R v Jacky
[2017] ACTSC 392
•11 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jacky |
Citation: | [2017] ACTSC 392 |
Hearing Dates: | 14 July 2017 and 11 September 2017 |
DecisionDate: | 11 September 2017 |
Before: | Mossop J |
Decision: | See [59] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflict grievous bodily harm – threaten a witness in a criminal investigation – late plea of guilty – no sentence other than a sentence of imprisonment appropriate – significant time in custody attributable to the subject offences – offender in custody for other offences – offender the subject of other suspended – sentence orders – offender assessed as suitable for Intensive Corrections Order – cancel suspended sentence and resentence – imprisonment to be served by way of Intensive Corrections Order |
Legislation Cited: | Crimes Act 1900 (ACT), s 20 Criminal Code 2002 (ACT), s 709A |
Cases Cited: | R v Pallier [2017] ACTSC 112 |
Parties: | The Queen (Crown) Ernest Bruce Jacky (Offender) |
Representation: | Counsel S McLaughlin (Crown) J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) John O’Keefe Law Firm (Offender) | |
File Numbers: | SCC 215 of 2016 SCC 166 of 2017 SCC 169 of 2017 |
MOSSOP J:
Introduction
Ernest Bruce Jacky has pleaded guilty to two charges:
(a)that on 26 June 2015 he recklessly inflicted grievous bodily harm on Samuel Wetzler; and
(b)that between 25 June 2015 and 19 July 2015 he threatened to cause a detriment to Natalia Boskovic with the intention that she would not participate in a criminal investigation or would withhold true evidence in a criminal investigation.
The maximum penalty for the offence of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) is 13 years’ imprisonment. The maximum penalty for the offence of threatening a participant in a criminal investigation contrary to s 709A of the Criminal Code 2002 (ACT) is five years’ imprisonment, a fine of $75,000 or both.
The relevant facts
The facts were agreed and set out in a statement of facts which became Exhibit 1. Those facts was supplemented by two photographs of the wound inflicted on the victim (Exhibit 6) and a medical report describing in more detail the nature of the injuries and the treatment received. The relevant facts are as follows.
In the days leading up to 25 June 2016 the offender believed that Mr Wetzler was responsible for two separate home invasions at the residences of two of his friends. Both of these people were known drug dealers. One of them had a CCTV system installed at his house. The offender claimed to have seen footage of one of the home invasions which depicted Mr Wetzler as being involved.
The offender met with Mr Wetzler on 25 June 2015. He told him that there were a lot of people seeking retribution against him. The offender suggested that they may try to take his vehicle, a Toyota Prado, as compensation for property stolen during the home invasions. Mr Wetzler protested his innocence. The offender convinced him that the offender should be allowed to take the Toyota Prado and hide it for him. Mr Wetzler handed him the keys. However, the offender had no intention of assisting him and instead gave the car to Mr Johnny Platt who was a friend and associate of the persons who had been the subject of the home invasions.
On 26 June 2015 Mr Wetzler realised that he had been deceived. He went to the house of another person in Jenner Court, Waniassa, where he confronted the offender about what he had done, accused the offender of being dishonest and duplicitous and challenged the offender to a fight. The offender was not prepared to fight Mr Wetzler.
Mr Wetzler enlisted the help of his friends, David Zdrakovic and Mr Zdrakovic’s partner, Natalie Boskovic, to help him get the car back. They were able to persuade Mr Platt to return the vehicle. They went to the house at Jenner Court and found Mr Platt cleaning it out. Mr Wetzler checked the fuel gauge as he was concerned that Mr Platt had driven the car to Bega before returning it. Mr Wetzler began walking towards the house to speak to the occupant. The offender and an unknown male walked out from behind some bushes towards Mr Wetzler. Mr Wetzler approached the offender and began to yell abuse at him. The offender produced a loaded 12-gauge sawn-off shotgun, cocked the hammer and pointed it at Mr Wetzler. Mr Wetzler, fearing for his safety, charged the offender in an attempt to disarm him before he could be shot. As Mr Wetzler ran towards the offender, the offender discharged the shotgun, shooting Mr Wetzler in the right shin. The offender then turned and ran. Mr Zradkovic, Ms Boskovic, their 10‑year‑old daughter and Mr Platt observed the incident.
Mr Wetzler was then taken to The Canberra Hospital where he received emergency surgery under general anaesthetic. Shotgun pellets and debris were removed from the wound. The wound was 9 cm x 7 cm and deep enough for the tibia to be visible. Mr Wetzler subsequently underwent a total of three operations under general anaesthetic. They included including a skin graft, further cleaning of the wound and the application of a vacuum dressing. He spent three weeks in hospital. He sustained extensive muscle and tissue injuries to his right shin, will have permanent scarring and may experience ongoing pain and discomfort as well as psychological sequelae related to the event.
Police attended The Canberra Hospital where they spoke to Mr Zradkovic and Ms Boskovic. They described the event but did not name the offender. While Ms Boskovic was talking to police at the hospital she received a call on her mobile phone from the offender. The offender apologised to Ms Boskovic for shooting Mr Wetzler in front of her 10-year-old daughter. He then went on to threaten her saying that if she spoke to the police “the same thing will happen to you, but worse”.
At 11:45 pm that evening the offender was arrested. Approximately a week after the shooting the offender called Ms Boskovic again saying “[h]ey sis. I just want to make sure nothing has been said, cause if something’s been said there’s going to be trouble. Tell old mate as well.”
At the time of the offending conduct the offender was subject to six Good Behaviour Orders relating to road-transport offences which had been imposed on 17 June 2015.
Plea of guilty.
The offender first appeared in the ACT Magistrates Court on 30 May 2016. On 22 June 2016 he entered pleas of not guilty to the charges then before the Court. He was committed for trial on 21 September 2016. The matter was listed for a trial commencing on 29 May 2017. On 26 May 2017 the offender pleaded guilty to the charges now before the Court.
The plea of guilty is a late plea of guilty. The plea however had utilitarian value.
Personal circumstances
Evidence about the personal circumstances of the accused is derived from a Pre‑Sentence Report dated 12 July 2017 and a CADAS Report of the same day.
The offender is now 34 years old. He was born in New South Wales and is one of six children. He grew up in the ACT and had a disrupted childhood characterised by instability within the family unit. He completed schooling up to Year 9. He has been in a de-facto relationship for 15 years with his current partner. He has two dependent children, a 15-year-old son who has Angelman syndrome and a three-year-old son. Angelman syndrome involves a severe intellectual disability. He has been unemployed since 2010.
He told the author of the Pre-Sentence Report that he commenced using cannabis and methamphetamine when he was 31 years old. There was some inconsistency with the use reported in the CADAS Report in that it reports his first use of methamphetamine at the age of 25 years and of cannabis from 12 years old. Counsel identified 2011, the year in which the offender turned 28, as being the year when he started using methamphetamine. Whenever he commenced using, it is clear that he has a significant problem with both drugs. Up until May 2016 he would use two grams of each drug per day. He is assessed as using illicit substances at a severe level and the authors of the Pre-Sentence Report and the CADAS Report both recommend assessment and treatment for his illicit‑drug use.
He has no other physical or mental health issues.
He has a poor history of compliance with community-based orders.
His partner, Shannon Worthley, gave oral evidence and prepared a letter which was tendered. While the couple have had a long-term relationship there have been significant periods where their relationship has had difficulties. Particularly in relation to periods where he was using methamphetamine, there have been times when he has not lived with her and the children. She obviously desires that he spend, and she has an interest in him spending, as little time in full-time detention as possible.
She gave oral evidence about the assistance that he gives with caring for the children. It appears that, while she is the primary carer for both of the children, she benefits from his physical assistance, particularly with the eldest child, and both children benefit from having a father figure around. Her evidence was that the time spent in jail has been a significant wakeup call for the offender.
Both the assistance given by him to his family and the significance of the time spent in custody are corroborated by a letter from two “Social Health Team Managers” at the Winnunga Nimmityjah Aboriginal Health Service.
Criminal history
The offender has a significant but not overwhelming criminal history.
He has some Children’s Court convictions from 2000 and 2001.
In 2003 he was convicted of minor theft and riding or driving a vehicle without authority.
In 2006 he was convicted of a drink-driving charge in New South Wales and fined and disqualified from driving for 12 months.
In 2009 he was convicted of a level‑3 drink‑driving offence.
In 2013 he was convicted of contravening a protection order and given a suspended sentence of three months. He breached the Good Behaviour Order associated with the suspension of that sentence and was resentenced on 17 June 2015 and sentenced to the rising of the Court.
He was also convicted of possessing an offensive weapon with intent and given a Good Behaviour Order. He breached that Good Behaviour Order but on 17 June 2015 the Court decided to take no further action.
In 2013 was convicted of a variety of offences in New South Wales. He was sentenced for those offences in June 2015. They were three minor drug‑related offences for which he was fined, unlicensed driving for which he was fined and failing to appear in accordance with a bail undertaking for which he was fined.
In 2015 he was convicted of driving while suspended and given a Good Behaviour Order with community service work. He breached that Good Behaviour Order and was sentenced in August 2016 to 15 days’ imprisonment.
He was also convicted in 2015 of two charges of driving with a prescribed drug in his oral fluid and given a Good Behaviour Order with community service work. He breached the Good Behaviour Orders and was sentenced in August 2016 to 25 days’ imprisonment and 30 days’ imprisonment.
He was also convicted of using an unregistered vehicle and using an uninsured vehicle. On both charges he was given a Good Behaviour Order with community service work. In August 2016 the Good Behaviour Orders were cancelled and he was fined $500.
He was also convicted of being an unlicensed driver and given a Good Behaviour Order with community service work. He breached the Good Behaviour Order and in August 2016 was fined $500.
In September 2016 he was convicted of failing to appear after a bail undertaking and sentenced to three months’ imprisonment.
In February 2017 he was convicted of a number of offences which occurred in May 2016 including driving while disqualified, dangerous driving, attempting to take a motor vehicle without consent and damaging property. He received sentences of imprisonment which required him to serve a total of four and a half months in custody before the balance of the sentences were suspended. I will return to two of those offences later in these reasons.
The feature of the criminal history which was emphasised by counsel for the offender was that period between 2002 and 2013 when the offender’s offending conduct was only driving related. That was consistent with his admitted start of methamphetamine use in about 2011.
Counsel for the Crown emphasised the circumstances of his offending conduct in 2013 when he breached a protection order, possessed a weapon with intent and damaged property. That offending conduct was directed at his partner Ms Worthley.
Time in custody
He was arrested on 25 June 2015. He was not charged at that point because the police were not in a position to do so having regard to the state of their investigations. He has been in custody since 4 May 2016 although he was only remanded in custody on the current matter on 30 May 2016. During the period since then he has served a number of sentences for offences recorded on his criminal history which were imposed by various magistrates. Counsel for the Crown informed the Court that prior to today he has spent 200 days in custody due to the current offences. While he has in fact spent much more time in custody since being taken into custody on 4 May 2016 much of that time has been attributed to other sentences.
Consideration
In relation to the charge of recklessly inflicting grievous bodily harm, the conduct was planned a least insofar as the offender had the weapon in his possession and must have intended to confront the victim. It obviously involved the use of a weapon. It did not however involve the use of that weapon upon a part of the body which might have led to death or more serious injury. I assess the conduct as being in the mid-range of objective seriousness for this offence.
In relation to the charge of threatening a participant in a criminal investigation, I assess this conduct as being in the low-to-mid range of objective seriousness for this offence. The threats were serious, particularly the first, in that it involved a threat of physical violence more serious than that which was inflicted upon the victim. It was also made in the immediate aftermath of the shooting incident and hence made in circumstances where it represented a very real threat. It was made at a time when the offender was on conditional liberty arising from Good Behaviour Orders made shortly before in relation to driving offences.
The second threat involves a non-specific threat of that there was “going to be trouble”. Both threats were made in the context of a previous violent assault on the shooting victim and their gravity must be assessed with that in mind. There was, however, no particular vulnerability on the part of Ms Boskovic, they were made over the phone rather than in person and there were no other particular aggravating features.
So far as can be discerned from the material in evidence the principal contributing factor to his criminal behaviour is his illicit drug use and the people with whom he associates as a result of that drug use. I consider, consistent with the opinions of the authors of the Pre-Sentence Report and the CADAS Report that addressing his drug use will be the most effective way to reduce the prospect of further offending.
The evidence is that his partner is the principal carer for his disabled son. Therefore while there will be an impact, it is not a case where there is an unusually severe impact because of the caring responsibilities of the person to be sentenced.
Having regard to the submissions made on 14 July 2017, I directed that there be an assessment for suitability for an Intensive Corrections Order.
The Intensive Corrections Order Assessment Report presents a mixed picture. Ultimately he is assessed as suitable for an Intensive Corrections Order because of his strong family-support and stable accommodation. He appears to have made a favourable impression upon those undertaking the assessment. The conclusion that he was suitable came despite recognition of his significant criminal history, poor history of compliance with community-based orders and his significant risk factors, including a severe illicit-substance dependency, limited employment and outstanding court matters.
As a result of sentences imposed on 6 February 2017, which relate to offences committed after the offences for which he is presently being sentenced, he is currently subject to two suspended-sentence orders. On charge CC2016/5447, a charge of furious/reckless/dangerous driving, he was sentenced to three months’ imprisonment suspended upon entering into a Good Behaviour Order for 18 months. That Good Behaviour Order would expire on 5 August 2018. Similarly on charge CC2016/10026, a charge of attempting to take a motor vehicle without consent, he was sentenced to six months’ imprisonment, suspended after one month upon entering into a Good Behaviour Order for 18 months. If the sentence is accurately recorded in the criminal history then the Good Behaviour Order would expire on 5 September 2018. Alternatively if the Good Behaviour Order ran from the sentence date as opposed to the date of the suspension of the sentence of imprisonment then the order would expire on 5 August 2018.
Section 80 of the Crimes (Sentencing) Act 2005 (ACT) places limits upon the power of a court to make an Intensive Corrections Order when a person is subject to a suspended-sentence order. However s 80(4)–(5) permit the making of an Intensive Corrections Order where there is a suspended sentence and the offender is being sentenced for an offence committed before the offence to which the suspended sentence relates. However, it requires that the Court cancel the offender’s suspended-sentence order and resentence the offender to serve a term of imprisonment by intensive correction.
It is clear that having regard to the objective seriousness of the offences on the indictment, no sentence other than a sentence of imprisonment is appropriate. Having regard to the gravity of the charge of inflicting grievous bodily harm the purposes of sentencing will generally not be adequately addressed by any other sentence than a sentence of imprisonment to be served by way of full-time detention. This was the approach that appears to have been taken by Elkaim J in R v Pallier [2017] ACTSC 112 at [18]. However, in my view two factors mean that an Intensive Corrections Order is not ruled out by the gravity of the offending conduct. First, the offender has spent a significant period, in excess of six months, in custody solely attributable to these offences. Thus, any Intensive Corrections Order would be made taking into account this period of pre‑sentence custody even though any backdating or combination sentence which would formally incorporate that period as part of the sentence is not possible. Second, the offender’s problems appear to be largely drug-use related and there are significant family connections which provide some hope that service of a custodial sentence by way of an Intensive Corrections Order may provide a strict framework within which he can be rehabilitated.
In addition to taking into account the 200 days of pre‑sentence custody solely attributable to these offences, I take into account the other periods of pre-sentence custody which have formed part of sentences on the other offences as a fact which is relevant because it shows that the offender has suffered a significant period of custody greater than any period in custody that he has spent during his life. There is at least a reasonable prospect that as a result of the period of incarceration he will be and remain motivated to change his life.
On the charge of inflicting grievous bodily harm I will impose a sentence of two years and three months reduced from two years and six months on account of the plea of guilty. I have further reduced the sentence by four months to take into account part of the 200 days in pre-trial custody that has not been taken into account in any other sentence. This gives 23 months.
On the charge of interfering with a criminal investigation I will impose a sentence of 11 months reduced from 12 months on account of the plea of guilty. I have further reduced this by two and half months take into account the balance of the period of pre-trial custody solely attributable to this charge. This gives eight months and 15 days. This period will be cumulative to the extent of five months upon the previous charge because, although arising out of the earlier offence, it involved a distinct and serious engagement in criminal behaviour.
Having regard to his assessment as suitable for an Intensive Corrections Order and the factors that I have referred to above, I consider it appropriate that these periods of imprisonment be served by way of Intensive Corrections Orders.
That means that I am obliged also to cancel the existing suspended sentences and resentence on those offences.
On charge CC2016/5447 I will impose a sentence of imprisonment of two months to be served by way of Intensive Corrections Order cumulative upon the previous sentence. This is reduced from the three months’ suspended sentence because a portion of the Good Behaviour Order had already been served and because it is a sentence of imprisonment which needs to be actually served.
On charge CC2016/10026 I will impose a sentence of four months to be served by way of Intensive Corrections Order cumulative as to three months on the previous sentence. Once again this has been reduced from the five months’ imprisonment which was suspended to four months, with only three of those months being cumulative because of the service of a period of the Good Behaviour Order and because it is a sentence which is to be actually served.
The total effective sentence to be served by Intensive Corrections Order is two years and nine months. Because no individual sentence is greater than two years the requirements of s 11(3) of the Crimes (Sentencing) Act do not apply: see the use of the singular “an offence” in s 11(1). However even if I was required to consider the matters in s 11(3) I would have considered that an Intensive Corrections Order was appropriate.
The Intensive Corrections Order Assessment Report proposed the inclusion of certain conditions. These included some conditions which proposed that he “engage with” certain matters. When drafting a condition for an Intensive Corrections Order it is important to ensure that the person bound by the order knows what the person is required to do. While the intent of the phrase “engage with” is apparent I do not consider that the obligation is sufficiently clear to incorporate it in a condition of the order. Similarly, the assessment proposed a condition that he “is not to associate with any anti‑social peers”. Once again, while the intent is worthy and clearly addresses a matter which is likely to be a key to the offender’s longer-term rehabiliation, having regard to the imprecision of the expression “anti‑social peers” and the subjective nature of any assessment, it is not appropriate to impose it as a condition on the Intensive Corrections Orders.
Each of the Intensive Corrections Orders which I make will include the following additional conditions:
(a)The offender is to undertake medical treatment and supervision as directed by the Director-General.
(b)The offender is to supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer.
(c)The offender is to attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.
(d)The offender must not assault, harass, threaten or intimidate nor cause another person to assault, harass, threaten or intimidate Samuel Wetzler.
Orders
The orders of the Court are:
1. On the charge of recklessly inflicting grievous bodily harm the offender is convicted and sentenced to 23 months’ imprisonment to be served by way of Intensive Corrections Order from 11 September 2017 to 10 August 2019.
2. On the charge of threatening a witness in a criminal investigation the offender is convicted and sentenced to imprisonment for a period of eight months and 15 days to be served by way of an Intensive Corrections Order from 27 April 2019 to 10 January 2020.
3. On charge CC2016/5447 the suspended sentence order made on 6 February 2017 is cancelled and the offender resentenced to serve two months’ imprisonment by way of an Intensive Corrections Order from 11 January 2020 to 10 March 2020.
4. On charge CC2016/10026 the suspended sentence order made on 6 February 2017 is cancelled and the offender resentenced to serve four months’ imprisonment by way of an Intensive Corrections Order from 11 February 2020 to 10 June 2020.
5. Each of the Intensive Corrections Orders is to contain the following additional conditions:
i.The offender is to undertake medical treatment and supervision as directed by the Director-General.
ii.The offender to supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer.
iii.The offender is to attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.
iv.The offender must not assault, harass, threaten or intimidate nor cause another person to assault, harass, threaten or intimidate Samuel Wetzler or Natalie Boskovic.
6. The total period of imprisonment to be served by way of Intensive Corrections Order is two years and nine months from 11 September 2017 to 10 June 2020.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 19 December 2017 |