R v McIver
[2022] ACTSC 206
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McIver |
Citation: | [2022] ACTSC 206 |
Hearing Date: | 16 August 2022 |
DecisionDate: | 16 August 2022 |
Before: | Mossop J |
Decision: | See [67] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – recklessly inflicting grievous bodily harm – offence committed while in custody as a remandee housed with sentenced prisoners – mid-range of objective seriousness – significant disadvantage in childhood and application of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 principles – poor attitude to offending – found guilty at trial – extensive criminal history – consideration of the need for general deterrence of offending in custody in light of human rights obligations to segregate remandees from sentenced prisoners – causal link between offending and offender’s incarceration with sentenced prisoners – sentence of imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – making a demand with a threat to endanger the health, safety or physical wellbeing of a person – possessing a knife without a reasonable excuse in a public place – using a carriage service to menace, harass or threaten – offences at or below mid-range of objective seriousness – consideration of sentence structure where offences have differing requirements as to non-parole periods and concurrency – sentences of imprisonment imposed |
Legislation Cited: | Corrections Management Act 2007 (ACT), preamble cl 1-4, ss 7(c), 9(a)-(b), 10(1) Crimes (Sentence Administration) Act 2005 (ACT), preamble cl 1-4, ss 6, 7(1)(a)-(b), 7(2), 8(1)-(2), 9(2) Human Rights Act 2004 (ACT), ss 19, 28 |
Cases Cited: | Bugmy v the Queen [113] HCA 37; 249 CLR 571 Cheung v The Queen [2001] HCA 67; 209 CLR 1 The Queen v Rappel [2019] ACTCA 11 |
Parties: | The Queen ( Crown) Anthony Daniel McIver ( Offender) |
Representation: | Counsel M Howe ( Crown) J Masters ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Tu’ulakitau McGuire ( Offender) | |
File Number: | SCC 246 of 2021 SCC 247 of 2021 SCC 248 of 2021 |
MOSSOP J:
Introduction
On 24 June 2022, at the conclusion of a five-day trial, a jury found the offender, Anthony Daniel McIver, guilty of one count of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (CC2021/5612). The maximum penalty for recklessly inflicting grievous bodily harm is 13 years’ imprisonment.
The offender has also pleaded guilty to three counts arising from incidents on 17 May 2021 while the offender was on bail, being:
(a)One count of making a demand with a threat to endanger the health, safety or physical wellbeing of a person contrary to s 32(2) of the Crimes Act (CC2021/9425), which has a maximum penalty of 10 years’ imprisonment.
(b)Possessing a knife without a reasonable excuse in a public place contrary to s 382 of the Crimes Act (CC2021/5292), which has a maximum penalty of six months’ imprisonment, 10 penalty units ($1600) or both.
(c)Using a carriage service to menace, harass or offend contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (CC2021/5963), which at the time of the offence had a maximum penalty of three years’ imprisonment.
Facts
Recklessly inflicting grievous bodily harm
Following a jury trial, it is necessary to find the facts for the purposes of sentencing: see Cheung v The Queen [2001] HCA 67; 209 CLR 1.
On 28 February 2021 the offender and the victim were detainees in “Sentenced Unit 1” at the Alexander Maconochie Centre (AMC). The offender and the victim were known to each other. It is not clear why the offender was in Sentenced Unit 1 given that he was at that time, a remandee: Human Rights Act 2004 (ACT) s 19(2).
On that day at about 5pm the victim entered the offender’s cell, cell 6, and launched an unprovoked attack on him while he was making a coffee. The victim’s motive was to seek retribution for an assault the victim believed the offender had committed on a woman. The offender was ultimately found not guilty of that offence.
At about 5:18pm the victim was in cell 16 on the second storey of the unit, with other detainees. The offender exited a cell on the lower level of the unit and walked upstairs, entering cell 16. The offender pulled his hand out of his right pocket, in which he was holding a bladed article.
Shortly after the offender entered cell 16, another detainee closed the door to the cell. Moments later the door opened. A fight ensued. The victim kicked out at the offender. The offender threw a towel over the victim’s head before striking out with his right arm towards the left side of the victim’s head. The offender wrapped his left arm around the back of the victim’s neck as the offender continued to try and strike the victim with his right hand. The offender’s right hand was in close proximity to the victim’s head and face.
The altercation moved out of the cell doorway and into the hallway of the unit. Throughout this time the offender had the weapon in his right hand. The offender used the bladed article in a way that led to him recklessly cut the victim’s head.
Another detainee separated the offender from the victim, by which time the victim had blood on the left side of his face. The victim turned around and was walking back towards cell 16. The offender ran towards the victim and again struck out with his right hand towards the victim’s head. Another wrestle ensued.
A corrections officer yelled at the victim and the offender to stop and called a “Code Purple”, the code for prisoner disturbance. The offender walked away from the victim with the bladed article still in his right hand. The offender threw the bladed article into cell 12 as he walked past. The victim had blood on his shirt and was bleeding at the back of his head and on his face. The victim held his jumper to the back of his head, and his clothing was covered in blood.
The corrections officer, fellow detainees and nursing staff applied first aid to the victim. He was taken to the Canberra Hospital via ambulance. A forensic medical report of Dr Graeme Thomson dated 9 March 2021 described the victim as having the following injuries:
· 1cm wound to the right ear;
· Rounded abrasion to the back of the middle finger;
· Wound 7cm in length to the left side of the head, closed with staples;
· Wound 1 cm in length to the left ear, closed with sutures
· Bruising and abrasions to the left side of the face;
· Abrasions to the left ear extending to the side of the neck;
· Wound of 1cm in length to the left thumb; and
· A 6cm abrasion to the left side of the chest.
Dr Thomson stated that the injuries will leave permanent scarring and may result in permanent loss or alternation of normal sensations including numbness or exaggerated pain response.
Offences on 17 May 2021
The facts in relation to these offences are agreed and are in summary as follows.
Between August 2020 and about March 2021 the offender was in an intimate relationship with a woman I will refer to as KX. At about 12:13pm on Monday 17 May 2021 the offender began to send a number of text messages to KX.
About 4:52pm on the same day the offender sent a message that was received by KX: “Shutup and tik tok you fucked with the devil so walk away or die up to you im coming tik tok”. This constitutes the offence of using a carriage service in a way that is menacing.
At about 7:20pm a man I will refer to as KQ exited his vehicle at a location in Gungahlin when he was approached by the offender. The offender asked KQ a number of personal questions, which he ignored. The offender continued to follow him as he attempted to visit the ATM at the Commonwealth Bank. Being fearful of the offender, KQ walked towards the Woolworths supermarket.
Whilst walking towards Woolworths, the offender became increasingly aggressive and demanded KQ hand over money. KQ requested several times that the offender go away and leave him alone. However, the offender continued to follow KQ, obstructing his path of travel and demanding $50. The offender said words to the effect of “if I hold a blade up to your throat you may have it”. This is the offence of making a demand with a threat to endanger the health, safety or physical wellbeing of a person.
KQ then walked into a restaurant on Hibberson Street, where the offender verbally abused him before leaving. Police attended at about 8:30pm and observed a male pointing towards the offender and the offender on the street yelling.
The offender walked east on Hibberson Street. The police jogged after him. The offender turned right into the entrance of the Coles building. When police ran around the corner, they observed him near a concrete planter box. The offender then stepped towards the planter box, reached out with his right hand and dropped something into the box.
Police heard the sound of a metal item being dropped. The offender walked towards police with an aggressive demeanour. He disregarded a direction by police to “stay there”. He was then arrested.
Police then looked in the planter box and observed a black knife in the bottom. No other metal items were present. The knife was described as a black “kunai style” double-edged knife. This is the offence of possessing a knife in a public place without reasonable excuse.
Victim impact statement
KQ provided a victim impact statement. He described how he had been on his way to withdraw money to go to a massage with his partner after a long work week. He stated that he no longer leaves the house at night alone and wakes up every couple of hours in a fright. Before the offending, he was a confident person who could sleep through the night and go out happily. Due to the offending, he has moved to a house with more security and away from the area where the offending occurred. The victim also described that the offender’s conduct has affected his social life because he is too on edge to enjoy going out with friends and family for drinks or meals.
Objective seriousness
The reckless infliction of grievous bodily harm occurred in custody in circumstances that involved a degree of premeditation. It involved the use of the bladed article on the victim’s head. The wounds were sufficient to cause scarring. It is in the mid-range of objective seriousness for this offence.
The use of a carriage service to menace or harass involved the making of a threatening text message to a former partner, the relationship with whom had ended in the two months prior to the offending. The context of and precise meaning of the text message is not clear. It is, however, menacing as charged. It is below the mid-range of objective seriousness for this offence.
In relation to the demand with a threat, the demand was made in person. It was for $50. It involved the victim, who was a stranger to the offender, being followed. The demand involved a threat to threaten or harm the victim with a knife. Any further conduct on the part of the offender was only prevented by the victim being in a public place. It is offending in the mid-range of objective seriousness for this offence.
The possession of the knife in a public place was unremarkable. The knife was one without any identified legitimate use but the evidence does not disclose it being used or brandished. It is below the mid-range of objective seriousness for this offence.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 28 February 2022 and updated on 11 August 2022. This was supplemented by oral evidence given by the offender at the sentencing hearing.
The offender is 33 years old. He was born in the Australian Capital Territory (ACT). He had a difficult upbringing marred by his mother’s illicit substance use. He never knew his father. He was removed from his mother’s care at five years of age and placed in the care of foster parents for three years. He was returned to his mother’s care at eight years of age and resided with her until her death when he was 14. He then resided in youth refuges between periods of homelessness before reconnecting with his foster parents when he was 16.
He has a positive relationship with his foster parents, who are a source of emotional and occasional financial support for him. They recently retired and relocated to New Zealand although they regularly return to Canberra to see their family including the offender. He said that his foster parents remain supportive: “If I’m doing the right thing they are behind me 100%.” He also has a close relationship with his foster siblings and aunt. The offender has four half-sisters but maintains no contact with them. He is single with no dependents.
Upon his release from custody, he expressed an intention to reside with and care for his foster aunt who has serious health issues.
The offender left school in Year 5 due to behavioural issues and as a result has poor literacy skills. He has been employed in the building industry in labouring roles. He expressed confidence in his ability to find employment after release. Although he has done a variety of residential rehabilitation courses in the past, he expressed a desire to complete a 12-week drug and alcohol day program with Directions Health Services.
The offender reported a history of problematic alcohol consumption from the time of his mother’s death. He had been a binge-drinker until 2020 and after that described his intake as occasional. While he has previously had convictions for drink-driving, the last occasion was in 2012.
He had history of daily cannabis and methylamphetamine use during the same period. He advised of intermittent heroin used since he was 18 years old and is now on the methadone program. Between April and May 2021 he said “things went downhill” and he started using a variety of substances. Upon induction into custody in May 2021 he returned a positive reading for methylamphetamine, amphetamine, cocaine, cannabis, opioids and benzodiazepam. He then returned a positive result for cannabis on 28 July 2021, for which he received a disciplinary sanction. He has been on the methadone program while in custody.
The offender claimed to have been diagnosed with an unspecified attention disorder at seven years of age which led to the behavioural issues that saw him leave school. He stated his mother had schizophrenia and that he thought he had the same illness. However, he has had no official diagnosis. An ACT Health letter provided to the author of the pre-sentence report confirmed that the offender is prescribed antidepressants, but has no known diagnoses, having been previously assessed upon entry into custody with no evidence of a major mental illness.
In relation to his attitude to the offences, the offender said that he was defending himself against death threats. He described having received threats from the time when he went into custody. He acknowledged that in a non-custodial environment he would “handle the situation in a civil way”. In relation to the remaining offences, the offender had a poor recollection of the events due to being under the influence of multiple drugs at the time.
An updated pre-sentence report dated 11 August 2022 noted that the offender had continued to demonstrate poor behaviour while in custody.
The pre-sentence report author was of the opinion that the offender had experienced significant disadvantage during his formative years, and that while it was positive that he had the support of his foster family, his connection with antisocial associates including his foster aunt remained a concern, as did his polysubstance use which has contributed to his offending. The author considered that he would require substantial alcohol and drug treatment to reduce his risk of reoffending and that he would benefit from further mental health assessment and remaining on his prescribed medication.
He was assessed as not suitable for an intensive correction order or community service work condition due to his unaddressed substance use.
Criminal history
The offender has an extensive criminal history in the ACT as well as in New South Wales. It includes numerous sentences of imprisonment. It does not include significant violent offending. It includes a range of driving offences and other offending not unusual for an illicit drug user.
The offender was on bail at the time of the 17 May 2021 offences, having been released on 9 April 2021.
Time in custody
He has spent 456 days in custody referable to this offending prior to today. He was arrested on 17 May 2021. From the 8 June 2021 he was remanded concurrently for the recklessly inflicting grievous bodily harm offence.
This period in custody will be taken into account by backdating the sentence imposed.
Consideration
The need for general deterrence of offending that involves violence inflicted by one prisoner upon another has been consistently recognised in this court.
In R v Islam [2015] ACTSC 99 Burns J said at [8]:
Violence in prison cannot be tolerated and sentences imposed by the court for serious offences of violence within prison must be such as will be likely to deter others from committing such offences.
In R v Potts [2018] ACTSC 299 Murrell CJ said at [18]:
… Prisoners are vulnerable when in custody. The custodial environment should be free from violence and the threat of violence. Corrections officers cannot supervise prisoners on a close, continuous basis. Further, as the facts of this case illustrate, among inmates there is a regrettable “code of silence” that applies to protect violent perpetrators. These factors mean that a court should deal very sternly with violence against prisoners. …
In R v Bedford [2019] ACTSC 282 Elkaim J said at [14]:
Cases like R v Dunn [2017] ACTSC 227, R v Islam [2015] ACTSC 99 and R v Yuen (Supreme Court of the Australian Capital Territory, Penfold J, 31 May 2013) have made it very clear that offences of this type are to be treated very seriously. Each case is different and relies on its own facts, but what these authorities show is that significant terms of imprisonment will inevitably flow. This is particularly because of the need for general deterrence, to show the prison population that its behaviour must accord with civilised norms.
In The Queen v Rappel [2019] ACTCA 11 the Court of Appeal said at [24]:
The purpose of s 72 of the Crimes (Sentencing) Act is clearly enough to ensure that, ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody. A departure from such a clear statutory statement of a sentencing norm should not lightly be countenanced. Within the jail community, further offending must be seen to carry the consequence of a full sentence being imposed as an almost inevitable outcome, so as to effectively deter further offending, rather than being seen to be subject to an effective discount because of an existing sentence. Those already in custody will then have the strongest of incentives not to transgress further and thereby extend their incarceration, the date of release obviously being of vital importance. If a departure from the statutory norm is considered appropriate in the exercise of the discretion retained to do so, it should be explained so that all concerned, including custodial authorities, those affected by the conduct, and an appeal court, understands why that norm has been departed from.
In Horan v O’Brien [2021] ACTSC 323 I said at [16]-[19]:
16. Although there may be considerable scepticism about the operation of the feedback loop that underlies the theory of general deterrence as a sentencing consideration, there is much less room for such scepticism when dealing with offences committed in prison. That is particularly so in a jurisdiction such as the Territory where there is a single prison and a single, centrally located, court system. In those circumstances, there is a much sounder basis for saying that stern sentences for prisoners who commit acts of violence within the prison will have a deterrent effect.
17. It is very clear that courts ought to treat the need for general deterrence as a very significant sentencing consideration when sentencing for crimes of violence committed by a prisoner on another prisoner. Generally speaking, a court should deal very sternly with violence against prisoners. In this court that has been recognised in the decision in R v Potts [2018] ACTSC 299 at [18] where Murrell CJ said:
Prisoners are vulnerable when in custody. The custodial environment should be free from violence and the threat of violence. Corrections officers cannot supervise prisoners on a close, continuous basis. Further, as the facts of this case illustrate, among inmates there is a regrettable “code of silence” that applies to protect violent perpetrators. These factors mean that a court should deal very sternly with violence against prisoners.
18. That approach is consistent with the approach adopted in other jurisdictions: in R v Byron; R v Earley (1992) 59 SASR 132 at 135 – 136, King CJ (with whom Cox and Matheson JJ) said:
Crimes committed in prison against a fellow prisoner are notoriously difficult to prove due to difficulties in obtaining witnesses who are willing to depose to what occurred. For that reason alone the courts must impose severe and deterrent penalties in the cases which can be proved. Moreover, prisoners are entitled to look to the courts for protection against violence from their fellow prisoners. They are necessarily in a vulnerable position by reason of the very circumstances of being confined in the prison. The circumstances under which they are confined deprive them to a great extent of the opportunity of taking prudent measures for their own safety and protection. They must depend entirely or very largely upon authority to protect them from violence.
19. In R v Devries [2005] VSCA 95 at [20]-[23], Vincent JA said:
20. Persons incarcerated in our gaols are by reason of the circumstances of their confinement required to live in close proximity to each other, often for lengthy periods, and often in situations of some difficulty. For a myriad of reasons, including the development of understandable frustrations and stresses, as well as the circumstance that a significant percentage of those imprisoned at any one time are likely to be of a violent disposition or emotionally labile, tensions will arise and the risk of violence is ever present.
21. Notwithstanding those realities, it is no part of a sentence of imprisonment that the individual subject to it is to be required to live in fear or be subject to violent physical attack. Whatever interpersonal problems might arise, there can never be any justification for the use of violence against a fellow prisoner on the basis that he has offended in some way against prison culture by seeking the assistance of the authorities in the resolution of a problem that has arisen or in order to secure his own safety.
22. It hardly needs to be said that our prisons must not become jungles with their own subculture in which predators can enforce their will in the confidence that those who are subject to it will be too fearful to do anything about it or in which the only practical response is to take equally violent retaliatory measures … Neither can it be accepted that there is a separate gaol culture that somehow mitigates the employment of force as a method of settling disputes.
23. Obviously the courts must play their part in endeavouring to ensure that no such situation develops and through the sentences that are handed down discourage the use of force in this way. In other words, it must be crystal clear to all concerned that the conduct of the kind in which the applicant engaged will not be tolerated and will almost certainly attract the imposition of condign punishment …
In R v Collier [2022] ACTSC 18 Elkaim J said at [11]:
Offences that occur in a prison, as a matter of public deterrence, almost automatically require a harsh result. Victims are essentially trapped within the walls of the prison in company with their assailant. In addition threats, as in this case, are often made to secure the silence of the victim who knows that he or she will remain in close proximity to the attacker.
These statements about the importance of general deterrence in the sentencing of offenders and the consequent need for stern punishment of crimes of violence committed against other prisoners are reflected in the legislative provisions which alter the generally applicable rules in relation to non-parole periods and concurrency: Crimes (Sentencing) Act 2005 (ACT), ss 64, 72.
Plainly enough stern punishment of violent offending by prisoners is only one of a variety of means by which appropriate prison discipline is enforced. The requirement for such stern punishment is to be understood in light of the obligations upon the executive to ensure humane treatment of prisoners: Human Rights Act s 19(1)-(3). The greater the humanity of treatment afforded to detainees, the more justifiable are stern punishments when there is violence inflicted on other prisoners.
The Crimes (Sentencing) Act and hence any sentencing exercise undertaken pursuant to it exists in the context of other Territory legislation. That legislation clearly indicates a legislative intention that persons detained in custody in the ACT are to be detained in a manner consistent with the obligations imposed upon the executive government by the Human Rights Act: see Corrections Management Act 2007 (ACT), preamble clauses 1‑4, ss 7(c), 9 (a)-(b), 10(1); Crimes (Sentence Administration) Act 2005 (ACT), preamble clauses 1-4, ss 6, 7(1)(a)-(b), 7(2), 8(1)-(2), 9(2).
The offender in the present case was housed in accommodation at the AMC which mixed sentenced and remand prisoners. He was at all relevant times a remandee. The victim of his offending, who had earlier assaulted him, was a sentenced prisoner. Section 19(2) of the Human Rights Act provides that the offender, being a remandee, “must be segregated from convicted people, except in exceptional circumstances”. No exceptional circumstances or inconsistent law was pointed to which might avoid a contravention of s 19(2) either by reason of the terms of that provision or by operation of s 28 of the Human Rights Act. There was a causal link between the offender’s offending and his incarceration with sentenced prisoners because it was a sentenced prisoner who attacked him and against whom he retaliated. I do not accept that the causal link was broken because the offender had refused at some point during his remand, to be housed in the “protection” area of the prison. He did so because of the stigma associated with it and the other prisoners who were housed there. The causal link was not broken because any need for him to be afforded protection arose, at least in part, because of the need to get away from the environment which mixed sentenced prisoners and remandees.
In my view, the circumstances of mixing of sentenced and remand prisoners and the prima facie breach of his right under s 19(2) of the Human Rights Act are matters which may be taken into account in sentencing the offender. I do not accept the submission made on behalf of the offender that the breach of the Human Rights Act relating to conditions of detention has the effect that the sentence on the charge of recklessly inflicting grievous bodily harm is not a sentence for an offence committed in “lawful custody” within the meaning of s 64(2)(e) of the Crimes (Sentencing) Act. That section should not be interpreted so that a breach of the law relating to the conditions of detention in a prison renders the custody unlawful. A person may be in “lawful custody” even if there is a breach of the law relating to the conditions of their detention: R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Re an application for bail by Chris Meritt [2009] ACTSC 56 at [42]; Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 at [232].
The offending in the present case is a not-unusual example of significant harm being done to another prisoner using a makeshift weapon. It involved retribution for an earlier assault committed on the offender. While that assists in explaining the conduct it does not reduce the need for general deterrence. Rather, it emphasises the need for general deterrence in order to prevent prisoners’ disputes from escalating into serious violence.
It is necessary to have regard to the unfortunate circumstances of the offender’s upbringing, his mother’s illicit substance use and the absence of any connection with his father, the death of his mother when he was 14, his homelessness as a youth and his very limited education. These aspects of his upbringing are matters which plainly have ongoing consequences for him. It remains a feature of the make-up of the offender and is relevant to determination of the appropriate sentence. However, as pointed out by the High Court in Bugmy v the Queen [2013] HCA 37; 249 CLR 571 at [44], the deprivation of an offender’s childhood may also be relevant to the need for protection of the community.
The Crown referred to two other decisions involving the reckless infliction of grievous bodily harm by persons in custody with the use of a bladed weapon: R v Yuen [2019] ACTSC 70 and R v Gordon [2021] ACTSC 283. These cases reflected starting points of four years and three years and four months imprisonment respectively. They provide some guidance on the pattern of sentencing for this offence.
In my view, having regard to the very significant maximum penalty, the appropriate starting point in the present case is a sentence of imprisonment of three years. As the matter was determined following a trial, no reduction for a plea of guilty is permitted. However, had he pleaded guilty at an early stage, I would have allowed a reduction of 25 percent on account of the plea of guilty and a sentence of imprisonment that I would have imposed would be two years and three months.
In relation to making a demand with a threat, the maximum penalty is 10 years’ imprisonment. The appropriate starting point is a sentence of 16 months’ imprisonment reduced to 12 months on account of the plea of guilty.
On the charge of use of a carriage service to menace another person, the maximum penalty is three years’ imprisonment. In my view, the appropriate starting point is a sentence of six months’ imprisonment reduced to four months and 15 days’ imprisonment on account of the plea of guilty.
On the charge of possessing a knife without reasonable excuse in a public place, the starting point is one month’s imprisonment reduced to 21 days on account of the plea of guilty.
So far as the sentence structure is concerned regard must be had to s 19(3) of the Crimes Act 1914 (Cth) as well as ss 64 and 72 of the Crimes (Sentencing) Act. The effect of these provisions is that there must not be a gap between the end of a Territory non-parole period and the commencement of the federal sentence, that no non-parole period may be set for the recklessly inflicting grievous bodily harm offence, and that the default rule is that sentence for recklessly inflicting grievous bodily harm is to be cumulative upon the other territory sentences.
In my view, an appropriate sentence structure is to impose the federal sentence first, followed by the sentence for recklessly inflicting grievous bodily harm and then the other territory sentences. A modest degree of concurrency will be permitted between the sentences for carrying a knife and making a demand with a threat as they occurred close in time. However, there will be no concurrency between the federal sentence and the sentence for recklessly inflicting grievous bodily harm as they involved distinct offending occurring at different times and, having regard to the legislative policy behind s 72, totality does not require the introduction of concurrency.
Although usually it would be appropriate to make a recognizance release order for the federal sentence, in the present case, because I am imposing other sentences and not making the federal sentence concurrent, I will not make one.
The aggregate sentence that I will impose is a sentence of four years and five months’ imprisonment.
Because the Territory sentences for which a non-parole period can be set exceed, in aggregate, 12 months, a non-parole period must be set. That non-parole period must be set in the context of the federal sentence and the Territory sentence for which a non‑parole period cannot be set namely the sentence for recklessly inflicting grievous bodily harm. It must be set in a manner which gives appropriate weight to the policy behind s 72 of the Crimes Sentencing Act. If the aggregate sentence of imprisonment to be imposed was considered, then a non‑parole period reflecting 70 percent of the sentence would be a period of three years and one month. 80 percent of the head sentence would be three years and six months. Requiring that he serve 80 percent of the aggregate sentence would be consistent with the legislative policy behind s 72. It would also allow that there be a period during which he is subject to supervision in the community, something of particular significance to somebody who has had difficulty remaining free of illicit drug use. Because of those sentences for which no Territory non-parole period can be set, the non‑parole period that will be set will be a nominal one given the effect of the outcome that I have indicated.
Orders
The orders of the Court are:
1. On the charge of using a carriage service to menace (CC2021/5963), the offender is convicted and sentenced to imprisonment for four months and 15 days commencing on 17 May 2021 and ending on 1 October 2021.
2. On the charge of recklessly inflicting grievous bodily harm (CC2021/5612), the offender is convicted and sentenced to imprisonment for three years commencing on 2 October 2021 and ending on 1 October 2024.
3. On the charge of making a demand with a threat to endanger health (CC2021/9425), the offender is convicted and sentenced to imprisonment for 12 months commencing on 2 October 2024 and ending on 1 October 2025.
4. On the charge of possessing a knife without reasonable excuse (CC2021/5292), the offender is convicted and sentenced to imprisonment for 21 days commencing on 26 September 2025 and ending on 16 October 2025.
5. The non-parole period commences on 2 October 2024 and ends on 16 November 2024.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 19 August 2022 |
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