R v Gray
[2020] ACTSC 40
•7 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Gray |
Citation: | [2020] ACTSC 40 |
Hearing Date(s): | 7 February 2020 |
DecisionDate: | 7 February 2020 |
Before: | Walker AJ |
Decision: | The offender is sentenced to a Drug and Alcohol Treatment Order for 18 months. The treatment and supervision part of the order is 12 months. See [28]-[30] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – going equipped for theft – failing to report a change of details as a registrable offender – trespass – drug and alcohol treatment order |
Legislation Cited: | Crimes (Child Sex Offenders) Act 2005 (ACT) s 54(1) Crimes (Sentencing) Act2005 (ACT) ss 10, 12A, 80O, 80S, 80T, 80W, 80ZA Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11(1) |
Cases Cited: | Bugmy v The Queen [2013] HCA 27; 249 CLR 571 R v Parker [2020] ACTSC 38 R v Verdins (2007) 16 VR 269; 169 A Crim R 581 |
Parties: | The Queen (Crown) Luke Gray (Offender) |
Representation: | Counsel H Roberts (Crown) D Turner (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW (Offender) | |
File Number(s): | SCC 331 of 2019 SCC 332 of 2019 |
Walker AJ (ex tempore)
Summary of charges
Luke Gray is charged with one count of going equipped for theft (CAN 2688/2019), contrary to s 315 of the Criminal Code 2002 (ACT), by virtue of s 45A of that Act, an offence which on conviction carries up to three years' imprisonment, a financial penalty or a combination of both. He is also charged with two counts of failing to report a change of details as a registerable offender (CAN 6180/2019 and CAN 8391/2019), contrary to s 54(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act), which on conviction carries up to five years' imprisonment, a financial penalty, or a combination of both.
On pleading guilty to these offences in the Magistrates Court, Mr Gray was committed for sentence, specifically for consideration as to his suitability for a drug and alcohol treatment order.
An offence of trespass (CAN 8390/2019), contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) was transferred as a related offence for sentence.
By virtue of the convictions which will be recorded today, Mr Gray will also be in breach of two good behaviour orders imposed in the Magistrates Court for failing to stop at the direction of a police officer and possession of a drug of dependence.
Evidence
For sentencing, I have available to me the statement of facts for all offences, including the breach matters; photographs of the items the subject of the going equipped charge; the offender's criminal history; a pre-sentence report dated 2 October 2019, prepared by Fabi Kandamparambil, a Forensic Mental Health Assessment dated 26 July 2019; suitability assessment reports prepared by Ms Leah Robinson, a manager and social worker of the Alcohol and Drug Service dated 23 January 2020; a report prepared by Ms Jessica Ryan, a community corrections officer of ACT Corrective Services dated 28 January 2020, a supplementary report from Ms Ryan of 7 February 2020 and a case plan.
Factual circumstances
In relation to the going equipped charge, Mr Gray was seen with another man by police in the early hours of the morning of 28 February 2019, lurking around a bike rack outside apartments in Cape Street, Dickson. When the police approached, both of them had tools in their hands. The other man rode off and was not caught. Mr Gray ran off and was stopped when he was directed by police officers who had pursued him. He was carrying two black bags at the time. On being searched, one of them had in it a pair of bolt cutters, two pairs of pliers and a screwdriver. These items are deemed to be equipment suitable for theft. He was apparently under the influence of an intoxicating drug at the time.
Mr Gray's other offences came about as a result of obligations placed on him as a registered offender under the Child Sex Offenders Act. He was convicted of the offence of attempting to have sexual intercourse with a person between the age of 10 and 16 years in April 2013 and placed on the register following release from custody on 21 January 2014. He was 19 years old at the time the offence was committed.
His obligation to report under the Act continues for 15 years by virtue of s 84 of the Child Sex Offenders Act. It includes an obligation to notify of any change of address. Annual reviews are conducted with offenders. In February 2019, Mr Gray took part in an annual review at the Belconnen Police Station and gave to them an address in Hackett. He moved from that address to Ainslie Village on 30 April 2019 and was obliged to report that change by 7 May 2019. Police attending Ainslie Village on 31 May 2019 learned of the change from staff there. They telephoned Mr Gray, who met with them voluntarily and was then arrested. He was bailed by the Magistrates Court with the condition to reside at Ainslie Village.
On 28 June 2019 he was evicted from Ainslie Village for non-payment of rent. He again did not report the change to the Child Sex Offender Register team. Mr Gray was directed by staff not to return to the village except to access the community food hub if required. However, as he returned repeatedly, a banning notice was issued on 8 July 2019. Meanwhile, he appeared in the Magistrates Court and changed his bail address to premises in Light Street, Griffith. On investigating, the police found it did not exist as an occupiable residence. He returned to Ainslie Village, again in breach of the banning notice, on two more occasions, and was arrested by police hiding in a friend's room on 25 July 2019. He was charged then with trespass and a second count of failing to report a change of details. He told police then that he was living between Kanangra Court and Ainslie Village. At the watchhouse, he then gave a Reid address.
The going equipped offence is geared to protecting property from criminal interference. Mr Gray was well equipped with items which appeared he was about to use for an illegal purpose at the time of his arrest. It was a joint commission offence and he was on a good behaviour order at the time of the offence. Whilst there was a degree of planning involved in the items he had with him, this was, on my estimate, an unsophisticated, low level offence of its type.
In respect of the fail to report offences, I have had regard to the decisions provided to me by the prosecution in Weston v Arley [2012] ACTSC 138 and R v Degioannis [2019] ACTSC 47. The offence of failing to report consistent with the registerable offenders’ scheme exists to protect vulnerable members of the public from those who have been convicted of sex offending. The requirement to report allows the police to be aware of the whereabouts of convicted offenders and to assess any risk that might flow from their presence. The failure to comply with this reporting obligation potentially undermines the efficacy of the scheme, as was noted by his Honour Justice Refshauge in Weston in particular.
In this case, Mr Gray has demonstrated a nonchalance towards his obligations. However, there is no indication that he sought to hide his whereabouts by failing to report for any improper purpose. His repeated failure to do so reflects his chaotic lifestyle. That said, given his criminal history, he is well aware of his obligations and the repercussions of failing to comply with them. The first in time of these offences was committed whilst he was subject to a good behaviour order. The second in time offence is made more serious by virtue of repetition, despite recent warning by police and the fact that he was on bail for the very same offence. His actual whereabouts were discovered by police in each instance fairly soon after the unreported change, but largely by chance. The offending in all of the circumstances is towards the mid-range for offences of the type.
The trespass offence is a minor one, which is again a product of Mr Gray's disorganised lifestyle. It reflects a lack of respect for the rules of a community-based organisation which exists to assist marginalised members of the community.
Subjective circumstances
Mr Gray is a 28 year old man who identified as Aboriginal, although with limited cultural connection. He has a complex personal history. His reports of that history are highly inconsistent. In considering his background, I am satisfied that this is most likely due to his chaotic childhood rather than any concerted effort to mislead people. Clearly, his childhood was traumatic. The extent of that is yet to be disclosed by Mr Gray. Such disclosure may well be extremely difficult for him. He has reported that his parents were both alcoholics and that he was subject to physical and psychological abuse at home. His father committed suicide when he was a young teen, apparently in his presence.
Mr Gray is the youngest of either four or five siblings - even that report is somewhat inconsistent - and he currently has no contact with his mother or those siblings. He left home at a young age, probably at about 11, and lived for some time with one of his sisters, who was herself still a teenager. He spent some time with another person whom he regards as a mother figure, but who is now herself in prison. His education also finished early, probably at the end of primary or very early high school. His employment history is unclear, although he has referred to work as a painter and as a trolley collector for short periods in the past. He is keen to engage with volunteer work.
Whilst it is also unclear exactly when his drug and alcohol use began, it is likely that it was before he was 10 years of age. He engaged in cannabis and alcohol and methamphetamine use, certainly from a very early age. He has used unprescribed benzodiazepine in the past. He was an intravenous heroin user daily from the age of 18. In 2017 he went onto the methadone program.
Whilst on bail being assessed for a drug and alcohol treatment order, he admits to consuming methamphetamine on one occasion, as to which he was open and honest with the court, and to cannabis daily to deal with what appeared to be trauma related nightmares. He is exploring the use of mirtazapine to address this issue. He has had some success with that in the past. He continues to use alcohol, albeit at a lower level. His substance use has been severely problematic. Not surprisingly, he has liver function deficit. He receives health services from Winnunga Nimmityjah Aboriginal Health Service.
In terms of his mental health, it appears to have been affected by a traumatic youth, although the extent of this is unknown due to his reluctance to share his experiences. He has reported depressive symptoms and has self-harmed at times in the past, including an attempted suicide by hanging. He has not had formal neuropsychological testing, although there has been some concern expressed about his intellectual capacity.
The principles of Bugmy v The Queen [2013] HCA 27; 249 CLR 571 apply to the extent of recognising the continuing effect of a disadvantaged and traumatic youth. It is not clear to what extent the principles of R v Verdins (2007) 16 VR 269; 169 A Crim R 581 ought to apply, absent clear evidence of psychological impact. There is some difficulty in distinguishing how these two criteria might apply in relation to Mr Gray. The court must recognise the ongoing effect of early disadvantage, but the question of any reduced moral culpability remains moot. I am satisfied that the Bugmy principles must be recognised, but also that there is a need to balance these with the protection of the community, as recognised in that decision itself.
Mr Gray has expressed a desire to address his substance abuse and indeed, has taken some steps to doing that. He has not engaged historically in any significant counselling therapy and is nervous about doing it. He has not undergone residential rehabilitation in the past. His drug and alcohol treatment has been limited to opioid maintenance therapy. However, through this process he appears to be developing insight into the very significant harm that his substance use is causing him, both physically and socially.
Mr Gray has limited prosocial supports. His criminal record is poor. He was convicted of the sexual offence in 2013, then failed to report, leading to conviction in 2014, three times in 2015 and three further counts in 2018. He has been imprisoned on numerous occasions in relation to this offending. He was also convicted for going equipped in 2015 and then in 2017, the latter of which resulted in 75 days' imprisonment.
He has a history of relatively frequent but otherwise fairly minor offending. The going equipped was committed within three months of being released from custody. His repeat offending particularly in relation to failing to report allows little scope for lenience. Mr Gray has shown very poor compliance with community based orders in the past. Indeed, when placed on bail initially in relation to assessment for a drug and alcohol treatment order, his compliance continued to be poor. However, in recent times, having been encouraged by those managing him and given some techniques to assist him by his Drug And Alcohol Sentencing List treatment team, and having been brought before the court and warned, he has demonstrated that he is capable of complying with directions. He has been assessed as suitable for a drug and alcohol treatment order and has provided his consent to such an order.
Looking at the circumstances before me, I am satisfied that his drug use, indeed a severe substance disorder, has substantially contributed to his offending by virtue of its impacts on his lifestyle, his decision making, his prioritisation, and his memory. In order to change the current trajectory of his life, Mr Gray will need to address his substance use and, in due course, come to terms with the trauma which haunts him.
His immediate greatest challenge is the lack of stable accommodation. This is chronic. He is currently living with another person in accommodation provided by a not-for-profit organisation contrary to its rules. This cannot continue. His options are limited. Realistically, if he is to secure and retain accommodation, it will be with significant support. I note that it has been confirmed that EveryMan Australia is able to make accommodation available to Mr Gray and will offer support to him in maintaining a home. This is a wonderful development which has the potential, along with the other support available to him, to transform Mr Gray's life. He has also taken the step of making an application for housing through ACT Housing, having been encouraged to do so through this process. He is being offered the opportunity for work experience as a volunteer gardener. All of these are very positive indications that Mr Gray, with support, may well be able to comply with an order.
Sentencing considerations
Mr Gray has served from 25 July to 3 December 2019 on remand in custody in relation to these charges - 124 days. Any sentence imposed in respect to Mr Gray needs to take into account both general and specific deterrence. The need for him to be accountable for his actions and the protection of the public and his rehabilitation. It is open for the court to conclude that Mr Gray has been deeply affected by his difficult youth. Given the scant evidence of how this relates to his criminal offending, the evidence is insufficient for the court to conclude that he has a reduced moral culpability, in the Verdins sense, than other offenders.
Noting the context in which the fail to report offences occurred, namely Mr Gray's unstable living arrangements, I am satisfied that there is scope for application of the principle of totality reflecting a course of conduct. The s 10 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) threshold for imprisonment as a sentence of last resort is crossed. It is an appropriate sentence for the going equipped and fail to report charges. I have applied a 25 per cent discount to the terms of imprisonment to be imposed to reflect the utilitarian value of the guilty pleas.
Having regard to the relevant provisions of the Sentencing Act, in particular s 12A and ss 80O, 80S and 80T, I am satisfied that Mr Gray is eligible and suitable for a drug and alcohol treatment order. Having regard to all of the circumstances and the nature of the offences, the order is appropriate. An issue has arisen as to how time served on remand in custody is to be reflected, if at all, when a drug and alcohol treatment order is imposed. I refer to the observations made earlier today in my sentencing remarks in R v Parker [2020] ACTSC 38 at [25] – [33] and adopt them. I take into account 124 days' presentence custody.
Sentence
I make the following orders:
I record convictions on charges numbered 2688/2019, 6180/2019, 8390/2019 and 8391/2019. As a result of the convictions recorded the offender is now in breach of good behaviour orders on charges 7580/2018 and 12453/2017. I take no further action on these breaches.
On the trespass charge (CAN 8390/2019), I impose a financial penalty of $210 to be paid within 12 months.
I impose a drug and alcohol treatment order pursuant to s 12A(2) of the Sentencing Act.
The custodial part pursuant to s 80W is 18 months, comprised of the following: in respect of the first offence of failing to report (CAN 6180/2019), the offender is sentenced to nine months' imprisonment.
In respect of the second offence of failing to report, (CAN 8391/2019), the offender is sentenced to 12 months' imprisonment to be served concurrently with (CAN 6180/2019).
In respect to the charge of going equipped, (CAN 2688/2019), the offender is sentenced to a further six months' imprisonment to be served consecutively.
Backdating for 124 days' time served, the sentence is taken to have commenced on 8 October 2019 and will complete on 7 March 2021. The sentence of imprisonment is suspended as of today in accordance with s 80W of the Sentencing Act upon the offender agreeing to enter a treatment program.
The treatment and supervision part of the order is for 12 months commencing today. Core conditions apply. The offender is to complete a treatment program as agreed by the treatment team and amended from time to time. Copies of the core conditions and the treatment program are to be attached to this order. I note that at the completion of the treatment and supervision part of the order pursuant to s 80ZA of the Sentencing Act, the offender is to enter into a good behaviour order for the remainder of the custodial period.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of Her Honour Acting Justice Walker Associate: Date: 31 March 2020 |
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