property was stolen from the taxi driver during the attempted robbery. The whole of the interaction with the taxi driver took approximately 30 seconds. Mossop J found that the unsophisticated offence was in the ‘mid-range’ of objective seriousness, and targeted at a vulnerable class of persons. The prosecution was not able to establish beyond reasonable doubt that the gun was capable of discharging or that it was loaded at the time of the offence. The offender was 22 years of age, had a ‘poor’ criminal history, and was sentenced for a series of offences of aggravated burglary, take motor vehicle without consent, and theft. The offender received a sentence of 3 years and 10 months’ for the attempted aggravated robbery, in an overall sentence of 6 years and 4 months’ imprisonment. The co-offender Morales was sentenced to 31 months’ imprisonment for the attempted aggravated robbery offence, to be served by way of intensive corrections order: R v Morales [2019] ACTSC 88.
Counsel for the offender submitted that R v Muell could be distinguished, as the offenders did not gain entry to the vehicle in the present matter (T22.8-10 27.4.21).
In R v Beattie [2019] ACTSC 12 two co-offenders attempted to rob a McDonalds drive-through in a stolen motor vehicle. They threatened the pickup point cashier with a gun and demanded cash. The cashier closed the window and the offender’s left without obtaining any money. The offence was captured on CCTV, the co-offenders wore balaclavas, however their attempt was otherwise described as ‘unquestionably amateur’ and ‘riddled with ineptitude’. The offender was 27 years of age, had a moderate criminal history, and the offences placed him in breach of a suspended sentence good behaviour order. The offender was sentenced to three years’ imprisonment by Elkaim J for the attempted aggravated robbery offence. The total sentence imposed was three years, four months, and nineteen days.
Offence of Aggravated Burglary
In R v Bennett; R v Simonds [2020] ACTSC 221 the co-offenders entered pleas of guilty to two counts of aggravated burglary, and a number of theft and property damage charges. A stolen vehicle was used to ram a wall of an electrical goods store. $14,000 of electrical items were stolen, and $33,000 of damage was caused to the store. Murrell CJ described the offence as of significant objective seriousness, and aggravated by the extent of the damage caused. Nevertheless, the offence was described as unsophisticated. Each offender had a significant criminal history for similar offending. The offender Bennett was in breach of a suspended sentence good behaviour order. The offender Bennett received a sentence of 42 months for the aggravated burglary. The total sentence for all offences was 5 years’ imprisonment with a non-parole period of 2 years and 6 months’ imprisonment. The offender Simonds received a sentence of 23 months and 9 days for the aggravated burglary offence as part of his placement on a Drug and Alcohol Treatment Order.
In R v McCurley [2020] ACTSC 140 the offender committed a series of attempted and aggravated burglaries in company at a café, post office, newsagency, car wash, warehouse, and a car yard. The offender entered pleas of guilty to 19 offences in total. A stolen vehicle was used as a battering ram to gain entry in three of the burglaries. The offending occurred at commercial premises while unoccupied in the early hours of the morning. The offender was 31 years of age, with an ‘extremely extensive’ criminal history. The offender also had a history of mental illness and illicit drug use. For the five counts of aggravated burglary, the offender was sentenced to periods of imprisonment of one 2 year and 9 month, one 2 year and 6 month, and three 2 year and 4 month sentences of imprisonment, after a discount of 20 per cent for the pleas of guilty. The total aggregate sentence imposed by Burns J was 6 years and 3 months’ imprisonment, with a non-parole period of 3 years and 4 months.
In R v Bright [2017] ACTSC 328 the offender and two others used a stolen motor vehicle to ram a roller door and gain entry to a Supermarket. $12,876.96 of alcohol and cigarettes were stolen, and $28,206.35 of damage was caused to the store and its stock. The offence was planned, and occurred at night while the premises were unoccupied. Mossop J assessed the offences as being in the mid to upper range of objective seriousness. The offender had a criminal history for less serious offending, and was in breach of a suspended sentence good behaviour order. The offender received a sentence of 23 months for the aggravated burglary offence. There was an overall sentence of 4 years and 13 days with a non-parole period of 2 years and 1 month.
In R v Johnstone [2016] ACTSC 112 the offender and a co-offender used a stolen motor vehicle to ram doors and enter Gungahlin Shopping Centre. They then used the vehicle to break into a jewellery store within the Shopping Centre, stealing $29,083.07 of jewellery and causing $9000 of damage to the store, and $50,000 of damage to the mall. The offenders wore gloves and covered their faces throughout the burglary. Penfold J assessed the offences as being in the mid-range of seriousness, and noted that the offender had a history of illicit substance use. The offender was sentenced to a period of 30 months imprisonment for the aggravated burglary in a total sentence of 2 years imprisonment, reduced from 30 months for the plea of guilty. The total sentence was 2 years and 3 months, suspended with 16 months remaining upon entering a good behaviour order.
Statutory and Other Relevant Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim and rehabilitation are all important sentencing considerations.
On the evidence it must be said that the prospects for rehabilitation remain guarded, and require a great deal of support in the community on parole.
I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
As with every sentencing exercise, careful attention must be paid to the maximum penalties, which provide a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
In R v Lockwood [2018] ACTSC 288 at [51], I noted the following with regard to the offence of burglary:
There is a “significant range of available sentences” for burglary, though they are “generally within the range of imprisonment for from one year to two years and six months”: Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]-[32]; Millard v The Queen [2016] ACTCA 14 at [44]-[45].
In R v Simonds [2013] ACTCA 13, the ACT Court of Appeal stated at [54] that “[b]urglaries at residential premises are frequently treated as being more serious than burglaries at commercial premises”, an approach which has since been adopted in R v Horne [2017] ACTSC 36 at [22] (per Refshauge J) and R v Forrest (No 2) [2017] ACTSC 83.
Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].
Nevertheless, the principles in Verdins and Bugmy are engaged in this case as submitted by counsel for the offender and conceded by counsel for the prosecution at [77] - [79] above in these remarks on sentence. The relevant principles follow.
Verdins identifies six ways in which impaired mental functioning may be relevant in sentencing at [32]:
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both (Payne at 444, [43]).
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
By reference to those considerations and to the evidence before me, I am satisfied:
(a)That the offender’s moral culpability for the offence is reduced by reason of his mental impairment;
(b)General deterrence should be moderated in the case of the offender;
(c)Specific deterrence must be considered in light of the period on parole and support during parole. Institutionalisation must also be taken into account.
In Bugmy, the High Court found that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: at [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: at [43]. See also R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 at [138]-[140].
Social deprivation may impact on those purposes in different ways. The Court in Bugmy explained at [44]:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(d)the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(e)the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(f)the application of the Bugmy principles is not discretionary: Irwin at [3].
It is clear on the evidence before me that the offender has experienced significant childhood disadvantage, and it is appropriate that I take this into account on sentence, in the manner set out in Bugmy.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
In Mill at 63, the Court cited with approval a passage from DA Thomas, Principles of Sentencing (2nd ed, 1979) at 56–57 concerning the totality principle. In the text, the author stated, “it is always necessary for the court to take a last look at the total just to see whether it looks wrong”: see Kelly v The Queen [2021] ACTCA 15 at [72].
In relation to concurrency, I refer to the following passage from O’Brien v The Queen at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]:
[W]here offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
The principles relating to accumulation, concurrence and totality are well established. The Court in R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [13] made clear “the discretion is generally circumscribed by a proper application of the principle of totality”. The Court emphasised in relation to concurrency and accumulation that:
It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616.
The question of institutionalisation is also relevant. Institutionalisation has been discussed in a number of decisions in NSW in the context of the necessity for a longer parole period and a finding of special circumstances: see Jackson v R [2010] NSWCCA 162 at [24]; Jinnette v R [2012] NSWCCA 217 (Jinnette v R) at [98]; [103]; Dyer v R [2011] NSWCCA 185 at [50]. The Courts have made it clear that if institutionalisation has already occurred, the focus may be on ensuring that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism: Jinnette v R at [103]. I take the factor of institutionalisation into account in determining the parole period and the need for support in that regard.
Relevantly, as I stated in R v Miller [2018] ACTSC 244 at [57], in Veen v R (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
I take these principles into account on sentence and note that the process of instinctive synthesis will result in substantial concurrency. This substantial concurrency results in this case from the confluence of the application of the principles encapsulated in Bugmy, Verdins, institutionalisation, and totality.
Breach of Good Behaviour Order
Upon conviction, the offender will be in breach of a good behaviour order imposed by Walker AJ in R v Goolagong [2020] ACTSC 67 (SCC 7 of 2019; SCC 326 of 2019) in relation to the following offences:
(g)CC2019/12639 – Dishonestly drive a motor vehicle without consent, contrary to s 318(2) of the Criminal Code.
(h)CC2019/12641 – Possess property suspected of being stolen or unlawfully obtained, contrary to s 324(1) of the Criminal Code.
(i)CC2019/12642 – Dishonestly drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code.
The good behaviour order was imposed in conjunction with a suspended sentence in relation to SCC 369 of 2019 commenced on 28 January 2020, for a period of 12 months. The offender was released from custody at that time with the anticipation that he would subsequently be entering residential rehabilitation, which did not occur (T12.1-15 3.2.21). The first series of offences for which the offender is currently before the Court were committed 43 days after the good behaviour order was imposed.
The Court is required to cancel this good behaviour order and either impose the suspended sentence, or resentence the offender for the offence in accordance with s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) which states:
110 Cancellation of good behaviour order with suspended sentence order
(1) This section applies if —
(a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender’s conviction for an offence; and
(b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations.
(2) The court must cancel the good behaviour order and either —
(a) impose the suspended sentence imposed for the offence; or
(b) re-sentence the offender for the offence.
(3) If the offender has given security under the good behaviour order, the court may also —
(a) order payment of the security to be enforced; and
(b) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended).
(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.
(5) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence
Counsel for the prosecution submitted that, in light of the similarities between the offending in the current and breach matters, severity of offending comprising the breach, and the very short period of time between imposition of the order and the breach occurring, that the Court should resentence the offender.
As I stated in R v BC [2020] ACTSC 308 at [35], there is no presumption in favour of imposing the sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]. I further note that failure of the courts to act where there has been a clear breach of the bond by which the offender avoided being sent to prison is likely to bring suspended sentences into disrespect: Director of Public Prosecutions (NSW) v Cooke [2007] NSWCCA 2; 168 A Crim R 379 at [23]. Nevertheless, there has been a recognition that justice may require a different response: The Queen v PM (No 2) [2015] ACTSC 358 at [20].
Acting Justice Walker did not have the benefit of the Clout Report in sentencing the offender in the original sentencing proceedings. Taking into account the Clout Report and the question of totality, resentence should in my view involve a significant reduction in sentence.
Sentence
It must be recognised by the Court that the offences committed against the victims have had serious and significant impacts. Both the short and long-term consequences of being the victim of these offences must be acknowledged. It was conceded by the counsel for the prosecution that this was indeed a difficult sentencing exercise (T15.30-32 27.4.21).
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, and the subjective matters.
In respect of the Series One offences:
(a) The appropriate sentence for the offence of act endangering health (CC/2020/3598) is 2 years reduced to 1 year and 7 months on account of the discount for the plea of guilty.
(b) The appropriate sentence for the offence of aggravated furious, reckless, or dangerous driving (SCCAN/2020/122) is 2 years reduced to 1 year and 7 months on account of the discount for the plea of guilty.
(c) The appropriate sentence for the offence of attempted aggravated robbery (CC/2020/6218) is 2 years reduced to 1 year and 7 months on account of the discount for the plea of guilty.
(d) The appropriate sentence for the offence of drive motor vehicle without consent (SCCAN/2020/123) is 6 months reduced to 4 months and 22 days on account of the discount for the plea of guilty.
(e) The appropriate sentence for the offence of unlawful possession of stolen property (CC/2020/4800) is 3 months reduced to 2 months and 12 days on account of the discount for the plea of guilty.
(f) The appropriate sentence for the offence of common assault (CC/2020/10468) is 10 months reduced to 8 months on account of the discount for the plea of guilty.
(g) The appropriate sentence for the offence of driving while unlicenced (CC/2020/4801) is a fine of $200 with no time to pay.
In respect of the Series Two offences:
(a) The appropriate sentence for the offence of drive motor vehicle without consent (SCCAN2020/134) is 6 months reduced to 4 months and 22 days on account of the discount for the plea of guilty.
(b) The appropriate sentence for the offence of aggravated furious, reckless, or dangerous driving (SCCAN2020/135) is 2 years reduced to 1 year and 7 months on account of the discount for the plea of guilty.
(c) The appropriate sentence for the offence of attempted aggravated burglary (SCCAN2020/137) (Phillip) is 6 months reduced to 5 months on account of the discount for the plea of guilty.
(d) The appropriate sentence for the offence of joint commission aggravated burglary (Curtin) (SCCAN2020/139) is 10 months reduced to 8 months on account of the discount for the plea of guilty.
(e) The appropriate sentence for the offence of joint commission aggravated burglary (Kingston) (SCCAN2020/141) is 8 months reduced to 6 months and 12 days on account of the discount for the plea of guilty.
(f) The appropriate sentence for the offence of joint commission damaging property (SCCAN2020/143) is 6 months reduced to 4 months and 24 days on account of the discount for the plea of guilty.
(g) The appropriate sentence for the offence of minor theft (CC2020/4812) is 3 months reduced to 2 months and 12 days on account of the discount for the plea of guilty.
(h) The appropriate sentence for the offence of minor theft (SCCAN2020/4815) is 3 months reduced to 2 months and 12 days on account of the discount for the plea of guilty.
(i) The appropriate sentence for the offence of driving while unlicenced (CC/2020/4802) is a fine of $200 with no time to pay.
In respect of the breach of good behaviour order:
(a)The appropriate sentence for the offence of dishonestly drive a motor vehicle without consent, (CC2019/12639) is 8 months reduced to 6 months on account of the discount for the plea of guilty.
(b)The appropriate sentence for the offence of possess property suspected of being stolen or unlawfully obtained (CC2019/12641) is 6 weeks reduced to 1 month on account of the discount for the plea of guilty.
(c)The appropriate sentence for the offence of dishonestly drive motor vehicle without consent, (CC2019/12642) is 8 months reduced to 6 months on account of the discount for the plea of guilty.
Overall there will be a sentence of 5 years with a non-parole period of 2 years 7 months taking into account the appropriate period of concurrency and accumulation and the principle of totality.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
Series One
(b)In respect of the offence of act endangering health (CC2020/3598) the offender is sentenced to a term of 1 year and 7 months of imprisonment, commencing on 19 March 2020 and ending on 18 October 2021.
(c)In respect of the offence of Aggravated furious, reckless, or dangerous driving (SCCAN2020/122) the offender is sentenced to a term of 1 years and 7 months of imprisonment, commencing on 19 June 2021 and ending on 18 January 2023.
(d)In respect of the offence of attempted aggravated robbery (CC2020/6218) the offender is sentenced to a term of 1 year and 7 months of imprisonment, commencing on 19 March 2022 and ending on 18 October 2023.
(e)In respect of the offence of drive motor vehicle without consent (SCCAN2020/123) the offender is sentenced to a term of 4 months and 22 days of imprisonment, commencing on 19 March 2020 and ending on 9 August 2020.
(f)In respect of the offence of unlawful possession of stolen property (CC2020/4800) the offender is sentenced to a term of 2 months and 12 days of imprisonment, commencing on 19 March 2020 and ending on 30 May 2020.
(g)In respect of the offence of common assault (CC2020/10468) the offender is sentenced to a term of 8 months of imprisonment, commencing on 19 March 2020 and ending on 18 November 2020.
(h)In respect of the offence of driving while unlicenced (CC2020/4801) the offender is fined $200.
Series Two
(i)In respect of the offence of drive motor vehicle without consent (SCCAN2020/134) the offender is sentenced to a term of 4 months and 22 days of imprisonment, commencing on 19 March 2020 and ending on 9 August 2020.
(j)In respect of the offence of aggravated furious, reckless, or dangerous driving (SCCAN2020/135) the offender is sentenced to a term of 1 year and 7 months of imprisonment, commencing on 19 August 2023 and ending on 18 March 2025.
(k)In respect of the offence of attempted aggravated burglary (SCCAN2020/137) the offender is sentenced to a term of 5 months of imprisonment, commencing 19 August 2024 and ending on 18 January 2025.
(l)In respect of the offence of joint commission aggravated burglary (SCCAN2020/139) the offender is sentenced to a term of 8 months of imprisonment, commencing on 19 July 2024 and ending on 18 March 2025.
(m)In respect of the offence of joint commission aggravated burglary (SCCAN2020/141) the offender is sentenced to a term of 6 months and 12 days of imprisonment, commencing on 19 May 2024 and ending on 30 November 2024.
(n)In respect of the offence of joint commission damaging property (SCCAN2020/143) the offender is sentenced to a term of 4 months and 24 days of imprisonment, commencing on 19 March 2020 and ending on 11 August 2020.
(o)In respect of the offence of minor theft (CC2020/4812) the offender is sentenced to a term of 2 months and 12 days of imprisonment, commencing on 19 March 2020 and ending on 30 May 2020.
(p)In respect of the offence of minor theft (CC2020/4815) the offender is sentenced to a term of 2 months and 12 days of imprisonment, commencing on 19 March 2020 and ending on 30 May 2020.
(q)In respect of the offence of driving while unlicenced (CC2020/4802) the offender is fined $200.
Breach of Good Behaviour Order
(r)In respect of the offence of dishonestly drive a motor vehicle without consent, (CC2019/12639) the offender is sentenced to a term of 6 months of imprisonment, commencing on 19 March 2020 and ending on 18 September 2020.
(s)In respect of the offence of dishonestly drive motor vehicle without consent, (CC2019/12642) the offender is sentenced to a term of 6 months of imprisonment, commencing on 19 March 2020 and ending on 18 September 2020.
(t)In respect of the offence of possess property suspected of being stolen or unlawfully obtained (CC2019/12641) the offender is sentenced to a term of 1 month imprisonment commencing on 19 March 2020 and ending on 18 April 2020.
(u)I set a non-parole period of 2 years and 7 months, commencing 19 March 2020 and ending on 18 October 2022.
Recommendation
I make a recommendation that a copy of the Psychological Assessment Report under the hand of Dr Danielle Clout dated 29 March 2021 be provided to the AMC Disability Liaison Officer. I further recommend that the report be reviewed and that the AMC Disability Liaison Officer offer as much assistance as possible to prepare the offender for life outside of the prison environment. This is so that the transition from the AMC to parole is a transition that allows for both; the offender to be prepared for parole and the community to be protected.
| I certify that the preceding one hundred and fifty-seven [157] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Rhiannon McGlinn Date: 29 June 2021 |
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