R v Hall (No 2)
[2020] ACTSC 63
•1 December 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hall (No 2) |
Citation: | [2020] ACTSC 63 |
Hearing Dates: | 25 March 2020 and 30 November 2020 |
DecisionDate: | 1 December 2020 |
Before: | Elkaim J |
Decision: | See [30] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted burglary – dishonestly drive or take a motor vehicle without consent – aggravated burglary with intent to steal – theft – burglary with intent to steal – assault occasioning grievous bodily harm – guilty pleas |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | The Queen (Crown) Marley Hall (Offender) |
Representation: | Counsel M Dyason (25 March 2020) & E Wren (30 November 2020) (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender) | |
File Numbers: | SCC 167 of 2019; SCC 168 of 2019 |
ELKAIM J:
On 12 February 2020 the offender was arraigned on an indictment dated 6 February 2020. He entered a plea of guilty to all 10 counts. The charges and their maximum penalties are:
(a)Attempted burglary (SCCAN2020/24), contrary to s 311(1)(a) of the Criminal Code 2002 (ACT), by virtue of s 44 of the Criminal Code. The maximum penalty is 14 years’ imprisonment, a fine of $224,000 or both.
(b)Dishonestly drive or ride in a motor vehicle without consent (CC2019/1909), contrary to s 318(2) of the Criminal Code. The maximum penalty is 5 years’ imprisonment, a fine of $80,000 or both.
(c)Aggravated burglary with intent to steal (CC2019/1911), contrary to s 312(a) of the Criminal Code. The maximum penalty is 20 years’ imprisonment, a fine of $320,000 or both.
(d)Theft (CC2019/1912), contrary to s 308 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both.
(e)Burglary with intent to steal (SCCAN2020/25), contrary to s 311 of the Criminal Code. The maximum penalty is 14 years’ imprisonment, a fine of $224,000 or both.
(f)Theft (CC2019/1914), contrary to s 308 of the Criminal Code. The maximum penalty is 10 years’ imprisonment, a fine of $160,000 or both.
(g)
Dishonestly take motor vehicle without consent (CC2019/3846), contrary to
s 318(1) of the Criminal Code. The maximum penalty is 5 years’ imprisonment, a fine of $80,000 or both.
(h)
Attempt to take motor vehicle without consent (SCCAN2019/3760), contrary to
s 318(1) of the Criminal Code, by virtue of s 44 of the Criminal Code. The maximum penalty is 5 years’ imprisonment, a fine of $80,000 or both.
(i)Assault occasioning actual bodily harm (SCCAN2019/3761), contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is 5 years’ imprisonment.
(j)
Dishonestly drive a motor vehicle without consent (CC2019/3848), contrary to
s 318(2) of the Criminal Code. The maximum penalty is 5 years’ imprisonment, a fine of $80,000 or both.
This matter originally came before me on 25 March 2020. On that date the offender sought an adjournment because there was a possibility he could enter a rehabilitation program in about six weeks. Because the adjournment was not opposed by the Crown and, more importantly, because the offender desperately needs to address his drug problem, I allowed the adjournment.
The matter came back before me on 6 May 2020 for mention when I was informed that the offender’s parole determination was in the process of being transferred to the NSW jurisdiction in order to facilitate rehabilitation in that State. Accordingly, the matter was adjourned.
The matter was again before me on 3 June 2020 when it was once again adjourned because of an upcoming parole application.
On 2 July 2020, I was informed that the parole application had been successful and a rehabilitation opportunity was available. I granted bail for the offender to attend rehabilitation.
The matter was listed for 9 October 2020 to complete the sentencing procedure. On this day the offender did not appear, nor was there any explanation for his absence. A warrant was issued for his arrest and the matter was stood over with liberty to restore.
The offender was arrested and came before me yesterday for the final sentencing hearing. The evidence before me was supplemented by an up-to-date Pre-Sentence Report. It does not take the matter much further but does emphasise that the offender’s compliance with supervision requirements has been poor.
The offender committed most of the above crimes on 30 December 2018. He started off in the very early hours of the day by driving a stolen Hyundai i30 motor vehicle to a BWS liquor store in Bonner (Count 2). He and two other persons got out of the vehicle and tried to kick in the front door of the store. He also struck the door with an unknown item (Count 1). The attempt at entry failed. The three persons got back into the car and left.
About two hours later the offender, now armed with a silver tomahawk, kicked down the door of the Liquorland store in Chisholm. This time he was with one other person. They managed to gain entry to the store (Count 3) and succeeded in removing an empty cash register drawer. They also took four bottles of alcohol. Not content with one empty drawer they returned and took another empty drawer (Count 4).
About half an hour later the offender drove to the Farmer’s Daughter Café in Yarralumla. He kicked the glass door of the café so that it broke. He entered the café (Count 5) and stole $400 from the register (Count 6).
At about 7.30am, the offender stole a Hyundai Santa Fe motor vehicle in Farrer
(Count 7). He drove off closely followed by a colleague in the stolen i30. They passed a BMW X5 outside an address in O’Malley. The two Hyundais stopped and the drivers inspected the BMW. The offender entered the BMW. The vehicle’s owner saw him and a scuffle ensued. The offender swung the tomahawk at the owner which caused lacerations to his left forearm and armpit (Counts 8 and 9). The offender drove away in the Santa Fe.
There are some photographs of the lacerations. Fortunately, they are superficial. However, that does not mean that the attack was not terrifying for the victim. In his Victim Impact Statement, the victim says:
I was scarred [sic] for my life and my families life, and this has left me with emotional and physical scars I will carry with me for the rest of my life. Although I will always be traumatised by the attack, it is the impact on my partner and children that has change their lives forever…Due to the emotional distress to our family we are selling our home as we fear for our safety every single day…My Partner now suffers from frequent panic attacks which we hope will be helped by selling the house…
On 4 January 2019 the offender drove a stolen Holden Commodore (Count 10).
The offences involving the attack with the tomahawk are clearly the most serious and objectively, I assess the attack on this victim as being above medium severity. The balance of the offences fall below medium objective severity.
Nearly all of the offences occurred within a few hours on 30 December 2018. It will be important in sentencing this offender to bear in mind principles of totality and not to impose an overly crushing sentence upon him. At the same time each victim of his criminal behaviour is entitled to know that the offender is being punished for the individual offences.
The offender was born in 1995. He is of Aboriginal descent. He did not have a positive upbringing. His father was abusive. He at least has a good relationship with two of his brothers.
The offender has a four-year-old daughter who is currently in the care of Child and Youth Protection Services.
The offender unfortunately began drinking too much alcohol and using illicit substances from about 14 years of age. He told the authors of the Pre-Sentence Report that he had stopped using illicit substances for about the previous 10 months. This does not seem to be backed up by independent testing.
The evidence in relation to the offender’s education and some aspects of his personal life are a little sparse but I have the benefit of comments made by Murrell CJ when she sentenced him on 8 May 2015 (R v Hall [2015] ACTSC 115). Her Honour set out the following subjective circumstances:
12The offender is now 20 years of age. He was 18 years of age at the date of the offences. He is of Aboriginal background. His childhood home was marred by paternal alcohol abuse and domestic violence. He is the youngest of four children. He was raised in the Dubbo area. The offender had behavioural problems throughout school but these were never diagnosed or treated. He was excluded from school during Year 10 and he has ongoing problems with literacy and numeracy. He is single. He has never had stable employment; the most that he has undertaken by way of employment is two weeks' labouring work. His older two brothers have substance abuse problems and criminal records.
13The offender suffered a head injury at 14 years of age, although he was not rendered unconscious. It is not known whether this has a continuing effect. The offender has a very serious problem with substance abuse. It is clear that by his mid teens the offender was a very heavy user of cannabis and alcohol. A CADAS report says that, at one stage, he was consuming up to three or four bottles of spirits daily and was a frequent user of ice. At one time he reportedly used ice on a daily basis.
14The offender has mental health problems. These are not solely drug induced psychosis. He has complained of psychotic symptoms at times when he has not been taking drugs. He was diagnosed as suffering from a psychosis in 2011. The current diagnosis is schizophrenia in remission. He is not receiving anti-psychotic medication but appears to be stable in custody. Unfortunately, while in the community, he has been non-compliant with treatment for his mental health condition.
15He has attempted rehabilitation on three occasions, without completing a program. Rehabilitation providers have terminated his programs because he has relapsed into drug use.
Clearly, he is a man with a very disadvantaged background who has not been able to break away from the perils of being subjected to abuse and falling under the spells of alcohol and drugs. The mitigatory principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 seem immediately applicable.
The offender does seem to have appreciated the effect of his actions on his victims and in particular the effect on the victim who was attacked with the tomahawk.
He has a significant criminal history covering a range of offences, mostly to do with driving motor vehicles and interfering with property. He has been assessed as having a high risk of general re-offending. He is still a young man and prospects of rehabilitation must be taken into account. Thus far he has failed to rehabilitate himself, despite being given the opportunity to do so. Nevertheless prospects of rehabilitation cannot be written off. His youth demands an approach which allows for the hope of rehabilitation.
Sentencing involves a number of considerations, in particular, as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 says a person should not be sent to prison except as a last resort. The offender’s criminal record and the severity of the current offences, in particular the attack with the tomahawk, render any other option unavailable.
The offender is entitled to a discount for his pleas of guilty, which I assess at 20%. I have applied this discount to each of the sentences I will impose, subject to a small degree of rounding off.
There was some dispute between the parties about the length of time that should be taken into account for the periods that the offender has already been in custody. Although the Crown said he had been in custody for 242 days it submitted that the whole of this period should not be taken into account because he was also in custody for a good deal of the time for other reasons.
Primarily the other reasons arise from him having been sentenced by Burns J on 22 November 2016. On this occasion he was sentenced to five years imprisonment commencing on 25 June 2016 and expiring on 24 June 2021. A nonparole period of two years, expiring on 24 June 2018, was set. The offender was released on parole but due to assorted breaches, the Sentence Administration Board has revoked parole on two occasions, the most recent being on 29 September 2020.
The offender’s submission was that backdating should be to 6 February 2020, but Mr Edmonds, on his behalf, accepted that a part of this period was spent in custody for more than one reason. Ultimately both parties agreed that I had a discretion as to when my sentencing should commence.
It will also be necessary for me to reset the nonparole period originally set by Burns J. My intent in setting the new nonparole period is to promote the chances of rehabilitation.
It is almost impossible to calculate with any precision the precise number of days in custody solely attributable to the current offences. On one argument there are very few having regard to the revocations of parole. In my discretion I think a fair starting point for my sentencing should be 1 June 2020.
Orders:
I make the following orders:
(a)For Count 1, attempted burglary (SCCAN2020/24), the offender is sentenced to 10 months’ imprisonment to commence on 1 June 2020 and end on 31 March 2021.
(b)For Count 2, dishonestly drive a motor vehicle without consent (CC2019/1909), the offender is sentenced to 3 months’ imprisonment to commence on 1 June 2020 and end on 31 August 2020.
(c)For Count 3, aggravated burglary with intent to steal (CC2019/1911), the offender is sentenced to 12 months’ imprisonment to commence on 1 October 2020 and end on 30 September 2021.
(d)For Count 4, theft (CC2019/1912), the offender is sentenced to 2 months’ imprisonment to commence on 1 October 2020 and end on 30 November 2020.
(e)For Count 5, burglary with intent to steal (SCCAN2020/25), the offender is sentenced to 12 months’ imprisonment to commence on 1 March 2021 and end on 28 February 2022.
(f)For Count 6, theft (CC2019/1914), the offender is sentenced to 2 months’ imprisonment to commence on 1 March 2021 and end on 30 April 2021.
(g)For Count 7, dishonestly take motor vehicle without consent (CC2019/3846), the offender is sentenced to 2 months’ imprisonment to commence on 1 January 2022 and end on 28 February 2022.
(h)For Count 8, attempt to take motor vehicle without consent (SCCAN2019/3760), the offender is sentenced to 2 months’ imprisonment to commence on 1 February 2022 and end on 31 March 2022.
(i)For Count 9, assault occasioning actual bodily harm (SCCAN2019/3761), the offender is sentenced to 19 months’ imprisonment to commence on 1 March 2022 and end on 30 September 2023.
(j)For Count 10, dishonestly drive a motor vehicle without consent (CC2019/3848), the offender is sentenced to 2 months’ imprisonment to commence on 1 September 2023 and end on 31 October 2023.
(k)The total period of imprisonment is 3 years and 5 months to commence on 1 June 2020 and end on 31 October 2023.
(l)I set a new nonparole period of 22 months to commence on 1 June 2020 and end on 31 March 2022.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim. Associate: Date: 1 December 2020 |
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