R v Massey
[2022] ACTSC 3
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Massey |
| Citation: | [2022] ACTSC 3 |
| Hearing Date: | 7 January 2022 |
| Decision Date: | 18 January 2022 |
| Before: | Refshauge AJ |
Decision: | 1. | Matthew James Massey be convicted of burglary and be sentenced to two years and six months imprisonment, to commence on 14 October 2020 and expire on 13 April |
| 2023. | ||
| 2. | Matthew James Massey be convicted of assault occasioning actual bodily harm and be sentenced to 12 months imprisonment, to commence on 14 October 2022 and expire on 13 October 2023. | |
| 3. | A non-parole period of one year and five months be set, to commence on 14 October 2020 and expire on 13 March 2022. | |
| 4. | Under s 67 of the Crimes (Sentencing) Act 2005 (ACT), the following conditions be recommended for the parole of Matthew James Massey: |
a. That Matthew James Massey continue receiving anti-psychotic depot injections for as long as his treating psychiatrist considers that it remains therapeutic; and
b. That Matthew James Massey undertake intensive counselling and attendance at programs like SMART Recovery and Narcotics Anonymous or in a residential drug rehabilitation facility, for the period of his parole.
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary with Intent to Commit Violence – Assault Occasioning Actual Bodily Harm – Assessing Objective Seriousness – Childhood Disadvantage – Mental Health - Rehabilitation – |
| Recommended Parole Conditions | |
| Legislation Cited: | Crimes Act 1900 (ACT) s 24 Crimes Act 1900 (NSW) s 112 Criminal Code 2002 (ACT) s 311 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 63, 67 Crimes (Sentencing Procedure) Act 1999 (NSW) pt 7, ss 18, 88 |
| Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Beniamini v Craig [2017] ACTSC 30 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Channon v The Queen (1978) 33 FLR 433 Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 |
| Director of Public Prosecutions (Commonwealth) v De La Rosa | |
| [2010] NSWCCA 194; 79 NSWLR 1 | |
| Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) | |
| [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions v Lumber [2018] VCC 2264 Dobson v Tasmania [2017] TASCCA 19; 269 A Crim R 222 Douglas v The Queen [1995] 56 FCR 465 Elias v The Queen [2013] HCA 31; 248 CLR 483 Forster-Jones v The Queen [2020] ACTCA 31 R v Campbell [2014] NSWCCA 102 Hili v The Queen [2010] HCA 45; 242 CLR 520 Ibbs v The Queen [1987] HCA 46; 163 CLR 447 Ling v Queensland Police Service [2012] QDC 253 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Antonovic [2016] ACTSC 77 R v Cage [2006] NSWCCA 304 R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 R v Ellis (1993) 68 A Crim R 449 R v Gardiner [1982] 2 SCR 368 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Kear (1977) 75 LSJS 311 R v Keir [2016] ACTSC 266 R v Kilic [2016] HCA 48; 259 CLR 256 R v Kourpanidis [2021] ACTSC 112 R v Lindley-Jones [2014] ACTSC 296 R v Massey (No 2) [2016] ACTSC 278 R v McCauley [2020] ACTSC 12 R v McHughes (No 3) [2021] ACTSC 344 R v Minnis [2014] ACTSC 268 R v Palmer [2020] ACTSC 13 R v Parker [2018] ACTSC 55 R v Pearson [2020] ACTSC 375 R v Roux [2015] ACTSC 307 R v Seears [2015] ACTSC 109 R v Steen [2020] ACTSC 222 | |
| R v Toumo’ua [2017] ACTCA 9; 12 ACTCR 103 | |
| R v Tracey [2020] ACTSC 25 R v Van Ryn [2016] NSWCCA 1 R v Verdins [2007] VSCA 102; 16 VR 269 R v Zdravkovic [2017] ACTSC 70 Reynolds v Wilkinson (1948) 51 WALR 17 Saipani v The Queen [2021] ACTCA 5 Wong v The Queen [2001] HCA 64; 207 CLR 584 | |
| Texts Cited: | Practice Direction No 4 of 2018 Standard Sentence Directions |
| Parties: | The Queen (Crown) Mathew James Massey (Offender) |
| Representation: | Counsel |
| Mr A Williamson (Crown) | |
| Mr D Berents (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Paul Edmonds and Associates (Offender) | |
| File Number: | SCC 26 of 2021 |
| REFSHAUGE AJ | |
| Introduction |
1. There is no doubt that sentencing places great pressure and responsibility on the sentencing court. As Dickson J, with whom Martland, Ritchie and Chouinard JJ agreed,
said in R v Gardiner [1982] 2 SCR 368 at 414, “one of the hardest tasks confronting a trial judge is sentencing”. This is an opinion echoed more widely: see Director of Public
Prosecutions v Lumber [2018] VCC 2264 at [13].
2. Part of the difficulty is the need to take the many relevant factors into account and then resolve them into one sentence, as required by the High Court in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 611; [75]. It is a not a mathematical or quasi- mathematical exercise of increasing or decreasing from some pre-determined notional sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 380; [56]. It is, in sum, not a mathematical experience: Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym) [2017] HCA 41; 262 CLR 428 at 443; [45]; AB v The Queen [1999] HCA 46; 198 CLR 111 at 156; [115]. Thus, the sentence should not be broken down into some set of component parts: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 72; [34].
3. The reasons given for a sentence must set out the factors which have been taken into account and, of course, result in a sentence. The sentence, however, must be directed
to the purposes of criminal law which has been described as “protection of society, the protection of the community from crime”: R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272
at 274. Thus, the sentence should be crafted to achieve, as best as possible, that
objective.4. This can, often, require a creative and thoughtful approach to sentencing, which can be a challenge for the balancing of the often conflicting factors which must be taken into account and which, as described by Wells J in R v Kear (1977) 75 LSJS 311 at
313, “jostle one another in their endeavour to gain paramountcy”.
5. It must be a sentence that is appropriate to the circumstances which include all the factors to be dealt with. Thus, for example, Brennan J said in Channon v The Queen (1978) 33 FLR 433 at 439, in respect of an offender with a psychiatric abnormality:
The sentence is moulded by reference to its appropriateness to deter, to rehabilitate and to provide retribution relevant to the conduct in respect of which the sentence is imposed, and its severity is limited to what is reasonably necessary to secure the protection of society
balanced against the offender’s liberty and physical integrity. Though guidance is thus given
in the exercise of the sentencing power, the sentence depends largely upon the pragmatic
evaluation by the court of the weight to be given to the various factors.6. Of course, in this Territory, the Court is assisted by the codification of the purposes of sentencing, set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). These purposes, apart from an admirable, finally recognised and necessary emphasis on the interests of victims, are generally consistent with the common law factors, though with some clarification.
7. Accordingly, in line with the above guides to sentencing, this Court must now sentence Mathew James Massey for offences of assault occasioning actual bodily harm and burglary committed on 25 September 2020.
8. Mr Massey originally sought that a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act be made for him. At the sentencing hearing, he withdrew that request, though there was no objection to some of the material prepared in that context still being admitted into evidence.
9. At the hearing, the Crown tendered without objection the Crown Sentencing Tender
Bundle. That document is described in this Court’s Practice Direction No 4 of 2018
Standard Sentence Directions. As well as the required cover sheet and Indictment, it
contained an Agreed Statement of Facts, Mr Massey’s Criminal History and documents
related to a breach of a New South Wales Community Corrections Order.
10. Separately tendered without objection were the Drug and Alcohol Treatment Assessments of ACT Corrective Services dated 4 January 2022 and a Drug and Alcohol Sentencing List Suitability Assessment Report dated 10 December 2021 of the Alcohol and Drug Services. These were the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act, which provided a great deal of material, including largely what is usually provided in a Pre-Sentence Report.
11. In addition, tendered without objection was a Justice Health Services Mental Health Brief Assessment Report dated 2 November 2021. The cover sheet of the Crown
Tender Bundle referred to a Pre-Sentence Report, noted to be “not yet received by the parties”. It was never tendered and may have been made redundant by the Suitability
Assessments. None of the contents of the documents tendered were challenged.
12. Comprehensive, thoughtful and targeted written submissions were provided from Mr A Williamson, counsel for the Crown, and Mr D Berents, counsel for Mr Massey. Unfortunately, due to illness, Mr Williamson was unable to appear in Court, and Mr N Deakes represented the Crown. Both counsel made oral submissions and assisted the Court substantially in identifying the issues, adding to the written submissions, and then helpfully engaging in debate with the Court.
13. From this material, the following findings are made.
The facts
14. In September 2020, Mr Massey was staying at a residence in Flynn, ACT. He had
been staying there with the occupant, the occupant’s partner and his two children, aged
10 and 16 years old. Mr Massey and the occupant had been friends for a few years,
and this appears to be how Mr Massey came to stay there.15. The last few weeks during which Mr Massey had been staying there had been troublesome. Mr Massey had, during an earlier incident, become agitated and chased the occupant around the house, making threats to him. This was not the subject of any charge against Mr Massey and mentioned only by way of background. It appears that the incident caused the occupant and his partner to stay in a hotel for a period of time.
16. On 24 September 2020, the occupant was at home with another friend and the children, who had gone to bed. His partner was out at the time. The occupant, who had been playing with his Xbox, had fallen asleep very late in the night, as had the friend, who was sleeping on the couch in the lounge room.
17. In the early hours of 25 September 2020, Mr Massey entered the residence. He went
to see the occupant in the occupant’s bedroom and they ended up having an argument
about Mr Massey’s girlfriend. The occupant then said, “What the fuck are you doing,
Matty?”, told him to “fuck off” and pointed to the door. While Mr Massey appears to have not then been a trespasser, having entered someone’s home where he, however,
had been living, this direction terminated the licence for him to be there and made him a trespasser: see Saipani v The Queen [2021] ACTCA 5 at [38]-[42]. For the offence of burglary, he then had to have an intention to commit harm or threatening to cause harm: R v Roux [2015] ACTSC 307 at [134]. As a violent struggle then ensued, it may be accepted that Mr Massey had that intent.
18. During the course of the struggle, the occupant received a puncture injury to the left side of his abdomen. It was not entirely clear how that was caused or what had caused
it, but it appears certain from the charges laid and from Mr Massey’s plea of guilty to
them, that the injury was inflicted by Mr Massey, possibly by a penknife.
The children awoke and the eldest stood at the door of his sister’s bedroom, as he was
frightened for her. He also yelled to Mr Massey to get out of the house, but when Mr
Massey told him to “shut his maggot mouth”, he was frightened. While that was
happening, the occupant armed himself for his defence with a Bundi stick, which I understand is an Aboriginal hardwood club. It appears that Mr Massey then left the premises, but the evidence was not entirely clear.
20. The occupant then ran after Mr Massey, but stopped when he felt the blood at his side and felt tight in his chest. He awoke his friend on the couch, who helped to bandage him up. The occupant called another friend to take him to the hospital.
21. The occupant was taken to hospital and the wound discovered was about three centimetres long in the thoracic abdominal area. As he had difficulty breathing, some further examination showed that, while the wound did not penetrate the chest cavity, it led to the collapse of part of his lung, believed to result from the pain of the injury. The wound was sutured under a local anaesthetic. He will have a permanent scar.
The proceedings
22. On 7 October 2020, police issued a warrant for Mr Massey’s arrest for the burglary of
the Flynn premises. He was arrested on 14 October 2020 and denied the offending to police. He was taken before the ACT Magistrates Court, where he was charged with the offence of burglary as well as two offences, an offence of theft and an offence of intending to wound, also arising out of that enterprise. He did not apply for bail and was remanded in custody.
On 7 October 2020, police issued a warrant for Mr Massey’s arrest for the burglary of
the Flynn premises. He was arrested on 14 October 2020 and denied the offending to police. He was taken before the ACT Magistrates Court, where he was charged with the offence of burglary as well as two offences, an offence of theft and an offence of intending to wound, also arising out of that enterprise. He did not apply for bail and was remanded in custody.
24. After some adjournments, he pleaded not guilty on 6 November 2020 and, after some further adjournments, indicated on 15 January 2021 that he required a full committal.
25. On 8 February 2021, Mr Massey was committed to this Court for trial. A Criminal Case Conference was held on 21 May 2021 and, on 26 August 2021, the matter was listed for trial. On 1 October 2021, the proceedings were listed for arraignment on 8 October 2021, on which day Mr Massey entered pleas of guilty to the two charges, burglary and assault occasioning actual bodily harm, to which he is now facing sentence. The charge of the theft was withdrawn and the less serious charge of intending to wound was substituted by the more serious charge which he had pleaded guilty.
26. On 11 October 2021, a Brief Mental Health Report was ordered. On 3 November 2021, the Suitability Assessments were ordered and the proceedings listed for sentence.
27. Mr Massey has been in custody continuously from 14 October 2020, a total of 462 days. This will, of course, have to be taken into account on sentence.
The offences
28. In order for a just and adequate sentence is to be imposed, the relevant factors must be identified to assess and decide on the purposes for which the sentence is made and the conflicting considerations evaluated to be then brought into the synthesis that is the sentence.
29. At common law, this requires consideration of the offence, the offender and the
particular circumstances of each: Wong v The Queen at 612; [76]. In this Territory ─ and elsewhere ─ the legislature has, however, mandated a non-exclusive list of factors
to which the court sentencing an offender must have regard. These are set out in s
33(1) of the Sentencing Act.30. Unsurprisingly, s 33(1)(a) of the Sentencing Act specifies that consideration must be given to the nature and circumstances of the offence.
31. This requires consideration of a number of issues. First, of course, are the facts, which have been set out above (at [14]-[21]), as found by the Court.
32. The High Court has next pointed out that the maximum penalty is also very important: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133; [30]-[31]. It serves as an indication of the relative seriousness of the offence, which has been set out by the legislature. It also provides, when all the relevant factors are taken into account, a yardstick.
33. Thereafter, the particular case for which a sentence has to be imposed will frequently be of an offence which can be committed in a wide variety of ways and circumstances. The courts have, over the years, identified those matters which are relevant and which aggravate or mitigate the actual case under consideration. This approach shall be applied.
34. Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 14 years imprisonment or a fine of $224,000, or both. It is, thus, a very serious offence, for which a reasonably lengthy sentence of imprisonment is usually imposed, though it is not the most serious of the offences in the criminal calendar.
35. In this case, the trespass element of the offence was constituted by Mr Massey remaining in the premises after his licence to do so had been withdrawn. The intent
was not to commit a theft – the most usual, but not sole, form of burglary – but to commit
an offence that involves harm or threatening to cause harm. Thus, it was not the most common version of a home invasion, where the entry itself would have inspired fear or at least shock in the occupants. While burglary associated with a theft has been comprehensively considered in R v McHughes (No 3) [2021] ACTSC 344, a burglary associated with personal violence, actual or threatened, has not been so comprehensively considered.
36. From reading R v Lindley-Jones [2014] ACTSC 296 at [12]-[13], R v Seears [2015] ACTSC 109 at [29]-[31], R v Keir [2016] ACTSC 266 at [23]-[25] and R v McCauley [2020] ACTSC 12 at [6]-[7], the following relevant factors for such an offence are considered to have been identified by the courts:
(a) the nature of the property entered or on which the offender remains is relevant, and with the modification set out in R v McHughes (No 3), a residential premises makes the offence more serious; (b) whether any damage was committed while the offender entered or was on the premises; (c) the nature, duration and injury or other harm caused by the offender; (d) how the attack was ended, such as the offender being restrained by others or whether the offender desisted; (e) the effect of the attack on the victim; (f) whether there was any verbal attack or intimidation or threat made as well; (g) the motivation for the burglary; and (h) whether there was any premeditation, planning or organisation in the way the offence was committed. 37. Here, the attack seemed to be of a relatively short duration and, while there were arguments, there were no threats or reported significant verbal attacks. Indeed, while the arguing woke the children, one of whose bedroom was close to the incident, it did not wake the visitor occupant sleeping on the couch. The harm, however, was serious and required some significant medical treatment and caused great pain to the victim. It also left a permanent scar.
38. The evidence was not clear about how the incident ended, but it appeared that Mr Massey did desist, though he seemed to have caused some damage in the rest of the
house. The son heard “banging and glass smashing”, though there was no direct
evidence of what this was.
39. As to the reason for the incursion, the only evidence was Mr Massey’s explanation,
given to the author of the Alcohol and Drug Services Suitability Assessment:
Mr Massey stated that he went to buy methamphetamine and had an argument with the dealer who threatened to shoot him. He recalled that the dealer ran to the room and shut
the door. Mr Massey then barged the door open and the dealer ‘went flying’ and landed on
a table that had glass in it.
40. This was not contested in submissions. This is consistent, to some extent, with the submissions of Mr Berents, that the initial entry was not a trespass, which means that the burglary cannot be characterised as a home invasion. Nevertheless, some of the explanation is not entirely consistent with the agreed facts, where Mr Massey did not
appear to be asking for drugs, but discussing Mr Massey’s girlfriend. The explanation
is not obviously incredible, however, especially as Mr Massey had lived in the house
before. Similarly, it shows that there was no premeditation or planning.41. Nevertheless, the attack came while Mr Massey was in the victim’s house and, indeed,
within his bedroom, which ordinarily would make the offence more serious, though moderated, perhaps, somewhat, if this was where the victim was to engage in drug provision.
42. A serious circumstance is that the incident occurred within the sight and hearing of some children, who were obviously quite frightened. While it was submitted that Mr Massey had no specific knowledge that they were there, the evidence was unclear. Thus, as asserted in the Agreed Statement of Facts, Mr Massey had been a friend of
the victim “for a few years and had been staying at the house”, which makes it seem
unlikely and difficult to accept that he would not have been aware that there might be children there. It was clearly not a trivial burglary. Indeed, it was serious, but not a very serious one.
43. Assault occasioning actual bodily harm is made an offence by s 24 of the Crimes Act 1900 (ACT), which prescribes a maximum penalty of five years imprisonment. It is, of course, a serious offence, as one of personal violence, but not as serious as the other offence.
44. As explained in R v Pearson [2020] ACTSC 375 at [24]-[27], the circumstances in which the assault occurred are important, as is the nature of the assault. Thus, there was a weapon used, though not precisely identified on the evidence, and the victim appears not to have been initially armed.
45. The other important matter is the harm actually caused. Here, the harm caused was quite serious, requiring medical intervention and leaving the victim with a permanent scar, although it was treated relatively easily with sutures and local anaesthetic. The collapsed lung did not seem to require any particular treatment and the victim returned home without apparent hospital admission.
46. The intent involved in this offence, that is, the assault occasioning actual bodily harm, was, of course, the same as is part of the intent involved in the burglary offence. This will have to be considered on sentence.
Assessment of objective seriousness
The Crown’s written submission appeared to submit that a court, in assessing the
objective seriousness of the offence as done above, is required to give it a quasi- mathematical point on a continuum in order to meet the obligations of a proper sentence. This is rejected.
48. The submission is that this derives from what the High Court said in R v Kilic [2016] HCA 48; 259 CLR 256 at 266; [19]. The High Court does not seem to require this, however, and it appears that to do so may not only be inconsistent with its jurisprudence on sentencing, but is meaningless and contrary to authority of some standing.
49. This apparently quasi-mathematical approach seems to have taken hold and then been appropriated for alleged compliance with R v Kilic from specific legislative requirement in NSW: Beniamini v Craig [2017] ACTSC 30 at [112]-[113].
50. The passage in R v Kilic at 266; [19], however, is as follows:
Where, however, an offence, although a grave instance of the offence, is not so grave as to
warrant the imposition of the maximum prescribed penalty – as the offending was agreed to be here – 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. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty
as being ‘within the worst category’. It is a practice which should be avoided.
(Footnotes omitted)
51. It has to be noted that the words here are not apt to refer just to the objective seriousness of the offence. It is clear that what the Court is considering is the contribution of, as it expressly mentioned, the offence and the offender as to where the
offence will “lie on the spectrum”. It is not a reference to the objective seriousness to
be disaggregated from the whole case. This is reinforced when consideration is given
to the context. The paragraph falls within the section headed “Worst Category of the
Offence”. Further, as in the earlier paragraph (at [18]), the Court said:What is meant by an offence falling within the ‘worst category’ of the offence is that it is an
instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type.
(Footnotes omitted)
52. This is consistent with what the Court of Appeal of the Supreme Court of Tasmania said in Dobson v Tasmania [2017] TASCCA 19; 269 A Crim R 222 at 230; [19].
53. Further, the footnote in the passage referred to above (at [48]) refers to both Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 452; [4], and Elias v The Queen [2013] HCA 31; 248 CLR 483 at 494; [27]. In the former, reference is made to consideration of the worst possible case, and the Court made specific reference to what had been said by
Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17 at 18: “Crimes being the same
general description have not equally evil intent or characteristics, and offenders also
differ in themselves”.
54. In Elias v The Queen, the reference is to the consideration of the “worst case”,
reinforcing that this is the context in which the passage from R v Kilic has to be considered. This requires a consideration of where the whole case, not just the objective seriousness, sits in the spectrum up to the worst case. The High Court said in the passaged referred to from Elias v The Queen at 494; [27]:
As this court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors that arrive at a sentence that is just in all the circumstances.
(Footnotes omitted)
55. Further, to disaggregate the relevant factors with a quasi-mathematical or statistical
assessment will likely fall foul of the High Court’s clear jurisprudence that makes clear
that sentencing is not to be such an exercise: see Markarian v The Queen. The risk of
this can be seen in the use of locutions like ‘mid-range’ for the objective seriousness,
where no such assessment is made for the subjective circumstances, for the result will be wildly impossible to rationalise. It is not well defined, nor clear, what is, for example, mid-range.
56. Thus, for example, a brief review of sentences for burglary offences show an odd anomaly. In R v Antonovic [2016] ACTSC 77, a burglary said to be of mid-range seriousness, was visited with a sentence of 4 years and 6 months imprisonment, whereas in R v Parker [2018] ACTSC 55, burglaries all assessed as mid-range attracted sentences of 1 year and 3 months; 1 year, 1 month and 15 days; 11 months and 7 days; and 6 months imprisonment. Then, in R v Steen [2020] ACTSC 222, a
burglary described as “bottom of the mid-range” attracted a sentence of two years and
three months imprisonment. Similarly, in R v Tracey [2020] ACTSC 25, a burglary
described as mid-range led to a sentence of 29 months imprisonment.57. Of course, there were differences in the subjective circumstances of each offender, but there was no similar assessment of this to explain why the assessment of the objective seriousness actually added anything to the sentence or had any particular meaning. This is particularly so, as it is difficult to assess what the middle of the range offences such as burglary means. It clearly does not mean an offence likely to be sentenced by half of the maximum penalty. None of the sentences started at 7 years imprisonment
together with a $112,000 fine – half the maximum penalty. There is no indication of
how to determine where the mid-point lies to ensure consistency among sentences,
which is an important value.58. Thus, there was nothing like the approach of the New South Wales Court of Criminal Appeal in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 380; [162], which
described “a category of case which is sufficiently common for the purpose of determining a guideline” and so allowing comparison with the factors or circumstances
to allow aggravation or mitigation from that kind of standard to be applied. It is
consistent with what McHugh J said in Markarian v The Queen at 378; [51]:The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.
59. As the Court has explained in Muldrock v The Queen at 132; [29], though about specific legislation, but apparently with a wider application:
The reference in s 54B(4) [of the Crimes (Sentencing Procedure) Act 1999 (NSW)] to ‘making a record of its reasons for increasing or reducing the standard non-parole period’ is not to be
understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed.
60. Indeed, as the Court of Appeal indicated in R v Toumo’ua [2017] ACTCA 9; 12 ACTCR
103 at 108; [23]-[24]:
We accept the appellant’s submission that the primary judge’s characterisations of the
burglaries as ‘around mid-range seriousness’ and the theft as ‘slightly above mid-range
seriousness’ were, at least, conservative.
However, we consider it most unlikely that the sentences were influenced by the primary
judge’s views in relation to ‘mid-range seriousness’. Rather, her Honour sentenced the
respondent by reference to relevant specific matters bearing upon objective seriousness. Consequently, it is unnecessary to give this matter further consideration, other than to observe that references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
(Citations omitted)
61. Since then, the Court of Appeal has addressed this issue again in Forster-Jones v The Queen [2020] ACTCA 31. There, the Court was criticising the sentencing judge, who simply recounted the facts and did not evaluate them as, for example, has been done in the remarks above.
62. The Court of Appeal referred to three decisions of the New South Wales Court of Criminal Appeal. Care has to be taken of directly applying those decisions, for the structure of sentencing is somewhat difficult where, as Simpson J pointed out in R v
Campbell [2014] NSWCCA 102 at [27], there is an ‘additional guidepost’ to the
maximum penalty, being the standard non-parole period. See, also, R v Van Ryn [2016]
NSWCCA 1 at [135].63. It is important to note that in R v Campbell, the New South Wales Court of Criminal Appeal accepted that there had been an error in the assessment of the objective seriousness, but did not articulate a summation of the kind sought by the Crown. Indeed, it did exactly what has been done: simply identified the particular features that made the offence more or less serious. It is clear from the comment of Hoeben CJ at Common Law in Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581 at 593; [56]:
While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.
64. This approach was approved in R v Van Ryn at [136]. Perhaps this was clearly seen in R v Cage [2006] NSWCCA 304 at [17]-[18], where the New South Wales Court of Criminal Appeal said:
A bare recitation of the facts constituting the offences and a reference to the "objective features of the offences" does not satisfy the requirements of sentencing. The correct approach to imposing a sentence for an offence has been the subject of repeated pronouncements of this Court since the decision in R v Rushby [1977] 1 NSWLR 594, as the following excerpt from the Court's judgment in R v Gordon (1994) 71 A Crim R 459 at 468 demonstrates:
‘The sentence to be imposed for any crime must take into account the many different
purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform - even though those purposes overlap and sometimes are in conflict: Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238. It is important always to have regard first of all to the gravity of the crime
viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be
given their place: Dodd (1991) 57 A Crim R 349 at 354. Except in well-defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be
imposed.’
In the instant case, there was no assessment undertaken of the objective gravity of the offences, insofar as no attempt was made to determine where on the scale of criminality these examples of the offences lay, referable to the maximum penalty prescribed by the legislature in each case. Accordingly, the respondent's criminal history, subjective circumstances and prospects of rehabilitation could not be meaningfully measured against
the respondent’s objective criminality. I do not mean to suggest by these remarks that it is
necessary to undertake a mathematical or prescriptive approach to sentencing, or that one should engage in a two-tier approach: see Markarian v The Queen [2005] HCA 25. However, his Honour's remarks lacked the transparency that would allow the respondent, this Court and the general community to understand how it was that his Honour arrived at the final result.
(Emphasis in original)
65. These reasons have complied and will comply with what the High Court has required, as set out in R v Kilic.
Subjective circumstances
66. As well as the offending, the common law requires a court sentencing an offender to have regard to the personal circumstances of the offender, as clearly set out above at [51]-[54]. This is also required by a number of paragraphs of s 33(1) of the Sentencing Act.
67. Mr Massey was born in Sydney 45 years ago, the oldest of a brother, a half-brother
and two half-sisters. His childhood was marred by his parents’ abuse of alcohol and drugs, and by his father’s violence towards his mother. His parents separated when
he was seven, and his mother re-partnered soon after. That relationship was also
scarred by domestic violence. As a result, Mr Massey would run away to his father’s
home to live for 6 to 12 month periods.
68. When he was nine, Mr Massey moved to the ACT to live with his grandparents, who,
he said, were ‘a good influence’ on him. He said that they ‘taught him discipline and manners’ and he has remained closed to them. He returned to his mother’s care,
however, when he was 13, when she and her then partner moved to the ACT. Mr Massey has, in the past, described this as a poor decision. He witnessed further domestic violence. As his father had remained in Sydney, there was no one to help him. On one occasion, he intervened in a physical conflict between his mother and his step-father, which left him and his step-father injured and requiring hospitalisation.
69. As a result of these circumstances, Mr Massey left home to live with older acquaintances, who also introduced him to criminal activity and drug use. He kept in touch with his father until, regrettably, he died 17 years ago.
70. Mr Massey attended four public schools because of the peripatetic nature of his home life. It was challenging for him and he struggled with comprehending the curriculum, but he enjoyed the social and sporting aspects of the school. Subsequent studies suggest that he can be a bright student. He also had discipline problems and started using substances. As a result, he was expelled at age 14.
71. He has, however, completed a number of Certificate IV courses while in custody, including a forklift licence, a welding ticket, a white card, asbestos card and bartending qualifications.
72. Given his upbringing and difficulties he faced, Mr Massey has suffered from considerable childhood disadvantage.
73. He has had employment. He started an apprenticeship as a butcher, but did not complete it because of substance abuse. He has been a labourer in the construction industry and engaged in nightclub security work. His longest period of employment was as a butcher for about 18 months. He has, however, usually been employed, indeed, engaging in three jobs at once in 2006, namely as a labourer, a removalist and then a nightclub security worker. He has been further employed in custody.
74. Mr Massey has had a number of relationships. He has four children from them: a daughter, aged 25, whom he has seen when he was at liberty; a son, aged 21, who has, very sadly, also fallen into crime and is currently housed with Mr Massey in the Alexander Maconochie Centre; and two younger children, who are 6 and 1 years old.
75. He has not been in touch with his younger children. He has also played sport, particularly rugby league, which he enjoys.
76. Mr Massey has a long history of alcohol and drug abuse, which included the consumption of alcohol and cannabis from around the age of 10, followed by the use of methylamphetamine and heroin, which inevitably led to his offending behaviour.
77. Some of his reporting about the use of alcohol and drugs is different between current authors and what has been previous reported in R v Massey (No 2) [2016] ACTSC 278 at [40]-[47]. This is not uncommon for drug users. Basically, the current reports shall be relied on.
78. Mr Massey would sneak beers at home when he was age 10, but by the age of 13, he began to binge drink regularly with friends, up to a bottle of rum daily. This pattern of
alcohol consumption continued until he was 17, when he ‘gave up’ after ‘hurting someone’ while intoxicated. He resumed drinking, however, and was drinking before
being remanded in custody on this occasion, but stated that it was not a problematic habit for him. Although, previously while binge drinking, he did suffer blackouts which affected his short-term memory.
79. Mr Massey, as mentioned above (at [76]), first used cannabis also at the age of 10 years, obtained from his mother. Once again, it was not until age 13 that he was smoking cannabis regularly, using approximately 1 gram a day. This pattern of consumption continued on and off until he claimed to stop using cannabis completely, though he has given at least three dates for this, but perhaps in the late teens or early adulthood.
80. This was a very young age at which to start using drugs and alcohol, at a time when he could not realistically be making an informed choice to do so. Drug use was obviously part of the environment in which he was living that led to this activity. This is relevant to his subsequent offending and the relationship between his drug using and offending: see R v Henry at 397-8; [273].
81. Mr Massey first used methylamphetamine when he was 14 years old. Initially, he used half a gram each weekend, but progressed to using about 1.5 grams daily intravenously. He used most recently in about August 2021, while in custody.
82. He first starting using heroin at 18 years old, when he was in jail. He smoked it infrequently, rather than injecting it. Upon his release from jail at 23 years, his peers and family members were using heroin and, though he abstained for an initial period, he was back injecting before very long. He was using approximately at least 1 gram of heroin per day at the height of his use. He preferred smoking it. However, on occasion he would inject it. He last used about a year ago.
83. Mr Massey has a very extensive and serious criminal history, described rather
generously as ‘unenviable’. [Redacted for legal reasons]. Since becoming an adult, he
has recorded 52 offences on his record, or 53 offences if the offence referred to below
(at [115]) are added.84. Many of these were more serious, including armed robbery, supplying or trafficking drugs, kidnapping and forcible confinement. He has had a number of violent interactions with police and three offences of escaping custody. He has been previously convicted as an adult of burglary and assault occasioning actual bodily harm. By 2016, he had been incarcerated for about 17 years of his adult life. In 2016, however, he expressed a wish to remain crime free and to live a prosocial life (R v Massey (No 2)) but was unable to achieve that.
85. Nevertheless, his offending has, since 2009, been somewhat less severe. He was then convicted of kidnapping. In 2016, however, he was convicted of trafficking in a controlled drug other than cannabis. For the offence, he was sentenced to lengthy terms of imprisonment. In 2018, he was sentenced to prison for dishonestly driving a motor vehicle without consent and unlawful possession of stolen property, for which he was sentenced to four months imprisonment, which ended on 1 October 2018. Since then, he has been fined for two traffic offences, but, apart from these offences, not been charged with other offences.
86. These offences meant that the trajectory very significantly has reduced from previously, though the current offences are, to some extent, reversing that trend.
87. This analysis of Mr Massey’s life shows a life marred by childhood disadvantage and
severe drug and alcohol use.
Sentencing practice
88. Section 33(1)(za) of the Sentencing Act requires a court sentencing an offender to have regard to current sentencing practice. Part of this has already been considered above, when the nature and circumstances of the offences are analysed, as the current sentencing practice allows, for relevant factors, especially of aggravation or mitigation to be identified.
89. Another part is the consideration of the sentences that have been currently imposed. These inform the court (Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym at 454; [83]) by providing a yardstick to promote consistency, but not to impose boundaries or specify the sentence to be imposed: R v Kilic.
90. There are two principal ways a court may be informed by current sentencing practice, within the identified caveats.
91. The first is through comparable decisions that provide a snapshot of the considerations given by judges to the circumstances of the offence and the offender, and the principles
applied to craft a sentence. They have considerable significance “…in that they result
from the application of the accumulated experience and wisdom of first instance judges
and of appellate courts”: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537; [54].
The cases allow for an understanding of why the sentence was imposed.
92. The second method is by access to sentencing statistics such as, in this Territory, in
the ACT Sentencing Database. While this permits an insight into “the collective wisdom of other sentencing judges” (R v Ellis (1993) 68 A Crim R 449 at 460), it must be
approached with extreme caution, for they rarely identify all relevant factors that can provide an historic statement and stand for a yardstick, but without prescribing limits or a range.
93. In this case, the Crown provided six decisions. Some of them were from other jurisdictions. In principle, there is no reason why sentencing decisions from other jurisdictions should not be used: R v Kourpanidis [2021] ACTSC 112. A special caution, however, is required in dealing with some, as they involved a different offence; thus, the offence in New South Wales under s 112 of the Crimes Act 1900 (NSW) involves not merely the trespass with intent, as in the ACT offence of burglary, but requires that
the offender ‘break’ (a highly technical concept: Saipani v The Queen at [38]) and enter a ‘dwelling house’, ‘committing a serious indictable offence therein’. It has, therefore,
significant elements not required for the ACT offence.
94. Similarly, the version of the ACT offence here committed is the remaining of a trespasser in a building with intent to commit an offence that causes harm, not commit a theft, which is regarded as a less serious. Thus, the nature of the offending for any comparable sentences should, so far as possible, also be comparable. In the case of Ling v Queensland Police Service [2012] QDC 253, for example, the burglary offence was one involving an intent to steal, and the event of assault occasioning actual bodily harm was a separate occasion when Mr Ling punched his ex-partner, a family violence offence, not particularly comparable to the offences committed by Mr Massey.
95. In R v Zdravkovic [2017] ACTSC 70, Mr Zdravkovic had a dispute with a near neighbour
and entered the neighbour’s house despite his objection, attacked the victim, punching
him in the head a few times, and hit him with a broom handle. He then produced a
kitchen knife and held it to the victim’s throat, leaving the victim with severe bruising to
his face, ear, arms and one shoulder, and a wound to his nose and foot. The injuries were significant, but not long lasting. Mr Zdravkovic was 48 years of age with a substantial criminal history. The offensive weapon was regarded as a mark of aggravation. He appeared to have had a reasonably satisfactory childhood. He was sentenced to 3 years and 6 months imprisonment for the burglary, and 21 months imprisonment for the assault occasioning actual bodily harm, which, after concurrency, resulted in the total sentence of 4 years imprisonment. This was a more serious version of the offences than committed by Mr Massey, though with some similar subjective considerations.
96. In R v Minnis [2014] ACTSC 268, Mr Minnis was also a neighbour of both the victims,
and he had a falling out with them. Mr Minnis and a co-offender entered the victims’
house while the neighbours were asleep in front of the television and hit one of them with a baseball bat or similar item, causing a large bruise, and hit the other victim so that he bled profusely and sustained a 10 centimetre laceration. It was found to have been pre-planned and it was doubly aggravated by the presence of a co-offender, as well as the weapon and the injuries. Mr Minnis was also on conditional liberty at the time. Mr Minnis was 29 years old and had used drugs since he was 16 years old. He had a relatively minor criminal history. For the offence of aggravated burglary, he was sentenced to five years imprisonment. For the assaults occasioning actual bodily harm, he was sentenced to two years imprisonment; and two years and six months imprisonment. After concurrency, the total sentence of imprisonment was for six years. This was much more serious a case, including a more serious offence, though there
were some subjective differences also between Mr Minnis’ and Mr Massey’s.
97. In R v Palmer [2020] ACTSC 13, Mr Palmer went into his ex-partner’s house in the
early hours of the morning when she was sleeping. She awoke and asked him to leave, but a short altercation occurred when Mr Palmer then assaulted the victim, causing
bruising, and then – a separate offence – choking her into unconsciousness. It is not
clear why Mr Palmer went into the house. He was on conditional liberty at the time and had a significant criminal record. While the burglary had some similarities, Mr Massey had an item with which he caused the injury to the victim, making it more serious, though it was not a family violence offence. The assault by Mr Palmer was less serious. The sentence for assault, however, of five months imprisonment, did seem to be a lenient one, but listed by the Crown as of some assistance.
98. Mr Berents submitted that the “diversity of matters that are encapsulated by the Crown’s list of authorities demonstrates the highly unusual nature of the offending”.
Instead, he referred to the ACT Sentencing Database, recognising that they provide “a blunt tool”, but do leave a lesser sentence as an option.
99. Unfortunately, Mr Berents used the Database with sentences from 1 July 2017 to 20 November 2020, while statistics up to 31 August 2021 are now available. The latter has been used here. Bearing in mind the significant limitations, for offence of burglary, though not disaggregated between those with intent for theft and those with an intent to harm, the Database shows that 72% are sentences of full-time imprisonment that have ranged from 7 months to 6 years imprisonment, with the vast majority between 12 months and 3 years imprisonment.
100. So far as an assault occasioning actual bodily harm is concerned, 49% of sentences were of full-time imprisonment, though 18% and 14% were fully-suspended or partially- suspended sentences of imprisonment, respectively. Of the terms of full-time imprisonment, they ranged from less than six months to three years and six months imprisonment. A majority of the sentences were from seven months to two years imprisonment, with 80% from nine months to two years imprisonment.
Childhood disadvantage
101. As noted above (at [67]-[72]), Mr Massey had a turbulent childhood. The courts have, for many years, accepted that this has an effect on sentencing, especially in moderating the offender’s moral culpability. In Bugmy v The Queen [2013] HCA 37; 249 CLR 571,
the High Court has confirmed this and held that the influence of this does not diminish over time, notwithstanding the offender being involved in the criminal justice system in the meantime. There was no expert evidence in this case to show what effect Mr
Massey’s childhood had on him, but it was accepted by both counsel that it did so.
102. Given the alcohol and drug abuse and the family violence in his home, some of the consequences seen can be readily accepted. Thus, he exhibited poor academic outcomes, increased aggression, destructive behaviour, depression and poor mental wellbeing - the effects of exposure to domestic and family violence. His interrupted schooling has clearly affected his employment outcomes, though it appears that Mr Massey has some quite significant capacity for employment. The exposure to alcohol and other drug abuse also leads to adverse developmental outcomes and, as here, has led to physical abuse.
103. Mr Massey was left to manage his own needs, clearly contributing to his use of alcohol and other drugs himself. These are all indicators that can be seen in his life and behaviours which reduce his moral culpability, though, of course, he is still to be held accountable for his actions and encouraged to address them.
Mental health
104. Mr Massey has a long history of mental health issues, including psychotic episodes. The Mental Health Brief Assessment Report of Justice Health Services chronicles his contact with ACT Mental Health Services, though mostly in the context of custodial mental health services, since May 2006 when he was inducted into the Belconnen Remand Centre. Much of it related to his drug use. It is not necessary to rehearse his whole involvement. In 2010, Dr John Kasinathan, psychiatrist, assessed him as presenting with antisocial personality and psychopathy.
105. He was, in 2007, assessed as manic depressive and schizophrenic by a psychiatric registrar on admission to the Belconnen Remand Centre. A later assessment by a
psychiatrist, however, was that he “does not have major [sic] mental illness such as a major mood disorder or schizophrenia”. The psychiatrist’s “most likely diagnosis is pan- cluster B (emotionally unstable and dissocial) personality disorder”.
106. In October 2020, when remanded for these proceedings, he presented with symptoms of elevated mood and substance withdrawal. By 24 December 2020, he was transferred to the Canberra Hospital with increased anxiety and increased persecutory and paranoid ideation. He was treated there for 20 days. Because of the lack of insight into his psychotic symptoms and impaired judgment, he was made subject to a Psychiatric Treatment Order, which has been renewed and is still in place. His psychotic symptoms responded to treatment.
107. In March 2021, however, he was diagnosed with schizophrenia, substance use disorder (amphetamine, opioid and benzodiazepine), as well as the antisocial
personality disorder. On review, it was noted that he presents with “limited insight into his precise mental health symptoms” but that his current treatment minimises the
impact of his symptoms on his functioning and behaviour.
108. He was also reported as eager to abstain from substances, but will remain vulnerable and relapse without significant treatment and support, particularly for his mental health issues.
109. The relationship between an offender’s mental health and the sentence to be imposed
has been the subject of much consideration and a number of decisions, principally R v Verdins [2007] VSCA 102; 16 VR 269 and Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1. In summary, these set out the following principles:
(a) where the mental illness contributes to the commission of an offence in a material way, but not necessarily the only or primary cause, the offender’s moral
culpability may be reduced, and there is not the same call on denunciation and
punishment;(b) the nature and severity of the symptoms and the effect of them on the offender’s capacity may also show that general deterrence should be moderated or
eliminated as a sentencing consideration; and(c) a custodial sentence may weigh more heavily on a mentally ill person, but the danger to the community may require a sentence that will protect the community, increasing the need for general deterrence or specific deterrence. 110. It can be accepted that Mr Massey’s mental health condition, especially combined with
his drug use, has played a significant part in his offending. This does suggest that while some general and specific deterrence is required in the sentence, a structure that will enable Mr Massey to strengthen his current success in treatment would be likely to be in the best interests of the community. This is reinforced by the submission of Mr Berents that the current diagnosis and psychiatric treatment is a change from previous
presentations for sentence that needs to be reflected in the Court’s response.
Consideration
111. So as properly to address the difficult task of sentencing, it is very helpful to place it in the context of what the purposes are for the imposition of the sentence. In this jurisdiction, that is helpfully codified by the legislature in s 7 of the Sentencing Act, and the Court should have considerations to those purposes.
112. Offences such as Mr Massey has committed are a serious attack on the civility and
peace of the community. Such breaches of society’s norms require a measure of
punishment to reinforce those norms and display the illegitimacy and criminality that
they constitute.113. This denunciation will also make it clear that others who may be minded to behave in this way should not do so, though that is partly moderated, as noted above (at [1048]-
[110]), by Mr Massey’s mental health situation. This will also hold Mr Massey
accountable for his crimes. Similarly, deterring Mr Massey himself from further acting in this way is relevant. His rehabilitation, however, if it can be achieved or at least encouraged, will be the most durable protection of the community.
114. Of course, the harm done to the victims needs to be acknowledged. Even though a Victim Impact Statement was not made and provided to the Court, it is possible, in general terms, for the Court to appreciate the shock, pain and long-term consequences of the assault.
115. Mr Massey did not plead guilty in the Magistrates Court and, indeed, was committed to this Court for trial. It was only after a Criminal Case Conference that he entered pleas of guilty, but after some modification in the number and seriousness of the charges he faced. This does justify a reasonable discount on the sentence that would have not been available had he maintained his not guilty plea.
116. A serious matter, however, is that Mr Massey was on conditional liberty at the time that he committed these offences. That is to say, he had been convicted by the Queanbeyan District Court on 16 August 2019 of an offence of impersonating a police officer and was sentenced to a 14 month Community Corrections Order, to expire on 15 October 2020. Interestingly enough, I note in passing that that offence does not appear in his New South Wales record. That Order, however, permitted him to be in the community instead of being sentenced to a period of imprisonment: s 18 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act).
117. There are, of course, conditions for the Order (pt 7 of the Sentencing Procedure Act), one of which is that he must not commit any offence (s 88 of the Sentencing Procedure Act), which he breached, of course, by committing these offences. An additional condition was that he report to a Community Corrections officer at times and places directed and to notify his address and any change of address. He is said not to have done so. That he was at liberty with these conditions involves the Court in trusting Mr Massey not to, inter alia, commit further offences. This trust he breached, and that requires any sentence to be more severe as a result.
118. Mr Massey was, as noted above (at [766] - [82]), introduced to alcohol and other drugs at an early age, before he could make an informed choice to do so. Given the addictive nature of the drugs, this can, as it has with Mr Massey, have a hugely problematic influence on his life and often leads into criminality. Using drugs while committing crime, or committing crime to feed a dependency on drugs, is not a mitigation of the seriousness of the offence, but the age and circumstances under which a person, especially a young person, commences to use drugs is a relevant factor and mitigatory of the subjective circumstances: see Douglas v The Queen (1995) 56 FCR 465 at 470.
119. Mr Massey has expressed a wish to manage his substance abuse. Initially, he sought a Treatment Order, but, partly because he was assessed as unsuitable in the Suitability Assessments and as ineligible for the residential drug rehabilitation options currently available, has not pursued that sentencing option at the hearing. In addition, his behaviour since he has been in custody, perhaps with the exception of his admitted
use of methylamphetamine some months ago – though this admission is to his credit –
has been assessed as satisfactory. This, especially while subject to psychiatric treatment which mandates his continuous treatment, suggests that unlike previously, there may be an opportunity to build on these hopeful options and progress some rehabilitation.
120. One problem, however, is his homelessness, apart from the custodial environment. He has lived with his mother previously, but this accommodation is no longer available. He had made application for ACT public housing and is on the standard allocation list, the waiting list for which is currently an average of 1,519 days, namely, more than 4 years. He was encouraged to apply for the Justice Housing Program of ACT Corrective Services, but, as at 4 January 2022, had not yet applied. This requires some management, for release from custody without some stability in his living arrangements will only set him up to fail. Perhaps the option of parole will spur him on to apply for a Justice Housing place.
121. While the Crown submitted that a lengthy non-parole period would be required to reflect
Mr Massey’s poor prospects of rehabilitation, it does not seem that this is the current
situation. While he is presently drug free, complying with his mental health medication and has behaved better in custody than previously, this may well be the time when some positive steps can be taken towards his rehabilitation. In any event, he has now been in custody for over a year and three months. A large part of any non-parole period has expired.
122. It is necessary to take into account the nature and circumstances of the offences and
Mr Massey’s personal circumstances as described and all the matters set out in these
reasons. Notwithstanding his mental health and drug use issues, Mr Massey is solely responsible for the offences, and the harm suffered by the victim is also taken into
account. Mr Massey’s criminal history, further, does not leave much room for leniency.
Accordingly, in all the circumstances, and having considered other sentencing alternatives, no other sentence than a sentence of imprisonment is suitable: s 10 of the Sentencing Act.
123. Because there are two offences, a sentence must be imposed on each and care must be taken to ensure that each sentence is just and adequate, but does not punish Mr Massey twice for any criminality, especially where, as here, there are common elements to the offences. Thus, consideration has also been given to whether the sentences should be wholly or partially concurrent and come to the view, since the commonality of the elements of the offences, a level of concurrency is appropriate, as is common with such offending behaviour. Nevertheless, that should not leave the impression that Mr Massey could commit additional offences with impunity.
124. The length of the total sentence of imprisonment has been reviewed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the total criminality, but not more than that, and that the total sentence is not excessive. It should leave open the relative prospect that Mr Massey might be able to reform and the hope for him to achieve his goals when he is released from custody. If the extent of the accumulation of sentences appears lenient, that is because it is important to ensure that the sentence is proportionate, not only to the total criminality but to the total culpability of Mr Massey and all the other relevant factors, such as his childhood disadvantage, his mental health and early introduction to drug use, as well as his recent behaviour in custody and his wish for rehabilitation. This requires a sentence that is proportionate to the criminality and to the subjective circumstances.
125. Mr Massey has been in custody since 14 October and this Pre-Sentence Custody should be taken into account, which has been done, as provided for in s 63 of the Sentencing Act.
126. As requested, a relatively short non-parole period is appropriate, given the steps that Mr Massey has made, little and very tentative though they are, towards rehabilitation. Under a parole regime, this can be monitored relatively carefully. A recommendation as to the conditions that might be included in his Parole Order, including some that have been suggested, to see if he is able to commit and translate into action his expression of wish to reform.
Sentencing
[His Honour then spoke directly to the offender]
127. Mr Massey, please stand.
128. The orders of the Court are as follows:
(1)
You are convicted of burglary on 25 September 2020 and sentenced to two years and six months imprisonment, to commence on 14 October 2020 and end on 13 April 2023. Had you not pleaded guilty, you would have been sentenced to three years imprisonment;
(2)
You are convicted of assault occasioning actual bodily harm on 25 September 2020 and sentenced to 12 months imprisonment, to commence on 14 October 2022 and end on 13 October 2023. That is to be cumulative as to six months on the sentence for the offence of burglary. Had you not pleaded guilty, you would have been sentenced to 14 months imprisonment;
(3) A non-parole period of one year and five months be set, to commence
on 14 October 2020 and end on 13 March 2022; and(4) Under s 67 of the Crimes (Sentencing) Act 2005 (ACT), the following
conditions are recommended for your parole:
a) that you continue receiving antipsychotic depot injections for as long as your treating psychiatrist considers that it remains therapeutic for you; and b) that you undertake intensive drug and alcohol rehabilitation, whether by counselling and attendance at group meetings, such as SMART Recovery and Narcotics Anonymous, or in a residential drug rehabilitation facility for the period of your parole.
129. Mr Massey, this is a repeat of 2016, when you said you wanted to rehabilitate. I see some issues that might be relevant, but, basically, you have gone back into crime. What I have just said is that these offences were nasty. They were bad. They were not good. Whatever the victim was doing, to stab him and to stay in his house when
he said, ‘get out’ in colourful language was inconsistent with your obligation as a citizen
in this community. I have said that three years is the time I would have put you in
prison, taking into account all the things to which I have referred.130. However, I am making a short non-parole period because rehabilitation needs to commence soon if you are going to be committed to this. You are starting to show the first signs of this commitment. They are very little, they are very tentative, but they are signs. You are old enough now to grow out of this kind of stuff, to start doing the right thing and being a father to your kids. You have got some young kids. One of the wonderful things is having young kids and helping them grow up and do the right thing. You and I have bombed out and your son is now in the Alexander Maconochie Centre, and that is a great pity. Now is your opportunity to show him how it is done.
131. It is obvious that your mental health needs to be addressed, so you need to work on that. Stay on the injections for as long as you can so that you get that insight. It may only be a year or so that they allow that. Because of your situation, you do not realise, when you are under the influence of your schizophrenia, what you are doing and whether it is wrong. So, get that under control.
132. The other thing is, and it is going to be really hard, but you need to get your drug and alcohol abuse under control. It will be tough, but you are smart, strong and able enough to do that, if you put your mind to it. It will need commitment.
133. This opportunity to rehabilitate will be parole and so, if you do not do the right thing, you will be back in the revolving door of custody.
134. You have not got long remaining in custody, because the non-parole period ends on 13 March 2022. Whether you will be able to get yourself ready for parole by that day is uncertain, but, hopefully, that will put some pressure on you to get going. If you have not made your application for a house through the Justice Housing Program, have your case manager in the Alexander Maconochie Centre help you and progress that. Work out where you might do your drug and alcohol treatment, who you might have as your psychiatrist for your mental health. Get those things all worked out so you can present to the Sentence Administration Board a program that you will be committed to, and, by doing it, you that you are translating it into action, as opposed to just words.
135. Now, I might be wasting my breath, as I did in 2016. I hope not, and those first signs you are showing justify my optimism. I hope that this is the last time we will see you.
136. You have got a problem with your New South Wales charges. That might lead you into prison, but prison is not so frightening for you, as long as you keep steeled to your reform and your rehabilitation. Nasty offences justify a sentence of imprisonment. You have done quite a lot of that. Hopefully, it is in your hands as to whether you have to do any more after 13 March 2022 or thereabouts. I wish you good luck for that.
137. I probably will not be around when you come back to us, because I hope it will be a long time in the future. It is up to you now.
138. You may be seated.
I certify that the preceding one hundred and thirty- eight Error! Reference source not found.[138] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge
Associate: L Ireland
Date: 18 May 2022
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