R v March
[2023] ACTSC 28
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v March |
Citation: | [2023] ACTSC 28 |
Hearing Date: | 2 December 2022 |
DecisionDate: | 17 February 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [143] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – assault occasioning actual bodily harm – forcible confinement – threaten participant in legal proceedings – where victims two young women unknown to the offender – application of sentencing principles – Bugmy – prior criminal record – protection of the community |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 |
Cases Cited: | Bloxsome v The Queen [2020] ACTCA 52 |
Parties: | The Queen (Crown) James Dudley March (Offender) |
Representation: | Counsel S Bargwanna ( Crown) A Doig ( Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Briggs Law (Offender) | |
File Number: | SCC 228 of 2022 |
Loukas-Karlsson J:
Introduction
On 24 June 2022, the offender, James Dudley March, pleaded guilty to the following offences:
(a)One count of burglary contrary to s 311 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 14 years’ imprisonment.
(b)Two counts of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is five years’ imprisonment.
(c)Two counts of forcible confinement contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.
(d)Two counts of threaten participant in a criminal investigation contrary to s 709A(1) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is five years’ imprisonment.
I entered convictions for the above offences at the sentencing hearing on 2 December 2022. Upon conviction, the offender is in breach of a good behaviour order and two suspended sentences imposed by Special Magistrate Hopkins on 20 January 2022 for offending committed on 20 April 2021, as below:
(a)Burglary – Conviction, 12 months imprisonment (9 August 2021 – 8 August 2022) suspended after 5 months’ 12 days upon entering into a two-year good behaviour order
(b)Burglary – Conviction, 12 months imprisonment (9 February 2022 – 8 February 2023) suspended upon entering into a two-year good behaviour order
(c)Minor theft – Conviction, 6 month good behaviour order
List of Exhibits
The following materials were tendered by the prosecution:
(a)Prosecution tender bundle
The following materials were tendered by counsel for the offender:
(b)A psychological assessment under the hand or Dr Bruce Stevens dated 30 October 2022
(a)A letter to the Judge and Elders in the Galambany Court dated 21 October 2021
(b)A Mental Health Assessment dated 15 November 2021
(c)A Mental Health Assessment dated 21 April 2021
(d)A Certificate of Achievement for completion of an “AOD” program – 30 September 2022
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows:
Burglary – Criminal Code 2002 (ACT) s 311:
At about 2.15am on 4 March 2022, while the victims were asleep inside their residence in Ainslie, the offender gained entry to the residence through an unlocked bathroom window, accessible from the backyard of the residence.
The offender entered the first victim's bedroom which caused her to wake up.
Forcible confinement – Crimes Act 1900 (ACT) s 34 – The first victim:
As the first victim woke, she observed the offender whom she did not recognise enter her bedroom and close the door behind him. The offender asked "why didn't you answer your phone?”
The first victim sat up and pushed herself backwards toward her bedhead and asked the offender to get out of her room. The offender did not leave and kept approaching the first victim. She asked the offender why he was in her house. He did not respond and began climbing on top of her and laying in her bed. She described the offender as being aggressive.
10. The first victim screamed for her housemate (the second victim) however the offender covered her mouth with his hand preventing her from screaming further, before asking her who else was inside the house. The first victim advised the offender her housemate was also home. The offender then got off the first victim.
11. The first victim observed that the offender then became confused, and she asked him to get out of her house.
12. As this occurred, the second victim entered the first victim's bedroom, and the offender stated "it’s ok, it’s ok, nothing's wrong." As a result the second victim walked out of the room. The offender closed the door after the second victim left.
13. The offender appeared to be calmer and the first victim asked him to leave whilst offering to open the front door to allow him to do so. The offender stepped aside and the first victim went to collect the key to open her front door. The second victim heard the first victim asking the offender to leave the house.
Forcible confinement – Crimes Act 1900 (ACT) s 34
Assault occasioning actual bodily harm – Crimes Act 1900 (ACT) s 24
14. The offender forced both victims into the first victim's bedroom and made them sit on the bed. The offender then said words to the effect of "I'm going to have to do this" before immediately grabbing both victims by their hair at the back of their necks, and pulling them upright and forcing them face down onto the first victim's bed.
15. The first victim tried to fight back against the offender by stabbing him in the leg with the front door key she had in her hand. Whilst this was occurring the second victim started screaming for help, and she considered if she could find something to cut her hair off to escape the offender's grasp. She was not able to, and she attempted to break free of the offender by hitting him in the groin and face, without success.
16. The second victim observed the first victim's Apple iPhone on a bedside table and began yelling "Hey Siri, call the Police”, however this was unsuccessful.
17. The offender become more aggressive and pushed the victims further into the bed. The first victim started screaming loudly and asked the offender "what do you want from us?" Whilst being held down, the first victim felt like she was suffocating. The second victim believed she was about to be beaten, raped or murdered or all three.
18. After the struggle, the offender let the victims go, and he appeared to be panicked and distressed. The offender asked the first victim and the second victim their names. The victims both gave the offender false names.
19. The offender appeared confused. Both victims stood up beside the bed, whilst the offender stood in the doorway preventing their escape. The second victim was panicked, was only wearing a dressing gown, and felt very vulnerable. The second victim ran her hands through her hair where she discovered clumps of her hair had been ripped out of her head.
20. The offender then said "I was told to come to this house, but I've got the wrong people." The offender began to appear distressed and apologised and said he didn't want to hurt the victims. The offender then told the victims he had a gun down his pants, and that this is what they may have felt in his pants whilst he was on top of them. The first victim told the offender to leave, and said that she would let him out of the house.
21. The offender opened the bedroom door and demanded the victims collect their mobile phones and place them on the kitchen table. At this time the first victim observed the time as displayed on her phone was 2.30am. Once both phones were placed on the kitchen bench, the offender returned to the first victim's bedroom and sat on the bed. He told the victims that he was part of a gang who had placed a hit on the house; however, he had realised they were the wrong people.
22. The offender claimed he had a family he was trying to protect, and that he had a young daughter who had been hurt, so he was trying to get revenge on the person who had done that; however, had been given the wrong address to go to. The offender went on to say the person who was supposed to be at the house would be "leaving in a boot if they were here". At this time, both victims were afraid and shaking. The offender offered the first victim a hug, which she refused.
23. The offender then told the victims that they needed to take a shower because he had "done too much" and that his fingerprints were on them and they needed to be washed off.
Threaten participant in a criminal proceeding – Criminal Code 2002 (ACT) s 709A(1) – Both victims
24. The offender then told both victims not to do anything stupid, and that if they went to the police it would put a target on themselves and him. The offender then asked for a glass of water.
25. The victims went to the kitchen where the offender told them again "don't do anything stupid" and instructed them not to touch their phones. The first victim then took a glass from the kitchen cabinet and poured the offender some water. The offender repeatedly stated he was sorry and did not mean to hurt them and said he isn't the kind of person who hurts women. Both victims repeatedly asked the offender to leave the house, however he did not.
26. The offender then told the victims again that they needed to take a shower. The first victim asked the offender if they could shower outside the house by using the tap outside to wash their hands, however, the offender refused to allow them to do so, and reiterated his demand they must shower their whole bodies. The victims then asked if they could shower together, however the offender refused and demanded they shower separately.
27. The second victim went into the bathroom and had a shower first. Whilst doing so the first victim stood outside the bathroom and toilet door, and the offender sat on a step leading toward the bathroom and toilet. Whilst in the shower, the second victim decided that if the first victim began screaming, she would attempt to escape the residence through the bathroom window and try to get help.
28. At this time, the offender told the first victim he had entered the residence through the toilet window, and told her to close and lock it. She did so, then she refilled the offender's glass of water at his request. A short time later, the second victim came out of the bathroom and the first victim went into the shower and showered for about two minutes.
29. Whilst the first victim was showering the second victim stood in the same place outside the bathroom.
30. Once the first victim exited the shower, the offender repeated that he was involved with people that had put a target on the house, and if the victims went to the police there would be a "target on their back" and people would come after them and him.
31. The offender then questioned the victims as to whether they owned or rented the house, and how long they had lived there. Upon advising the offender they had only just moved into the residence and had lived there for two weeks, he stated "it must be the old tenants".
32. The offender then told the victims that he had been in jail before, as well as in the military. He went on to state he had been the victim of home invasions in the past and had a gun to his head, so “knows how they feel.” The offender went on to say he needed to rest and wind down, because the experience had been "really hard on him."
33. The offender continued conversing with the victims for approximately 10 minutes about his mother's passing and re-stated they must not go to the police as it would put them at risk from dangerous people who he is involved with who would do a lot worse to them if they had come to the house.
34. The second victim agreed to not report the matter to police if he agreed to tell other persons not to come to their house and that they had "got the wrong people". The offender then told the first victim to empty the glass of water she had poured for him and wipe the glass down in front of him.
35. The offender then told the second victim to open the back door, which she complied with, before the offender left the location. The victims then secured the residence and travelled to a friend's house to take refuge. They did not initially report the matter to police due to fear of retribution as described by the offender.
36. Later that morning, after speaking with their parents, both victims attended Belconnen Police Station and reported the matter to police. The first victim told police the incident made her feel scared and no longer safe in her home.
37. As a result of the incident, the first victim suffered bruising and scratches that broke the skin on her left arm and bruising and pain to the back left side of her head where quantities of hair had been tom out. The second victim had scratches on her right leg that broke the skin, as well as bruising, and had quantities of hair torn from her head. Police attended the residence, established a crime scene, and forensically examined it by consent.
38. On 18 May 2022 the offender was located by NSW Police outside an address in Bondi, Sydney.
39. Search warrants were recorded by both audio and video. During the search warrant, the offender was not questioned, however made numerous spontaneous utterances to police in relation to an incident with two girls and going to the wrong house because he was given the wrong address. He further stated someone had threatened his daughter and that the two girls didn't deserve what happened.
Victim Impact Statements
40. Two Victim Impact Statements were tendered and read aloud at the sentencing hearing. The first victim’s Victim Impact Statement was read to the court by Officer Leeson. The second victim read her Victim Impact Statement. The statements describe the immediate and ongoing physical and emotional impacts of the offending on both victims. The victims describe feeling unsafe in their home and fearing ongoing harm from the offender and others; the financial impact of moving out of their residence; the impact on their respective university studies; and the ongoing trauma, and feelings of fear and paranoia especially when home alone.
41. The first victim’s Victim Impact Statement contains the following detail:
In the immediate days following the offence I felt a great sense of shock, fear and emotional distress. My sense of personal safety and security in my own home was completely shattered.
….
As we had only been in that house for two weeks, the process of having to move again so soon and find a new house was emotionally and physically draining and felt very overwhelming. Because we broke our lease early, we also incurred a significant financial cost …. This was a period where I felt incredibly overwhelmed and uneasy and struggled with very vivid flashbacks of the attack and thoughts of something similar happening again. I found going to sleep at night particularly challenging and felt extremely exhausted during the day. I found it very difficult to talk about the events of the night and felt very overwhelmed as to what it would be like going forward and how I would live my life normally after what had happened. I was anxious that I would never feel comfortable being alone, especially at night time.
…
Because of the emotional distress and feelings of exhaustion that I experienced after the incident, I decided to defer my university studies which I was doing at the time as I felt I was unable to cope with the workload as I was also working full time at a new job. Whilst I have continued to work full time since the incident, in the immediate months following the offence, I often found myself feeling overwhelmed at work and that my ability to work productively and concentrate for long periods of time had been impacted. In those first few months I found I wasn’t able to enjoy things to the same extent as I had before as I felt pre-occupied with thoughts about the event and the offender and felt overwhelmed thinking about the investigation and then the subsequent court proceedings.
…
Whilst I now feel more safe and secure and feel I have recovered from the trauma of the break-in and assault, I am definitely much more aware and alert as to my personal safety and the vulnerability I have as a woman and the ease at which something like this could happen again or for it to happen to someone else in the future.
42. The second victim’s Victim Impact Statement contains the following detail:
…
When the crime occurred, we had only been living on the property for less than two weeks. …. In the days following … I felt constantly tired, I had trouble focusing, my memory became terrible, I barely got anything done. I simply felt so overwhelmed and numb on the inside, I felt dead. I isolated myself, I stopped eating, I dropped social events. All I wanted to do was spend my days lying in bed doing nothing and hoping I would disappear. I fell into a depressive state: everything in life felt pointless, and even going through the motions of existing were hard. I have had a heightened sense of anxiety since: I don’t like being alone, particularly at night, either at home or out, and I frighten easily.
…
To be honest, it’s exhausting having fears and anxieties that my friends don’t, of continually feeling the ramifications of this event. I occasionally have trouble getting to sleep because I’m kept up with anxiety and scared that someone will break into my home; I wake up frequently in the night, I’ve gotten out of bed to check that the doors are locked more than once. I will say that it’s hard not feeling safe anywhere anymore. Memories of the event give me significant emotional distress - I have had to miss class because I have felt so overwhelmed. It has, admittedly, been very up and down. Some days I’m perfectly fine, and others are an absolute mess. Even months later in explaining what happened I could not stop shaking and trembling. In these past few months following, I have gotten progressively better, but things are still, quite frankly, very up and down. Some days it is still hard to get up and out of bed, let alone leave the house, and existing feels like too much to cope with. I was just less than two weeks into my PhD when the crime occurred, and it was a program that I was so excited to start. Now I struggle to focus, I struggle to get work done as a result of everything that has happened …
…
I am determined not to let this crime affect the trajectory of my life, but even so, I’m nervous going out alone at night and the first night I was here I slept with a chair blocking the door of every entrance. I am trying to face these fears, but again, it is frustrating that these fears are in fact now based in a lived reality; they’re not beyond the realm of possibility. In all honesty, the main reason I am where I am now – relatively intact and stable – is because I feel like I have had no other choice but to push through.
43. The Court recognises the serious and long-lasting effects of these crimes on the victims. There has been a significant impact upon both victims. The Court underlines the importance of what both victims have expressed in their eloquent statements. It is a woman’s worst nightmare to have a stranger come into her home in the middle of the night while she sleeps and commit offences.
Objective Seriousness
44. A sentencing judge is required to identify where offending sits on the spectrum of objective seriousness. In The Queen v Kilic [2016] HCA 48; 259 CLR 256, the High Court held (at [19]):
Where … an offence … is not so grave as to warrant the imposition of the maximum prescribed penalty …a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called.
45. The prosecution provided submissions regarding the objective seriousness for each offence. Counsel for the offender did not specifically submit on objective seriousness. Rather, counsel for the offender acknowledged in written submissions that the instant matters are ‘serious offences’ and that the section 10 threshold has been met. Counsel for the offender did not cavil with the prosecution’s submissions on objective seriousness (see T28.11-12; T32.19-21).
Burglary
46. In R v Elphick [2021] ACTSC 9, Murrell CJ identified the following factors as relevant to assessing the objective seriousness of burglary. I note an appeal was dismissed. Her Honour stated at [113]:
Having regard to the maximum available penalty, the most serious offences before the Court are the offences of aggravated burglary. Factors which may render such offences of greater or lesser seriousness, most of which are also relevant to a consideration of the offence of burglary, include the following.
(a) The time at which the offence was committed and whether it was likely that members of the public would witness it.
…
(b) For offences of aggravated burglary, whether only one or both circumstances of aggravation were present (in company and in possession of an offensive weapon) and, if the offender was in company, the number of co-offenders with whom he was in company.
…
(c) Whether the offence occurred at commercial or residential premises. Generally, the invasion of residential property is more serious as involves an invasion of the sanctity of the home. A related consideration is whether the entry was to a garage or the residential house.
…
(d) The means of entry. Entry via a partially open door is less objectively serious than forced entry, particularly if the force causes damage.
…
(f) The degree of planning.
…
(g) Whether the victim was vulnerable.
…
(h) Whether any force, threat or gratuitous conduct was associated with the offence.
…
47. In R v Lockwood [2018] ACTSC 288 at [51], I noted the following with regard to the offence of burglary:
There is a “significant range of available sentences” for burglary, though they are “generally within the range of imprisonment for from one year to two years and six months”: Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]-[32]; Millard v The Queen [2016] ACTCA 14 at [44]-[45].
48. I take into account the following factors in determining objective seriousness:
49. The offending was committed in the early hours of the morning, while the complainants were sleeping. The timing of the burglary contributed to the vulnerability of the victims. The offender gained entry to a residential premises where two young women were residing. He gained entry through an unlocked bathroom window.
50. The victims were in a vulnerable position when the offending occurred. They were inside their residential premises where they had the right to feel safe. The offending occurred in the dead of night when asleep. I note in relation to force, threat of harm or gratuitous conduct that these are specifically separately charged matters and I must take into account the legal necessity not to double count.
51. For the reasons outlined above, the burglary is above mid-range and toward the upper end of objective seriousness for offences of this type.
Assault Occasioning Actual Bodily Harm
52. In R v Newman; R v Reid [2016] ACTSC 102, Murrell CJ outlined the relevant principles in assessing the objective seriousness of an assault occasioning actual bodily harm at [14]:
There are two principal factors to be considered when assessing the objective seriousness of such an offence: first, the nature of the offending conduct; and second, the nature of the injuries that were sustained by the victim.
53. The prosecution submitted that in the current matter, the assaults against the victims occurred in the context of a home invasion in which they were forcibly confined. The offender entered their premises in the dead of night while both victims were asleep. The level of violence used was at the mid-range. It involved the offender using physical force to drag the victims around the premises.
54. The prosecution correctly submitted that this offending falls into the mid-range of objective seriousness for offences of this type.
Forcible Confinement
55. In respect of forcible confinement, I refer to the decision of R v Williams [2016] ACTSC 389 at [53], where Refshauge ACJ outlined that matters relevant to an assessment of objective seriousness include:
(a)The length of the forcible confinement;
(b)The extent that it was premeditated or planned;
(c)The way in which was effected;
(d)The purpose of it;
(e)The conditions under which the victim was confined, including the behaviour towards the victim, such as the level of restraint, any physical or verbal abuse committed and whether the victim was subjected to degrading behaviour;
(f)The extent of the fear instilled; and
(g)The injuries inflicted.
56. In determining the objective seriousness of the forcible confinement of each victim, the Court must consider that the victims were detained for approximately an hour, they were subject to serious threats during the detention, and the victims were assaulted and degraded during the confinement.
57. In my view, taking into account the above considerations, the offending is above the mid-range and approaching the higher end of objective seriousness.
Threatening participant in a criminal proceeding
58. Offences involving threats or reprisals against those involved in the justice process are, by their very nature, serious, amounting to a direct attack upon the administration of justice: see Linney v The Queen [2013] NSWCCA 251 at [88]. Further, the Courts have consistently held that offences against justice require strong deterrent sentences and must be severely punished whenever detected: see Marinellis v R [2006] NSWCCA 307 at [10]; R v Taouk (1992) 65 A Crim R 387. These are serious matters and in my view, taking all the circumstances into account, the facts of this case approach mid-range.
Subjective Matters: Pre-Sentence Report and Report of Dr Stevens
59. In evidence before me is a pre-sentence report (PSR) and a psychological report of Dr Bruce Stevens prepared for the offender which outlines the offender’s background and upbringing.
60. The offender is 36 years old. The offender was born in Bowral NSW, and described his upbringing in negative terms. He described his parents as illicit substance users (ice and heroin), and described being neglected, including reporting being starved, and witnessing family violence during his childhood. The offender reported that his father had schizophrenia and had admissions to hospital, and he has had limited contact with his father since the age of 13. The offender reported that his mother had difficulty with depression and attempted suicide "a few times”. The offender reported that he relocated to reside with his aunt and uncle at 13 years of age. The offender advised he left school during Year 9 and was suspended and expelled from various high schools. Since leaving school, the offender has qualified variously as a personal trainer, a tyre fitter and a wheel aligner.
61. The offender is Aboriginal however he reported to the PSR authors that he “is not engaged within the Aboriginal community.” The offender has two children from a previous relationship with whom he has had no contact for around 10 years. Between January and March 2022, when the offender was last in the community, he resided with his father in Canberra before relocating to Sydney until his arrest in May 2022.
Substance use
62. The offender has an extensive history of drug and alcohol use. The offender has reported a history of problematic alcohol consumption since the age of 12. The offender advised that in early 2022, prior to entering custody, he would wake up and commence drinking and maintain a ‘comfort level’ of intoxication throughout the day. He reported using cannabis since the age of 8, reporting using about a gram a day. The offender has used heroin since the age of 17, telling Dr Stevens that his usage was ‘on and off’ and ‘never a habit’. The offender has used both ice and intravenous heroin.
Psychiatric and psychological history
63. Dr Stevens made the following diagnoses: major depressive disorder recurrent moderate to severe; schizophrenia; alcohol use disorder (moderate); and stimulant use disorder – amphetamine type (moderate). Dr Stevens reported that it is likely the depression and schizophrenia have a genetic link to the offender’s parents, specifically his father. Dr Stevens noted that over the years the offender has attempted to self-medicate with alcohol and drugs. While the offender reported having a diagnosis of Borderline Personality Disorder, Dr Stevens noted that he has traits but does not meet the full diagnostic criteria. Dr Stevens also noted that the offender has traits of Antisocial Personality Disorder.
64. As counsel for the offender submitted, while the offender reported auditory hallucinations with voices, the offender did not remember the voices being influential at the time of his offences. Counsel for the offender submitted that the offender instructed that at the time of his offending in 2021 (when the breach offences were committed) his mental health was in a state of decline for a number of reasons.
65. Counsel for the offender submitted that the offender instructed that when the offender travelled to Sydney following the commission of the offences he was suicidal and contemplated suicide whilst standing at the North Bondi cliffs. Counsel for the offender submitted this is consistent with the PSR authors’ note that the offender reported experiencing suicidal ideation prior to his arrest in May 2022.
Risk of reoffending
66. The PSR authors assessed the offender at a high risk of general reoffending. The authors note that the offender presents with numerous risk factors, including alcohol and drug use, mental health concerns, unemployment, lack of stable accommodation and a continuous pattern of offending from a young age. The authors note that the offender lacks prosocial support and guidance in the community. While the report authors note that the offender would benefit from an intensive residential rehabilitation program, the offender stated to report authors that he was not motivated to engage in such a program and could achieve a positive life change by leaving Canberra.
Reasons for offending
67. In terms of the reasons for offending (s 33(i)(v)), the offender provided more than one explanation for his offending conduct. In the agreed statement of facts, the offender claimed to have been part of a gang that had “placed a hit” on the house. The tendered psychological report authored by Dr Stevens, dated 30 October 2022, contains claims that his offending was motivated by the following factors:
(a)The offender was angry as someone had treated his daughter badly and provided her with the drug ice.
(b)The person who supplied the drugs to his daughter was a 24-year-old male.
(c)The offender conducted the burglary to warn the person to keep away from his daughter.
68. In the PSR dated 25 November 2022, the offender stated that he agreed with the statement of facts tendered in these proceedings. The offender also stated that he could not clearly remember his actions on the night of the incident as he was under the influence of both alcohol and drugs at the time.
69. The prosecution submitted that the explanations given by the offender are “peculiar” given the offender’s conduct as outlined in the statement of facts.
70. The prosecution pointed to the agreed facts outlined at [6]-[13] above.
71. The explanation of the offender as to his offending conduct is difficult to accept given the agreed facts. The offender stated that he entered the premises to confront a 24-year-old male about supplying drugs to his daughter. However, upon entering the premises, the offender entered the bedroom of a young woman, and climbed on top of her.
72. The offender then covered the victim’s mouth to prevent her from screaming and asked her whether there was anyone home. It was only once the offender realised that the second victim was home that he retreated from his initial advance upon the first victim.
73. What counts against this purported explanation are a number of matters including the following:
74. In particular, why the offender did not enquire as to the whereabouts of the 24-year-old male he claimed to have been seeking. Further, the offender’s subsequent assault of both victims (in forcing them face down on the bed by their hair) does not align with his purported motivation.
75. Counsel for the offender submitted that “whilst not blaming [the offender’s] mental health for the reason he committed the instant matters, and not excusing his actions [but] rather giving context”, the offender’s explanation to police is consistent with the statement of facts and with what the offender told Dr Stevens.
“I [was] very angry. Someone had treated my daughter badly. My intention was to tell them to keep the fuck away from my daughter. No one was [supposed] to get hurt, it was a warning” (He was looking for a 24-year-old male whom he heard was supplying his [daughter] with drugs (ice)). “I did my block and didn’t think too much. That shit (ice) destroyed my life. I don’t want that for my kids.”
76. The Court must exercise caution in accepting the offender’s explanation for his offending. In my view, taking the foregoing into account, the supposed motivation is not a matter of mitigation. In this case it was conceded by both the prosecution and counsel for the offender that the factor of motivation was neutral as being neither aggravating nor mitigating. See Weininger v The Queen [2003] HCA 14 at [22]:
… Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
S 33(1)(p)
77. The offender claimed to have been under the influence of alcohol during the commission of the offences. To the extent that the Court accepts that the offender was intoxicated, courts have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender’s culpability: see Hasan v The Queen [2010] VSCA 352; 222 A Crim R 306, Maxwell P, Redlich JA and Harper JA at [21]-[22].
78. ACT Supreme Court judgments are consistent with the approach taken in other Australian jurisdictions: see, eg, R v Cole [2017] ACTSC 404.
79. To the extent that the offender was in any way intoxicated at the time of the offending, this is not a mitigating factor in this case.
Remorse
80. Dr Stevens reported that the offender expressed both regret and “clear” remorse. The offender told Dr Stevens: “when I realised that they were the wrong people, I was devastated. They had been in the house only two weeks … they would have been terrified, not knowing what was going on. Trauma, living with fear. I have two daughters I wouldn’t want that for them – to live in fear.”
81. In this matter, the prosecution accepted that the offender has expressed “victim empathy” in the PSR and appears to have expressed some remorse to the victims at the time of the offending. I take that into account.
Conditional Liberty
82. On 20 January 2022, the offender was sentenced in the Magistrates Court in respect of four offences. For the first offence, the offender received a term of immediate custody which at the time of sentencing had been served; in respect of the remaining three offences, the offender received two suspended sentences and a good behaviour order.
83. The offender was therefore on conditional liberty at the time he committed these offences in March 2022.
84. The fact that the offender was on conditional liberty at the time of this offending is an aggravating factor on sentence. Care is required to avoid double punishment: Kelly v Ashby [2015] ACTSC 346 per Refshauge J at [61]. The betrayal of the opportunity for rehabilitation offered through probation, parole and provisional release, is to be regarded very seriously and should weigh against offender: R v Tran [1999] NSWCCA 109 at [15].
CriminalHistory
85. The offender has a significant criminal history, including previous convictions for burglary and sexual intercourse without consent.
86. In 2014, the offender was convicted of sexual intercourse without consent and burglary. The prosecution noted that the facts of those offences bear similarity to the instant matter. Counsel for the offender accepted this, however distinguished that the offences for which the offender was sentenced by Murrell CJ also involved sexual assault.
Pleas of guilty
87. The offender pleaded guilty in the Magistrates Court.
88. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
89. In written and oral submissions it was correctly submitted by both parties that the plea occurred at an early stage, and the appropriate discount is therefore 25%. Taking into account the relevant matters, in my view, a discount of approximately 25% is appropriate.
Time in custody
90. The offender has spent 9 months in custody from 18 May 2022 to 17 February 2023 solely referable to these offences.
Comparable cases
91. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
92. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
93. The prosecution provided a table of case citations which it submitted are relevant to this sentencing exercise. Both parties agreed that the most comparable cases in relation to this matter are the offender’s previous sentence and the matter of R v Laipato [2019] ACTSC 386 (R v Laipato).
(a)R v March [2014] ACTSC 244
In 2014, the offender was sentenced by Murrell CJ for burglary and sexual intercourse without consent. In summary, the offender entered the granny flat of the victim, an 18 year old woman. The door had not been locked. The victim told the offender not to come in and to go away. The victim reached for her phone but the offender told her she could not touch it. The offender forced the victim to engage in a series of acts of sexual intercourse, threatening to hurt her if she did not comply. At various times throughout the assault, the victim attempted to reason with the offender, without success. The offender’s behaviour throughout the episode was “erratic” and involved the offender threatening the victim that she should not tell anyone and if she did so, he would harm her and her family. The offender also said, “I’ve ruined your life, I’m sorry” but then proceeded to say, “I really don’t want to come back here and have to hurt you or have to make you disappear.”
For the burglary offence, Mr March was sentenced to 3 years and 5 months imprisonment, accounting for a 15% discount for the plea of guilty. For the offence of sexual intercourse without consent, he was sentenced to 7 years and 3 months imprisonment, taking into account the 15% discount. Mr March received a total effective sentence of 7 years and 9 months imprisonment, with a non-parole period of 5 years and 2 months.
(b)R v Laipato; Laipato v The Queen [2020] ACTCA 35
The offender was found guilty after a jury trial of one count of burglary, one count of forcible confinement, and one count of choke/suffocate/strangle.
The offender attended the victim’s (his former partner’s) residence just before midnight on 18 January 2019. He entered the premises and dragged the victim from her bed into the neighbouring room. Once in that room the offender choked the victim. On multiple occasions the offender placed his hands around her throat and also covered her nose and mouth such that she could not breathe. The victim resisted for a while but stopped doing so when she thought that her resistance was only aggravating the offender. At one point the victim was on the ground shaking when the offender leaned towards her and said, “You’re fine”, while laughing. He also said words to the effect of, “I could fucking kill you” while he was choking her.
The offender had a significant criminal history, including multiple convictions for burglary, assault occasioning actual bodily harm, aggravated burglary, recklessly inflicting grievous bodily harm, assault and drug and traffic offences. He had served multiple terms of imprisonment. The offender had previously been convicted of offences against the same victim.
The offender was sentenced by Burns J to imprisonment for three years and 6 months for burglary, 2 years and 3 months for forcible confinement, and 1 year and 8 months for choke/suffocate/strangle. The total period of imprisonment was 5 years and 6 months, with a non-parole period of 3 years and 6 months.
The sentence was successfully appealed on the ground that on sentence, the trial judge erred by making factual findings that were inconsistent with the jury’s verdicts. The trial judge proceeded on the erroneous basis that the burglary involved entering without consent rather than remaining without consent. The Court of Appeal found that while the factual error did not reduce the objective seriousness of the offence to less than “mid-range”, there was a high degree of mutuality between Count 1 (burglary) and Count 2 (forcible confinement) which should have been reflected in the structuring of the sentences. The offender was resentenced to 2 years and 6 months for the burglary offence, 2 years for the forcible confinement offence, and one year and 3 months for the choke/suffocate strangle offence, with a total period of imprisonment of three years and 6 months, and a non-parole period of 27 months.
(c)R v Bloxsome [2019] ACTSC 217; Bloxsome v The Queen [2020] ACTCA 52
The offender was found guilty after a jury trial of one count of intention wounding, one count of forcible confinement, two counts of sexual intercourse without consent and one count of aggravated robbery. At the commencement of the trial the offender pleaded guilty to a number of other charges: taking motor vehicle without consent, aggravated burglary and damaging property. On appeal, the guilty verdicts on the sexual assault counts were quashed.
The offending involved a “methamphetamine-fuelled crime spree” undertaken by the offender and a co-offender and a number of other persons. The offender and co-offender armed themselves with weapons and directed two individuals (one male, one female) who were with them at a premises to depart with them. Both the male and female refused to leave the house and the male was shot in the thigh with a pistol by the co-offender. The offender then stabbed the male in the forearm and hand with a machete. The co-offenders then forcibly confined the female and drove her to a house in Casey ACT. Both the offender and co-offender then detained the female for the next two days.
The offender had an extensive criminal history, a disadvantaged upbringing, a history of homelessness and an ongoing history of problematic substance abuse and mental health issues for which he had not undertaken any significant intervention. He demonstrated little insight into his offending conduct, justifying it on the basis of psychosis and paranoia due to illicit substance use. He was unable to identify the harmful consequences of his offending behaviour. The offender received the following sentences:
Offence Original Sentence Appeal Sentence Intentional wounding 20m imp 20m imp Forcible confinement 42m imp 42m imp Sexual intercourse without consent 48m imp quashed Sexual intercourse without consent 58m imp quashed Aggravated robbery 60m imp 60m imp Aggravated burglary 32 m imp 32 m imp Damage Property 8m imp 8m imp Total Total: 11y 1m imp, NPP: 6y 11m imp. Total: 7y 10m imp
NPP: 4y 9m imp.
The prosecution submitted that the facts in Bloxsome are more serious than the matter before me for sentence.
(d)R v Evans [2020] ACTSC 285; Evans v The Queen [2021] ACTCA 19
The offender was found guilty after a trial by judge alone of one count of forcible confinement, one count of make demand with threat, and one count of inflict actual bodily harm.
On 18 January 2019, the offender and a co-offender forcibly confined the victim at an address in Canberra for approximately one hour. During this forcible confinement, the co-offender made demands of the victim that he pay her the sum of $20,000. The offender was armed with a baseball bat and made multiple threats to cause serious physical injury to the victim during the period that he was forcibly confined and during which the co-offender was demanding the victim pay the $20,000. The offender attacked the victim with the baseball bat, resulting in the victim moving into the kitchen of the premises and obtaining a knife. The offender and co-offender then retreated from the premises.
The offender had a lengthy criminal record for offences of violence and dishonesty. The offender had previously served terms of imprisonment. The offender had a history of childhood drug use and illicit substance dependency. The offender had a traumatic brain injury, anxiety and depression and substance use disorder but these disorders were not linked to the offending behaviour nor were they submitted to make imprisonment more onerous. The offender was sentenced as follows: forcible confinement (3 years imprisonment), make demand with threat (3 years and 6 months imprisonment) and inflict actual bodily harm (2 years imprisonment). The offender received a sentence of 4 years and 4 months imprisonment.
The sentence was overturned on appeal as a result of a factual error on sentence. The offender was resentenced as follows: forcible confinement (30 months imprisonment), make demand with threat (30 months’ imprisonment), and inflict actual bodily harm (2 years imprisonment). The offender received a total sentence of three years and 6 months imprisonment. The non-parole period took into account unrelated existing offences.
I note that neither party referred to the fact of the Court of Appeal decisions of Laipato v The Queen, Bloxsome v The Queen and Evans v The Queen in initial written submissions.
Application of Bugmy Principles
94. Counsel for the offender submitted that the Court may consider, in light of the offender’s childhood, the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), “at least insofar as they relate to moral culpability, and especially in the long-standing abuse of alcohol and illicit substances.” Counsel for the offender referred me to page 11 of the psychological report where Dr Stevens noted the following at line 515:
I believe that Mr March has some personality factors which contribute to his offending. This includes being highly impulsive, having poor judgment especially when intoxicated and it is possible his depression and anxiety leads to his abuse of alcohol and drugs.
95. The offender’s disadvantaged childhood and upbringing is outlined earlier in this judgment at [59]-[62].
96. In Bugmy, the High Court found that the fact that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [43]. Social deprivation may impact on those purposes in different ways. The court in Bugmy explained at [44]-[45]:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
97. In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a)the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b)the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c)the application of the Bugmy principles is not discretionary: Irwin at [3].
98. The prosecution accepted that the offender’s disadvantaged background involved exposure to alcohol and drug abuse. According to Dr Stevens, this likely affects the offender’s impulse control and judgement. However, the prosecution submitted that for the reasons outlined in Bugmy at [44] the need to protect the community from the offender should be at the forefront of the Court’s sentencing considerations such that the inability of the offender to control his violent responses to frustration increases the importance of protecting the community from the offender.
99. I take into account all the factors discussed above in applying the Bugmy principles to the sentencing of this offender.
Verdins
Counsel for the offender did not rely on the principles in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins). These principles were recently set out by me in R v Porter (No 3) [2022] ACTSC 236 at [173].
Counsel for the offender submitted that while Dr Stevens’ report indicates that the offender experiences hallucinations, the offender did not report these being in any way influential at the time of his offending. Counsel submitted that while it is “abundantly clear” that the offender has mental health issues, he does not seek to rely upon that in relation to the offending. Counsel referred to the situation as “close but no cigar”. Thus in accordance with counsel’s submissions the offender’s mental health issues are a factor to take into account in my consideration of the subjective factors, but there is no reliance upon the Verdins principles in mitigation.
Statutory and Other Relevant Considerations
In sentencing the offender, the Court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
The prosecution submitted that the primary consideration of this sentencing court should be the protection of the community. The Court it must be said has both a statutory duty and a duty at common law to take into account and apply all relevant sentencing principles as set out above.
The offender’s high risk of re-offending/ The offender’s low prospects of rehabilitation
The PSR at page 6 outlines the offender’s high risk of general re-offending. The report notes the lack of pro-social support that the offender has within the community, and the offender’s lack of motivation to address his alcohol and drug usage. The report also addresses the offender’s concerning attitude towards his rehabilitation, outlining the fact that the offender seems unwilling to address his criminogenic factors. The offender appears to be of the view that he could achieve positive life changes of his own accord.
The current offences were committed approximately 2 months into a suspended sentence for other burglary offences. However, despite being given the opportunity to rehabilitate in the community under supervision, the offender seems to have had little regard to the suspended sentences hanging over his head when he committed these offences.
Based on this and the offender’s significant criminal history the offender has very much guarded prospects of rehabilitation.
Protection of the Community
The prosecution further submitted that the offender poses a risk to the safety of the community. This submission is based on the offender’s criminal history and, in particular, the facts of his previous offending (see R v March [2014] ACTSC 244).
The prosecution emphasised that their submission is not that the offender should be punished based on the conduct constituting his previous sentence. The prosecution submitted that this conduct informs the Court’s sentencing discretion and provides a level of insight into the offender’s state of mind when he encounters difficult or challenging life situations.
It is appropriate that I make it clear that prior criminal record may be used in the manner set out in Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen (No 2)) at [477] as a subjective matter adverse to an offender. See also Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 and Van der Baan v The Queen [2012] NSWCCA 5 at [34].
I note that in discussions concerning intensive drug rehabilitation options, the offender advised the PSR report authors that he is not interested in participating in residential rehabilitation, stating he can do it himself. Counsel for the offender, while generally conceding the prosecution’s submissions concerning the non-parole period, noted that the offender anticipates he will have to serve out his sentence without parole. I discuss these issues further at [126]-[132].
General Deterrence, Maximum Penalty and Concurrency
General deterrence is of considerable importance in the context of home invasion related offences: R v Minnis [2014] ACTSC 268 at [20]. Burglary offences are a serious violation of the sanctity of the home: DPP v Jovicic [2001] VSCA 43; 121 A Crim R 497.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, as properly accepted by counsel for the offender, an alternative to full-time custody is not appropriate.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, Mill v The Queen (1988) 166 CLR 59 at [63], Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38. I emphasise that I must also avoid double counting.
In relation to concurrency, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]:
[W]here 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.]
The offender is to be sentenced on seven charges; six of these charges involve three separate offence provisions.
In relation to concurrency, the prosecution submitted that there should be some concurrency and some cumulation.
The prosecution correctly submitted that there should be some concurrency and some cumulation of all the offences that occured on the one night and that concerning the breach matters, they should be concurrent with each other but there would be some level of cumulation onto the events of the offending I am sentencing on.
With regard to the two suspended sentences, s 110 of the Crimes (Sentence Administration) Act 2005 is applicable. Subsection (2) notes the following:
The court must cancel the good behaviour order and either –
a) impose the suspended sentence imposed for the offence; or
b) re-sentence the offender for the offence
With regards to the good behaviour order, pursuant to s 108 the Court may do one or more of the following:
a. Take no further action
b. Give the offender a warning about the need to comply with the offenders’ obligations
c. Give the director general directions about the offenders’ supervision
d. Amend the good behaviour order
e. Make orders with respect to any security given under the order
f. Cancel the order and effectively resentence (ss 108(3); 109)).
Counsel for the offender correctly submitted with regard to the breach matters, it is inevitable that I will be starting with a term of custody, and that term of custody may well be simply the balance of the sentences imposed.
Sentence
It must be recognised by the Court that the offences committed against the victims has had a serious and significant impact upon both young women. Both the short and long-term consequences of being a victim of these offences must be acknowledged.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender.
All the purposes of sentencing outlined above are important in this case including protection of the community.
I underline that in Veen (No 2), the court held that while protection of the community is a consideration in the sentencing of offenders, a sentence should not be increased beyond what is proportionate to the crime. The Court stated at [473]
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible
Generally, giving substantial weight to general and specific deterrence also serves to further community protection, including from the offender: R v Dong [2021] NSWCCA 82 at [44]-[48].
The common law principle of proportionality requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 (McNaughton) at [15]; Veen (No 2);Hoare v The Queen (1989) 167 CLR 348 at 354.
Prior offending is not an “objective circumstance” for the purposes of the application of the proportionality principle: McNaughton at [25]; Veen (No 2); Baumer v The Queen (1988) 166 CLR 51. It is not open for a court to use prior convictions to determine the upper boundary of a proportionate sentence.
Prior convictions are relevant to deciding where, within the boundary set by the objective circumstances, a sentence should lie: McNaughton at [26]. Prior record is not restricted only to an offender’s claim for leniency: McNaughton at [20]; Veen (No 2) at 477.
As Gleeson CJ, McHugh, Gummow and Hayne JJ explained in Weininger v The Queen (2003) 212 CLR 629 at [32]: A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well‑established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.
(emphasis added)
It is important at this juncture to turn to my reasons for determining that a longer than usual non-parole period is appropriate. All the matters which are relevant to the setting of the head sentence are relevant to the setting of the non-parole period, although they will have different weight: Bugmy v The Queen (1990) 169 CLR 525 at 531. In determining the non-parole period, regard must be had to the rehabilitative prospects of the offender: R v Lian (1990) 47 A Crim R 444. See R v BC (No 4) [2021] ACTSC 119 (BC (No 4) at [141]. I have taken the offender’s rehabilitative prospects into account in determining the non-parole period.
In this case the non-parole period is imposed because I have formed the view that justice requires that the offender serve that period in custody: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. It is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the offender’s subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628-629 applied in Deakin v The Queen [1984] HCA 31; R v Simpson (2001) 53 NSWLR 704 at [59]; R v Ogochukwu [2004] NSWCCA 473 at [33]; R v Cramp [2004] NSWCCA 264 at [34]; Caristo v R [2011] NSWCCA 7 at [27]; R v MA [2004] NSWCCA 92 (R v MA) at [33]-[34]; Hili at [40]. See BC (No 4) at [141].
The appropriate sentence for CC2022/4762 – burglary is 2 years’ 6 months of imprisonment, reduced to one year 10 months and 15 days on account of the plea of guilty. The offence will be backdated to commence on 18 May 2022 to account for the time already spent in custody.
The appropriate sentence for CC2022/4763 – assault occasioning actual bodily harm is two years of imprisonment, reduced to one year six months on account of the plea of guilty. That sentence will commence on 1 October 2023.
The appropriate sentence for CC2022/4764 – assault occasioning actual bodily harm is two years of imprisonment, reduced to one year six months on account of the plea of guilty. That sentence will commence on 30 September 2024.
The appropriate sentence for CC2020/4765– forcible confinement is two years’ 5 months and 10 days of imprisonment, reduced to one year 10 months on account of the plea of guilty. That sentence will commence on 29 September 2025.
The appropriate sentence for CC2020/4766 – forcible confinement is two years’ 5 months and 11 days of imprisonment, reduced to one year 10 months on account of the plea of guilty. That sentence will commence on 28 January 2027.
The appropriate sentence for CC2022/4767 – threaten participant in legal proceeding is two years of imprisonment, reduced to one year six months on account of the plea of guilty. That sentence will commence on 27 May 2028.
The appropriate sentence for CC2020/4768 – threaten participant in legal proceeding is two years of imprisonment, reduced to one year six months on account of the plea of guilty. That sentence will commence on 26 May 2029.
The appropriate action with regards to the breach of the two suspended sentence is to cancel the good behaviour orders and impose the balance of the sentences, being 12 months and 18 days. Both sentences will commence on 30 April 2030.
The appropriate action within regards to the breach of the offender’s good behaviour order is to take no further action.
In my view, the appropriate non-parole period is six years for the reasons outlined above at [131]-[132]. The offender will be eligible to be released on parole on 17 May 2028.
Orders
I make the following orders:
1. For the offence of burglary (CC2022/4762), the offender is sentenced to one year 10 months and 15 days imprisonment commencing on 18 May 2022 and expiring on 1 April 2024.
2. For the offence of assault occasioning actual bodily harm (CC2022/4763) the offender is sentenced 1 year 6 months imprisonment commencing 1 October 2023 and expiring 31 March 2025
3. For the offence of assault occasioning actual bodily harm (CC2022/4764) the offender is sentenced to 1 year 6 months imprisonment commencing 30 September 2024 and expiring 29 March 2026
4. For the offence of forcible confinement (CC2022/4765) the offender is sentenced to 1 year 10 months imprisonment commencing on 29 September 2025 and expiring on 28 July 2027
5. For the offence of forcible confinement (CC2022/4766) the offender is sentenced to 1 year 10 months imprisonment commencing on 28 January 2027 and expiring on 27 November 2028
6. For the offence of threaten participant in legal proceedings (CC2022/4767) the offender is sentenced to 1 year 6 months imprisonment commencing on 27 May 2028 and expiring on 26 November 2029
7. For the offence of threaten participant in legal proceedings (CC2022/4768) the offender is sentenced to 1 year 6 months imprisonment commencing on 26 May 2029 and expiring 25 November 2030.
8. Regarding the two Suspended Sentences (CAAN 4115/2022 and CAN 416/2021): the offender is sentenced to 1 year 18 days imprisonment commencing 30 April 2030 and expiring 17 May 2031. The attached good behaviour orders are cancelled.
9. No action is taken on the breach of the remaining good behaviour order (CAN 4117/2021).
| I certify that the preceding one-hundred and forty-three [143] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: 23 February 2023 |
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