R v Hagen
[2022] ACTSC 274
•11 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hagen |
Citation: | [2022] ACTSC 274 |
Hearing Date: | 30 September 2022 |
DecisionDate: | 11 October 2022 |
Before: | Kennett J |
Decision: | See [45] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – assault occasioning actual bodily harm – where submitted that the offender has limited intellectual functioning – consideration of the Verdins principles – where offender suffered significant disadvantage in his upbringing |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act2005 (ACT) s 35 Criminal Code 2002 (ACT) s 312 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Green v The Queen [2011] HCA 49; 244 CLR 462 Wronski v Rau [2012] ACTSC 87 |
Parties: | The Queen ( Crown) Bailey Hagen ( Offender) |
Representation: | Counsel B Morrisroe ( Crown) S Robinson ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Fortify Legal ( Offender) | |
File Numbers: | SCC 253 of 2021 SCC 254 of 2021 |
KENNETT J:
Introduction
The offender, Bailey Hagen, has pleaded guilty to two offences committed in the early hours of 31 July 2021. They are:
(a) Aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty is a fine of 200 penalty units, 20 years’ imprisonment, or both.
(b) Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is five years’ imprisonment.
Also before me is a charge of minor theft by joint commission in respect of which the Crown offered no evidence. I will dismiss this charge.
Facts
The facts are set out in an agreed statement of facts before the Court.
The offender attended the home of a Ms Samantha Chatfield along with his mother (Trinity Hagen), a relative who is under 18 and two other persons, Mikaela Engeler and Rebecca Eade.
Ms Engeler was the partner of the offender’s older brother Jordan, who at this time was detained in the AMC.
Jordan had previously been in a relationship with Ms Chatfield. A purpose of the visit to Ms Chatfield’s residence was apparently to retrieve some belongings of Jordan’s.
Ms Chatfield was at home with two other persons, one of whom was her brother. Mr Hagen and his co-offenders arrived around 2.00am. They knocked on the door. One of the people in the dwelling opened the front door, whereupon the offender and his younger relative opened the screen door, entered the dwelling and demanded to know “where’s my brother’s shit?”. Ms Chatfield told them to get out. They did not.
Two things then happened. One was that Trinity Hagen entered Ms Chatfield’s bedroom and started putting items into bags. Some of these belonged to Ms Chatfield, including personal documents and things from her wardrobe. These things were removed from the premises but Ms Hagen later agreed to return the items that did not belong to Jordan. Afterwards police observed Ms Chatfield’s cupboard to be mostly empty.
The other thing that happened was that Ms Chatfield was dragged out on to the front veranda by Ms Engeler, where she and Ms Eade proceeded to punch and kick her. During this assault Ms Engeler used a “jet lighter” to burn Ms Chatfield’s hair. Her injuries included welts to her forehead and neck, small cuts on her ear, torso and right hand, and singed hair.
At some stage the offender had picked up a machete or large knife and moved to where the assault was occurring. He assisted the assault on Ms Chatfield by his presence and by preventing Ms Chatfield’s brother from intervening to try to assist her.
Police officers who attended shortly afterwards observed a broken wooden picture frame, shards of glass and a steel kitchen knife on the floor of the dwelling as well as a large bow saw on the couch in the lounge room.
By pleading guilty the offender has accepted liability for his own role in these events and for the acts of his co-offenders on the basis of joint commission.
Objective Seriousness
Taking into account factors mentioned by Murrell CJ in R v Elphick [2021] ACTSC 9 at [113], the aggravated burglary was objectively a moderately serious instance of an offence of this kind.
It occurred in the early hours of the morning, a time when most people are asleep or at least expecting to be left in peace.
It occurred in the victim’s home and included what can be described as the ransacking of her bedroom, as well as damage to some items in the premises. This was a significant disruption and invasion of Ms Chatfield’s privacy, as well as that of the people who were with her.
It occurred in the company of three adult co-offenders and one young person, which is a significant aggravating factor.
The offender’s own role was important. He was one of the first to enter the premises and demand return of what was termed “my brother’s shit”. He armed himself at some stage with a large knife or machete, which necessarily created some level of threat.
The offending was planned to some degree, although the offender’s role in that planning appears not to have been central. The offending seems to have been instigated by an exchange of messages around 90 minutes earlier between Ms Engeler and Jordan Hagen. Those messages referred to Ms Engeler being with “mum” and “the boys”. Jordan was in contact with Ms Chatfield about his belongings around the same time.
The assault was also moderately serious. It involved the concerted application of violence to Ms Chatfield by two persons, including blows to her head. Her injuries were not serious but were real, and the attempt to set fire to her hair must have caused at least some level of fear. The offender was not directly involved in the infliction of harm. However, he stood in close proximity to the victim holding a weapon, and he prevented the victim’s brother from trying to stop the assault.
Subjective Circumstances
The offender is a 20 year old man who was born in Queensland and raised in the ACT.
[Redacted]
Both parents have some Indigenous background. At times the offender has described himself as Indigenous but at other times he has identified himself as Serbian (his father’s background). His instructions to his counsel were that he does not know any details about this aspect of his heritage but is interested in learning more. It was not suggested that I should give it any particular weight in the sentencing process.
The offender’s upbringing has been difficult. He had little contact with his father, who separated from his mother when the offender was a child and spent a considerable amount of time in prison. His mother was described as a “chronic” user of marijuana, who was hospitalised due to mental health issues in 2008. Until his parents separated the offender was exposed to family violence between them. There are many records of interventions by Child and Youth Protection Services (CYPS) in relation to the offender and his siblings, including their being removed and placed in the care of relatives in Queensland for 10 months. Concerns were expressed by CYPS at several stages about emotional and physical abuse and neglect.
Despite this, the offender reported to Dr Douglas Boer (the author of a psychological report tendered by him) and the authors of the PSR that he felt “looked after” by his mother and had a close, supportive relationship with her. A report dated 9 November 2020, and tendered by Counsel for the offender, notes that he looks up to his older brother, Jordan.
The offender stopped going to school during year 8, when he was around 14 or 15 years of age. Before then he had been subject to disciplinary action including suspensions arising from disruptive and threatening behaviour. He has a very limited history of employment, having worked as a landscaper for a few weeks in 2017 and then as a labourer for four months prior to being remanded in custody.
On his own report, he consumes only very moderate amounts of alcohol; however, he started using cannabis at the age of 14 or 15 and was a regular and heavy user until he was remanded in custody in 2021. He has also used methamphetamines since the age of 17, other than when he has been in custody. Urinalysis testing between January 2022 and July 2022 have returned negative results, indicating a period of abstinence.
The offender has in the past been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Dr Boer considered it possible that the offender still suffers from ADHD, and also that he has a mild intellectual disability, but did not venture a firm diagnosis. It was submitted that, despite the lack of any formal diagnosis, I should proceed on the basis that the offender had limited intellectual functioning: psychological testing when he was younger found him to be functioning in the “extremely low” or “borderline” range of intellectual functioning. However, even though the Court in R v Verdins [2007] VSCA 102; 16 VR 269 at [8] counselled against too much emphasis on particular diagnoses or classifications, I consider that the principles expounded in that case apply weakly if at all in the absence of some impairment that can be regarded as a mental illness or abnormality. I do not think there is a sufficient basis to find that the offender suffers from a mental illness or condition that engages these principles.
However, these observations give further context to what is recorded above in relation to the offender’s childhood and education. The disadvantages of being raised in a chaotic and sometimes abusive household, with little parental support and few if any positive role models, must be even greater for a child whose own intellectual capabilities are limited (especially a child also affected by ADHD). The Crown conceded, rightly in my view, that the offender suffered significant disadvantage in his upbringing and the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are therefore enlivened. I accept that the offender’s disadvantaged upbringing left him poorly equipped to make sound judgments about the appropriate way to deal with any disagreement concerning his brother’s relationship with Ms Chatfield. It also left him poorly equipped to make sensible decisions about participating in an undertaking that involved both his mother (as a participant) and a misguided attempt to protect his brother’s interests. I have taken this into account.
Given the offender’s criminal antecedents, lack of prosocial supports, limited employment history and previous substance abuse, this Court must be guarded about his prospects for rehabilitation. However, his behaviour recently demonstrates that there is cause for hope. He was not subject to any recorded disciplinary action while in custody and demonstrated satisfactory compliance with his bail undertakings prior to his incarceration. Prior to his incarceration he also managed to obtain employment and remain employed for some months. He is hopeful of returning to work as a labourer following his release from custody, which would assist with his reintegration into the community.
Other sentencing considerations
Guilty plea
The offender is entitled to some degree of discount in recognition of the utilitarian value of his plea of guilty, under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act). This is significantly diminished by the fact that the plea came only four days before the date set for trial. However, there were some witnesses who had not yet been subpoenaed to attend; and the plea avoided what was anticipated to be seven days of court time, together with considerable inconvenience for the 16 witnesses who were proposed to be called. I will discount the total sentence by around 10 per cent in recognition of this.
Parity
Ms Engeler and Ms Eade have been sentenced in the Magistrates Court for their roles in the assault and Ms Hagen is to be sentenced by this Court in December. Their involvement in the offence enlivens the principle of parity: see, eg, Green v The Queen [2011] HCA 49; 244 CLR 462.
Each of Ms Engeler and Ms Eade were charged with assault occasioning actual bodily harm by joint commission. Ms Engeler was sentenced to 14 months’ imprisonment, fully suspended on her entering into an 18 month good behaviour order. Ms Eade was sentenced to three months’ imprisonment, fully suspended on her entering into a 12 month good behaviour order.
In fixing the sentence for the assault, I have had regard to these sentences. In my view, the offender’s moral culpability for the assault was less than that of Ms Engeler and Ms Eade. He did not directly cause any physical injuries or strike Ms Chatfield.
Time in custody
The offender was in custody between 9 August 2021 and 21 December 2021 (when he was granted bail) and from 12 July 2022 (when bail was revoked) to the present. On 12 May 2022 he was convicted of a traffic offence. This placed him in breach of a good behaviour order imposed for other offending, which was cancelled, and on 12 May 2022 he was resentenced to four months’ imprisonment (time served). The parties agreed that the result of that sentence of imprisonment being time served is that the offender has been in custody for a period of 107 days solely referrable to this offending.
Backdating the sentence to reflect entirely the time in custody referrable solely to the present offending will result in the sentence commencing during a period when the offender was not, in fact, in custody. There is ample authority for the proposition that the Court has jurisdiction to make such an order: see R v Newman [2004] NSWCCA 102; 145 A Crim R 361, 368 (Howie J), cited with approval in Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 (Hawkins).
The more significant question is whether the principle of totality requires that the sentence should be backdated further. Citing Mill v The Queen (1988) 166 CLR 59, counsel for the offender submitted that, had a court been able to deal with the present charges and the other matters referred to above together, some degree of concurrency would have been imposed, engaging the principle of totality. The power to backdate “confers adequate scope for a sentencing court to backdate to an extent that is in all the circumstances fair, without requiring backdating that is inappropriately generous or permitting backdating that is inappropriately unfair”: Wronski v Rau [2012] ACTSC 87 (Wronski), [12]. While there are clearly limits, the term “pre-sentence custody” in s 63(2) of the Sentencing Act is not restricted to custody that is referable only or primarily to the offence before the Court: see eg, Hawkins, [82]. There are also obiter dicta of this Court suggesting that backdating can be used to facilitate application of the totality principle: see Wronski at [19].
The offending that gave rise to the breach of the good behaviour order occurred on 13 June 2021 and was therefore fairly close in time to the present offending; however it involved quite separate events. More importantly, that offending was dealt with only by a fine. [Redacted]. The circumstances are very different from those discussed in Mills, where episodes of offending at around the same time come to be dealt with some years apart because they occur in different jurisdictions. [Redacted].
Comparative cases
The Crown referred me to a range of comparative cases (R v Parker [2021] ACTSC 57 (Parker); R v Pikula [2022] ACTSC 219; R v Knight [2021] ACTSC 165; R v Mena [2018] ACTSC 92 (Mena); R v Minnis [2014] ACTSC 268).
As is often the case, none of these cases is on all fours with the present offending and they are of limited assistance. This is particularly so in respect of the assault offence, where the comparative cases all concerned much more serious injuries.
Parker is similar in some aspects. It involved offending committed by a youthful offender in company with her mother. However, the charges were for aggravated robbery rather than aggravated burglary.
Mena is another case involving a youthful offender. It concerned an aggravated burglary committed in company and with weapons. The offenders were acting under a mistaken belief that stolen drugs could be recovered from the premises. The offender was 18 at the time of the offence. Unlike the offender here, he had a limited criminal record and strong prospects for rehabilitation. The sentencing judge imposed a sentence of 19 months’ imprisonment. This comprised part of an aggregate sentence for other charges that was suspended after 10 months’ imprisonment on the offender entering into a good behaviour order for a period of two years.
Consideration
Relevant sentencing purposes include general and specific deterrence, adequate punishment, denunciation of the conduct and recognition of the harm done to the complainant and rehabilitation.
Rehabilitation is a consideration of particular importance. While the offending (in particular the aggravated burglary) is serious, it is not so serious as to require any reduction in the mitigating effect of the offender’s youth. The other sentencing purposes described above necessitate a term of full-time imprisonment. However, in setting this term, I have had regard to the fact that, rehabilitation if it is possible, is likely the most durable guarantor of community protection and is in the public interest: see Hogan v Hinch [2011] HCA 4; 243 CLR 506, [32].
In light of the interrelated nature of the two offences, which occurred at the same time and concerned the same complainant I consider that, in accordance with the principle of totality, the sentence for the assault occasioning actual bodily harm should be made concurrent with the sentence for the aggravated burglary.
Sentence
The orders of the Court are:
(1)On the charge of aggravated burglary (CAN 8159/21), the offender is convicted and sentenced to imprisonment for 12 months (discounted from 13 months and 15 days in recognition of the guilty plea), from 26 June 2022 to 25 June 2023.
(2)The sentence is to be suspended after four months’ imprisonment, upon the offender signing an undertaking to comply with his good behaviour obligations under Crimes (Sentence Administration) Act 2005 (ACT) for the period from the giving of the undertaking until 25 June 2023.
(3)In addition to the core conditions in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), order (2) is subject to the following additional conditions:
(i)that the offender report to ACT Corrections within 48 hours of his release from custody;
(ii)for the period of the good behaviour order, or such shorter period as determined by the Director-General, the offender be on probation subject to the supervision of the Direction-General and obey all reasonable directions of that person, including as to undertaking any psychiatric or psychological assessment and participating in any program of treatment or rehabilitation; and
(iii)that the offender not use any illicit drugs.
(4)On the charge of assault occasioning actual bodily harm, the offender is convicted and sentenced to imprisonment for two months (discounted from two months and 7 days’ imprisonment), from 26 June 2022 to 25 August 2022.
(5)The charge of minor theft by joint commission (CAN 8161/21) is dismissed.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Kennett Associate: Date: |
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