R v Mena
[2018] ACTSC 92
•9 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mena |
Citation: | [2018] ACTSC 92 |
Hearing Date: | 9 February 2018 |
DecisionDate: | 9 February 2018 |
Before: | Mossop J |
Decision: | See [40] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – assault occasioning actual bodily harm – recklessly inflicting grievous bodily harm – burglary conducted on residential premises with residents present – victim stabbed – limited criminal history – good prospects for rehabilitation from illicit drug use – early guilty plea – submission for an assessment for an intensive corrections order not accepted – general deterrence – specific deterrence – period of imprisonment suspended after 10 months |
Legislation Cited: | Crimes Act 1900 (ACT), ss 20, 24 Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), s 312 |
Parties: | The Queen (Crown) Sugimatatihuna Bernard Gabriel Mena (Offender) |
Representation: | Counsel M Fernandez (Crown) A Fraser (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 303 of 2017 |
MOSSOP J:
Introduction
The offender has pleaded guilty to three charges:
a) a charge of aggravated burglary (CC2017/11248);
b) a charge of assault occasioning actual bodily harm (CC2017/11249); and
c) a charge of recklessly inflicting grievous bodily harm (CC2017/11250).
The maximum penalty for aggravated burglary (s 312 of the Criminal Code 2002 (ACT)) is 20 years imprisonment, a fine of up to $300,000, or both.
The maximum penalty for assault occasioning actual bodily harm (s 24 of the Crimes Act 1900 (ACT)) is five years imprisonment.
The maximum penalty for recklessly inflicting grievous bodily harm (s 20 of the Crimes Act) is 13 years imprisonment.
The offender pleaded guilty to each of the charges on the second occasion the proceedings were before the Court, which I treat as at the earliest reasonably possible stage.
Facts
The offences occurred on 8 May 2017 at a small flat at the rear of residential premises on a residential street in Kaleen. The residents of the flat were a Mr Lewin and his partner Ms Bartley. A Mr Dimitradiou was also at the premises. Mr Lewin’s father and mother lived in the main residence on the block.
At about 7:30pm the three were inside the flat watching a movie together when two males entered both yelling at them not to move. The offender was holding a tyre iron. The second male, who is unidentified, was wearing plastic disposable gloves, carrying a small knife with a blue handle and a steel bat.
The second male tried to stab Mr Dimitradiou in the stomach which he blocked but had his thumb cut. Mr Dimitradiou wrestled the bat from the second male and was stabbed in the right forearm. Using the bat Mr Dimitradiou hit the second male a number of times which resulted in him running from the flat. The wound to his right forearm was a deep stab wound about 4 cm long and 1 cm wide.
The offender hit Mr Lewin on the head with a blunt object. They wrestled and Mr Lewin ended up on the ground with the offender on top of him. Mr Dimitradiou hit the offender with the bat a number of times to get him off Mr Lewin. The offender then ran from the flat.
Mr Lewin and Mr Dimitradiou chased the males down the driveway and onto the Kaleen playing fields. Mr Lewin realised that he had been stabbed above the eyebrow. They went to the main residence of the premises. Mr Lewin’s father recognised that Mr Lewin had also been stabbed in the back and put pressure on the wound to stop the bleeding. He had suffered a punctured lung and a 2 cm laceration over his eyebrow which required stitches. He lost about 300 mL of blood from the wound to his back and surgery was required to drain and repair his lung.
DNA extracted from blood from the crime scene identified the offender as being one of the men who had attacked Mr Dimitradiou and Mr Lewin.
The facts do not specifically disclose how Mr Lewin came to be stabbed, however the plea of guilty to the charge is an acceptance by the offender that he was the one responsible for stabbing Mr Lewin. Consistent with that he gave evidence at the sentencing hearing that he had a knife in his possession. Thus the stabbing of Mr Lewin gave rise to the offence of recklessly inflicting grievous bodily harm.
Similarly it is not clear what the conduct was on the part of the offender which gave rise to the actual bodily harm on the part of Mr Dimitradiou, but once again, I take the plea of guilty as accepting that during the course of the events, such harm was caused by the offender to Mr Dimitradiou.
The aggravated burglary involved the entry onto the premises. It was an aggravated offence because the offender had with him a metal tyre iron.
At the sentencing hearing, the offender gave evidence that the night before he had had drugs stolen from him and an unidentified person suggested that they could be recovered from the Kaleen premises. It was that mistaken belief which led him to be there with the intention of intimidating the residents to return his drugs. The address was the wrong one. There is no explanation as to why it was given to the offender in the first place. Events turned out differently from that which the offender had anticipated. The whole scenario is consistent with the kind of behaviour that might be expected of someone living in the milieu of illicit drugs and addiction to such drugs.
Victim impact statement
A victim impact statement was supplied by Mr Lewin, the victim of the stabbing. He described the surgery that he had to address his collapsed lung, the reduced lung function that he has as a result and the limitation that this places on a number of his personal activities including his reduced ability to follow particular career paths in the future. He suffers from psychological consequences of the invasion, being anxious and hypervigilant. Understandably he has a loss the sense of safety and security that he has in his own home. His sleep has suffered. The impacts upon him have extended beyond him to his partner and other family members and friends. There can be no doubt that this very serious offence has had and will continue to have a significant impact upon its victims.
Objective seriousness
Each of the counts is in the mid-range of objective seriousness for the relevant offence. That is the case having regard to the range of conduct which may be covered by the offences. The aggravated burglary was statutorily aggravated by the possession of the tyre iron and was aggravated by the fact that it was in company, on residential premises, and occurred when people were at home. It clearly involved some planning. The most serious offence, the stabbing, was not planned but it was a risk associated with the operation in which the offender chose to engage.
Subjective circumstances
The offender was 18 at the time of the offending conduct and is now aged 19. He was born in Darwin in 1998 to an Australian mother and Papua New Guinean father. He lived with his father’s relatives in Papua New Guinea from the age of 18 months to four years of age. His parents separated in 2003. He has no memories of his father who now resides in Papua New Guinea.
He described his childhood in positive terms. At the age of 12 he witnessed a criminal event which traumatised him and was subsequently diagnosed at the age of 16 years with post-traumatic stress disorder. At the age of 14 or 15, his behaviour deteriorated and his mother relocated with him to Cairns in 2014 to remove him from his established negative peer group in Canberra. The offender’s behaviour worsened and he returned to Canberra to reside with his sister in 2015 and then to Brisbane to live with his aunt.
He is fortunate to have his mother’s ongoing support notwithstanding his involvement with the criminal justice system following his return to Canberra. Since late 2017 he has been living with his mother in Sydney and has severed ties with his former peer group in Canberra. He has a girlfriend of three years standing.
He has completed Year 12 but did not receive a school certificate. He commenced a carpentry apprenticeship in 2017 but left that when he moved to Sydney in December 2017. His employer at the time indicated that he was a reliable and hard-working team member. The managing director of his current employer, a business which specialises in fire, water and mould restoration, indicates that following the completion of his one month probation period, he will be offered a job as a full-time restoration technician. He describes the offender’s work as outstanding, positive and professional.
He has a significant history with drug use. He commenced cannabis at the age of 12, MDMA at the age of 14, and cocaine and methamphetamine at the age of 15. Between the ages of 15 and 17 years, he used 1.5 g of methamphetamine each week, costing him $900 per week. The Pre-sentence Report does not specifically address the level of his use at the time of the offences. He did however admit to the author of the
Pre-sentence Report and in the oral evidence he gave at the sentencing hearing, that he was under the influence of cocaine, cannabis and methamphetamine at the time of the offending.
He reported to the author of the Pre-sentence Report that he has not used illicit substances for a number of months and declared that he had no intention of returning to a drug using lifestyle. That was consistent with the results of a recent drug screening test which showed that he was not using illicit substances. A self-report drug use questionnaire, however, indicated that the offender’s previous illicit substance use had been severe and required intervention.
He has had diagnoses of bipolar disorder, schizophrenia and post-traumatic stress disorder. He stated to the author of the Pre-sentence Report that he currently enjoys stable mental health. He recognised the benefits of psychological counselling and expressed an intention to continue with it.
He recognised that his drug use did not excuse his actions and that they were unacceptable. He accepted full responsibility and appeared to demonstrate insight into the effects of his offending to the author of the Pre-sentence Report. He had attempted to participate in Restorative Justice but this did not proceed. He has not disclosed or commented upon the identity of his co-offender or anyone else associated with his use of illicit drugs.
He is assessed as being at a medium to low-risk of general reoffending. Understandably the author identifies his current stability, drug abstinence, mental wellness, full-time employment, and pro-social activities and associations as being significant. The
Pre-sentence Report correctly notes the stabilising effect of his mother.
A number of references from family friends and personal friends, who have known him for a number of years, indicate that when living in the community, so long as he avoids the anti-social associates of his previous life in Canberra, he will be the beneficiary of significant social support. This increases his prospects for long-term rehabilitation.
Criminal history
Notwithstanding the history of drug use disclosed in the Pre-sentence Report, the offender’s criminal history is limited. As an adult, his only conviction is for forcible confinement for which he was given a three-month suspended sentence. That offence occurred on 9 April 2017, one month prior to the present offences. It also arose out of his illicit drug use.
Time in custody
The offender has spent one day in custody as a result of these offences.
Consideration
The offender was 18 years old at the time of the offending and is now 19 years old. He has significant mental health issues although these appear to be currently
well-managed. The offender has taken full responsibility for his actions. He has entered an early plea of guilty. He has admitted to being under the influence of three different drugs at the time of the offences, namely cocaine, cannabis and methamphetamine. He has done so not in order to excuse his actions. Since being arrested for the offences, he has turned away from his anti-social peers, moved to Sydney and is performing well in regular employment. As I have noted, he has significant extended family support so long as he is prepared to accept it.
The offences are very serious offences in relation to which general deterrence, denunciation and punishment are important sentencing considerations. The offending conduct is associated with drug use and was committed while under the influence of drugs.
The changes that the offender has made since the offending conduct lead there to being some hope so long as he stays clear of his anti-social associates. Any sentence must involve a component of specific deterrence to ensure that his current avoidance of
anti-social associates continues.
He is entitled to significant leniency having regard to his age, limited criminal history and prospects for rehabilitation. Having said that, the seriousness of the offending conduct means that only a custodial sentence is appropriate.
In relation to the recklessly inflicting grievous bodily harm charge, the starting point is a sentence of imprisonment of two years, which I will reduce to 19 months on account of the plea of guilty.
On the aggravated burglary charge, the starting point is a sentence of two years, which I will reduce to 19 months on account of the plea of guilty.
On the charge of assault occasioning actual bodily harm, the starting point is a sentence of four months which I will reduce to three months on account of the plea of guilty.
There will be a degree of concurrency between the sentences because they all arose from a single incident. The aggravated burglary charge will be concurrent as to nine months with the charge of recklessly inflicting grievous bodily harm. The charge of assault occasioning actual bodily harm will be concurrent as to one month with the charge of aggravated burglary. This gives an aggregate sentence of 31 months.
The offender submitted that the Court should order an assessment for an intensive corrections order. I do not accept that submission. Having regard to the fact that he resides in Sydney, it is very unlikely that any such assessment would produce a positive result and, because of the gravity of the offending conduct, I consider it more appropriate to deal with the matter by way of a partially suspended sentence of imprisonment. Because of his youth and good prospects for rehabilitation, the sentence of imprisonment will be suspended after service of 10 months.
The imprisonment will be backdated to take into account the one day that the offender has already spent in custody.
Orders
The orders of the Court are:
1.The offender is convicted on each charge.
2.On the charge of recklessly infecting grievous bodily harm, the offender is sentenced to 19 months imprisonment commencing on 8 February 2018 and ending on 7 September 2019.
3.On the charge of aggravated burglary, the offender is sentenced to 19 months imprisonment commencing on 8 December 2018 and ending on 7 July 2020.
4.On the charge of assault occasioning actual bodily harm, the offender is sentenced to three months imprisonment commencing on 8 June 2020 and ending on 7 September 2020.
5.The sentence will be suspended after he has served a period of 10 months imprisonment from 8 February 2018 until 7 December 2018 upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years which includes in addition to the core conditions:
a.a condition that he be subject to supervision on parole for a period of two years or such lesser period determined by the Director-General and obey any directions of the Director-General;
b.that he supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer; and
c.that he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 24 April 2018 |
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