R v McHughes (No 3)
[2021] ACTSC 344
•17 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McHughes (No 3) |
Citation: | [2021] ACTSC 344 |
Hearing Dates: | 12 November 2021 |
DecisionDate: | 17 November 2021 |
Before: | Refshauge AJ |
Decision: | 1. Walter Robert McHughes be convicted of burglary and be sentenced to 15 months imprisonment, to commence on 10 November 2020 and end on 9 February 2022. 2. Walter Robert McHughes be convicted of theft and be sentenced to 4 months imprisonment, to commence on 10 January 2021 and end on 9 May 2021. 3. Walter Robert McHughes be convicted of dishonestly riding in a motor vehicle without the owner’s consent and be sentenced to 6 months imprisonment, to commence on 10 November 2021 and end on 9 May 2022. 4. The sentence be suspended from today, 17 November 2021, for 12 months. 5. Walter Robert McHughes be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from today, 17 November 2021, with a probation condition that he be subject to the supervision of the Commissioner of ACT Corrective Services or his delegate for 12 months from today, 17 November 2021, and obey all reasonable directions of the person supervising him, including directions determined by the person supervising him given after careful consultation with any person funded by the National Disability Insurance Agency to support him in the National Disability Insurance Scheme, especially directions as to rehabilitation for alcohol and drug use and for mental health treatment or counselling and including for reasonable co-operation with that person in the support she or he provides him. 6. Walter Robert McHughes be directed to attend the Court Registry before he leaves the Court precincts today to sign a copy of the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for the period of 12 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Riding in a Motor Vehicle Without the Owner’s Consent – Rehabilitation – Mental Impairment – Disadvantage – Good Behaviour Order |
Legislation Cited: | Criminal Code 2002 (ACT) ss 308, 311, 318 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46J, 52, 63 |
Cases Cited: | Allred v The Queen [2015] ACTCA 21 Beniamini v Stormon [2014] ACTSC 2 Webb v O’Sullivan [1952] SASR 65 |
Texts Cited: | ACT Supreme Court, Notice to Practitioners: Drug and Alcohol Sentencing List (19 December 2019) Seena Fazel et al, ‘The Mental Health of Prisoners: Prevalence, Adverse Outcomes and Interventions’ (2016) 3(9) Lancet Psychiatry 871 Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (Report No 103, September 2006) |
Parties: | The Queen (Crown) Walter Robert McHughes (Offender) |
Representation: | Counsel C Muthurajah (Crown) E West (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 75 of 2021 |
REFSHAUGE AJ:
Introduction
There is no doubt that issues of mental health and intellectual disability have a very dysfunctional relationship with the criminal justice system. One of the challenging interactions is in relation to imprisonment. Professor Seena Fazel et al wrote in ‘The Mental Health of Prisoners: Prevalence, Adverse Outcomes, and Interventions’ (2016) 3(9) Lancet Psychiatry 871, at 871:
More than 10 million people are imprisoned worldwide, and the prevalence of all investigated mental disorders is higher in prisoners than in the general population. Although the extent to which prison increases the incidence of mental disorders is uncertain, considerable evidence suggests low rates of identification and treatment of psychiatric disorders. Prisoners are also at increased risk of all-cause mortality, suicide, self-harm, violence, and victimisation, and research has outlined some modifiable risk factors. Few high quality treatment trials have been done on psychiatric disorders in prisoners.
This is not an inaccurate representation of the Australian situation, as shown by the description given by the Australian Law Reform Commission in its report, Same Crime, Same Time: Sentencing of Federal Offenders (Report No 103, September 2006). The Commission described the situation as follows (at 673; [28.18]):
Problems identified in relation to the provision of services to offenders with a mental illness or intellectual disability include: a lack of appropriate and accessible rehabilitation and treatment programs and other services in prison; a lack of appropriate accommodation in the community to facilitate access to rehabilitation and treatment programs; a lack of alternative sentencing options; limited access to parole; limited funding and resourcing of community-based services; a lack of appropriate treatment and rehabilitation programs and other services for persons with dual diagnosis; a lack of available long-term care for persons with a mental illness; the need for appropriately qualified staff to deliver treatment and rehabilitation services to offenders inside and outside the prison system; the availability of appropriate accommodation in prisons for prisoners with ongoing mental health conditions; the development of culturally appropriate assessment tools; and support for organisations that provide legal services to persons with a mental illness or intellectual disability.
There is no evidence in this case, or in other cases, that suggests that this is not an accurate description of the present position in the Territory. The Report went on to discuss and support diversionary schemes from the criminal justice system for persons with a mental illness and intellectual disability: see p 675; [28.25]–[28.27]. Such schemes are not presently available in this Territory, so the sentencing court must use the available options as creatively as possible to craft an appropriate sentence.
This must now be done for Walter Robert McHughes, who has pleaded guilty to the offences of burglary, theft and dishonestly riding in a motor vehicle without the owner's consent.
Mr McHughes has been diagnosed with a long history of schizophrenia and intellectual delay or cognitive impairment. This makes for a complex sentencing exercise which requires all the creativity properly available to a sentencing judge, but this will be a difficult exercise as well, illustrated by the comments made as long ago as 1978 by Brennan J when his Honour was a judge of the Federal Court of Australia in Channon v The Queen (1978) 20 ALR 1 at 4-5 as follows:
Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a contributing factor to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem; on one view, to lean towards a lenient sentence, and on the other to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another.
Despite the gloomy picture painted by the Australian Law Reform Commission, the services available have much improved since 1978, though they are still in need of much public attention.
On sentencing in this case, the Crown tendered its Crown Sentencing Tender Bundle. This included the committal documents, the Agreed Statement of Facts, Mr McHughes' Criminal History and a Victim Impact Statement.
It also contained three Drug and Alcohol Treatment Assessment Reports (Suitability Assessments) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), namely a Drug and Alcohol Sentencing List Suitability Assessment Report dated 23 April 2021, a Justice Health Services Forensic Mental Health DASL Assessment Report dated 13 April 2021 and a Drug and Alcohol Treatment Assessment dated 28 April 2021. These were prepared as ordered by the Court: R v McHughes [2021] ACTSC 92. There was no objection to the tender of this material and no challenge to the contents of any of the documents.
The victim requested that the informant police officer read the Victim Impact Statement aloud to the Court, as is permitted under s 52(1) of the Sentencing Act. Unfortunately, the informant was not available and the Crown prosecutor read the statement. This ensured that Mr McHughes heard the statement.
Ms E West, counsel for Mr McHughes, tendered without objection a letter from a psychiatrist, Dr Ann Harrison, dated 26 October 2021 and an email from the support coordinator of Corrections Case Management, Ms Carmel Monaghan, dated 9 November 2021 with attachments. No challenge was made to their contents
Apart from the reading of the Victim Impact Statement, no other oral evidence was adduced. Both counsel, however, provided carefully prepared and helpful written submissions and addressed the Court, valuably engaging with issues raised by the Court. From this material, the following findings are made.
The facts
On 5 November 2019, a red Toyota Yaris was stolen from the owner's residence, the address of which was not in evidence. It was, on 30 July 2020, found in Kambah, ACT, locked and parked in a small car park. A forensic examination disclosed that DNA from Mr McHughes was found on the driving controls. He had not been given permission by the owner to be in the vehicle. These are the facts that found the offence of dishonestly riding in a motor vehicle without the owner's consent.
It is clear that Mr McHughes was in the vehicle and his plea proves that he rode in it. The evidence was not sufficient to show that he had stolen it initially or had even been the driver, though the location of the DNA found by police would give rise to a suspicion of that. Nevertheless, it is not the offence with which Mr McHughes has been charged and to which he has pleaded guilty. There was no evidence of any damage to the motor vehicle.
Two days later, on 7 November 2020, Mr McHughes entered the rear yard of a residence in Reid, ACT. The occupant of the premises, an 80 year old woman who lived there alone, was on the premises. She had retired for the night at about 9:00 pm and woke at 7:45 am the next morning. Sometime between these hours, Mr McHughes removed the flyscreen from a rear window and used a screwdriver to force the window open. He then used the open window to enter the residence while the occupant was asleep in a nearby room.
He stole the occupant's leather handbag which contained a wallet, $500 in cash, two bank credit cards, a driver licence and an iPhone 11, together worth approximately $3,000. He left the screwdriver on the kitchen bench. When the occupant awoke, she noticed the removed flyscreen and contacted police. She looked for her handbag, which she found over a garden hedge. It contained all the items except the $500 in cash. Police examined the screwdriver and located the DNA of Mr McHughes on it. A palm print of Mr McHughes was also found on the bottom sill of the window.
The proceedings
Mr McHughes was arrested on 10 November 2020. At the time, he was on bail for offences which have since been resolved in the ACT Magistrates Court. He appeared the next day in the Magistrates Court, charged with the burglary and theft and was remanded in custody. On 12 November 2020 he entered a plea of not guilty to the charge of theft and on 26 November 2020 to the offence of burglary. After three adjournments, he entered pleas of guilty to these offences and indicated that he was seeking a committal to this Court so that a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act could be made.
After some further adjournments, the proceedings were mentioned on 25 March 2021. On that date, the charge of dishonestly riding in a motor vehicle without the owner’s consent was preferred and he pleaded guilty to it. He was then committed to this Court for sentence in respect of all three offences. It was intended that he appear in the Drug and Alcohol Sentencing List: see ACT Supreme Court, Notice to Practitioners: Drug and Alcohol Sentencing List (19 December 2019). The Magistrates Court ordered an Eligibility Assessment (as to which, see R v McHughes [2021] ACTSC 92 at [7]).
That Eligibility Assessment recommended that, on account of his “significant mental health issues”, Mr McHughes was not suitable to be further assessed for a Treatment Order and that Suitability Assessments should not be ordered: R v McHughes at [12]. Nevertheless, for reasons set out in those reasons at [13]–[16], Suitability Assessments were directed to be prepared.
The Suitability Assessments recommended that, despite his willingness to fulfil the conditions of a Treatment Order, Mr McHughes was not suitable because, as explained in the Suitability Assessment of Drug and Alcohol Services of Canberra Health Services:
Complexities of his intellectual limitations and treatment resistance schizophrenia means that he is likely to experience significant challenges both in compliance with order conditions and in his ability to engage in treatment in a meaningful way.
To similar effect, the Suitability Assessment prepared by Forensic Mental Health also recommended that he was not suitable because:
His current mental health is likely to have a significant impact on his ability to comply with the intensive regime of a Treatment Order. Mr McHughes could be expected to experience significant difficulties in comprehending and applying the interventions offered due to the intrusive nature of his auditory hallucinations, pre-existing cognitive deficits (as noted in past neuropsychological report) and accompanying behavioural disorganisation (observed consistently in historical treatment scenarios).
In effect, the concern was that to make a Treatment Order would set Mr McHughes up to fail. The proceedings were, however, adjourned a number of times to see whether supports provided through the National Disability Insurance Scheme could adequately ameliorate these impediments. Ultimately, Mr McHughes did not pursue the making of a Treatment Order and the sentencing proceeding in the usual way.
Mr McHughes has remained in custody since he was arrested on 10 November 2020. That is a total of 373 days, which must be taken into account: s 63 of the Sentencing Act.
The offences
The obligation of a sentencing court is to impose a sentence that is just and adequate. To determine that, it is necessary to take into account a wide range of factors. The mandatory considerations are set out in s 33(1) of the Sentencing Act. They include various factors, some related to the offence and some related to the offender. Significantly for the offence is that under s 33(1)(a) “the nature and circumstances of the offence” and under s 33(1)(za) “current sentencing practice” are required to be considered. These will be considered first.
A very important consideration is the way in which the legislature has defined the offence and this includes, significantly, the maximum penalty. This gives the Court an indication of the way that the legislature views the comparative seriousness of the offence: a comparison of the instant offence, that is the offending behaviour actually committed by Mr McHughes in this case, with the worst possible version and, when balanced with all relevant factors, a yardstick.
The current sentencing practice can also identify what sentencing judges, including appellate judges hearing sentencing appeals, have identified as the relevant aggravating or mitigating factors that may identify how serious the instant case is.
With all this in mind, the Court now turns to the offences and the instant case.
Burglary is an offence against s 311 of the Criminal Code 2002 (ACT), which legislates a maximum penalty of 14 years imprisonment or a fine of $224,000, or both. It is, thus, a very serious offence, though not the most serious in the criminal calendar. Many decisions have identified the relevant factors to be considered. See, for example, R v Roux (No 2) [2015] ACTSC 361 at [74], R v Horne [2017] ACTSC 36 at [18]–[22], R v McMahon (No 2) [2017] ACTSC 299 at [51], R v Bessant [2020] ACTSC 365 at [16], R v Elphick [2021] ACTSC 9 at [113] and R v Hancock [2021] ACTSC 52 at [33].
From these, the following considerations are relevant:
(a)The nature of the property entered by the offender as a trespasser is relevant. The most serious is when the property is residential. Entry into commercial premises is serious, but less so. The consideration, however, is not binary. For example, the underground carpark of a residential apartment complex is not as serious a property to enter as an apartment itself or, of course, a house. Similarly, a residence under construction but not occupied would not attract the same seriousness as an occupied residence. By the same token, commercial premises in an apartment block would have some characteristics as a residence and may, depending on those circumstances, justify a more serious view of the offence;
(b)Whether any damage was committed on entry or while the offender was on the premises, such as vandalism, scattering property around and the like, which will aggravate the offence. Noting, of course, that if such damage is separately charged, there will need to be at least a significant degree of concurrency in the sentences imposed;
(c)Whether the occupants were, or were likely to be, on the premises at the time, which is an aggravating feature especially if the occupants are vulnerable persons such as elderly persons, sick or disabled persons or children;
(d)Whether there is any confrontation between an occupant, or occupants, and the offender, which would also constitute an aggravating feature and more aggravating if the offender knows of the presence of such persons and the likelihood of a confrontation;
(e)The motivation for the burglary, which may or may not aggravate the offence or, perhaps, even mitigate it;
(f)Whether there was any premeditation, planning or organisation in the way the offence was committed, especially if committed with professional organisation or execution, which would be aggravating;
(g)If the offence has been committed on the premises before or repeatedly, this will also constitute a matter of aggravation; and
(h)The actual trauma suffered by the occupants of the premises, whether present or not, will also amount to an aggravating factor.
In this case, the premises were residential premises and the occupant was there while Mr McHughes was in the premises, so far as the evidence discloses. There was, however, no confrontation. The motivation seems to have been Mr McHughes' need for money to buy drugs and he committed the burglary in a fairly inept way, leaving a screwdriver with his DNA on the premises. None of these are particularly aggravating factors.
The Victim Impact Statement does, however, give evidence of two matters of aggravation. In the first place, it refers to a conifer in a large pot which Mr McHughes used as a stepping stone to access the premises and he broke off a “major limb… so that only a third of the tree remains”. The victim also refers to the “safe, friendly neighbourhood” in which she lived and how the “burglary shattered that peace” for her and her neighbours and the “safety and serenity I have taken for granted has endured a battery”.
Theft is prohibited by s 308 of the Criminal Code and attracts a maximum penalty of 10 years imprisonment or a fine of $160,000, or both. The courts have emphasised that the primary concern is the value of the property stolen. In this case, the value was $3,000 but all, save the $500 cash, was recovered without any apparent loss or damage to the recovered items. In my view, the taking of the total amount does not appear to actually have been a theft as Mr McHughes left the bag and all its contents, save for the cash, in the place where it was and could easily be found.
It does not appear that Mr McHughes intended to permanently deprive the owner of this property he left behind (R v King (No 2) [2016] ACTSC 121 at [45]), though this would not always be the case for recovered property (see R v Huynh [2005] NSWCCA 220 at [27]).
It is accepted, however, by both counsel that, for a person in the position of the victim, the amount of money stolen would not be insignificant and she would not be likely to have been reimbursed. There was no evidence of any particular inconvenience caused by the theft otherwise, such as needing to cancel any credit cards. The Victim Impact Statement strongly supports this.
Dishonestly riding in a motor vehicle without the owner's consent is made a crime by s 318(2) of the Criminal Code, which prescribes a maximum penalty of five years imprisonment or a fine of $80,000, or both. It is, therefore, the least serious of the three offences. That does not mean, of course, that it is not a serious offence. In R v Fry [2021] ACTSC 138 at [49] the Court, by reference to the relevant cases, set out the factors that might aggravate the offence. They are:
(a)the period of time during which the motor vehicle was being driven or the owner deprived of it;
(b)the deprivation from the use of his or her car suffered by the owner, especially for an individual for whom the purchase may, after their home, be one of their most expensive;
(c)any loss or damage to the vehicle and whether it has been restored and recovered for the owner;
(d)its use in the commission of another crime; and
(e)any inconvenience caused to the owner and possibly others, given their reliance on the car as a means of transport in Canberra.
It is also relevant to know, where possible, whether the vehicle has been recovered and restored to the owner. The evidence in this case does not provide much assistance in identifying any of these issues; it discloses that the vehicle was recovered a few days less than nine months after the time it was stolen, but not whether it was restored to the owner. There was, however, no evidence to link Mr McHughes with any particular period in this time of its use. As noted above (at [12]–[13]), the evidence did not provide any indication of even the suburb from where the vehicle was taken or where it was left.
There was no Victim Impact Statement from the owner of the car, so no specific information was available about the inconvenience for the owner. That is not necessary to know that this period would have generally caused great inconvenience for the owner. There is no information, however, about any specific difficulties caused. Even though Mr McHughes cannot be held responsible for the inconvenience by reason of the original taking, he did participate in the deprivation of the owner from her vehicle. There was no evidence to show that there was any damage to the vehicle, that it was used in the commission of any crime or the value of the vehicle. Based on this material, it cannot be said to be a very serious version of the offence.
Subjective circumstances
Sections 33(1)(m), (n), (q) and probably (o) and (r) of the Sentencing Act comprehensively refer to the personal circumstances of Mr McHughes that must be considered. This will now be done.
Mr McHughes is a 39 year old Aboriginal man, born in Sydney, the second of his parents’ two sons. His father died when he was two years old. His mother re-partnered, but his stepfather passed away when Mr McHughes was aged 13.
The family moved from Sydney because Mr McHughes “was getting into too much trouble”. The family lived in Queanbeyan, NSW, before moving to Canberra when Mr McHughes was 16 years old, though from one version it suggested that he had been in Canberra for 28 years. The evidence is a little unclear, but he appears to have generally lived here since arriving, though other evidence suggested that he went to New South Wales between 2004 and 2014. This is consistent with his Criminal History, which shows offending behaviour being dealt with by Sydney Courts between 2002 and 2014, with no appearances in the ACT or Queanbeyan Courts in that time.
Mr McHughes says that, when he was young, everyone was using drugs and he began smoking cannabis when he was 13 years old. He says, however, that there was neither family violence nor alcohol abuse in his home. Mr McHughes attended High School in Sydney, but left midway in Year 9 and has had no further formal education. He describes “poor educational achievement” and has had no employment.
He was involved in a motor vehicle accident in 2004 and suffered some head injuries. This led to some headaches, but he can manage these with over-the-counter medication. His psychiatrist has reported an acquired brain injury was diagnosed in September 2004 from the accident, though a psychiatric report in 2015 stated “he does not have evidence of significant brain injury from clinical records and neuroimaging results”. He has, however, an IQ of 72 and ongoing mental cognitive impairment. He started to have auditory hallucinations at about the time of the accident, but there was no indication that the accident caused this. A cognitive assessment by a clinical psychologist in 2016 reported that “his performance on cognitive tasks is profoundly impaired”.
He was, however, diagnosed in 2010 with schizophrenia while in custody in New South Wales. This has caused considerable difficulties, especially aggravated by his use of illicit drugs. He is currently under the care of Dr Ann Harrison, a Consultant Psychiatrist at Winnunga Nimmityjah Aboriginal and Community Services, where he is prescribed Olanzapine. Dr Harrison is trying to arrange supported accommodation for him and a support worker who may be helpful in diverting him from drug use.
Mr McHughes first smoked tobacco when he was 12 years old and began smoking daily when he was about age 18. He smokes five to seven cigarettes a day now.
He began drinking alcohol when he was 15 years old and was, by age 18, drinking regularly. He gave it up, however, about nine years ago.
He started smoking cannabis when he was 13 years old, progressing by age 15 to daily use. He was using seven to eight cones on each occasion, though he has not used the drug since his most recent detention in custody.
Mr McHughes has also used amphetamines and heroin, but they are not his drug of choice, which is methylamphetamine. He first used this when he was aged 16. He was using it regularly by age 19, but his use fluctuated. He has not used this drug either since he was remanded for these offences.
He has some limited alcohol and other drugs treatment. In about 2018–19 he went to Oolong House (as to which, see R v Williams [2015] ACTSC 15 at [8]–[10]), but was only there for about five days. Later, in early 2020, he was, for about nine to 10 months, on a methadone program.
While he was in the Alexander Maconochie Centre, he enrolled in the First Steps Alcohol and Drug program, but was discharged from it for failing to attend sessions. This gives some insight into the difficulties he would experience in rehabilitation without considerable support. Mr McHughes was admitted to the Brian Hennessy Rehabilitation Centre in Canberra in 2017, with the goal of providing holistic psycho-social rehabilitation, but treatment was ceased due to continuing drug use and non-compliance with monitoring requirements. Again, this shows some of the difficulties he will confront in addressing the issues that he must do if he is to live a crime and drug free lifestyle.
Mr McHughes has a long and depressing criminal history, though perhaps one that is unsurprising given his mental challenges, intellectual impairment and drug dependence. [Redacted for legal reasons].
As an adult, he has 70 offences on his record, with a range of offences including eight offences of burglary, five offences of dishonestly taking or riding in a motor vehicle without the owner's consent and five of having property reasonably suspected of being stolen. There were five offences of trespass, six of possessing drugs and other various offences. He has two offences of assault on his record.
His first imprisonment was in 2000 and he also appeared a number of times in the Drug Court in Sydney. It is a troubling record but, as noted, the likely consequence of his personal situation. That he has committed these particular offences on a number of prior occasions is relevant to the sentence to be imposed.
Current sentencing practice
Although taken into account above in identifying how sentencing courts currently assess the seriousness of offences, current sentencing practice, required under s 33(1)(za) of the Sentencing Act to be considered, includes an assessment of the current sentences that are imposed to gain an insight into the collective wisdom of judges. In R v Bennett; R v Simonds [2020] ACTSC 221 at [85], Murrell CJ said:
I am aware of the limitations of statistical information, but have referred to the ACT Sentencing Database. This shows that, as at February 2019, sentences for theft were typically six to 18 months' imprisonment (often 12 months' imprisonment). For burglary offences, sentences were typically between one and three years' imprisonment (often 18 months to two years' imprisonment) and aggravated burglary offences were typically between 18 months and three years and six months' imprisonment (often two to three years' imprisonment). Commonly, where an offender is sentenced for a theft associated with the burglary, the sentence for the theft is made concurrent with that for the burglary.
Sometimes, the courts are referred to comparable cases from which an indication of the range of sentences can be obtained, especially as these are more likely to have the reasoning behind the choice of sentence and the relevant factors and, regrettably, only a very limited number of sentencing remarks on the ACT Sentencing Database.
In this case, neither counsel did refer to comparable cases, perhaps because the situation of Mr McHughes is so complex and unlikely to be found in other offenders sufficiently similarly to provide a valuable guide.
As to the offence of dishonestly driving in a motor vehicle without the owner's consent, the offence was considered in R v Massey (No 1) [2020] ACTSC 256 at [76]–[79]. The sentences considered there showed a range from 6 to 12 months imprisonment. The offence of dishonestly riding in a motor vehicle without the owner's consent is, despite the same maximum penalty, of lesser seriousness than the actual taking of the motor vehicle or its driving (see, for example, R v Massey [2018] ACTSC 221 at [9], R v NN [2018] ACTSC 43 at [19]), though it does continue the deprivation of the motor vehicle from the owner and is part of its misuse.
Childhood disadvantage
Mr McHughes has had disadvantage in his childhood, including the loss of his father and his stepfather, an uncompleted education and a relatively early introduction to alcohol and other drugs. This is likely to have affected his development. This disadvantage can affect his moral culpability for the offending: Bugmy v The Queen (2013) HCA 37; 249 CLR 571. There is no necessity for a causal link to be proved: R v Irwin [2019] NSWCCA 133 at [30]. In the circumstances, it is appropriate to take this disadvantage into account as moderating the sentence to be imposed.
Mental health and intellectual impairment
It is clear that Mr McHughes has a mental illness and an intellectual impairment which compromise his functioning. The evidence of Dr Harrison is very helpful in describing the diagnosis, symptoms and medication, but does not identify how these impair his functioning.
Mr McHughes has a support worker funded by the National Disability Insurance Agency to assist him with his National Disability Insurance Scheme plan, who explains that he has been unable to manage his mental health, alcohol and other drugs and criminal activity in the community.
This is more evident in some of the points made in rejecting him for some of the options proposed. For example, the Justice Housing Program of ACT Corrective Services found him unsuitable for residence there because he was unable to:
·understand the purposes of the JHP [Justice Housing Program] and the opportunities it could offer.
·provide a tangible plan or any goals to work towards.
·[…] live in accommodation with minimal support.
·understand potential complexities of living in a shared accommodation.
·[…] provide any strategies to deal with difficult situations living within shared accommodation.
Similarly, the Alcohol and Drug Services, in its Suitability Assessment, noted that despite his willingness to participate in a Treatment Order, he would have difficulties as noted above (at [19]). The Forensic Mental Health Suitability Assessment referred to similar difficulties, including difficulties in “adhering to medical appointments, poor memory and organisation skills” and the need for individualised supports and interventions to cater for his intellectual impairment. These raise for consideration the need in sentencing to have regard to his mental issues. These have been set out in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32] as follows:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment. (citations omitted)
This approach was accepted in this territory in Cooper v Corvisy [2010] ACTSC 165 at [37] and more recently accepted, as further explained in Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 412; [68], as applicable by the Court of Appeal in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 72–4; [88]–[91] and 76–7; [98]–[102], with the important requirement that the principles (especially the first four) are only applicable where there is a connection between the impairment and the moral culpability.
It is satisfactorily shown that the low functioning of Mr McHughes as described by the evidence makes that connection quite clear. It does not appear, however, that the fifth and sixth principles have particular application in this case.
In Freeman v The Queen [2011] VSCA 349 at [27]–[28], the Victorian Court of Appeal indicated the way in which these matters need to be addressed. It said:
Contrary to submissions advanced on behalf of the applicant, in our view the assessment of moral culpability required the judge to have regard to both the extent of the applicant’s mental dysfunction and the gravity of the crime in question and to consider each in light of each other.
That is to say, if an offence is but venial, a lesser mental condition may go a significant way to reducing the offender’s moral culpability. But if an offence is as serious as this was [the offence here was murder], a relatively insignificant mental condition is likely to weigh less in the scale of assessment of moral culpability. It requires a substantial degree of mental disability to result in a substantial reduction in moral culpability for this class of offending.
There is no pre-established degree of weight that should be given to the mental disorder.
In this case, the offences are serious offences and would ordinarily overwhelm any moderate mental disabilities or issues. Mr McHughes, however, suffers from profound and serious difficulties and the moral culpability that he should be sentenced for is significantly affected.
Consideration
The task of the sentencing court is to impose a sentence that takes into account all the relevant factors and, by an instinctive synthesis of them, creates a just and adequate sentence. In order to determine what that may be, however, it is also important to have regard to the purposes of the sentence and, in this Territory, courts are much assisted by the legislature setting them out in s 7 of the Sentencing Act. Regard is given to these purposes.
The offences, which are judged by the cases that come through these courts, are not, regrettably, uncommon and they cause distress to those whose properties are invaded and whose items, including cars, are taken without their consent. This requires the norms of civilised behaviour to be made clear by the imposition of a level of punishment. This, too, means the need to ensure, to the extent possible, that other members of the community are deterred from committing the same offences.
The protection of the community will be enhanced by the deterring of other persons from committing such offences, deterring the offender from re-offending, but also by his rehabilitation. In this case, Mr McHughes has been sentenced, including to imprisonment, for similar offences in the past and that clearly has not deterred him. That does suggest that rehabilitation may achieve this purpose better, if it can be effected. That poses significant challenges, but that does not mean it should not be addressed.
The process, however, must make him accountable for his actions and indicate that his conduct is unacceptable, though perhaps the denunciation is moderated by his mental situation.
The harm done to the victim must be recognised. That is not only, or simply, by imposing a severe sentence. Indeed, in this case, the Court had the considerable benefit of a Victim Impact Statement in which the victim of the burglary and theft generously said, despite the shattering of her peace and serenity, “I pray that my night visitor will be able to find a path which will enable him to grow, to contribute to society and find peace and contentment”. That is a significant but hugely demanding task for the sentencing Court in this case. It is also not a rare kind of comment from a victim.
Mr McHughes pleaded not guilty initially to the burglary and theft offences and this required the prosecution to prepare a Brief of Evidence, thus reducing the utilitarian value of the plea. Nevertheless, it was a plea entered in the Magistrates Court, which is generally regarded as an early plea.
So far as the charge of dishonestly riding in a motor vehicle without the owner's consent is concerned, the bench sheet shows that it was preferred on 25 March 2021. The notes show that on 24 March 2021 (presumably an error) he pleaded guilty, thus entering the plea at the earliest opportunity. If the dates are correct, even earlier than the earliest opportunity!
These pleas will be taken into account, as required under s 35 of the Sentencing Act. The Crown case in each case is strong, but not overwhelming.
Mr McHughes was on bail for some Magistrates Court offences at the time of the offending. These offences have since been resolved, though the evidence does not disclose how they were resolved. Further, he was subject to a Community Corrections Order from New South Wales. These are forms of conditional liberty. That means that he was in the community subject to conditions, and not in custody. One of those conditions was that he not commit further offences. In committing these offences, he breached the trust that those orders imposed. This requires some more serious sentencing response.
Mr McHughes, whose offending was significantly contributed to by his drug use, was introduced to drugs at an early age. It is accepted, in all the circumstances, that it was before he could have made an informed choice to do so. This is a matter that moderates his moral culpability and should be taken into account: Douglas v The Queen (1995) 56 FCR 465 at 470.
Mr McHughes has, in his criminal history, committed a significant number of these or similar offences as a matter of aggravation of the sentence. As well as these matters, the nature and circumstances of the offences as already described are taken into account and also his personal circumstances as described, especially his mental health and intellectual impairment.
The harm done to the victim is taken into account, including the effect on the victim of the burglary and theft so graphically described by her. It is noted, too, that these offences affect the whole community, not least by increasing insurance premiums. The Court takes into account that Mr McHughes was solely responsible for the burglary and theft and that it was his choice to ride in the stolen motor vehicle, even if he did not steal or drive it. The childhood disadvantage experienced by Mr McHughes, as described above, and all the other matters which have been referred to are taken into account.
Nevertheless, in approaching the task of sentencing, it is well to have regard to what fell from Napier CJ in Webb v O'Sullivan [1952] SASR 65 at 66 as follows:
The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.
This passage, or parts of it, has been cited with approval in every State or Territory in Australia, except Queensland, and in Federal Courts and the Courts of many Pacific Island jurisdictions. In this jurisdiction, it has been accepted by the Court of Appeal in Allred v The Queen [2015] ACTCA 21 at [54]–[56] and is embodying the principle of parsimony. See also Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299, Beniamini v Stormon [2014] ACTSC 2, R v Hagen [2014] ACTSC 129 and R v Carmody (No 3) [2017] ACTSC 60.
It is clear, however, that for these offences, even with the matters that moderate the severity of a sentence, including through reduction of moral culpability, no sentence other than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
There are, of course, three offences. A sentence must be imposed on each and the length of each sentence has been carefully considered to ensure that it is just and adequate and also to ensure that Mr McHughes is not punished twice.
Whether the sentences should be partly or wholly concurrent must also be considered because, for example, they are part of the same course of conduct or contain common elements. This has been referred to above (at [52]) in the relationship between the theft and burglary offences, which seem to be part of the same course of conduct and should be concurrent.
The length of the total term of the sentence arrived at must then be considered to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive, but will open the realistic prospect of reform and maintain the hope required for Mr McHughes to take an effective part in the community and realise his aims when he is released.
This may result in what is seen as some leniency, in that some sentences are made concurrent, but, while the total criminality of Mr McHughes is an important factor, his growing awareness of the need for rehabilitation is also important, as is the circumstances of his early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes and the effect on the community, but also the subjective circumstances of Mr McHughes and the value of reform to both the community and to himself.
Sentence
[His Honour then spoke directly to the offender]
Mr McHughes, please stand.
The orders of the Court are as follows:
(1)You are convicted of burglary and sentenced to 15 months imprisonment, to commence on 10 November 2020. Had you not pleaded guilty, you would have been sentenced to 18 months imprisonment.
(2)You are convicted of theft and sentenced to four months imprisonment, to commence on 10 January 2021. That is to be wholly concurrent with the sentence for burglary. Had you not pleaded guilty, you would have been sentenced to five months imprisonment.
(3)You are convicted of dishonestly riding in a motor vehicle without the owner's consent and sentenced to six months imprisonment, to commence on 10 November 2021. That is to be cumulative as to three months on the sentence for burglary. Had you not pleaded guilty, you would have been sentenced to nine months imprisonment.
(4)The sentence is suspended from today, 17 November 2021, for 12 months.
(5)You are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months from today, with a probation condition that you be subject to the supervision of the Commissioner of ACT Corrective Services, or his delegate, for 12 months from today, 17 November 2021, and obey all reasonable directions of the person supervising you, including directions determined by the person supervising you, given after careful consultation with any person funded by the National Disability Insurance Agency to support you in the National Disability Insurance Scheme, especially directions as to rehabilitation for alcohol and drug use and for mental health treatment or counselling and including for reasonable cooperation with that person in the support she or he provides to you.
(6)You are directed to attend the Court Registry before leaving the Court precinct today to sign a copy of the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for the period of 12 months.
Mr McHughes, that is the sentence that I have imposed. You have been in the courts sufficiently for you to understand most of it and it is mostly about you, which even though I used legal words, you might well understand and appreciate.
I have indicated that these are serious offences and ordinarily a lengthy period of imprisonment would be appropriate for them. In all the circumstances, however, you have been in prison now for a little over 12 months and I am releasing you today into the community, but subject to supervision. This has not been very successful in the past.
You have now, for nearly 12 months, stopped using drugs and I hope that will give you some encouragement to continue that, but you will need help. Your situation means that you will need help. There is no embarrassment, there is no weakness, there is no negativity, in seeking help. There are people here and the person you have supporting you from the NDIS is obviously trying very hard to assist you and will continue to do so.
You will be under the direction of Corrective Services, as you have been before, and they can give you directions. I have indicated that, in consultation with support people from the NDIS, those directions should relate to drug use, your mental health and, I hope, things like getting employment, if that is available, as well as residence. The drug use is really important. That you have given up is fantastic and that has, in part, led to a less severe sentence ultimately than you otherwise would have received.
However, it is very easy to relapse and you will need, in my judgment, some professional assistance to assist you to do that, and this is what the structure I hope will give you. You will need to put some effort into that. It is not going to be easy. You will have to keep trying, but your supports will help you to do that if you are really committed. If you are not committed, then it is in and out of gaol. There is not any alternative. You might feel comfortable in that, but there are some great things outside that you can do.
You are connected with Winnunga to explore and discover, connect to and relate to the magnificent culture of your people. That it that extends back at least 60,000 years should be a great comfort to you and you can connect with your culture best in the community, not in custody, although I note that there are cultural supports there too. To have a life in the community, perhaps to have a family is, if you are committed and motivated, something that this structure can help you achieve.
I hope I am not wasting my words. I hope you will take this on board and really try. It will be hard. If things get difficult, come back and talk to Ms West. You have had a very expert and competent lawyer who can look after you and, if necessary, we can come back to Court and we can amend the Order from time to time, if there are difficulties with it. The worst thing you can do in your situation is commit further offences. It is disrespecting both me and the opportunity you are now afforded.
You probably do not care about that, but it also means, as I said before, the revolving door, in and out of prison and that is not a good life for you. That is no good for anyone. Leave cars alone. We have got a great bus system. You might even enjoy the tram and other ways to get around. Using other people's property, using other people's cars and pinching from other people is not the way to go. Talk through with counsellors who can help you understand that a better life, a nicer life, a more productive life, a life that you want to live is available to you, but you need to put the effort into it and you need to be careful about what you do.
Now, I hope I am not wasting my words. It is tough out there. I understand that. It may well be that, at the end of the day, all this cannot work, but the more you work on it, the more you do the right thing, you build up a credit and you can say to the Court next time that at least you have tried and you have been successful for a while. It will not stop you being punished, but it will moderate the punishment and each time you try and you work hard, it will get easier.
So, all I can do is what I have done. It is unfortunate that a Drug and Alcohol Treatment Order was not appropriate, but it really would not have worked. It is going to be tough out there. You have got the luxury and the benefit of the NDIS. Make the most of that and hopefully it will all work out.
You are undertaking to be of good behaviour and not to commit any further offences. It is a solemn undertaking given to the Court and it makes the committing of any further offences more serious.
Make contact today with your support worker. Speak to your lawyer if you want to, to make sure you understand what you have got to do and it only remains for me to wish you good luck. I hope the courts do not see you anymore. It is a waste of our time, it is useless for you and it is no good for the community, so take this opportunity with both hands, run with it and use the skills that I am sure are there to make a better life for you and for the community.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: |
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