R v Kirkwood
[2022] ACTSC 148
•24 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kirkwood |
Citation: | [2022] ACTSC 148 |
Hearing Dates: | 20 April, 9 May 2022 |
DecisionDate: | 24 June 2022 |
Before: | Kennett J |
Decision: | See [148]–[151] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – common assault – attempted blackmail – aggravated robbery – possess offensive weapon – make demand with threat to kill – aggravated burglary – theft – cultivate cannabis plant – convictions recorded – sentences of imprisonment imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 26, 32, 35, 38 Criminal Code 2002 (ACT) ss 44, 45, 45A, 308, 310, 312, 342, 616, 618, 712A Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111 |
Cases Cited: | Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Simonds v The Queen [2013] ACTCA 13 |
Parties: | The Queen ( Crown) Jesse Kirkwood ( Offender) |
Representation: | Counsel S Janackovic ( Crown) P Edmonds ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Canberra Criminal Lawyers ( Offender) | |
File Numbers: | SCC 259, 260, 269, 270 of 2021 |
KENNETT J:
Introduction
In November 2021 the offender, Jesse Kirkwood, pleaded guilty to ten offences that occurred in July and August 2021.
The offences that occurred in July 2021 are as follows:
(a)Attempted blackmail, contrary to ss 44 and 342 of the Criminal Code 2002 (ACT) (Criminal Code).
The maximum penalty is 14 years’ imprisonment, a fine of $224,000, or both.
(b)Aggravated robbery (joint commission), contrary to ss 45A and 310 of the Criminal Code.
The maximum penalty is 25 years’ imprisonment, a fine of $400,000, or both.
(c)Common assault (joint commission), contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act) and s 45A of the Criminal Code.
The maximum penalty is 2 years’ imprisonment.
The offences that occurred in August 2021 are:
(a)Two counts of aggravated burglary, contrary to s 312 of the Criminal Code.
The maximum penalty is 20 years’ imprisonment, a fine of $320,000, or both.
(b)Two counts of theft, contrary to s 308 of the Criminal Code
The maximum penalty is 10 years’ imprisonment, a fine of $160,000, or both.
(c)Make demand with threat to kill, contrary to s 32(1)(a) of the Crimes Act
The maximum penalty is 20 years’ imprisonment.
(d)Possess offensive weapon with intent, contrary to s 381(1) of the Crimes Act
The maximum penalty is 1 year’s imprisonment, a fine of $2,000, or both.
(e)Cultivate cannabis plant, contrary to s 618(2) of the Criminal Code
The maximum penalty is 2 years’ imprisonment, a fine of $32,000, or both.
Facts
The facts below are a summary of the agreed statement of facts before the Court.
Offending in July 2021
Offending on 9 July 2021
In 2021 the complainant, Ezra Bell (a pseudonym), began using a website called “sugardaddymeet.com”. He exchanged messages with “Stephanie”. He believed “Stephanie” to be a young woman aged in her twenties. “Stephanie” was a fictious persona being operated by the offender.
On Friday 9 July 2021, the complainant arranged to meet with “Stephanie” after exchanging various messages with “her”. At about 1:30PM, the complainant parked his vehicle in a dirt parking area at the intersection of Hindmarsh Drive and Eucumbene Drive in Duffy.
At around 2:30PM, the offender was captured on CCTV at the offender’s residence in Duffy. He was accompanied by a young person (whose name has not been disclosed pursuant to s 712A of the Criminal Code) and an unidentified male. The group departed the residence in a Ford Falcon and Holden Commodore.
At 2:37PM, the young person drove the Ford Falcon into the dirt parking area. He parked in front of and perpendicular to the complainant’s vehicle. Shortly after, the unidentified male drove the Holden Commodore into the dirt parking area, parking alongside the Ford Falcon. The offender was in the rear passenger seat.
At this time, the complainant was standing next to his vehicle and talking on the phone. The offender exited the Holden Commodore carrying a water pistol. He approached the complainant and asked him if he had seen a “little girl”. Feeling unsafe, the complainant entered his vehicle and locked the doors.
The young person exited the Ford Falcon and approached the complainant’s vehicle. He was wearing a camouflaged neck warmer that covered the lower half of his face and carrying what appeared to be a silver-coloured handgun. The offender began to spray water from the water pistol on to the front window of the complainant’s vehicle. At this time, the unidentified male exited the Holden Commodore carrying a “big stick”. The young person approached the front passenger door, attempting to open it. The offender did the same with respect to the driver door.
These events were partially captured by video footage from a dashboard camera in the complainant’s vehicle, which was played during the hearing. The video confirmed that the young person was holding what appeared to be a handgun. It also showed that the water pistol carried by the offender was a large, coloured plastic item and clearly not a weapon.
Fearing for his safety and believing that the offender and young person were attempting to steal his vehicle, the complainant drove the vehicle out of the carpark and onto Hindmarsh Drive (Count 1—Common Assault).
The offender and the young person entered the Ford Falcon and pursued the complainant along Hindmarsh Drive, Streeton Drive, Namatjira Drive, Hindmarsh Drive, the Tuggeranong Parkway and Drakeford Drive before eventually ceasing to follow him. The young person was driving.
While pursuing the complainant, the offender sent the following text messages to the complainant (Count 2—Attempted Blackmail):
OFFENDER: "I have all the evidence I need"
OFFENDER: "I'm going to the police [Ezra]"
OFFENDER: "You're a Government agency officer"
OFFENDER: "ANSWER THE PHONE OR WE GO TO THE COPS"
OFFENDER: "YOUR LIFE ENDS OR YOU AN"
OFFENDER: "THAT'S MY SISTER YOY FUCKING PEDO"
OFFENDER: "I have your address"
OFFENDER: "Pull over or I will destroy your entire life [Ezra]"
OFFENDER: "You have 5 cars following you"
OFFENDER: "We're going to the police"
OFFENDER: "Or"
OFFENDER: "Let's make a deal"
OFFENDER: "Pull over"
OFFENDER: "You fucked with the Wrong cunts"
OFFENDER: "I have your mother's address"
OFFENDER: "The police are about to be sent a whole lot of evidence"
OFFENDER: "You can't go home"
OFFENDER: "You can't go to the police"
OFFENDER: "Ready to make a deal?”
Offending on 18 July 2021
The complainant, Kirby Alberts (a pseudonym), used Snapchat to market and sell electronic cigarettes.
On the afternoon of 18 July 2021, the complainant received a Snapchat message from an account named “Cheq E”, indicating that the operator wished to purchase electronic cigarettes from the complainant. The complainant responded to the message by providing his address in Nicholls.
That evening, the complainant sat inside his Ford Focus which was parked in his driveway and waited for “Cheq E” to attend his residence. At around 7:13PM, the offender and the young person arrived at the residence. They were inside a BMW that the offender had hired on 16 July 2021 using his own name and mobile number.
The complainant approached the BMW, leaving the keys to Ford Focus in the ignition. The offender was driving, and the young person was in the front passenger seat wearing a black face mask. The complainant was asked to enter the BMW, which he did.
For approximately 20 minutes, the offender drove the complainant around in the BMW through Nicholls, Palmerston and Crace. Despite wanting to get out of the vehicle, the complainant was unable to do so, as it was being driven too fast and too erratically. The offender and the young person repeatedly “dared” the complainant to jump out of the moving vehicle.
At some point, the offender stopped the BMW at Candlebark Close in Nicholls. The young person turned around in his seat and faced the complainant. He produced a knife described as being one inch wide and eight inches long with a half-serrated blade. He held the knife to the complainant’s chest and threatened to kill the complainant if the complainant did not give him all of the money and electronic cigarettes he had. The offender also produced a knife, described as being like a “shark tooth”.
The complainant feared he was going to be stabbed. He agreed to give all of his money and electronic cigarettes to the young person. The young person also demanded the complainant’s phone and the complainant complied. However, his phone was subsequently returned to him by the offender.
The offender drove the BMW back to the complainant’s residence. The offender exited the BMW and entered the complainant’s Ford Focus. He took a bag containing 30 “iGet” electronic cigarettes (valued at $700) from inside and put them inside the BMW (Count 3—Aggravated robbery).
The young person exited the BMW with the complainant. He drove away from the residence in the complainant’s Ford Focus with the complainant in the front passenger seat. He subsequently dropped the complainant at the Belconnen Basketball Stadium. The offender left the complainant’s residence in the BMW.
On 19 July 2021, the complainant’s Ford Focus was located by police in Wanniassa.
Offending in August 2021
Background
Prior to May 2021, Jeffrey Hollins (a pseudonym) and Roderick Winston (a pseudonym) were friends and lived together. In May 2021, their relationship broke down. Mr Hollins tried to avoid Mr Winston.
Between May 2021 and July 2021, Mr Winston attempted to locate Mr Hollins. He offered a friend, Roscoe Arden (a pseudonym), a sum of money to divulge Mr Hollins’ whereabouts. Mr Winston also made multiple threats to kill Mr Hollins during this period. There is no evidence before the Court that the offender was aware of the threats, or the offer made to Mr Arden.
In June 2021, a co-offender (Keona Watson) was in a relationship with Mr Arden. Some time prior to 8 August 2021, the relationship ended. During this time, co-offender Watson became aware of what she believed to be a “hit” that was out on Mr Hollins for him to be killed. I note that both the Crown and the offender agree that the offender had not entered into an agreement to kill Mr Hollins.
During the course of their relationship, co-offender Watson would stay at Mr Arden’s residence in Chapman. The complainant, Amos Derricks (a pseudonym), also lived at this address. Mr Hollins would also stay at the residence from time to time.
Offending on 13 August 2021
On 8 August 2021, co-offender Watson send the offender the following messages using an encrypted mobile phone application:
Co-offender Watson: “I have a deal for you”
Co-offender Watson: “I know where [known alias for Mr Hollins] hangs out”
Co-offender Watson: “I used to be with the guy and [known alias for Mr Hollins] would come over all the time"
On 13 August 2021, the offender and co-offender Watson had a further conversation that included the following messages:
11:39am
Offender:“… I'm not as interested in the cash as much I am in the addy, that's valuable"
Co-offender Watson: "you're not wrong" "Isn't the hit 13 grand"
Offender: "I thought it was less than that- okay let's meet up, I'm very interested"
Co-offender Watson: "what time"
Offender: "12.30 send addy"
Co-offender Watson: "I'll come meet you when I have wheels tonight?"
Offender:"I want to do the hit tonight" "I'll half the bounty with you- 6.5k cash each" "But I'm out most of today I'm in Weston now"
Co-offender Watson: "you'll have to plan the hit to be precise wouldn't you"
Offender: "I'm a professional" "do you legit have is addy"
Co-offender Watson: "I have his best friends"
Offender: "Cos I'll pay a grand cash right now" "That's just as good"
Co-offender Watson: "It's the only place he goes bc of the hit"
Offender: "I'm having him followed as we speak" "Who told you about the hit?" "That's pretty big shit to be part of" "Who's his best friend? He's got 2"
Co-offender Watson: "that's how I know it's a 13 grand hit"
Offender: "Yeah and once I've done it who's supposed to be paying me" "someone offers a job like that, I'm going to collect"
Co-offender Watson: “I thought you knew" "I think it's [Mr Winston]" "Or some guy from jail"
Offender: "I only know half the story" "and that I'm going to take the job"
Co-offender Watson: "if you want the addy I'll take a grand cash just lmk"
Offender: "yeah I'm down then you have nothing to do with it";
Co-offender Watson: "easy";
Offender: "Where you now I'll come meet you somewhere then we delete these msgs"
Co-offender Watson: "unless you just wanna come to the bottom of [street] in Denman prospect"
Offender: "yeah that sounds better"
Co-offender Watson: "Easy let me know when you're close" "do you have the cash with you"
1.47pm
Offender: "yeah which end of [street]" "3 min away, Red Hyundai"
Later that day, Mr Arden received an Instagram message from an unknown account saying “hey brother”. The unknown account belonged to the offender.
A short time later, the offender and a co-offender, Jamie Banks, (together, the offenders) attended the residence of the complainant and Mr Arden. The complainant was the only person home. Referring to Mr Hollins by his known alias, the offenders told the complainant that they were looking for him. On the basis of the alias, the complainant understood that they were referring to Mr Hollins.
The complainant responded that he did not know where Mr Hollins was and that he was not going to let them inside and would call the police. The offenders told the complainant that they were going to find another way inside the house. In response, the complainant left the house to talk to them in an attempt to calm them down.
He called Mr Hollins and told him there were two males looking for him. Mr Hollins, who was at his residence, believed that this was related to the ongoing conflict with Mr Winston. Fearful the males would attend his residence, Mr Hollins left.
After the phone call, the offenders asked the complainant where Mr Hollins was. The complainant told them he did not want to tell them as he did not trust them. The offenders said words to the effect of “if you don’t tell us where he is now, there’s going to be ten boys rocking up here and it’s not going to be good.”
This caused the complainant to fear for his own safety. He agreed to drive the offenders in his vehicle to Mr Hollins’ residence. During the drive, the offender said words to the effect of “I’m a professional kidnapper and I’ll kill someone for a certain amount of money”. Co-offender Banks told the complainant that he really wanted to shoot someone.
During the drive, the complainant was directed to detour to the offender’s residence. When they arrived, the offenders told the complainant to stay in the vehicle. The offender tried to show the complainant a video that the offender said depicted what they did to the last person they kidnapped. The complainant watched the video briefly, seeing a person in a car, before turning away. The offender told the complainant that the last person tried to do a “runner”. Fearful of what might happen if he tried to escape, the complainant remained in the vehicle.
Co-offender Banks sat in a white vehicle outside the residence where he could see the complainant. The offender went inside the house. A short time later, both returned to the complainant’s vehicle. The offender was holding a samurai sword (Count 4—Possess offensive weapon).
The complainant proceeded to drive the offenders to Mr Hollins’ residence. The offender sat in the front passenger seat holding the samurai sword between his legs. Co-offender Banks sat behind the complainant. The offender told the complainant stories about how he kidnapped people and would like to kill people. Co-offender Banks told the complainant that he would like to grab a gun and kill someone. The complainant believed that the offender and co-offender Banks might kill him.
On arriving at Mr Hollins’ house, the offender seized the complainant’s phone. Referring to Mr Hollins’ by his known alias, the offenders told the complainant to go into the house and get him.
The complainant went inside the house. He spoke to Mr Hollins’ housemates, who informed him that Mr Hollins was not home. The complainant returned to his vehicle.
Co-offender Banks told the complainant that he needed to conduct a $1 bank transfer to verify the complainant’s financial details for his boss. The complainant unlocked his phone. The co-offender tried to complete the transfer, but it required a verification code. The complainant informed the offenders that the code would be sent to his laptop, which was at his residence. The offenders told the complainant that they would return to his residence.
At around this time, the complainant asked the offenders about Mr Hollins. The offenders told the complainant that there was a “hit” out on Mr Hollins for $25,000 and that they would kill Mr Hollins unless the complainant could organise to make up the $25,000 himself (Count 5—Make demand with threat to kill).
The complainant told the offenders he would obtain the money and that he had a fair amount of savings, but that his bank account was subject to a $1,000 daily transfer limit.
The complainant then drove the offenders back to his residence. He provided the offenders with the verification code for the transfer. However, he later realised that co-offender Banks had transferred $1,000, rather than $1. The funds were transferred from the complainant’s bank account to the offender’s bank account.
While at the complainant’s residence, the offender ransacked Mr Arden’s bedroom, taking approximately $11,500 worth of belongings (Count 6—Aggravated Burglary and Count 7—Theft).
The complainant told the offenders he would get more money. At about 3:50PM, he drove the offenders to a bank so that he could increase his daily limit. The offenders told the complainant to withdraw $2,000. He went inside and was told that it would take approximately 15 minutes to increase his daily limit. The offender told the complainant to withdraw what he could. He withdrew $1,000 and gave it to co-offender Banks.
The complainant then drove the offenders to a street in Coombs. He stopped the car on the side of the road near an older model four-wheel drive vehicle. The offenders got out of the car with the bag of stolen belongings. The offender told the complainant to put his number in the offender’s mobile phone, which he did.
The offender told the complainant that he had been “real good”, that his name was “Boston”, and that the complainant should stay out of the Weston Creek area. The offenders then left in the four-wheel drive vehicle.
The complainant returned home. A short time later, Mr Hollins and Mr Arden attended the residence and the complainant informed them about what had happened. Mr Arden showed the complainant the Instagram message he received earlier that day. The complainant confirmed that the account belonged to one of the offenders.
On 14 August 2021, the offender and co-offender Watson exchanged the following messages:
2:05pm
Offender: "100% - you free for a smoke?"
Co-offender Watson: "Not at the moment I was thinking we talk over it here briefly or when we meet up" "So I have a rough idea"
Offender:"It's basically just kicking back and the resulting conversation will be worth 6 figures"
Co-offender Watson: "What is the resulting conclusion" "who do we want to hit"
Offender: "That's a face to face conversation";
Co-offender Watson: "Okay I'll have to hold out until tonight but do I need to lure anyone"
Offender: "Can you find out [Mr Arden’s] and or [Mr Hollins’] location?"
Co-offender Watson: "The [suburb] house is [Mr Hollins’] new house" "[Mr Arden] has nothing left he was sooking to me about it lol"
Offender:"Do you know why the police were there" "Because if they snitched I'm going to fuck those kids up"
Co-offender Watson: "I'm fairly sure we both know why they were there but I don't wanna be like why were the cops at yours"
Offender: "Yeah 100%"
3:00pm
Offender:"I want the bmw keys, the Gucci bag and the full story on [known alias for Mr Hollins] Tonight I wonder who turned rat" "[Mr Arden] sounds like he's gonna cop it like a man" "I need to see you about this before I go back for the 10 grand" "How soon can you be available"
Co-offender Watson: "What happen you when to [Mr Hollins]" "I feel like [Mr Arden] would of warned [Mr Hollins]"
Offender:"[Mr Hollins] wasn't at the [suburb] place"
Co-offender Watson: "I rekon [Mr Arden] warned [Mr Hollins] because that's his new house"
Offender: "Got a taser and a police baton"
4:34pm
Offender:"I prefer no loose ends" "Those boys are going to literally cry begging for their lives"
Co-offender Watson: "Ahh okay I understand" "I don't know who wouldn't call the cops"
Offender:"And then they're gonna implicate themselves in some pretty horrible online shit"
Co-offender Watson: "When push comes to shove most people call cops"
Offender: “Usually when someone's being tortured lol"
Co-offender Watson: "Oh" "I rekon [known alias for Mr Hollins] is our person then"
Offender: "100%"
Co-offender Watson: "The only people he sees is [Mr Arden] and [another name]"
Offender:"[Mr Arden] and [another name] have already had identity fraud committed in their names- buying weapons online" "Told you I'm a professional"
Offending on 15 August 2021
At 1:21AM on 15 August 2021, the offender and co-offender Watson exchanged the following messages:
Co-offender Watson: "I'm ballied up and got gloves" "Tell me if what I'm wearing is acceptable"
Offender: "Show me"
Co-offender Watson: [Image of co-offender Watson wearing black clothing and a black balaclava]
Offender: "Perfect"
Co-offender Watson: "Keep me updated I wanna try get this done before 6 hopefully I can sneak back into my house”
Offender:“He's leaving coombs to Duffy now"
At about 2:00AM, Mr Arden left his residence. At the time he left, the house was secure.
At some time after 7:13AM, the offender and another male attended Mr Arden’s residence and stole a number of items (Count 8—Aggravated burglary and Count 9—Theft). The offender was captured on CCTV at the residence. The value of the items stolen was not set out in the statement of agreed facts but submissions proceeded on the basis that it was substantially less than the value of the items stolen on 13 August 2021.
Mr Arden returned at approximately 8:30AM. He observed that the front window had been prised open and the house had been burgled.
Subsequently, Mr Arden received messages from co-offender Watson in which she was trying to ascertain whether Mr Arden had contacted police about the burglary. Co-offender Watson was also messaging the offender and joking about Mr Arden claiming to have large amounts of property stolen.
On 15 August 2021, police obtained and executed a search warrant at the offender’s residence. Among other things, they located various items that belonged to Mr Arden and were stolen during the aggravated burglaries. Inculpatory CCTV footage was also retrieved.
During the search of the offender’s bedroom, police located a concealed trap door under the carpet that led to a windowless basement under the residence. In there, police located a total of nine cannabis plants being cultivated using hydroponics (Count 10—Cultivate cannabis plant). The offender told police that the cannabis and equipment was his and that he cultivated cannabis for personal use.
On 19 August 2021, police obtained and executed a search warrant at the residence of co-offender Watson, her partner, and co-offender Banks. At the residence of co-offender Watson’s partner, police located various items that belonged to Mr Arden and were stolen during the aggravated burglaries. On 21 August 2021, police obtained and executed a further search warrant in respect of co-offender Watson’s residence.
Co-offender Watson participated in two Records of Conversation with police in which she made various admissions implicating the offender.
Victim impact statements
Victim impact statements written by Mr Arden and Mr Derricks for co-offender Watson’s sentence proceedings were provided to the Court.
Mr Arden’s statement says that he lost personal possessions, some of which he has been unable to replace. He has also since left that residence and returned to his family home. The offences have affected his relationships and his ability to trust people.
Mr Derricks says that, following the offence, he has ongoing fears for his safety that have prompted him to leave the ACT. The offending has also affected his ability to trust people and has negatively impacted his sleep. He reports that during the offence he left as though his life was in danger; he was intimidated, fearful, anxious and in a state of panic.
Objective seriousness
Some of the offender’s behaviour as detailed above is clearly suggestive of a person not thinking clearly. The material before the Court indicates that he has a long history of illicit drug use and that, around the time of the offences, he was smoking a large amount of cannabis every week. Mr Edmonds, who appeared for the offender, disavowed any reliance on the principles established in R v Verdins [2007] VSCA 102; 168 A Crim R 41. I have therefore not considered whether the offender’s mental state was altered in a way that might reduce the moral culpability of the offending. However, this background supports the impression that most of the offending was not very carefully thought through; and that, where the offender presented himself to others as a hardened criminal, this was more an exercise of bravado than a reflection of the true position. That observation sheds some light on the text messages set out above, although it is of very limited value in assessing the extent to which the offender’s behaviour would have been capable of causing fear.
Offence of common assault
Common assault can reflect a wide range of circumstances and encompasses both actual violence and threatened violence that causes the complainant to fear immediate harm. Where the offence is constituted by a threat of violence, the Court should consider the nature of the conduct that caused the complaint to fear immediate harm.
Here the offender, the young person and the unidentified male acted in concert to frighten the complainant. This involved a degree of planning and premeditation: using an online persona, the offender deceitfully lured the complainant to attend a meeting alone at a place that was somewhat isolated. Each of the offenders possessed an item that was used to intimidate the complainant. Most significantly, the young person co-offender was in possession of an item that resembled a handgun. Understandably, the complainant understood that they were attempting to steal his vehicle and feared for his safety.
The complainant’s level of fear would have been significant, at least for a moment, because the young co-offender appeared to be armed with a handgun. However, the offender’s own contribution was to point what was obviously a large plastic water pistol at the complainant and spray water on the car’s windscreen. I regard his offending as being in the low range.
Offence of attempt blackmail
The following features are relevant in assessing the objective seriousness of the blackmail offence:
(a)The attempt was grave. It involved operating a false online persona on a romantic dating website to interact with and subsequently meet the complainant.
(b)However, despite the significant planning undertaken, the extortion attempt was somewhat ill-conceived and unlikely to succeed. It was based on threatening to expose the complainant’s alleged “paedophilia” to police. The complainant believed that “Stephanie” was over eighteen and therefore this threat was not credible. No money was actually extorted from the complainant.
(c)There were other menaces directed at the complainant, including that his life would end or be destroyed, but these were unspecific and rather incoherent. The threats appear to have ceased after the unsuccessful pursuit of the complainant.
(d)Evidently the intention was to extort money from the complainant, but no specific sum was mentioned.
Attempting to extort money from a person by threatening to expose them for some form of sexual misconduct and harm their reputation (and potentially their career and relationships) is a serious matter, especially if that misconduct involves criminal conduct. It is especially serious where the offender has manufactured evidence of the misconduct by engaging in deception. Here, if (as it appears) the threat was to expose the complainant as a criminal, it was doomed to fail because he believed he was about to meet a woman in her twenties. However, a man of normal stability and courage might also be very distressed by disclosure of the fact that he had used a website called “sugardaddymeet.com” to arrange to meet a young woman in an isolated car park.
I therefore assess objective seriousness as being in the mid-range, but at the lower end of that range.
Offence of aggravated robbery
While not binding in this jurisdiction, the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) is persuasive when assessing the objective seriousness of an aggravated robbery: Hall v The Queen; Barker v The Queen [2017] ACTCA 16. The factors discussed in Henry are:
(a)The nature of the weapon: the weapon was a knife capable of inflicting serious injury, although a less objectively serious weapon than a firearm.
(b)The vulnerability of the victim: the complainant was a young person at the time of the offence, albeit nearly eighteen and engaged in the unlawful sale of electronic cigarettes. He was also in a vulnerable position at the time the threat was made, being in the back seat of a car and unable to easily escape.
(c)The level of planning: although the offending was not sophisticated, there was some degree of planning associated with it. The BMW vehicle was hired prior to the offence, albeit in the name of the offender. The offender used Snapchat to organise a meeting with the complainant and both offenders were armed at the meeting.
(d)Intensity of threat: no actual violence was inflicted on the complainant. However, the threat was significant. The offender brandished a knife and the young person held another knife to the victim’s chest and threatened to kill him if he did not provide the young person with his electronic cigarettes. That came after the complainant had been effectively detained in a moving vehicle for about 20 minutes. After returning home and being relieved of his property, the complainant was subjected to a further unwanted journey, this time in his own vehicle, before being dropped off some distance from home.
(e)Number of offenders: the offender was in company with the young person. Accordingly, both statutory circumstances of aggravation (being in company and being armed with an offensive weapon) are present.
(f)Amount taken: the value of the electronic cigarettes was approximately $700. This is a small, but not insignificant, amount. (It was submitted that the complainant was selling electronic cigarettes unlawfully and had probably obtained them unlawfully. However, no authority was cited for the view that that possibility diminished the seriousness of the robbery and I have not taken that view. It was not put, for example, that the offender and the young person took the electronic cigarettes in order to hand them in to the police. The items would have had the same value regardless of whether the complainant or the offender and the young person possessed them.)
(g)Effect on the victim: there is no victim impact statement from the complainant in evidence. However, the agreed statement of facts makes clear that the complainant was scared that he would be stabbed.
I regard this offending as being in the mid-range of objective seriousness.
Offence of possess offensive weapon with intent
The following features are relevant in assessing objective seriousness:
(a)The type of weapon: the weapon was a samurai sword and capable of inflicting serious injury.
(b)The circumstances in which the weapon was possessed: here, the weapon was in the possession of the offender while the complainant was unable to leave a vehicle and where the offender had told the complainant that he would kill someone for money. The complainant was intimidated and fearful.
This offending is also in the mid-range of objective seriousness, but I regard it as at the upper end of that range.
Offence of make demand with threat to kill
The following features are relevant in assessing objective seriousness:
(a)The nature of the demand: the offender demanded $25,000 from the complainant. This is a significant sum that would not be easily obtainable.
(b)The nature of the threat: there was no explicit threat to kill the complainant. It was a threat to kill a friend of the complainant’s housemate, who was known to the complainant, if the complainant did not give the offenders money. The threat was evidently credible enough to make the complainant do what he could to meet it, notwithstanding the considerable cost to him.
(c)The manner and circumstances in which the demand was made:
(i)The circumstances in which the demand was made are set out at [32] to [43] above. Among other things, the offender attempted to show the complainant a video allegedly depicting what happened to the last person who attempted a “runner”. In assessing the objective seriousness of this offence, I have not had regard as an aggravating factor to the fact that the offender was possessing an offensive weapon while making the demand, as this is a separately charged offence. However, I do take into account that, although no express threat was made to kill the complainant, the circumstances involved a level of threat to his safety and would have been frightening for him.
(ii)There was also some degree of planning involved in the making of the threat. Messages between the offender and co-offender Watson make clear that the offender was aware of the alleged “hit”.
I regard this offence as being in the low range of objective seriousness, principally because the complainant’s own life was not threatened. However, the other aspects of the offence put it towards the upper end of that range.
Offence of aggravated burglary
The following features are relevant in assessing the objective seriousness of the aggravated burglary offending (See R v Foster [2021] ACTSC 229 at [35]):
(a)For both Count 6 and Count 8, the premises that were trespassed upon were residential. Contrary to the submission on behalf of the offender, I do not consider that this factor should be given significantly less weight when considering Count 6 because the offender knew that Mr Arden would not be present. The rationale behind burglary of residential premises being considered a more serious type of offending is not confined to a risk that the intrusion may end in violence being perpetrated towards the occupants. It also reflects an acknowledgement by the courts that a person’s home is a sacrosanct space in which they are entitled to feel safe: Simonds v The Queen [2013] ACTCA 13, [54]. That is certainly true of a person’s own bedroom in a group house. I have treated the nature of the premises as a distinct factor from the existence of any intention to confront the residents or risk of doing so (which I consider below).
(b)Count 6 did not involve forced entry to the premises, although the complainant only provided the offender with access to the premises under duress. Count 8 involved forced entry into the premises.
(c)Count 6 occurred in circumstances where the offender knew that Mr Arden was not present, although one of his housemates was present. In respect of Count 8, I reject the Crown submission that the messages at [51] indicate some expectation on the part of the offender that Mr Arden would be home. However, the offending involved in Count 8 occurred at 7:00AM. There was a likelihood that some or all of the occupants of the premises would have been present at that time. While this likelihood is not as high as perhaps the middle of the night, there was still a real risk.
(d)In each case it is clear that at least part of the motivation, as with most aggravated burglaries, is financial and concerns obtaining material property. I have considered whether an additional motivation for the offender was to intimidate Mr Arden or the complainant, or both. As to Count 6, I do not think there is a sufficient basis to infer such a motivation. As to Count 8, based on the text exchanges at [51] above (and the fact that he had already removed many items of value from Mr Arden’s room), I find that the offender was partly motivated by a wish to intimidate “those boys”—ie, Mr Arden and the complainant, who lived at the premises.
(e)Count 6 was not planned or premeditated. It was an opportunistic response to Mr Arden being absent from the residence. As is apparent from the messages at [51] and [52], Count 8 involved a degree of organisation and planning, although far from what could be considered professional. While there was an attempt to use disguises, given that the burglary in Count 6 had occurred only two days earlier, detection of the offending was highly likely.
(f)Count 8 represented a repeated incursion into the same premises within a very short period after Count 6.
I regard Count 6 as being in the low range of objective seriousness, even though it involved intrusion into Mr Arden’s room. Count 8, in my view, reaches into the mid-range as it was a repeat incursion, involving forced entry to the premises in circumstances where residents were likely to be present, and was partly intended to intimidate.
Offences of theft
The following features are relevant in assessing the objective seriousness of the theft offences (see R v Dawson [2022] ACTSC 64 at [43]):
(a)The amount and value of the property taken: in respect of Count 7, the value was significant ($11,500). In respect of Count 9, the value was less significant but still material ($2,000). In each case, there is no indication that the items were of any sentimental value.
(b)Where the theft occurred: in each case, the theft occurred in the bedroom of the complainant’s home.
(c)The motivation behind the conduct: as with the offences of aggravated robbery, I have concluded that the motivation for the first offence (Count 7) was financial while the second (Count 9) was partly motivated by a wish to intimidate the occupants of the premises.
(d)The level of inconvenience caused: in each case, items that would be difficult to replace (including passports and medication) were taken. This would cause some inconvenience to the complainant.
(e)The degree of premeditation: as with the respective counts of aggravated burglary, Count 7 was not premeditated and occurred impulsively on the offender’s return to Chapman residence. There was a greater degree of planning involved in Count 9.
The theft offences clearly involved considerable overlap with the conduct constituting Counts 6 and 8. Account will need to be taken of this in considering concurrency.
I assess both as being in the mid-range of objective seriousness: Count 7 because of the significant value of the goods stolen; and Count 9 because of its premeditation and motivation.
Offence of cultivate cannabis
The following features are relevant in assessing objective seriousness:
(a)The method and level of sophistication by which the cannabis was cultivated: s 618(2) of the Criminal Code makes it an offence to cultivate (artificially or otherwise) three or more cannabis plants. However, it is an offence to cultivate artificially any number of cannabis plants. Accordingly, artificial cultivation is to be considered more objectively serious than natural cultivation. Here the cannabis was hydroponically cultivated in a concealed basement.
(b)The number of cannabis plants: there were nine plants.
(c)The motivation for cultivation: noting that there are alternative offences available for cultivating cannabis or another controlled plant for selling, it will seldom be the case that the motivation for the present offence is commercial gain. However, motivation remains relevant. Here, there is no indication that the cultivation was for any purpose other than personal use.
The number of plants cultivated by the offender might be thought to be at the upper end of what would sensibly be grown for personal use, but a very small number compared to some commercial operations. I note that cultivating any number of cannabis plants for sale attracts a maximum penalty of three years’ imprisonment (s 616(8)); cultivating a trafficable quantity of cannabis plants (10 plants) for sale attracts a maximum penalty of 10 years’ imprisonment (s 616(5)); and cultivating a commercial quantity of any controlled plant (100 plants) for sale attracts a maximum penalty of 25 years’ imprisonment. However, the offence created by s 618(2) to which the offender has pleaded guilty is not limited to cultivation for personal use so that, in principle at least, any cultivation of cannabis plants could be the subject of a charge under that section.
I therefore think that it would be erroneous to assess this offence on the basis the quantity is at the upper end of what might be grown for personal use and the offence is therefore in the upper range of seriousness. Rather, the offence (while far from trivial) is towards the bottom end of the range of potential offending caught by s 618(2).
Subjective features
The Court was provided with a Pre-Sentence Report (PSR) dated 11 April 2022 addressing the subjective circumstances of the offender.
Family circumstances and relationships
The offender is 31 years old. He was raised in the ACT and is the eldest of his parents’ three children.
The offender reported that he had a positive upbringing. However, he experienced a brief period of disruption at age 12 that he attributes to the separation of his parents. He began to misbehave while at school at began associating with older antisocial peers. This caused the offender’s mother to remove him from school and enrol him in the Canberra Institute of Technology. He returned to the formal school education system at age 15, where he completed Year 10. The offender later obtained a Year 12 schooling certificate.
He maintains close, supportive relationships with his mother, siblings and grandparents. Prior to his incarceration, he was residing in his mother’s residence with his siblings. He maintains contact with his father by phone.
Between 2017 and 2020, the offender was in a long-term relationship with his ex-partner. He reported that this relationship had a significant effect on his mental health, contributing to his drug use discussed below. Subsequently, he has been in an intermittent relationship with his current partner that he describes as positive and supportive.
Education and employment
The offender holds the degree of Bachelor of Events Management from the University of Canberra, where he attended between 2009–2012 and 2014–2018.
While studying, he worked part-time in the hospitality industry. Since graduating, he has worked principally in the events industry. He founded an events company with his partner in 2020 but had to take other work and Centrelink benefits during the COVID-19 pandemic. He then worked for the business which his partner had taken over. However, he then relapsed into substance use, ceased work and began to receive Centrelink payments again.
Drug use
The offender has a significant history of illicit drug use.
He commenced using cannabis at age 12. He has continued to smoke cannabis throughout his adult life. He reported to the authors of the PSR that he was consuming several grams per day and possibly more than an ounce per week.
At age 18, he began using other illicit drugs, including methylenedioxymethamphetamine and ecstasy. Prior to commencing university, he disclosed to smoking methylamphetamine. At age 21, while attending university, he began using cocaine frequently.
In January 2013, the offender was admitted to the Adult Mental Health Unit for drug induced psychosis. This caused him to withdraw temporarily from university. Upon discharge, he engaged with the Child and Adolescent Mental Health Service.
Between 2017 and 2021, the offender used gamma hydroxybutyrate once per fortnight. In 2021, he recommenced smoking methylamphetamine.
The offender reported that he would be willing to undertake rehabilitation. He would have liked to commence substance abuse related programs during his period of remand, but none were available due to COVID-19 restrictions.
Mental health
The offender reported that he is currently suffering from anxiety and depression. He expressed a willingness to address these mental health concerns. In August 2021, he was seen by the Custodial Mental Health Team who reported no evidence of major mental illness.
Attitude to the offending and prospects of rehabilitation
The author of the PSR considered that the offender had identified the effect that his behaviour had on himself and his family. He also acknowledged the effect that his actions could have had on the victims. However, the view of the PSR author, which I accept, was that the offender minimised his responsibility for the offending behaviour by claiming that his substance abuse was the primary factor contributing to his offending.
The author assessed the offender as a medium-high risk for reoffending due to concerns about his substance abuse and mental health.
Given the offender’s relative youth, level of education and (as discussed below) limited criminal record, he has reasonable prospects for rehabilitation. I do not consider that the mental health issues discussed at [98] materially impact this assessment. However, his significant history of substance abuse means that I have slight reservations about his prospects.
Other sentencing considerations
Criminal history
The offender has a limited prior criminal history. In April 2022, he was convicted for possessing child exploitation material and sentenced to five months’ imprisonment, from 16 November 2021 to 15 April 2022. He also has convictions for driving with a prescribed drug in his blood or oral fluid and possession of an offensive weapon with intent.
Plea of guilty
In November 2021, the offender pleaded guilty in the Magistrates Court to the offences now before this Court. In respect of the offending that occurred in July 2021, he pleaded guilty on 16 November 2021 following the provision of a brief of evidence. In respect of the offending that occurred in August 2021, he pleaded guilty on 2 November 2021, again following the provision of a brief of evidence.
In each case there were negotiations between the parties that resulted in either alternative charges being laid or an agreement to accept guilty pleas to some offences in full satisfaction of the indictment. While the pleas occurred in the face of a strong Crown case in which the offender’s identity was not likely to be seriously in issue, they were entered at an early stage and have significant utilitarian value.
Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I will allow a discount of approximately 25 per cent on the sentences that I would have otherwise imposed.
Time in custody
In relation to the offences before the Court, the offender has been remanded in custody for a period of 163 days (15 August 2021 to 15 November 2021 and 16 April 2022 to 24 June 2022). Between 16 November 2021 and 15 April 2022, he was serving the sentence of imprisonment referred to at [102] above. This is a period of 151 days.
Protective custody
The offender has been, at his request, in protective custody at the Alexander Maconochie Centre (AMC) since 23 March 2022.
It is well recognised in the Australian authorities (see, eg, R v Cartwright (1989) 17 NSWLR 243) that, ordinarily, time spent in protective custody is more onerous than time under ordinary conditions of imprisonment.
However, this Court cannot take a general mathematical approach to the issue of protective custody by equating time spent in protection to an equivalent period spend under ordinary conditions. Nor can the Court assume that, in the specific matter before it, protective custody is more onerous than custody under ordinary conditions.
Rather, the Court must consider, on the basis of evidence before it about the actual or likely custodial conditions of the offender, whether the conditions are such that the offender will face additional hardship.
Tendered by consent was a document summarising information in respect of protective custody provided by two employees of the AMC, the Sentence Management Officer and the Acting Senior Director of Accommodation. It establishes the following propositions:
(a) It is uncommon for an offender to be moved from protective custody to the mainstream population. However, it is possible.
(b) The offender is currently living in “block accommodation”. He was previously living in “cottage style accommodation”. When compared with “block accommodation”, the cottages are bigger. Detainees are subject to a lesser level of supervision, can purchase a wider range of goods and have greater employment opportunities. The cottages are not locked at night and detainees are able to access communal areas, including a communal kitchen and loungeroom. “Block accommodation” involves living in a cell that is locked at night. While there is access to an exercise yard, it is comparatively confined.
(c) There is, however, “cottage style accommodation” that is separate from the mainstream population. There is no evidence regarding the likelihood of the offender accessing this accommodation.
(d) Detainees in protective custody have access to programs in the AMC, including TRC and Solaris. Should a detainee in protective custody wish to participate in these programs, they are expected to interact with detainees from the mainstream population; there is no separate program for detainees in protective custody.
(e)The offender is currently working in the kitchens. He is no longer working in the bakery.
The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou v The Queen [2015] HCA 29; 256 CLR 47, [64], [66].
I accept that the offender is likely to serve all, or a substantial portion, of any period of imprisonment in protective custody. I also accept, and will take into consideration pursuant to s 33(1)(r) of the Sentencing Act that, should I impose a period of full-time custody, that custody will be more onerous than otherwise because, while the offender has access to programs designed to assist with rehabilitation while in protective custody such as Solaris, there is a risk of violence associated with attendance that makes such programs less accessible than they otherwise would be and may ultimately result in the offender not participating in such programs.
I do not accept the submission of the offender that the evidence establishes that the offender has an increased risk of physical assault while in protective custody. While that risk may exist if the offender is returned to the mainstream population, it is largely mitigated to the extent he remains in protective custody.
Comparable cases
I was referred to comparable cases for the offences of blackmail (R v Hudson [2019] ACTSC 110; R v Pearce (Supreme Court of the ACT, Burns J, 22 November 2012); R v Kivalu [2016] ACTSC 138; R v KB [2017] ACTSC 344 (KB); R v Kulczycki [2018] ACTSC 9) and make demand with a threat to kill (R v QH; R v CR [2020] ACTSC 178; R v Bourne; R v Manns [2018] ACTSC 35). Given the wide variety of conduct that can be captured by these offences, many of these authorities are of limited assistance.
Of some assistance is KB, in which Murrell CJ sentenced an offender for a single count of blackmail among other offences. There, the offender and his brother used a dating app to lure the complainant to an agreed meeting place. On confronting the complainant, the offender introduced himself as a “paedophile hunter”, told him that the person he had been speaking to was his 15 year old brother, and demanded $150 otherwise he would publicly release details of their exchanges on the dating app, which included images. As with the present circumstances, there was a lack of credibility to the threat, as the complainant believed he was speaking to someone over 18. Murrell CJ considered that the offender’s subjective circumstances (including his youth, being 18 at the time of the offence) were strong. Her Honour imposed a sentence of one year and 10 months’ imprisonment to be served by intensive corrections order. A key distinction between the present circumstances and those in KB is that there is no suggestion before me that the offender was engaging in vigilante conduct requiring general deterrence.
Parity
On 3 May 2022, McWilliam AsJ imposed the following sentence on co-offender Watson (R v Watson [2022] ACTSC 95):
(a)Make demand with threat to kill: 21 months’ imprisonment (reduced from two years and four months’ imprisonment)
(b)Aggravated burglary: 18 months’ imprisonment (reduced from 24 months’ imprisonment)
The total sentence was one year and 10 months’ imprisonment. Pursuant to s 12A of the Sentencing Act, her Honour imposed an 18-month drug and alcohol treatment order.
McWilliam AsJ found, and I accept, that co-offender Watson’s degree of culpability was less than that of the offender in respect of each offence. Co-offender Watson was not present in the car and did not convey the threat to the complainant. In respect of the aggravated burglary, co-offender Watson was sentenced by virtue of s 45 of the Criminal Code and did not directly engage in the offence.
This suggests, prima facie, that consistency in sentencing requires a prison term considerably in excess of two years and four months as a starting point for Count 5. However, the weight of that factor is considerably reduced because before her Honour it was agreed that there was an actual agreement for the offender to kill Mr Hollins, and this informed her Honour’s assessment of objective seriousness (at [32]). I have assessed the objective seriousness of the offender’s role in the offence on the basis of the facts as agreed before me. It was not agreed, and I do not find, that there was an actual agreement for the offender to kill Mr Hollins.
Consideration
I am required to take into account the factors set out in s 33 of the Sentencing Act. To the extent that they are relevant, I have done so above.
I also have regard to the purposes of sentencing contained in s 7 of the Sentencing Act. In the present circumstances, general deterrence is a prominent sentencing purpose. Given the offender’s relative youth and my view on his prospects for rehabilitation, promoting the rehabilitation of the offender is another important sentencing purpose. Other relevant purposes include specific deterrence, adequate punishment, the need for accountability, and recognition of the harm done to the community.
The offender concedes that the s 10 threshold has been crossed and that nothing other than a sentence of imprisonment is warranted. The issue for the Court is the length of the sentence and the manner in which it is to be served.
The Drug and Alcohol Sentencing List is at capacity and unable to accept new referrals. In the alternative, the offender sought that I impose a deferred sentence or adjourn the sentence with a view to the offender being assessed for a drug and alcohol treatment order at the conclusion of the deferred sentence. I do not consider this to be an appropriate course. There is no indication as to when the Drug and Alcohol Sentencing List will begin to accept referrals. To grant such an adjournment or deferral would be contrary to the principle of finality and would subject the offender to a significant degree of uncertainty.
Given the prominence of general deterrence in the sentencing exercise and the gravity of the offending, I consider that a significant period of full-time custodial imprisonment is warranted.
In O’Brien v The Queen [2015] ACTCA 47 at [26], the Court of Appeal summarised the applicable principles when fixing sentences for multiple offences. These are:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: [Mill v The Queen (1988) 166 CLR 59] at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: [R v Knight [2005] NSWCCA 253; 155 A Crim R 252] at [112]; [R v MAK [2006] NSWCCA 381; 167 A Crim R 159] at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: [Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41] at [27].
See also Forster-Jones v The Queen [2020] ACTCA 31 at [79].
My conclusions are as follows.
For Count 1 (common assault), the starting point is a sentence of four months. This will be discounted by one month in recognition of the plea of guilty and a further seven days in recognition that the sentence will be served in protective custody. It will be concurrent with the sentence for Count 2, as the offences formed part of the same conduct.
For Count 2 (attempted blackmail), the starting point will be a sentence of eighteen months. This will be discounted by four months and 15 days in recognition of the plea of guilty and a further 45 days in recognition that the sentence will be served in protective custody. It will be concurrent with the sentence for Count 1.
For Count 3 (aggravated robbery), the starting point will be a sentence of three years and nine months. This will be discounted by 11 months in recognition of the plea of guilty and a further four months in recognition that the sentence will be served in protective custody.
For Count 4 (possess offensive weapon), the starting point will be a sentence of six months. This will be discounted by 45 days in recognition of the plea of guilty and a further 15 days in recognition that the sentence will be served in protective custody. It will be concurrent with the sentence for Count 5.
For Count 5 (demand with threat to kill), the starting point will be a sentence of three years. This will be discounted by nine months in recognition of the plea of guilty and a further three months in recognition that the sentence will be served in protective custody. It will be substantially concurrent with the sentences for Counts 4, 6 and 7.
For Count 6 (aggravated burglary), the starting point will be a sentence of 18 months. This will be discounted by four months and 15 days in recognition of the plea of guilty and a further 45 days in recognition that the sentence will be served in protective custody. It will be concurrent with the sentence for Count 7 and also substantially concurrent with that for Count 5.
For Count 7 (theft), the starting point will be a sentence of 18 months. This will be discounted by four months and 15 days in recognition of the plea of guilty and a further 45 days in recognition that the sentence will be served in protective custody. It will be wholly or partly concurrent with the sentences for Counts 5 and 6 as noted in the previous paragraph.
For Count 8 (aggravated burglary), the starting point will be a sentence of two years and six months. This will be discounted by seven months in recognition of the plea of guilty and a further two months in recognition that the sentence will be served in protective custody. It will be concurrent with the sentence for Count 9, as the two offences arise from the same conduct, and also partly concurrent with the sentences for Counts 5 to 7 as they are fairly closely related.
For Count 9 (theft), the starting point will be a sentence of six months. This will be discounted by 45 days in recognition of the plea of guilty and a further 15 days in recognition that the sentence will be served in protective custody. It will be wholly or partly concurrent with the sentences for Counts 5 to 8 as noted in the previous paragraph.
For Count 10 (cultivate cannabis), the starting point will be a sentence of two months. This will be discounted by 15 days in recognition of the plea of guilty and a further seven days in recognition that the sentence will be served in protective custody.
The analysis above treats the ten offences as occurring in five blocks (Counts 1–2, Count 3, Counts 4–7, Counts 8–9 and Count 10), with a fairly close link between the third and fourth of these. I will also make the combined sentences for each of the blocks partly concurrent with each other, in recognition of the principle of totality and the need to avoid a crushing sentence.
Pursuant to s 63(1) of the Sentencing Act, I will backdate the commencement of these terms of imprisonment by a period equivalent to the time that the accused has already spent in custody attributable solely to these offences. I note that, after being remanded in custody in relation to these offences, the offender was sentenced to a term of imprisonment for unrelated offences which he has now served. I do not read s 63(4) of the Sentencing Act as requiring that term of imprisonment to be treated as part of the period “held in custody in relation to the offence” which s 63(2) requires to be taken into account. I also note that backdating the terms of imprisonment now to be imposed by the relevant period (which I have calculated above as 163 days) results in terms that appear to be concurrent with the term imposed for unrelated offending that the offender has recently completed. However, that overlap is simply the consequence of recognising the extent of the time the offender has already spent in custody—partly before that term commenced—in connection with the offences for which he is currently being sentenced.
Identification of persons connected with the offences
On the first day of the hearing, I made an order preventing disclosure of the name of the complainant on Counts 1 and 2 until the delivery of sentence. This was on the basis that I would then consider whether the order should be continued.
The basis on which the order was sought was that the agreed facts in relation to those counts could possibly lead some persons to apprehend that the complainant was engaged in, or interested in, sexual relations with under-age persons. Any such apprehension, I hasten to add, would find no foundation whatsoever in the agreed facts. However, I made a temporary non-publication order so that I could give further consideration to whether such an order was justified, under s 111(1)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act), on the basis that disclosure of the complainant’s name might lead someone else in a similar situation to be fearful of reporting threats or blackmail attempts against them to police.
The reporting of potentially criminal activity to law enforcement agencies, and the prosecution of perpetrators of such conduct, are aspects of the administration of justice. It would be undesirable for those things to be hampered or discouraged by fear on the part of victims that reporting the conduct or giving evidence in a proceeding might expose them to vilification or worse. I will therefore continue, on a permanent basis, the order that I made at the hearing.
The young person involved as a co-offender in Counts 1, 2 and 3, and the complainant in Count 3, were minors at the time of the offending. As noted above their names are not to be published, pursuant to s 712A of the Criminal Code
There has not been any application to suppress the names of the complainant in Counts 4 to 9 and the other persons (apart from co-offenders) connected with those events. In view of the circumstances from which the offending arose (a dispute between two of those persons involving death threats) I consider it preferable that their identities not be published as part of these reasons. Hence, they have been referred to using pseudonyms.
Finally, on the second day of the hearing (9 May) I made an order under s 111 of the EMP Act preventing the publication of evidence or any report of the evidence in this matter until the conclusion of the trial of co-offender Banks, which has not yet been heard.
Orders
The orders of the Court are as follows.
Pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), the name of the complainant in relation to the offences committed on 9 July 2021 is not to be published or otherwise disclosed.
I convict the offender of each offence and impose the following sentences:
(a)Count 1 (common assault): two months and twenty-four days’ imprisonment, from 12 January 2022 to 4 April 2022.
(b)Count 2 (attempt blackmail): one year’s imprisonment, from 12 January 2022 to 11 January 2023.
(c)Count 3 (aggravated robbery): two years and six months’ imprisonment, from 27 October 2022 to 26 April 2025.
(d)Count 4 (possess offensive weapon): four months’ imprisonment, from 27 August 2024 to 26 December 2024.
(e)Count 5 (make demand with threat to kill): two years’ imprisonment, from 27 August 2024 to 26 August 2026.
(f)Count 6 (aggravated burglary): one year’s imprisonment, from 27 November 2025 to 26 November 2026.
(g)Count 7 (theft): one year’s imprisonment, from 27 November 2025 to 26 November 2026.
(h)Count 8 (aggravated burglary): one year and seven months’ imprisonment, from 27 February 2026 to 26 September 2027.
(i)Count 9 (theft): four months’ imprisonment, from 27 February 2026 to 26 June 2026.
(j)Count 10 (cultivate cannabis plants): one month and eight days’ imprisonment, from 19 September 2027 to 26 October 2027.
The total head sentence is five years, nine months and 15 days’ imprisonment, from 12 January 2022 to 26 October 2027.
I impose a non-parole period of three years’ imprisonment, from 12 January 2022 to 11 January 2025.
| I certify that the preceding one hundred and fifty-one [151] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Kennett Associate: Date: |
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