R v Le Clair; R v Yeboah
[2016] ACTSC 126
•25 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Le Clair; R v Yeboah |
Citation: | [2016] ACTSC 126 |
Hearing Date: | 29 April 2016 |
DecisionDate: | 25 May 2016 |
Before: | Burns J |
Decision: | See [65]-[70] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – unlawful confinement – drug offences – trafficking in a trafficable quantity of cannabis – co-offenders – pleas of guilty – sentenced to terms of imprisonment. |
Legislation Cited: | Crimes Act 1900 (ACT) s 34 Criminal Code 2002 (ACT) s 603(5) |
Cases Cited: | R v Dalton; R v Fleet [2014] ACTSC 204 R v Eimerl [2015] ACTSC 72 Stott v R [2012] ACTCA 33 |
Parties: | The Queen (Crown) Michael Le Clair (Offender) David Yeboah (Offender) |
Representation: | Counsel Mr M Fernandez (Crown) Mr A Doig (Mr Le Clair) Mr R Thomas (Mr Yeboah) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Mr Le Clair) Canberra Criminal Lawyers (Mr Yeboah) | |
File Numbers: | SCC 170 of 2014 (Mr Le Clair); SCC 169 of 2014 (Mr Yeboah) |
BURNS J:
David Yeboah and Michael Le Clair, you are both charged by a joint indictment dated 1 October 2014. The first charge on that indictment alleged that you unlawfully confined Toby Letham on or about 28 December 2013. You both entered pleas of guilty to this charge. The second charge alleged that you, Mr Yeboah, trafficked in a trafficable quantity of cannabis between 28 December 2013 and 24 January 2014. You have entered a plea of guilty to this charge. The third charge alleged that you, Mr Le Clair, trafficked in a trafficable quantity of cannabis between 28 December 2013 and 24 January 2014. You have pleaded guilty to this charge.
The offence of unlawful confinement is contrary to s 34 of the Crimes Act 1900 (ACT) and has a maximum penalty of 10 years imprisonment. The offence of trafficking in a trafficable quantity of cannabis is an offence contrary to s 603(5) of the Criminal Code 2002 (ACT) and has a maximum penalty of 10 years imprisonment, a fine of $140,000, or both.
You both appeared in the Magistrates Court and, following pleas of not guilty, this matter was committed for trial to this Court on 31 July 2014 with respect to the three charges. Two of those charges you both ultimately entered pleas of guilty to. The third charge, being assault occasioning actual bodily harm, did not form part of the indictment of 1 October 2014. You both entered pleas of guilty to the charge of trafficking in a trafficable quantity of cannabis on 15 June last year. You both then entered pleas of guilty to the offence of forcible confinement on 18 June last year, which was the first day the matter was listed for trial.
The matter was then listed for sentence on 14 August of 2015 at which time both of your counsel raised the issue that the Pre-Sentence Report was not based on the current Agreed Statement of Facts. The matter was then postponed and set down for sentence on 9 November last year. At this time both of your counsel indicated that there was a dispute about the Statement of Facts. On 19 November last year, I set the matter down for a disputed facts hearing on 9 February this year. Only you, Mr Le Clair, participated in this disputed facts hearing as Mr Yeboah subsequently agreed to the Crown's Statement of Facts.
I will now refer to the facts that relate to these offences. With respect to the offence of forcible confinement, the disputed facts hearing related only to that offence and I published my judgment on 27 April 2016, which detailed my findings with respect to that offence: R v Le Clair [2016] ACTSC 79. I will not now recount all of those findings. However, I will note some of the key findings of fact. The background to this offence is that it relates to an agreement to purchase seven pounds of cannabis for a sum of $26,000.00 from a dealer who was known to Toby Letham as Big G. I will now, for convenience, refer to Mr Letham as the victim.
You both attended the victim's apartment in Franklin and the exchange between the victim and Big G took place around the corner from the victim's apartment. That agreement did not go to plan, as Big G took the $26,000.00 and did not provide the victim with the agreed seven pounds of cannabis. The victim then returned to the front of his apartment where both of you were waiting for him. You, Mr Le Clair, then produced a knife and held it to the throat of the victim. You, Mr Le Clair, then forced the victim at knifepoint into a car while you, Mr Yeboah, drove the vehicle.
On this journey you, Mr Le Clair, made multiple threats to the victim, including threats to break his bones and cut off his fingers. When the car stopped in Theodore the victim escaped from the car and was chased by both of you, along with some unidentified persons who were called by one of you for support. The victim was recaptured and placed in the rear seat of the car and driven to a remote location in New South Wales (NSW) where he was assaulted and abandoned. I note that where my judgment differs from the Statement of Facts tendered by the Crown, Mr Yeboah has indicated that he will adopt the facts in my judgment.
I will now turn to the facts for the offence of trafficking in a trafficable quantity of cannabis that relates to you, Mr Le Clair. On 24 January 2014, you were stopped by police while driving a Ford Territory motor vehicle. Police seized that vehicle on 28 January 2014 and executed a search warrant on the vehicle. Police seized one clear plastic bag containing 451.1 g of cannabis, one clear plastic bag containing 449.4 g of cannabis and one clip‑seal bag containing 2.9 g of cannabis. This amounts to a total of 903.4 g. A trafficable quantity of cannabis is an amount equal to or exceeding 300.0 g. A commercial quantity of cannabis is 30 kg. Police also seized one Sistema brand plastic container containing a set of Accura scales and a small plastic bowl, numerous clip‑seal bags and digital scales. On 24 January 2014, the police also executed a search warrant at your home address and seized the amount of $7,461.50.
I will now turn to the facts for the offence of trafficking in a trafficable quantity of cannabis that relates to you, Mr Yeboah. On 24 January 2014 police attended your home in the Australian Capital Territory (ACT) to execute a search warrant relating to the forcible confinement of the victim. During the search police seized an opened vacuum pack bag containing 226.0 g of cannabis, which was found under the laundry sink. Police also found and seized 451.8 g of cannabis in a sealed vacuum pack in a laundry hamper and 0.1 grams of cannabis in your vehicle. This amounts to a total of 677.9 g. Police also seized $4,960.00 in cash found in a jacket in your bedroom and five mobile phones.
A victim impact statement by the victim was tendered by the Crown with respect to both of you during the course of the sentence hearing and also read aloud by the Crown. I take into account the contents of that victim impact statement except those matters which refer to the offence in NSW. The victim writes that he continues to have nightmares and moved interstate out of fear for his safety and that even now he still feels as though he is often on edge. It is clear that this would have been a frightening experience for the victim.
Michael Le Clair
Michael Le Clair, I will now turn to your subjective features and the documents that were tendered with respect to you at the sentence hearing.
Pre-Sentence Reports
A Pre-Sentence Report dated 5 August 2015 and an Updated Pre-Sentence Report dated 28 October 2015 were both tendered at your sentence hearing. I will not distinguish between these Reports. However, I have taken into account matters from both Reports that are relevant to the present proceedings. You are now 29 years old. The Reports refer to your familial and relationship history. You described your relationship with your mother as difficult and reported that you were frequently assaulted by your mother and often asked to leave the family home from the age of eight years old.
You met your father at the age of 21 and immediately built a close relationship with him. In 2011 your father relocated to Canberra to become closer to you, although he was involved in a motor vehicle accident shortly after he relocated and passed away. You told the author of the Report that you witnessed this accident and you expressed feelings of guilt towards your father's passing. You reported being in a relationship for the past eight years. You resided with this partner when you were released from the Alexander Maconochie Centre (AMC) in September 2014. You described your relationship in positive terms and told the author of the Report that your partner is a supportive and stabilising influence on you. Your partner confirmed this information.
You left the education system prior to your completion of year 10. You told the author of the Report that you completed a Certificate III in Information Technology since leaving school and also obtained numerous labouring tickets and minor qualifications. You advised that your longest period of employment was six years for an IT company. You reported that your primary source of income is via Centrelink benefits. You also claimed to undertake casual work for a landscaping company operated by a family friend to supplement your income. Your employer verified this information and spoke highly of your work ethic.
You reported that you commenced alcohol consumption at the age of 15. You said that you regularly drank to intoxication with friends and believed that your alcohol use was problematic throughout your teenage years. You claimed that your consumption would decrease dramatically while employed, although you said that you had been drinking to intoxication daily prior to your incarceration in March 2014. You claimed to have consumed alcohol infrequently since your release from the AMC in September 2014. You reported commencing the use of cannabis at age 14. You stated that this use was irregular for many years. In 2011, after the death of your father, you began to smoke cannabis more frequently, although you claimed you had not smoked cannabis since the start of 2014. You reported that you commenced cocaine use in 2011 after your father's death. You claimed that you have not used any illicit substances since your release from the AMC.
You have a history of involvement with ACT Mental Health and were referred to psychological counselling by your General Practitioner. You have attended a number of counselling sessions, which primarily address the issues surrounding your grief over your father's death and the stressors related to your current legal matters.
In relation to the trafficking charge you acknowledged to the author of the Report that the cannabis was found in your possession. However, you claimed the substance and associated items did not belong to you. I interpolate here to note that in response to this comment the Crown tendered an AFP record of listening device from 24 January 2014 of a conversation between you and two females at your home. This is the day that the police executed a search warrant on your home. Two excerpts of this transcript were admitted at your sentence hearing. In one of those you say, “They caught me with my pants down. I'd normally have one pound.” In the other excerpt you say, “Yes, I dropped three off here, three off there. I sold two that's why I had seven and … I was going to get rid of more. I was on my way to seeing somebody when they … got me.” I have no doubt, based upon this material, that the cannabis did belong to you.
Returning to the Pre-Sentence Reports, I note that they are written prior to the disputed facts hearing and I, therefore, do not take into account what is written in them about your attitude to the offence of forcible confinement. You were recommended as suitable for a medium‑high level of intervention by ACT Corrective Services. You were also assessed as suitable for community service work condition.
CADAS Reports
I also take into account a CADAS report dated 11 August 2015. I note that as a child you were diagnosed with oppositional defiance disorder, attention deficit hyperactivity disorder and depressive disorder. A private psychologist you recently saw suggested that you may also suffer from post-traumatic stress disorder. A screening test for psychological distress was also conducted and you were considered to be at high risk for anxiety or depressive disorder.
You told the author of the Report that at the time of your arrest you were regularly drinking one case of pre‑mixed Jack Daniels daily, being approximately 48 standard drinks. You told the author of the Report that you now realise you had a problem with alcohol. You also gave a history of drug use to the author of the Report and, in addition to your history of drug use, which I noted earlier, you reported that you smoked amphetamines on one occasion two to four years ago and that you reported use of MDMA or ecstasy as an adolescent.
It was a view of the author of the Report that your risk of relapse into alcohol use is higher due to your history and that, while you had insight into your problematic use, you had limited knowledge about the associated risks and harms. The author of the Report noted that you appeared motivated to learn further about alcohol use disorders and to prevent further problems. The author of the Report recommended that you obtain drug and alcohol counselling to deal with relapse prevention and that it would also be beneficial for you to obtain a mental health assessment.
Criminal History
A criminal history was tendered by the Crown during the course of the sentence hearing relating to you, Mr Le Clair. I will not repeat the contents of that history in detail, however, I will note some aspects of that history. [Redacted for legal reasons.] I also note you have been charged with a number of traffic-related offences including, but not limited to, dangerous driving, driving whilst disqualified and use of an unregistered or suspended vehicle.
You also appeared before this Court with respect to an aggravated burglary and minor theft and the ACT Magistrates Court with respect to an offence of assault occasioning actual bodily harm. I accept that the sentences imposed with respect to these offences indicate that they were not the most severe examples of offending of that nature.
Character References
A character reference by your mother, Sonia Norton, was tendered at the sentence hearing. She described you as a caring son and writes that she is dependent on you to assist her on a daily basis due to an injury that she suffers to her neck, shoulder and arm. She also describes how you assist her in taking care of her children and ensuring that they attend their after-school commitments.
A character reference by Ms Campbell dated 10 August 2015 was tendered by your counsel. Ms Campbell writes that she has known you for nine years and you developed a strong friendship during this time which turned into a relationship. She describes the offence as surprising to her as she has known you to be an extremely caring and thoughtful person. She writes that she believes that your troubled childhood may have contributed to the situations you were involved in. She writes that she plans to buy a house with you in the future, start a family and re-establish your mobile cafe business.
A character reference by Andrew Klobucar dated 25 July 2015 was also tendered. Mr Klobucar stated that he has known you for many years through work and family and that you have been working with him for the last several months. He described you as an honest and reliable worker and a valuable asset to his company.
A letter from your psychologist, Ms Deponte, was tendered at the sentence hearing. You have been a client of Ms Deponte since 29 June 2015 and have attended four appointments since the date of that letter, being 11 August 2015. You scored in the extremely severe range for depression and stress and moderate range for anxiety on the relevant scales. You also reported symptoms consistent with post-traumatic stress disorder, which was supported by the test Ms Deponte administered.
Your psychologist writes that she has discussed strategies with you on managing stress, although she also writes that she has found it challenging to provide suitable therapy for you while you have been awaiting sentence with respect to these matters. I note that you told your psychologist that you have not been involved with the criminal justice system for eight years. However, your criminal history refers to an assault occasioning actual bodily harm in 2013.
Your aunt, Solvy Le Clair, gave evidence at the sentence hearing. She described a big positive change in you since you have been released from the AMC. She said that you now work physically hard, take pride in your work and also described how you take care of your mother.
You also tendered a number of certificates relating to your skills and qualifications which are dated from 2014 to 2015, and I take those into account.
David Yeboah
David Yeboah, I will now turn to your subjective features and the documents that were tendered with respect to you at the sentence hearing.
Pre-Sentence Reports
A Pre-Sentence Report dated 4 August 2015 and an updated Pre-Sentence Report dated 30 October 2015 were tendered at the sentence hearing. You are now 37 years old and told the author of the Report that you are the father of three children aged three to ten years and you share custody with respect to those children with your ex‑partner. You have immediate family support from your mother and four siblings. You have resided in public housing since 2010. You provided confirmation that you have enrolled at the University of Canberra in preparation for a university course with a view to starting a degree in building and design.
You reported that you consume alcohol up to two times a week and generally consumed three to four standard drinks. You have been a consumer of cannabis since you were 22 and have used cannabis on a daily basis since you were 27. You advised that you have been smoking up to 10 g a day in the past and have reduced this to three or four g a day. You reported good mental health. You told the author of the Report that you disagreed with the Agreed Statement of Facts dated 14 August 2015. It was the view of the author of the Report that you took no responsibility for the injuries the victim sustained, displayed little victim empathy, and you had little understanding of the impact of your offending behaviour on the victim.
You also disagreed with some of the facts in relation to the trafficking in a trafficable quantity of cannabis offence. You were assessed as at a medium to low risk of general reoffending, which is attributed to your protective factors, such as family, stable accommodation and employment. You were assessed as suitable for a medium-low level of intervention by ACT Corrective Services.
CADAS Reports
A CADAS Report and a number of CADAS Progress Reports were also tendered at the sentence hearing. The most recent one was dated 2 November 2015. I take into account the contents of these Reports. However, I will not recite the contents in any great detail.
You told the author of the first Report that you were born in Ghana and your family relocated to Canada to live when you were two years old. Your family then travelled extensively throughout your childhood before eventually migrating to Australia when you were 12 years old. I note that the most recent Report confirms that you attended a group work program called Controlling Your Cannabis Use and that you participated satisfactorily. A certificate of attainment in relation to the course of Controlling Your Cannabis Information Group dated 31 August 2015 was also tendered at your sentence hearing.
The Report also notes that you attended a follow-up appointment to review your progress towards your treatment goals and that you will continue to attend regular counselling appointments with CADAS. You also indicated your willingness to the author of the Report to attend Arcadia House Alcohol and Drug Day Program and reported that you continue to smoke “small amounts” of cannabis.
Criminal History
A criminal history for both NSW and ACT were also tendered at your sentence hearing. I note that most of your criminal history relates to motor vehicle and traffic offences, including but not limited to driving whilst disqualified, driving an unregistered vehicle and driving with a blood alcohol level over the limit. I also note that you were convicted of possessing a prohibited substance, being MDA, and you were released upon entering into a Good Behaviour Order.
Character References
A number of character references were tendered on your behalf. I have before me a letter from Mr Forrester dated 8 August 2015 who writes that he has known you for over 15 years as a close family friend and that you also worked together. Mr Forrester writes that he believes you are apologetic and that you showed clear signs of remorse and contrition. He also writes that he believes these offences are out of character for you and describes the way that your business has grown as a result of your good work ethic and interpersonal skills. I also have a letter before me from one of your employees, Mr Johnston. He described you as a peaceful man and had difficulty in believing that you were capable of the offences with which you have been charged.
A letter from one of your high school friends, Mr Rajic, was also tendered. He also describes his shock and disappointment when he learned of these charges. He writes that he has always known you to be a kind, gentle and loving man and that since these matters have come to light you have attempted to turn your life around.
A copy of an order and consent orders in the Family Court of Australia were also tendered. I will refer to these orders in more detail while recounting the evidence given at your sentence hearing.
Offender’s Evidence
David Yeboah, during your sentence hearing you gave evidence during which you said that you were a painter by trade and also a student. You gave evidence that you are a student at the University of Canberra in building and design and you attend on a part-time basis, which is about two days a week. You testified that you currently reside with your partner. You are planning to marry at the end of the year. You also live with your nine‑year‑old daughter and your partner is currently pregnant with your child. You testified that you have two children from a previous relationship and a step‑daughter.
The consent orders in the Family Court that I have referred to refer to the arrangement for shared care between you and your ex-partner. However, you agreed that when your former partner failed to comply with these orders you obtained a Recovery Order in December 2015. The children from your previous relationship were then living with you up until March this year. You said that this meant that you were not able to enter the Arcadia House program to address your cannabis use.
You gave evidence that you currently take care of these children two to three times a week and every second weekend in addition to your nine-year-old daughter. You testified that you often do the “school run” and have changed your working hours so that you are able to drop the children off at school and pick them up. You were asked by the Crown what arrangements you had put in place if you were sentenced to terms of imprisonment. You said that you were currently making arrangements.
You admitted that you were a heavy user of cannabis as a young adult, although you have cut down your cannabis use significantly. You testified that you have taken steps to rehabilitate yourself in that regard, including counselling sessions with CADAS and the Men's Centre. You have been accepted into Arcadia House and are currently on a waiting list pending you passing the mental health test, which you are booked in to attend and complete on 30 May this year.
You also referred to an assault that occurred while you were in the AMC between 2010 and 2012. You said that you had to spend a week in hospital and suffered head trauma, bruising and lacerations. You had only brought this to attention of your lawyers the day of the sentence hearing and no documentation supporting this was tendered at the sentence hearing. However, you said that as a result of these injuries you are a bit slower and not as much “on the ball”. You said that you feel terrible about the offences you committed and that you wanted to apologise to the victim.
Other Evidence
Your current partner, Kelly Wells, gave evidence at the sentence hearing. She said that you have cut back on your cannabis use and that you are not an angry or violent person. She said that you were very remorseful for the way your actions have affected the victim's life, the victim's family's lives and your own family's lives. She described your relationship as stable and said that you share domestic duties. She agreed that she would be able to manage if you were sentenced to a term of imprisonment but that it would be an adjustment.
Your brother, Albert Yeboah, also gave evidence at your sentence hearing. He said that he speaks to you on a regular basis and has noticed a reduction in your use of cannabis. He said that you were remorseful for your actions and that he did not believe you would offend again. He also said that to the extent that he could assist in taking care of your children he would do so, although noted that he had his own family and does not reside in the ACT.
Your counsel also placed before me a letter from your ophthalmologist dated 27 April this year. The letter refers to an appointment that you had to manage your chronic openangle glaucoma, which will require lifelong management. Your doctor writes that with proper management there is no reason for you to go blind as a result of this condition but that it will need to be monitored at least every six months and over the next decade, as you may require more aggressive glaucoma treatment. I note that other supporting letters and documents were tendered in relation to this issue and I take them into account.
Consideration
I see no reason to distinguish between either of you based upon your criminal histories. You, Mr Le Clair, bear greater culpability with respect to the unlawful confinement offence because it was you who produced the knife which was used to threaten the victim into submission, you commenced the confinement of the victim and you made threats to the victim in the course of this confinement. I accept that the offence of unlawful confinement was not premeditated. Whilst it is not clear precisely how long the victim was confined, it was a matter of hours. The conditions of his confinement were, however, such as to make the victim fear for his life. I accept that the victim suffered only minor physical injuries in the confinement, excluding injuries that were inflicted in NSW. I consider the offence of unlawful detention to be an objectively serious one and would place it at the lower end of the mid-range for such offences.
There is little to distinguish between the two of you with regard to the trafficking charges. The amount of cannabis located in each case was towards the bottom of the range of trafficable quantity. Each of you was found to be in possession of several thousand dollars in currency which, it may be inferred, was largely, if not entirely, the proceeds of the sale of cannabis. It was faintly suggested by your counsel, Mr Yeboah, that your reported head injury may reduce your culpability for these offences but in my opinion the evidence does not support that submission.
You both entered pleas of guilty to the trafficking offences on 15 June last year after being committed to this Court for trial. It cannot be said that they were early pleas. The Crown case against each of you was strong, but not overwhelming. I accept that your pleas evidence a degree of remorse and also have significant utilitarian value. I will reduce the otherwise appropriate sentence by 15 per cent to reflect your pleas to these charges.
Your pleas of guilty to the unlawful confinement charges were late, coming on the first scheduled day of your joint trial. Your plea, Mr Yeboah, reflects a degree of remorse for this offence. Your challenge to the facts, Mr Le Clair, and proffering of a different version of events, largely rejected by me, designed to minimise your culpability reveals little remorse on your part for the offence of unlawful confinement. There was little by way of utilitarian value to either of your pleas. I will reduce the otherwise appropriate sentence for the offence of unlawful confinement by 10 per cent with regard to Mr Yeboah and five per cent for Mr Le Clair to reflect your pleas to these offences.
I was referred to a number of prior sentences imposed for this type of offending. [Redacted for legal reasons.]
In R v Walters [2014] ACTSC 225 the offender was sentenced to three years imprisonment, reduced from four years, by virtue of his plea of guilty. That was for an offence of unlawful confinement. The sentence was effectively suspended. The offender had lured the victim to a friend's house from where the victim was driven to a secluded spot, tied up, gagged and left in a ditch. The victim was able to release himself after about 20 minutes and walked home. The offender entered an early plea of guilty and had a prior criminal history, mainly consisting of traffic offences and an offence of drug possession. The offender had an unstable childhood marred by sexual abuse and the suicide of a friend. He had a long history of substance abuse and was drug affected at the time of the offence. Sentencing was deferred for 12 months, during which period the offender completed a residential drug rehabilitation course and obtained full‑time employment. The sentencing Judge considered the offender had made remarkable progress in rehabilitating himself.
In Stott v R [2012] ACTCA 33 the offender was confined for about nine hours over a drug debt allegedly owed to one of the co-offenders. A number of threats were made to the victim but he was not physically interfered with. The offender was a mature woman with a significant criminal history. She had a long history of drug abuse which she had taken limited steps to address. She pleaded guilty to the offence of unlawful confinement. She was sentenced to three years and six months imprisonment. This sentence was not interfered with on appeal.
In R v Dalton; R v Fleet [2014] ACTSC 204 the offenders pleaded guilty to a number of offences, including unlawful confinement, about one week before they were due to stand trial. The Crown case was described as very strong but pleas were entered on an indictment that was significantly different from that which was originally filed. A discount of 15 per cent was allowed for the guilty pleas. The criminal history of the offender Fleet was more serious than that of the offender Dalton. The offender Fleet was on parole at the time of the offence. The victim was detained for about 24 hours, during which time he was forcibly drugged. The offender Dalton was sentenced to three years and 10 months imprisonment, while the offender Fleet was sentenced to four years and three months imprisonment.
In R v Eimerl [2015] ACTSC 72 the offender, who was 23 years old at the time of sentencing, pleaded guilty to an offence of unlawful confinement. He forcibly confined his mother in her own home and made threats of violence to her. He was on parole at the time for an offence of aggravated robbery and believed his mother was threatening his parole order by communicating with Corrective Services. The offender had a substantial criminal history. He commenced using methamphetamine as an adult and subsequently became addicted. A reduction of 20 per cent was allowed for his plea of guilty. For the offence of unlawful confinement he was sentenced to two years and one month imprisonment, reduced from two years and nine months on account of his plea of guilty.
In R v O'Brien [2014] ACTSC 156 the offender entered pleas of not guilty to a number of offences, including one offence of unlawful confinement. He originally entered a plea of not guilty in the Magistrates Court which he maintained in this Court. He was found guilty after a judge-alone trial. The victim was the offender's partner who he seriously assaulted one night. He confined her for approximately 24 hours to stop her going to hospital to receive needed treatment, which threatened to reveal his assault on her. The offender was a mature man with a lengthy criminal history. On the charge of unlawful confinement he was sentenced to five years imprisonment.
Finally, in R v Rogers [2014] ACTSC 124 the offender pleaded guilty to one count of unlawful confinement. The victim was in a sexual relationship with the offender. He accosted her in her own home, tied her hands and assaulted her as well as threatening to kill her. It is not clear for how long the victim was confined but it appears to have been overnight. There was evidence that the offender had a mental disorder, either depression or bipolar disorder. His plea of guilty came just before he was tried for the offence and came after a process of negotiation with the prosecution. For the offence of unlawful confinement he was sentenced to 25 months imprisonment, reduced from 30 months for his plea of guilty, a reduction of approximately 17 per cent.
These sentences do not demonstrate any particular tariff for the offence of unlawful confinement. Like sentencing for most offences, sentences imposed for offences of unlawful confinement are very much dependent upon the individual facts. I am satisfied that you each have the capacity to rehabilitate and your prospects of rehabilitation are reasonable if you choose to adopt pro‑social attitudes. I cannot say that individual deterrence is irrelevant to sentencing you for these offences but it should be tempered by reason of your ages and prospects for rehabilitation. The most significant sentencing consideration for this offence is general deterrence.
People who engage in the drug trade cannot expect to live in their own subculture where they mete out punishment for failure to perform deals made in this illicit trade according to their respective strength. The drug trade is pernicious in itself but also because it encourages a separate culture of punishment, and often violent punishment, for the perceived failure to perform agreements made in the course of the trade. I am satisfied that both of you were engaged as drug dealers to some extent and it is clear that the offence of unlawful confinement arose from a drug deal which went wrong.
I was not provided with comparative sentences for the offence of trafficking in a trafficable quantity of cannabis but the maximum penalty prescribed for the offence indicates how seriously the legislature views such offending. Balancing all of the relevant circumstances with respect to the charges before me, I am satisfied that nothing less than immediate terms of imprisonment will be adequate to meet the objectives of sentencing for these offences. The offences of trafficking are completely separate to the offences of unlawful confinement. So it is appropriate that there be a degree of accumulation of sentences with respect to those charges.
Mr Yeboah, you have not spent any time in custody relating to these charges. Mr Le Clair, you spent the period from 4 March 2014 to 19 September 2014 in custody but this was taken into account by the Chief Magistrate when she sentenced you to imprisonment for a separate offence of assault occasioning actual bodily harm. The sentences I impose should therefore, in my opinion, commence today, even taking into account the time that you spent in custody, Mr Le Clair.
Sentence
Michael Le Clair
For the offence of unlawful confinement I record a conviction and you are sentenced to three years and six months imprisonment, reduced from three years and nine months for your plea of guilty. That sentence will commence today, 25 May 2016 and expire on 24 November 2019.
For the offence of trafficking in a trafficable quantity of cannabis I record a conviction and you are sentenced to 12 months imprisonment, reduced from 15 months for your plea of guilty. That sentence will commence on 25 August 2019 and expire on 24 August 2020.
I set a non‑parole period of 29 months, commencing today, 25 May 2016 and expiring on 24 October 2018.
David Yeboah
For the offence of unlawful confinement I record a conviction and you are sentenced to two years and 11 months imprisonment, commencing today, 25 May 2016 and expiring on 24 April 2019. I have reduced that from three years and three months for plea of guilty.
For the offence of trafficking in a trafficable quantity of cannabis I record a conviction and you are sentenced to 12 months imprisonment, which I have reduced from 15 months for your plea of guilty. This sentence commences on 25 October 2018 and expires on 24 October 2019.
I set a non‑parole period of two years, commencing today, 25 May 2016 and expiring on 24 May 2018.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns Associate: D. Scuteri Date: 16 June 2016 |
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