R v Inder
[2020] ACTSC 111
•31 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Inder |
Citation: | [2020] ACTSC 111 |
Hearing Date(s): | 31 March 2020 |
DecisionDate: | 31 March 2020 |
Before: | Walker AJ |
Decision: | A total sentence of imprisonment of 32 months, commencing 9 July 2019 and ending on 8 March 2022. Non-parole period of 15 months from 9 July 2019 – 8 October 2020. See [62]-[69]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand with threat – common assault – unauthorised possession or use of a prohibited firearm – possession of property suspected of being proceeds of crime |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 32(2), 114C Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33(1), 33, 35 Firearms Act 1996 (ACT) s 42(1)(a)(iii) |
Cases Cited: | R v Goodge [2019] ACTSC 297 R v Mailau [2018] ACTSC 187 Butler v R [2013] ACTCA 38 |
Parties: | The Queen (Crown) Matthew Inder (Offender) |
Representation: | Counsel E Wren (Crown) J Maher (Offender) |
| Solicitors ACT Department of Public Prosecutions (Crown) Kamy Saeedi (Offender) | |
File Number(s): | SCC 249 of 2019 SCC 250 of 2019 |
Walker AJ
Summary of charges
The offender, Matthew Inder, is charged with making a demand with threat (CAN 7768/19) on 9 July 2019, contrary to s 32(2) Crimes Act 1900 (ACT) (‘the Crimes Act’), an offence which on conviction carries up to 10 years’ imprisonment.
Related to this offence and transferred from the Magistrates Court to be dealt with concurrently are two counts of common assault contrary to s 26 of the Crimes Act, which on conviction carry up to two years imprisonment.
As convictions will be recorded in respect to these matters, I am to deal with a number of breach matters, namely, suspended sentences of imprisonment imposed on 19 February 2019 by way of resentence in breach proceedings for the offences of an unauthorised possession or use of a prohibited firearm (CC2017/2407) and possession of property suspected of being proceeds of crime (CC2016/11327).
Evidence
For the purposes of sentencing I have been provided with agreed statements of facts in relation to both the instant offences and the breach matters, Inder’s prior criminal history from both New South Wales and the ACT, a presentence report dated 19 March 2020 under the hand of Fabi Kandamparambil, community corrections officer, and references in support of Inder from Veronika Tekinder, his partner, Julie Inder, his mother, and Marco Paunovic and Jonathan Thompson, both former employers.
Factual circumstances
The offences arose in the context of a dispute between Mr Inder and Alexander Nicholson about who was responsible for the provision of ‘cutter’ to Ms Lucinda Bates who had intended to buy an ounce of methylamphetamine in July 2018. There were three potential people at fault: Ms Bates' partner, Mr Hamzic, who had set up the deal, Mr Nicholson or Mr Inder, both of whom were part of the supply chain. Ms Bates blamed Mr Nicholson whilst Mr Hamzic blamed Mr Inder. A dispute arose between Mr Inder and Mr Nicholson over who should repay Bates the undisclosed amount. About a year later, on 8 July 2019, the issue came to a head.
Mr Nicholson contacted Mr Inder wanting to meet up with him to sort out the issue of the debt. In doing so, he made derogatory comments about Mr Inder's mother, with whom Mr Inder lived. Mr Nicholson was driven to that address by a friend, Ms Sarah Wilkinson, the address being in Charnwood. On arrival at about 2.30 pm, Mr Inder and Mr Nicholson exchanged texts. Mr Inder emerged from the house holding an aluminium baseball bat. He approached the car aggressively and told Mr Nicholson to get out.
Ms Wilkinson locked the doors and started to drive away. Mr Inder stood in front of the car with the bat. She attempted to diffuse the situation and told Mr Inder not to hit her car. He agreed that he would not do so out of respect for her, noting that his issue was with Mr Nicholson, not with her. Mr Inder spoke to Mr Nicholson through the open car window saying that Mr Nicholson now owed him money because of what he had said about his mother. Ms Wilkinson drove off with Mr Nicholson. Both held fears for their safety as a result of this incident. These facts reflect the first count of common assault.
Soon after leaving, Mr Nicholson then contacted Mr Inder by Facebook Messenger audio. They arranged to meet at Ms Bates' house in Melba. Mr Nicholson later told police that he sought to resolve the matter whether peacefully or otherwise.
Mr Nicholson and Mr Inder exchanged text messages in which Mr Nicholson taunted Mr Inder and Mr Inder threatened Mr Nicholson. They agreed, however, to meet at Ms Bates' house.
There was a further exchange soon after 3.00 pm which is difficult to interpret but which incorporates an apology by Mr Nicholson to Mr Inder as to what he said about his mother but otherwise continues as a series of taunts from Mr Nicholson and insults from Mr Inder. It reiterated that they would soon meet.
Ms Wilkinson dropped Mr Nicholson at Ms Bates' house and waited outside in her car. Whilst waiting, she exchanged texts with Mr Nicholson.
At about 3.35 pm, police officers saw a white Mitsubishi Outlander speeding north on Kingsford Smith Drive. The police attempted to follow it but lost sight of it on Southern Cross Drive.
Soon after that, Mr Inder and two other men arrived at the address in what turned out to be a stolen white Mitsubishi Outlander. Mr Inder spoke to Ms Wilkinson at her car. One of the other two men, his face partially covered by a bandana, went to the front door of Ms Bates' house and spoke with Mr Nicholson saying that Mr Inder wanted to speak to him.
Mr Nicholson followed this man onto the driveway and saw Mr Inder near Ms Wilkinson's car. Mr Inder and the second of the other two men got back into the Mitsubishi and reversed into Ms Bates' driveway. Mr Inder got out and approached Mr Nicholson. He called him a 'dumb cunt', grabbed him and threw him to the ground. As Mr Nicholson was falling to the ground, Mr Inder attempted to punch him. Mr Nicholson put his hands over his head trying to cover his face. Whilst on the ground, Mr Inder kicked and punched Mr Nicholson in the head, shoulders, back, legs, chest and groin for about one to two minutes. This conduct constitutes the second charge of common assault.
When Mr Inder stopped, one of the other two men told Mr Nicholson to get into the Mitsubishi. With no apparent choice, Mr Nicholson got into the back seat. Ms Wilkinson was screaming at the men and was heard by some of Ms Bates' neighbours. Mr Inder also got into the back seat of the Mitsubishi and that car was driven away at speed.
Whilst Mr Nicholson was in the vehicle, Mr Inder threatened him. He told him to, 'pick a time and date,' making that demand between five and ten times. Taking this to be a reference to delivering the money allegedly owed to Ms Bates, Mr Nicholson replied along the lines of, 'By the end of the week.' Mr Inder told Mr Nicholson he had two days to come up with the money or he would hurt him or his family members. Mr Nicholson was also warned not to involve the police. This conduct constitutes the offence of making a demand with threats.
What happened thereafter is outside the criminal conduct with which Mr Inder is charged. However, as it forms a context of the offending, it is included as part of the factual scenario. The other two men also spoke to Mr Nicholson whilst he was in the car, threatening to push him out of it whilst it was moving.
The vehicle then stopped on Spring Range Road, Wallaroo, New South Wales. The second of the other men pulled Mr Nicholson from the car and started punching and kicking him whilst he was on the ground, causing pain to his left leg. Mr Nicholson tried to cover his head and neck. Mr Inder stayed in the car whilst this was happening and signalled the second of the other men to get back into the car, which he did. Mr Nicholson estimated that this assault lasted 20 to 30 seconds. The Mitsubishi driver effected a U-turn and the vehicle sped off toward the Barton Highway.
At about 4 o'clock, a woman driving in the vicinity saw a white vehicle with the boot open and three men with something on their heads. She saw one of those men bent over another man, Nicholson, who was on the ground in a foetal position. She saw the standing man get in the vehicle which was then driven away.
The woman initially continued driving but then did a U-turn at the intersection and drove back. The white vehicle was gone. Mr Nicholson now stood in the middle of the road waving his arms. He had blood on his hands which he placed on her window when she stopped to speak to him. She asked what had happened and he told her. She said she needed to get help but did not have mobile coverage. He told her not to involve the police for fear he would be killed. He was emotional and told her that he would be killed if he did not repay some money. She said she was going to get help and drove to her parents' house where she called the 000 line.
A male witness also travelling on Spring Range Road that afternoon saw a white Mitsubishi travelling at about 120 kilometres an hour past him in the opposite direction. The description of the occupants that he gave fitted those who had been involved with Mr Nicholson. He then saw Mr Nicholson on the side of the road waving his bloodied hands. He stopped and spoke to him. Mr Nicholson gave a consistent story of having been picked up from Melba, bashed, driven to the location and dumped. This witness called an ambulance but, at Mr Nicholson's request, not the police. The witness confirmed that the white vehicle which drove past him was the same one. The witness saw that Mr Nicholson had cuts and blood coming from his face and hands and could not stand on his left leg.
The ambulance attended. Mr Nicholson was taken to The Canberra Hospital. He was treated for minor injuries and swelling to areas including his hands and leg.
At about 4.25 pm the same police officers who had seen the white Mitsubishi Outlander earlier that day saw it travelling again west on Kuringa Drive in Fraser. The driver was wearing a bandana covering his nose and mouth. The police again lost sight of that vehicle.
Meanwhile, New South Wales police attended the Spring Range Road location at about 4.50 pm. By this time, Mr Nicholson was in an ACT ambulance which pulled up next to the police car. He gave the police some description of what had happened but said that if he said anything, 'They'll kill me.'
Ms Wilkinson, meanwhile, had told a friend what had occurred at the Melba address. That friend contacted 000, operatives of which called Ms Wilkinson to check on her welfare. She fobbed them off at that stage but later attended the police station and gave her version of events. She told the police it had taken her a few hours to do so because she was ‘freaking out' about what had happened.
At about 9.45 pm that night, the police found the burnt out remains of a vehicle with the same registration number as the one that had been seen at the Melba address and by police officers earlier that day.
On 9 July 2019, Mr Inder was arrested at his home. In interview, he admitted that the day before, Mr Nicholson and a woman had come to his home, that there was an argument and that he had gone out of the house with a baseball bat. He told police that the pair had driven off shortly after that and denied knowledge or involvement in the incident which followed. A baseball bat was seized from Mr Inder's home.
Objective seriousness
In assessing the seriousness of the offence of making a demand with threats, the Court is required to assess the nature of the demand, the manner and circumstances in which the demand is made, and the nature of the threat made. When considering the seriousness of the matter, it is useful to have regard to previously sentenced cases. Whilst far from exhaustive, the following examples give an indication of sentencing range.
In R v Mailau [2018] ACTSC 187, Burns J imposed a sentence of three years' imprisonment reduced to 30 months for a single count of demanding with menaces. In that case, the offender went into a café, appeared to have a firearm, and threatened to kneecap the victim if he did not pay $50,000 in debts. That offender had a worse criminal history than that of Mr Inder and similar personal circumstances.
In R v NF [2018] ACTSC 165 and R v Gordon [2018] ACTSC 94, Murrell CJ imposed sentences of imprisonment of six months reduced to five for young offenders in the context of a violent aggravated robbery which attracted a considerable head sentence and as to which there was significant concurrency. There were strong subjective factors for each of those offenders including addiction and mental health issues.
In R v Walker; R v Walker [2016] ACTSC 232, Burns J imposed sentences of 27 months reduced from 30, and 21 months reduced from 24. This offence arose in the context of a dispute relating to another family member. It was associated with the presence of a firearm in a public place. Both offenders had limited criminal history and good prospects of rehabilitation. Both sentences were fully suspended with community service.
In R v Cockburn (No 3) [2016] ACTSC 18, Refshauge J imposed a sentence of two years' imprisonment reduced from two years and eight months after the offender successfully completed a deferred sentence order. In that case, the offender demanded the sign over of a car worth $1,000 associated with a common assault in the context of late payment of an old debt of $250. That offender acted alone, apparently spontaneously. The demand was also made in a car and the offender had strong and subjective factors.
In Butler v R [2013] ACTCA 38, the Court of Appeal imposed a sentence of three years and reduced a non-parole period to 12 months on appeal. This was an instance of an offence in which there were classic standover tactics relating to a business debt in which the offender politely delivered a threat of harm but was a physically imposing man.
There are other cases. None of them are on all fours with this case. In this case, the demand was for an unspecified amount of money allegedly owing because of a drug deal gone wrong. To that end, it was an attempt to enforce an illegitimate claim arising from illegal conduct. This is concerning as it bespeaks of vigilantism in the criminal world which may be both difficult to detect and difficult to prosecute, leading to potential violent lawlessness in the community. In this instance, had the victim not needed assistance due to being stranded, the conduct may well never have come to light. Such conduct must be strongly denounced.
The circumstances involved a degree of planning. The offender attended in the presence of others acting as muscle. It was associated with the use of actual violence both before the threat directly from the offender and after from his associates. It involved the victim being rendered vulnerable in that without any real choice, he entered a car, albeit not at the offender's demand, clearly with his acquiescence given that he joined the complainant in the back seat.
The threats were made repeatedly and at close quarters, albeit over a single occasion as opposed to demands made over days, weeks or longer. The vehicle then travelled quickly to a relatively remote location where the victim was abandoned after the application of further force. His response to his rescuers, both passers-by, ambulance and police, make it clear that he held a genuine fear for his safety.
Whilst it could be said that there was a degree of provocation in the complainant pressing for a meeting, his offensive jokes and baiting style used to bring the offender to the incident, the complainant, whilst anticipating the possibility of violence, in further communication with the offender apologised for his bad jokes, stated that he was unarmed and noted that, ‘bashing skulls is pointless.’
Whilst there was an element of provocation, a consideration of s 33(1)(q) of the Crimes (Sentencing) Act2005 (ACT) (the ‘Sentencing Act’), it was small and mutual in the context of a dispute in the criminal sphere. However perceived, the response was both vastly disproportionate and inappropriate. The threats, whilst unspecified in detail, clearly referred to violence, being a threat to hurt.
This threat was extended beyond the complainant to his family which aggravates the offence. It is also an aggravating factor that Mr Inder was on conditional liberty at the time of his offending. Clearly, the sentencing range is a matter to be considered pursuant to s 33(1)(za) of the Sentencing Act and that range is broad. The matter on the facts before me is a serious example of this type of offence.
The common assaults are quite different in nature. The first consisted of a threat of harm only but in the presence of a weapon, the baseball bat, by which harm could readily be affected. The second more serious offence consisted of an actual battery in the form of a fairly protracted physical assault of a person on the ground, including kicks to particularly vulnerable parts of the body including the head and groin.
Personal circumstances
Mr Inder is a 30-year-old man with a fairly unremarkable background. He has the support of family, very limited education attaining Year 7 schooling, but is well regarded in the construction industry for his skill as an excavator operator.
He is in a stable relationship with the mother of his three-year-old daughter. He has missed some important milestones in her young life whilst in custody and is thought by his family to be strongly motivated to resume a pro-social life in the community to benefit his daughter. I am cognisant of the potential impact of any sentence to be imposed, particularly further imprisonment, on Mr Inder's daughter in particular. I have regard to this pursuant to section 33(1)(o) of the Sentencing Act.
Mr Inder is able to resume living with his parents when released from custody. Work is apparently available to him from one or more former employers.
Mr Inder has no disclosed physical or mental health concerns.
Mr Inder has a relatively limited, although somewhat concerning, criminal history. He first appeared as a young offender for a drink driving offence aged 17, soon followed by a dangerous driving offence. He had about eight years offence free before committing further driving offences including drink driving and driving whilst disqualified.
His next offending in 2016, by which time he was 27 years old, saw his first drug driving offence reflecting his use of methylamphetamine and cannabis. This accords with his report to the presentence report author of what he perceives to be the timing of his problematic use of this substance. Drug possession and proceeds of crime convictions followed along with unauthorised possession of ammunition and a firearm.
He has been sentenced to imprisonment to be served in the community with a focus on drug rehabilitation. He has breached those orders. Mr Inder has been in custody since 9 July 2019. During that time, he has been subject to disciplinary action for violence on other inmates and for testing positive for illicit substance use.
He has been exited from the ThroughCare Substance Abuse program for alleged involvement in a suspected drug drop off which he denies. His conduct in custody does not bode well for his prospects of rehabilitation in the community, given that violence and involvement in the illicit drug trade were hallmarks of both his offending and his time in custody. Mr Inder has expressed regret for his offending and a preparedness to engage in restorative justice with Mr Nicholson. Should he wish to avail himself of that opportunity, I now make that referral for restorative justice assessment.
Mr Inder has been assessed by the presentence report author as treatment ready in respect to his illicit drug use and as being at low to medium risk of further offending. His lack of pro-social or positive leisure activities and associates beyond his immediate family are considered barriers to his rehabilitation.
He has been found suitable for community service work. I declined to delay sentencing by obtaining a report as to Mr Inder's suitability for an Intensive Corrections Order. The major factor, it appears, which must be addressed is his illicit substance use which, if significant, is generally treated as a bar to engagement in an ICO. The attitudinal issues identified by the presentence report author are closely linked to Mr Inder's involvement in the illicit drug trade.
Sentence considerations
I have had regard to ss 33 and 35 of the Sentencing Act as to an appropriate discount for Mr Inder's guilty pleas. These were entered following criminal case management in this court. Despite the fact that the pleas were entered reasonably late in the process after initially entering not guilty pleas, they reflect a better outcome achieved by the offender justifying, to some extent, their late entry. They also provide a utilitarian benefit: the court and community resources have been saved. To a lesser extent, the pleas may be interpreted as reflecting a degree of remorse; the complainant and other witnesses have been spared the ordeal of giving evidence. Whilst there appears to have been a strong prosecution case, it could not be described as overwhelming. I have also had regard to the seriousness of the offence and its effect on the victim. I am satisfied that a 20 per cent or an approximately 20 per cent discount is appropriate.
I have had regard to the purposes of sentencing detailed in s 7 of the Sentencing Act, all of which have application in this case. The need for general deterrence, noting the context in which this offending occurred, and denunciation are particularly important. I recognise that there is some scope for rehabilitation noting the offender's otherwise relatively limited criminal history, the potential to address his drug use and the fact that this has been his first experience of fulltime custody.
I have had regard to mandatory sentencing considerations pursuant to s 33(1) of the Sentencing Act. As will be apparent from the observations I have made, subparagraphs (o), (q) and (v) are particularly apposite. The latter, dealing as it does with why the offences were committed, pulls in opposition to considerations of the impact on Mr Inder's family and any provocation he perceived.
I have had regard to s 10 of the Sentencing Act and whether a sentence other than fulltime imprisonment is appropriate. I conclude that it is not. Having breached existing suspended sentences twice, I am satisfied that any lenience shown as to how the sentence should be served is best reflected by a more lenient non-parole period than might otherwise apply had this not been the offender's first period of fulltime custody.
I have had regard to the principle of totality in determining appropriate concurrency and cumulation. I am mindful of the overarching requirements that each offence be assessed and a sentence arrived at individually and that a fair and just sentence be arrived at reflecting the overall criminality by applying appropriate concurrency and cumulation.
I have had regard to time served on remand and taken into account the offender having been in custody since 9 July 2019.
I have had regard to the proper approach to the breach matters. In doing so I am required to interpret the sentences pronounced by Magistrate Theakston in a resentence on 19 February 2019. Originally, Special Magistrate Hunter imposed seven months, fully suspended for 18 months for the offence of unauthorised possession of a firearm and six months cumulative as to two for the proceeds of crime offence, similarly suspended, such that in the event the sentences were imposed the result was 11 month's fulltime custody. In the resentence, Magistrate Theakston sentenced Mr Inder to seven and six months consecutively being a total of 13 months fully suspended for 12 months. I have not been provided with the sentencing remarks from either magistrate. There is a risk that by simply imposing the resentence periods I would fail to reflect either the intent of the magistrate or a fair reflection of the fresh breach. Accordingly, I will cancel the existing sentence and resentence on the facts provided to me having regard to the offender's current circumstances.
I note that the firearm offence contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT) attracts a maximum of 10 years' imprisonment. The proceeds of crime offence contrary to s 114C of the Crimes Act attracts a maximum of two years' imprisonment. These offences arose in the context of police exercising emergency powers under the Drugs of Dependence Act 1989 (ACT) as a result of which they attend at Mr Inder's home address following a drug dealer who had been unknowingly engaged in dealings with an undercover police officer.
When Mr Inder was arrested, he had $10,714.50 in his jumper pocket. Various drugs and drug paraphernalia were found in his home and a further $3,250 found in his coffee table. Most of the notes on him bore serial numbers from the drug transaction earlier that day.
A firearm, being a 12 gauge double barrel shotgun with the barrel shortened was found on top of the pergola attached to Mr Inder's home. There were three cartridges inside his home. Both offences are serious, but not extreme examples of such offences. The proceed of crime offence reflects immediate receipt of a significant sum of money closely connected with the crime for which the proceeds were received.
The firearm offence relates to a single dangerously modified weapon, unsafely stored, separate from ammunition but in the same premises. Having considered the circumstances, I am of the view that the original periods of imprisonment reflected an appropriate discount and are appropriate. I consider that the two month concurrency originally arrived at by Special Magistrate Hunter was also appropriate.
Sentence
Having breached good behaviour orders attached to this offending, not once but twice and having done so in the context of further drug related crime, I consider that these sentences are properly served by way of fulltime imprisonment.
On charge number CC2407/2017 seven months' imprisonment will be taken to have commenced on 9 July 2019 and to have completed on 8 February 2020.
On charge number CC11327/2016 six months' imprisonment will be taken to have commenced on 9 December 2020 and will complete on 8 June 2020.
In relation to the offence of making a demand with threat, I sentence the offender to 19 months' imprisonment reduced from two years. Being entirely unrelated offending, I am satisfied that this period of imprisonment should be consecutive on the existing sentence.
On charge number CC20/2020 in the Supreme Court, imprisonment will commence on 9 June 2020 and complete on 8 January 2022.
On the first count of common assault I sentence the offender to two months' imprisonment reduced from three to be served concurrently with the 19 months. Therefore, imprisonment on charge number CC7771/2019 will commence on 9 June 2020 and complete on 8 August 2020.
On the second count of common assault, I sentence the offender to five months' imprisonment reduced from six to be served concurrently with the 19 month sentence as to three months. On charge number CC7772/2019 imprisonment will commence on 9 October 2021 and complete on 8 March 2022.
There is, therefore, a total sentence of imprisonment of 32 months commencing 9 July 2019 and completing on 8 March 2022. I set a non-parole period of 15 months from 9 July 2019 to 8 October 2020.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Walker Associate: Date: |
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