R v NF
[2018] ACTSC 165
•22 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NF |
Citation: | [2018] ACTSC 165 |
Hearing Date: | 15 May 2018, 22 May 2018 |
DecisionDate: | 22 May 2018 |
Before: | Murrell CJ |
Decision: | See [105]–[109]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender - sentencing purposes – uncertain prospects for rehabilitation – general deterrence |
Legislation Cited: | Australian Road Rules r 215(1) Crimes (Sentencing) Act 2005 (ACT) ch 8A, ss 35, 133C(1) and 133G(2) Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5B(2) |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 DPP & CPP (Cth) v Swingler [2017] VSCA 305 R v NF (No 1) [2016] ACTSC 216 |
Parties: | The Queen (Crown) N F (Offender) |
Representation: | Counsel Mr J Walker (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Number(s): | SCC 323 of 2017; SCC 324 of 2017; SCC 9 of 2018; SCC 40 of 2016; SCC 41 of 2016 |
MURRELL CJ:
The offender, NF, is to be sentenced or re-sentenced for the following offences:
(a)Aid and abet trafficking in the marketable quantity of a border controlled substance (three offences for re-sentence);
(b)Aggravated robbery contrary to ss 310(a) and 45A of the Criminal Code 2002 (ACT) (the Code) (taking mobile telephone, in company, maximum penalty 25 years’ imprisonment);
(c)Make demand with threats contrary to s 32(2)(a) of the Crimes Act 1900 (ACT) (the Crimes Act) and s 45A of the Code (demanded that the aggravated robbery not be reported, maximum penalty 10 years’ imprisonment);
(d)Arson contrary to ss 404(1) and 45A of the Code (maximum penalty 15 years’ imprisonment);
(e)Two counts of property damage contrary to s 403(1) of the Code (maximum penalty 10 years’ imprisonment);
(f)Burglary contrary to s 311 of the Code (maximum penalty 14 years’ imprisonment);
(g)Property damage contrary to s 116(3) of the Crimes Act (maximum penalty two years’ imprisonment).
In addition, the offender is to be sentenced for the following transfer charges:
(h)Trespass contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Public Order Act) (maximum penalty $3,600.00 for the trespass offences committed prior to 1 July 2017 and $4,200.00 for the trespass offence committed thereafter);
(i)Burnout vehicle contrary to s 5B(2) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Road Transport Act) (maximum penalty $3000.00);
(j)Drive without headlights illuminated contrary to r 215(1) of the Australian Road Rules (maximum penalty $3,000.00).
Pleas of guilty and time served by the offender
The offender was arrested on 25 July 2017. Bail was refused. Since that date, he has been in custody at the Bimberi Youth Justice Centre, where he has been disciplined for being disrespectful and aggressive.
Following representations, on 27 November 2017 pleas of guilty were entered in the Magistrates Court to all charges. In relation to the offences of 24 September 2016, a brief of evidence had been provided. In relation to the traffic charges, the guilty pleas were entered on the date fixed for a defended hearing in the Magistrates Court. In relation to the other matters, the pleas of guilty were entered after two mention dates.
It is acknowledged that, in relation to all matters, the Crown case was strong. However, the utilitarian value of the multiple pleas was high. Had they proceeded to trial, the more serious matters would have absorbed significant Court resources. Several victims (particularly the victim of the offence on 24 September 2016 (the complainant)) have been spared the trauma of giving evidence. The appropriate discounts under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) are:
(a)For the offences of 24 September 2016—20 per cent
(b)For the traffic charges—10 per cent
(c)For the remaining charges—25 per cent
Facts: 24 September 2016
At about 1:00 am on Saturday, 24 September 2016, the complainant posted a request on Facebook for a lift from Civic to Bonython. Using his Facebook alias, the offender offered a lift for $20.00.
At 1:35 am, the offender drove his vehicle to the rear of the Canberra Centre, accompanied by the co-offender, Mr Gordon. When the offenders arrived at the agreed location at the rear of the Canberra Centre, Mr Gordon moved to the rear passenger seat, enabling the complainant sit in the front passenger seat. Mr Gordon identified himself to the complainant as “Isaac”.
The complainant paid $20.00 for the lift.
During the journey to Bonython, there was an unusual conversation. The offender asked the complainant whether he was carrying a weapon and spoke about recent pranks that the complainant had undertaken at various McDonald’s restaurants, asking the complainant whether he was worried about people “coming after him”. Mr Gordon commented that he liked the complainant’s watch.
At about 1:55 am, the vehicle stopped at the Bonython Shops car park, where the complainant provided the offenders with cigarettes and the three men began to smoke. The offender then grabbed the complainant from behind while Mr Gordon punched him in the head. During the assault, the complainant was asked by Mr Gordon if he had heard of the “Graff Gang”.
The offender let go of the complainant, who dropped to the ground.
As the complainant was standing up, the offender told him that he should not run or fight back and should “take it”. The offender then punched him in the face.
Moments later, Mr Gordon produced a silver knife, held it to the complainant’s throat and asked whether the complainant was scared. When the complainant replied in the affirmative, Mr Gordon stated that the complainant should be thankful that he was not going to kill him as he was in the mood to do so.
The offender produced a mobile telephone and both offenders demanded that the complainant speak while he was being filmed. He was told to say his name, say that he was a “little bitch” and say that the “Graff Gang” was “the best”. Meanwhile, Mr Gordon continued to hold the knife to the complainant’s throat.
Mr Gordon then instructed the complainant to remove his watch (valued at $680.00) and his mobile telephone (valued at $1400.00). The offender told the complainant to restore the factory settings on the phone. As he feared for his safety, the complainant did so.
The complainant was released and directed that he should not report the matter to the police or his parents as the offenders knew where he lived and would “run through his house” if he failed to heed the direction (i.e., engage in a home invasion). This was the offence of making a demand with threats. It was committed immediately after the aggravated robbery and was closely associated to it. I will impose a sentence that is largely concurrent but also partially cumulative, recognising the additional criminality involved in this offence.
At about 2:15 am, the complainant arrived home and reported the incident to his mother and her partner. Initially, the complainant indicated that he did not intend to contact the police because of the threats that had been made by the offenders.
The complainant attended the Canberra Hospital where he received treatment, including six sutures to his bottom lip to close a laceration that he had received during the assault.
That afternoon, the complainant reported the incident to the police.
On 8 April 2017, the complainant attended a birthday party at which the offender was also present. The offender showed the complainant a screen shot image that depicted the complainant’s face covered in blood on the night of 24 September 2016. The offender laughed, then turned and walked away.
Subsequently, police located the complainant’s mobile telephone in the possession of a third party. It contained a video clip of the three men travelling in offender’s vehicle on 24 September, filmed by Mr Gordon who was, at that time saying “he unaware the Graff Gang is sitting in the back … It’s on in a couple of minutes”. The mobile telephone also contained the video clip of the complainant with blood on his face and Mr Gordon holding a silver bladed knife to his throat.
When the offender was arrested on 25 July 2017, police seized his mobile telephone. On it, they located the same video clips of the aggravated robbery that had been located on the complainant’s mobile telephone.
At the time of the offences, the complainant was 18 years and six months of age.
Consideration
The offences were very serious. There is no evidence of significant pre-planning; rather, the offenders took advantage of the opportunity that was available once the complainant was in the vehicle. When the complainant was in the vehicle he was vulnerable, particularly as the offences occurred late at night and the complainant was outnumbered. The offence of aggravated robbery involved not only the threat of force but the actual use of violence, first by the offenders jointly and then by the offender alone, who gratuitously punched the complainant in the face. The complainant sustained actual injury to his face. The offenders demanded that the complainant make demeaning statements while Mr Gordon held a knife to his throat. The items that were stolen were a mobile telephone of some value (which presumably contained important personal details), and a watch of some value.
In this jurisdiction, the NSW decision of R v Henry (1999) 46 NSWLR 346 has been described as “persuasive”: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49]. In Henry, the NSW Court of Criminal Appeal observed that a “typical” case of armed robbery involving a weapon but little, if any, actual violence and an offender with a limited criminal history should generally result in a sentence of between four and five years (after a limited discount for plea). However, in this jurisdiction, sentences have been lower in general: see, for example, Barrett v The Queen [2016] ACTCA 38 and Hall v The Queen; Barker v The Queen [2017] ACTCA 16.
The threat offence was also a serious matter. The threat was delivered just after the aggravated robbery and was closely connected to it. Consequently, the sentence that I impose for the threat matter will be largely concurrent with that imposed for the robbery.
There is little to distinguish the roles played by the offenders, except that Mr Gordon produced and brandished the knife. On the other hand, the offender struck the complainant in the face.
Mr Gordon was 20 years and five months of age at the time of the offences. He had a significant criminal history, including for matters of a similar nature. He had struggled with mental health issues and alcohol abuse. He was making a concerted attempt to rehabilitate and had gained considerable insight and maturity. He was motivated to address substance abuse issues and mental health problems. He had engaged in restorative justice. After committing the offences and before being sentenced, he had been imprisoned for another matter and that experience had been a “wake-up call”. Given his prospects for rehabilitation, I decided that the sentences could be partly suspended. For the offence of making a demand with threats, he was sentenced to 5 months’ imprisonment (six-month less 20 per cent). For the offence of aggravated robbery, he was sentenced to three years’ imprisonment (three years and nine months’ imprisonment less 20 per cent), accumulated by one month on the first sentence. Consequently the total sentence was imprisonment for three years and one month. I ordered that the sentence be suspended after 12 months upon the offender entering a good behaviour order.
The offender was a young person at the time of this offence, and a different sentencing regime applies under ch 8A of the Sentencing Act, which prioritises the sentencing purpose of rehabilitation (s 133C(1)) and requires that, where a sentence of imprisonment is imposed, it be for the shortest appropriate term (s 133G(2)). For the reasons set out below, I have concluded that the offender’s rehabilitation prospects are unclear.
It is relevant to note the significant age difference between the offender and Mr Gordon; a difference of almost three years may be very significant in relation to the respective underlying maturity and associated culpability of the two men.
Taking into account the offender’s subjective circumstances (described below) for the offence of aggravated robbery I will impose a sentence of two years and three months’ imprisonment (two years and nine months’ imprisonment less about 20 per cent). For the offence of making a demand with threats, I will impose a concurrent sentence of five months’ imprisonment (six months’ imprisonment less 20 per cent).
Facts: 22 December 2016 (Trespass at construction site)
On 22 December 2016, the offender and two unknown men trespassed on a construction site in Gungahlin which was closed between 22 December 2016 and 3 January 2017 as part of the Christmas shutdown.
On the offender’s mobile telephones, police found numerous videos of the offender and the other men running around the construction site, including shots of them climbing on and hanging from a crane used for construction purposes.
The site manager expressed significant concerns about the safety of the conduct in question, particularly the conduct of climbing on a construction crane.
The offences were of significant objective seriousness because there were several intruders and their conduct was unsafe.
The penalty is a fine and the offender has little, if any, capacity to pay a fine. I impose a fine of $500.00.
Facts: 4 March 2017 (Trespass at Gungahlin College)
On 4 March 2017, the offender and two unknown men trespassed at Gungahlin College.
On the offender’s mobile telephone, police found a video depicting the offender and two men running through a building and then opening an emergency exit door to admit three more unknown men. The offender and the five men then made their way to the school theatre. The video recorded a conversation indicating that the incident occurred at about 3:00 am.
On 9 March 2017, College staff discovered minor damage to the theatre, including damage to two chairs, liquid spillage on the main stage, cigarette butts on the main stage and the removal of a fire extinguisher. That damage had not been present when the theatre was last used on 20 February 2017.
The offence is of significant objective seriousness because it involved a number of intruders, occurred late at night, and involved disrespecting an educational facility.
The penalty is a fine. As already noted, the offender has little, if any, capacity to pay a fine. I impose a fine of $500.00.
Facts: 7 March 2017 (Arson)
During November 2015, BUPA Aranda, an aged care facility, was progressively vacated and operations were moved to a more modern facility. A security firm was engaged to monitor the security of the abandoned premises.
During 2015, the offender and others engaged in a group conversation via Facebook Messenger entitled “frashn bin it”. The offender’s user profile name was “Slim shady”.
At 10:41 pm on Tuesday, 7 March 2017, the police received a request from ACT Fire and Rescue Services to attend the abandoned BUPA facility, which was well alight.
The fire rendered the premises structurally unsafe; the ceiling and walls partially collapsed. Police were advised that the premises posed a potential asbestos contamination risk due to the age of the construction.
On the afternoon of 8 March 2017, police received an anonymous tip off. In August 2017, police received information from a co-offender who had been present at the time of the arson. As a result, police interviewed a number of people and gleaned the following information.
On 7 March 2017, there was a group conversation on the “frashin bin it” conversation. During this conversation, the offender, the co-offender, Mr Nguyen and others agreed that an explosive device would be detonated that night for the purpose of setting alight the BUPA facility. The offender discussed the need to obtain sparklers and he and Mr Nguyen discussed the type of tape that would be required.
About 9:00 pm on Tuesday, 7 March 2017, a group assembled at the Coles Express service station in Gungahlin. The group included the offender and Mr Nguyen. They entered the rear seat of a vehicle and began to dismantle sparklers and place the crushed contents into containers to make two “sparkler bombs”. Each container had a straw which was to be used as a fuse.
The group decided to go to the abandoned BUPA facility. They travelled there by car and parked in the car park at the nearby primary school.
The group entered the facility through a door at the rear of the premises that had a broken glass panel. They made their way up to a large room on the first floor. Others left the large room while the offender and Mr Nguyen remained in the room, attending to the explosive. Each lit a “sparkler bomb” that he had been carrying. The first sparkler bomb was lit in a large room and the second was ignited in another room. Each ignition was associated with a loud explosion and a flash of light. The offender and Mr Nguyen then ran from the second room.
All participants made their way back to the car park and then drove past the facility. By that stage, it was well alight. The group returned to the Coles Express service station in Gungahlin. When the offender and Mr Nguyen were dropped at that location, they said that they wished to return and view the fire.
On 8 March 2017, there was a group conversation on the “frashin bin it” conversation. During this conversation, the offender remarked “pretty much all the evidence leads to us”. There was reference to video footage that the group had filmed from outside the building which showed ACT Fire and Rescue vehicles at the scene. On the video, male voices make comments including “I can’t believe we did that much” and “delete the fucking video”.
BUPA has stated that the costs directly attributable to the fire were $187,195.50. The site itself cannot be occupied until identified asbestos risks have been remedied. A business case has been submitted to the ACT to have the building demolished and the site cleaned at great expense.
Consideration
The offence was a serious one of its type. I infer that motive for the offence was thrill-seeking. The offence was not committed for personal gain, as is the case with many arson offences, where damage is caused the purpose of enabling an insurance claim to be made. While the planning for the offence was not sophisticated, it was not insubstantial; it was necessary to obtain the ingredients for the explosives and to manufacture them. The offence was committed at night. The offenders deliberately constructed explosive devices. It is likely that the offenders had not reflected on the potential damage that might result from the incident, but their earlier conversations indicate that they were well aware that some sort of fire was a reasonably likely consequence. The damage was extensive and costly. No lives were endangered, except the lives of the other participants. ACT Fire and Rescue were required to attend the scene, no doubt at considerable expense to the community.
General deterrence is an important sentencing purposes for arson offences, which are relatively easy to commit and which may have dramatic consequences in terms of property damage and personal injury. Ordinarily, a serious arson offence will be met with a sentence of full-time imprisonment.
There is little to distinguish the roles played by the offender and Mr Nguyen. However, Mr Nguyen advanced strong subjective circumstances. He was 19 years old at the time of the offence and had no significant criminal history. He was remorseful and accepted responsibility from the outset. He provided assistance. He was assessed as having a low risk of general re-offending. He was described as a hard-working, respectful and generous person who spent time with his family and his partner’s family. After a 25 per cent discount, I sentenced Mr Nguyen to imprisonment for one year and 11 months. Having regard to the strong subjective features, I ordered that the sentence be served by intensive correction order, imposing a 150 hour community service condition.
Taking into account the offender’s subjective circumstances (described below), I will impose a sentence of two years and three months’ imprisonment (three years imprisonment less 25 per cent).
Facts: 10 March 2017 (burn out and drive without headlights in Civic)
At about 4:15 am on 10 March 2017, the offender drove a black and silver Mercedes vehicle in the car park opposite Mooseheads Nightclub. The car park is a road related area for the purposes of transport legislation
The vehicle revved loudly, accelerated heavily and lost traction, and the rear of the vehicle slid to the right as it made a sharp left turn. The tyres screeched for at least four seconds as the vehicle continued to accelerate heavily while making the left turn. Police stopped the vehicle before it left the car park. The vehicle headlights were not illuminated.
On inspecting the scene, police observed a dark black tyre mark where the vehicle had lost traction.
At the time of the incident, a number of popular nightclubs had just closed and intoxicated pedestrians were in the area.
These offences are punishable by a fine. The offender has little capacity to pay. In each case, he is fined $300.00 (a total of $600.00).
Facts: 10 June 2017
On Saturday, 10 June 2017, a bobcat was left at the car park of the Amaroo Playing Fields because it was required for development works at the nearby Amaroo School.
The following day, the bobcat was located on its side, partially submerged in a pond.
The offender had attended the Amaroo Playing Fields in the company of others. He had driven the bobcat, causing substantial damage to the Playing Fields. He rammed the bobcat into the metal doors of the canteen of a sporting club, causing considerable damage to the building. The bobcat pushed over a number of trees, knocked over a rugby goalpost and pushed over a perimeter fence at the playing field. The offender then drove the bobcat into a pond. The damage was $85,754.42.
During the incident, the offender entered the canteen and removed boxes of chocolates and cans of soft drink belonging to the Gungahlin Jets Football Club. The stock was valued at $100.00.
The bobcat was insured for $24,000.00, but the cost of purchasing a replacement bobcat was estimated to be about $60,000.00.
The offender became suspicious that a witness had alerted others to his involvement. On 13 July 2017, he threw a house brick through the front windscreen of the witness’ vehicle. The brick was wrapped in paper to which red electrical tape was affixed. On the tape, the message “LOL” was written.
On the offender’s mobile telephones police found a video depicting him demonstrating how to hotwire a bobcat. The video was created on 10 June 2016. Police also found a video recording of the offender announcing that he would be “putting a brick through [the witness’] window”.
Individually and collectively, the offences of causing property damage were of substantial objective seriousness. In each case, the value of the damage was significant. The offences entailed the wanton and deliberate damage of property. The offences were committed in company. The only appropriate penalty is imprisonment.
In each case, I will sentence the offender to 18 months’ imprisonment (two years’ imprisonment less 25 per cent). As the offences were so closely related, the sentences will be served concurrently.
The offence of burglary was of relatively low objective seriousness as it involved property of limited value and no personal significance. It did not involve entry into a home. It seems to have been opportunistic.
There is a significant range of available sentences for burglary, although sentences for typical burglaries commonly fall within the range of one year and two years and six months’ full-time imprisonment: Fusimalohi v The Queen [2012] ACTCA 49 at [51] (Refshauge J); Millard v The Queen [2016] ACTCA 14 at [44]–[45]. However, as this matter is towards the lower end in terms of objective seriousness, I will sentence the offender to 9 months’ imprisonment (12 months’ imprisonment less 25 per cent). The sentence will be served concurrently with the sentences for the related offences.
Facts: 2 July 2017 (Trespass at the National Carillon)
On 2 July 2017 the offender and an unknown man trespassed at the National Carillon in Parkes.
When police seized the offender’s mobile telephone, they located video recordings created on 2 July 2017. They show a vehicle driving towards the National Carrillon and the offender walking towards the Carillon. An unknown person is seen to use a key to open a door and gain access to the stairwell and then open a second door to the bell chamber at the Carillon. The set of keys and cards in the possession of the person who opened the doors appears to be a set of master keys and swipe access cards allowing access to National Capital Authority assets, which was stolen from the vehicle of a security guard in February 2017.
This offence is of limited objective seriousness, although it was committed in company.
The offender will be fined $420.00.
Breach matters—sentences imposed by Refshauge J
On 13 July 2016 (about 10 weeks before the first of the new offences was committed), Refshauge J convicted the offender of three 2015 offences of aiding and abetting the importation of a marketable quantity of a border controlled drug: R v NF (No 1) [2016] ACTSC 216, orders 1-6. For the first matter (involving 41.8 g of pure MDMA), the offender was sentenced to two years and six months’ imprisonment. For each of the remaining two matters (involving 1 g of LSD and 7 g of MDMA), he was sentenced to 18 months’ imprisonment. The sentences were to be served concurrently.
The offences involved assisting another person to import drugs in early 2015 by providing a post office box to which drugs could be delivered. The post office box was in the offender’s name and was readily traceable to the offender as he provided all correct contact details. The sentencing judge noted that the offender’s conduct was unsophisticated and that the offender had no prior convictions and was of reasonably good character, although he had experienced some problems at school.
The sentences were suspended under s 20(1)(d)(i) of the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act) on the basis that the offender would be of good behaviour for three years: order 7. The offender was to be subject to the supervision of the Director-General.
There is no dispute that, by committing the new offences, the offender has failed to comply with conditions of the Commonwealth order. Consequently, he is to be resentenced under ss 20A(5)–20A(7) of the Commonwealth Crimes Act. Under s 20A(5), the Court has several options.
Given the seriousness of the initial offences and the seriousness of the breach conduct, the offender should be resentenced to full-time imprisonment: s 20A(5)(c)(i). The sentences can commence at any time in the future, provided there is no gap in custodial term between the expiration of one sentence and the commencement of another: DPP & DPP (Cth) v Swingler [2017] VSCA 305.
It would appear that the ACT provisions concerning young people apply. Consequently, it is doubtful that the Court can impose a nonparole period. This poses a practical difficulty in relation to structuring the sentences as a whole. Consequently, I intend to impose the original sentences, but shorten them so that they expire before the offender attains 21 years of age, at which stage he will be obliged to transfer from Bimberi to the adult correctional facility, the Alexander McConnachie Centre.
Subjective circumstances of the offender
At the time of the September 2016 offences, the offender was 17 years and 10 months of age. At the time of the other offences, he was 18 years old.
The offender has had numerous and serious prior interactions with the criminal justice system, which I will not itemise for legal reasons. At the time of all offences, he was on conditional liberty. On 13 July 2016, Refshauge J suspended 17 terms of imprisonment and placed the offender on 17 three-year good behaviour orders: R v NF(No 1) [2016] ACTSC 216 (including those the subject of breach proceedings).
All the new offences were committed while the offender was on conditional liberty; the first offences occurred only 10 weeks after Refshauge J had given him an opportunity to rehabilitate in the community.
The offender was raised in a loving family. Both parents and his younger sister remain supportive. Prior to the offender being placed in Bimberi, he had always lived in the family home. His family visits him frequently at Bimberi.
The offender had academic potential. However, at school, he was bullied personally and on social media. When he was in Year 8 or 9 he began to respond with violence. On many occasions, he was suspended. He has been involved in fights at Bimberi, but says that he has never retaliated beyond what was required in self-defence.
While he has used illicit substances, the offender says that he has never had a serious substance abuse problem.
The offender said that, after he was arrested for drug trafficking and while undertaking Year 11 in 2015, he started to associate with a more positive peer group. However, they “turned on [him]” and he reverted to an earlier and negative peer group.
After leaving school during Year 12, the offender worked as a bricklayer’s labourer. His parents perceived that the employment was going well and that the offender was associating with a positive friendship group.
Currently, the offender is studying for his Year 12 Certificate it is very engaged in art, a subject in which he has a long-term interest.
The offender is confident about his ability to avoid influence by antisocial peers and in his ability to avoid future substance abuse.
When speaking to the author of the pre-sentence report, the offender attempted to minimise his responsibility for the offences. He maintained that he was unaware that Mr Gordon intended to engage in the aggravated robbery and, in relation to the arson, that it was not his intention to start a fire and he attempted to extinguish the blaze. As to the events at the Amaroo Playing Fields, he apportioned blame to another person who was present at the time of the offences.
The offender showed limited insight into the impact of his conduct on the victims. In part, he attributed his involvement in the offences to boredom.
There are few risk factors such as mental health issues or substance abuse associated with the offending conduct.
The author of the pre-sentence report was concerned that most of the offender’s offending behaviour has been committed for self-gratification and thrill-seeking, with little reference to the consequences for himself or others. The author of the pre-sentence report supported the offender’s aims of seeking gainful employment and disassociating from negative peers, noting that, if achieved, those outcomes would reduce his risk of recidivism, which is currently assessed as medium.
Dr Torres, a psychologist, reported:
[The offender] displayed a distorted view of right and wrong, and of what is appropriate. … He reports that many of his offences relating to trespass were purely “out of boredom”, and were impulsive, opportunistic acts. He cites his crane-climbing, attending the Carillon, and breaking into a school as examples of these. His report indicates a sense of entitlement to alleviate his boredom and satisfy his own needs without regard to the rights of others or their property. His recounting of the incident which resulted in damage to a bobcat and other community structures was another example of his sense of entitlement, and, further, of his attempts to delude his own responsibility through the presence of others contributing to the incident.
It is noteworthy that [the offender] reported that at times his antisocial behaviours can be a result of his experiencing significant anger, and hence the manifestation of his retaliating against someone or something.
In relation to personality functioning, Dr Torres described the offender as “impulsive, hostile, bitter and unempathic” and said that his interpersonal relationships “are likely to be short-lived and characterised by conflict”. He described the offender as having an unusual level of suspiciousness and mistrust of others and harbouring strong feelings of resentment associated with perceived slights and insults. He said that the offender is egocentric, emotionally labile and feels little real remorse. He noted that the offender had significant feelings of depression and anxiety, as well as a high level of energy and irritability. Dr Torres said that the offender has considerable problems with temper, agitation and aggressive behaviour, which are likely to impact on treatment, meaning that treatment would be challenging for the provider.
Nevertheless, Dr Torres observed that the offender understood that he needed help. The offender’s family also stated that the offender was motivated to rehabilitate so that he could lead a positive and productive life.
Dr Torres opined that the offender exhibited traits and behaviours consistent with a personality disorder diagnosis, but he was not in a position to formalise a specific personality disorder diagnosis given the limitations of the assessment process.
Dr Torres concluded that the offender posed a moderate risk of violence in the future. Elsewhere, Dr Torres said that, without treatment, the offender remained at moderate to high risk of re-offending and causing harm to others.
Dr Torres said the treatment needed to address both the offender’s criminogenic needs and his personality dysfunction. In relation to the latter, multiple areas should be addressed. Because of the offender’s personality, it was desirable that treatment be delivered on an individual basis, rather than in a group setting.
Dr Torres was concerned about the impact on the offender of anti-social environments at Bimberi (let alone the AMC).
He said:
In summary, [the offender] is considered to be a disordered individual, with likely pervasive personality and interpersonal disability, which has had a profound impact on his capacity to interact with others, develop meaningful relationships and self-regulate emotionally.
Rehabilitation is an important sentencing purpose in relation to all offences. In general, the offences reflect immaturity, impulsivity and thrill-seeking and show disregard for social norms and the impact of conduct on others. All offences were committed when the offender was a very young and immature man. While his complex personality means that his prospects for rehabilitation are unclear, it is important that he be provided with an incentive to rehabilitate and that efforts be made to minimise exposure to antisocial elements within custodial settings. As the offender will experience a significant period of incarceration, it is to be hoped that this will have a salutary effect on him.
In relation to the more serious offences committed by the offender, the sentencing purposes of general deterrence, accountability, denunciation and recognition of harm to the victim are also important. For the more serious offences, these considerations dictate that a sentence of imprisonment is the only appropriate penalty and that a significant part of the overall sentence must be served by way of full-time imprisonment.
Sentences
I sentence the offender as follows.
(a)Aid and abet trafficking in a marketable quantity of a border controlled substance—for the first offence, the offender is re-sentenced to two years and three months’ imprisonment from 25 July 2017 to 24 October 2019. For each of the remaining two offences, he is re-sentenced to imprisonment for 18 months from 25 July 2017 to 24 January 2019.
(b)Aggravated robbery—the offender is sentenced to two years and three months’ imprisonment from 25 July 2017 to 24 October 2019.
(c)Make demand with threats—the offender is sentenced to five months’ imprisonment from 25 July 2017 to 24 December 2017.
(d)Arson—the offender is sentenced to two years and three months’ imprisonment from 25 July 2018 to 24 October 2020.
(e)Two counts of property damage (contrary to s 403(1) of the Code)—the offender is sentenced to 18 months’ imprisonment from 25 April 2021 to 24 October 2022.
(f)Burglary—the offender is sentenced to nine months’ imprisonment from 25 October 2020 to 24 July 2021.
(g)Property damage (contrary to s 116(3) of the Crimes Act)—the offender is sentenced to two months’ imprisonment from 25 October 2020 to 24 October 2019.
The total sentence is 5 years and 3 months. I fix a nonparole period of 15 months, from 25 July 2018 to 24 October 2019.
I intend that the sentences of imprisonment be served at Bimberi Youth Detention Centre.
In relation to the transfer charges, I sentence the offender as follows:
(h)Trespass on 22 December 2016—$500.00 fine.
(i)Trespass on 4 March 2017—$500.00 fine.
(j)Burnout vehicle—$300.00 fine.
(k)Driving without headlights illuminated—$300.00 fine.
(l)Trespass on 2 July 2017—$420.00 fine.
The total of the fines is $2020.00. In relation to the fines, I allow no time to pay.
| I certify that the preceding one-hundred and twelve [112] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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