R v NI
[2016] ACTSC 361
•22 November 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NI |
Citation: | [2016] ACTSC 361 |
Hearing Date: | 10 November 2016 |
DecisionDate: | 22 November 2016 |
Before: | Burns J |
Decision: | See [25]-[30] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offence against the person – act endangering life – property damage offences – arson – breach of Good Behaviour Orders – terms of imprisonment. |
Legislation Cited: | Crimes Act 1900 (ACT) s 27(3) Criminal Code 2002 (ACT) s 404 |
Parties: | The Queen (Crown) NI (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr D Rutherford (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Services (NSW/ACT) Limited (Offender) | |
File Numbers: | SCC 247 of 2012; SCC 126 of 2014; SCC 135 of 2016 |
BURNS J:
NI, you have entered pleas of guilty to one count of committing an act endangering life contrary to s 27(3)(e) of the Crimes Act 1900 (ACT) and one count of committing arson contrary to s 404 of the Criminal Code 2002 (ACT). Both of these offences were committed on 17 February this year. The maximum penalty for the offence of committing an act endangering life is 10 years imprisonment. The maximum penalty for the offence of arson is 15 years imprisonment, a fine of $225,000 or both.
On 17 February 2016, police attended an address in Dunlop in response to multiple reports that you had been driving around the suburbs of Holt, Kippax, Belconnen, Dunlop and Macgregor in a dangerous manner. You were driving a red Holden Commodore with no bonnet or numberplates on it.
When police arrived at the address in Dunlop, that car was parked in the backyard of the property. You came to the front door of the residence holding a tomato sauce bottle filled with petrol and a cigarette lighter. You squeezed the bottle at police causing petrol to land on the ground in front of where they were standing and an amount to splash on the boots and legs of one officer. You also poured petrol in various areas of the house. You went into the backyard with a jerry can of petrol taken from the house and doused the red Holden Commodore in petrol before setting it alight. As a result, the vehicle was extensively damaged by fire. As I understand it, you suffered injuries in the fire and you were taken to hospital for treatment.
You were subsequently arrested on a first instance warrant on 24 February 2016 in relation to these charges. You were charged in the Magistrates Court on 25 February 2016 and you were remanded in custody. A plea of not guilty was entered to both charges. On 23 June 2016, the charges were committed to this Court for trial. Prior the charges being listed for trial, you pleaded guilty to both counts on an indictment dated 4 August 2016. You have been in custody with respect to these matters since 24 February 2016.
At the time of committing these offences, you were subjected to three Good Behaviour Orders attached to suspended terms of imprisonment. I will not now set out precisely the nature of the charges or the dates upon which you were sentenced. It is agreed by the parties that with regard to charge CC2014/1746, a term of 11 months and 26 days imprisonment remains to be served. On charge CH2012/1629, a period of 18 months remains to be served. Finally on charge CH2012/1630, a period of 15 months imprisonment also remains to be served. Your counsel accepted that the only sensible approach to these suspended sentences is to cancel the Good Behaviour Orders and to impose the suspended sentences or portion of the sentences as full-time imprisonment.
Subjective Features
A Pre-Sentence Report was prepared for the sentence hearing. I note that you are 21 years old and you have been known to ACT Corrective Services since 2012. The Report notes that you were remanded in custody for the current offences on 25 February 2016, since which time you have faced disciplinary action on one occasion for being involved in an assault on another detainee.
You reported that you were born in Dubbo, New South Wales, and you are a member of the Wiradjuri nation. You described a childhood characterised by violence perpetrated by your father and poor parenting by your mother. You were cared for by your grandparents although your mother often regained custody and relocated the family. You have two brothers both of whom are in custody and a sister with whom you have no contact. You do not enjoy good relationships with either of your parents. You were homeless for 12 months prior to being remanded in custody which you attributed to your partner at that time being imprisoned. You have a three month old child born to your former partner. You have hopes of reconciling with your former partner but she has indicated an unwillingness to reconcile with you at this time.
You attended numerous schools and were expelled prior to completing Year 10 for misbehaviour. You have a limited employment history. You were in receipt of unemployment benefits before you were remanded in custody but those payments were stopped due to your failure to attend appointments with your job network provider. You could not identify any prosocial associates and you do not participate in any organised activities that provide prosocial rewards.
You reported that you commenced alcohol consumption at about 10 years of age but reduced the amount that you consumed when you became a teenager because of the effect that it had on your emotional state. However, you told the author of the Report that you consumed a 10 pack of premixed spirits every couple of hours before you were arrested for these offences, saying that you were unable to stop once you started. The Alcohol Use Disorders Identification Test administered on 4 October 2016 indicated that you were using alcohol at a high risk or harmful level and that you may be dependent on alcohol. You stated that you commenced using cannabis when you were approximately 10 years old although it had never become habitual. You commenced use of methylamphetamine when you were 13 years old and your use has increased over time. You reported that before being remanded in custody, you were using any amount that you could obtain every day.
The author of the Report noted that you have commenced therapeutic interventions to address your substance abuse issues in the past including residential programs through the Ted Noffs Foundation and the Solaris Therapeutic Community Program but you have not completed a program in the past. You told the author of the Report that you left the Solaris program due to issues with other detainees. You applied to enter the Oolong House Program but you were unable to obtain bail. You said that you were open to recommencing the Solaris program should you be sentenced to imprisonment.
ACT Health records say that you are being treated for a psychotic disorder and you have been compliant with your medication regime. You stated that you would continue with your treatment if you are released from custody.
You told the author of the Report that you were under the influence of alcohol and drugs at the time of the present offences and you were significantly affected by mental health issues. You acknowledged that you had intended to hurt yourself and said that the possibility that you could have hurt others in the vicinity did not occur to you at the time. You expressed regret that you put others in danger. You expressed an intention to maintain your mental health treatment when released and to undertake an intervention to address your substance abuse issues. You were assessed as being at high risk of reoffending.
I also received a CADAS Assessment dated 7 November 2016. I note the history set out in that assessment. You told the author of that Assessment that you were diagnosed with schizophrenia at age 13 or 14. You said that you are currently receiving treatment for this in the Alexander Maconochie Centre (AMC) through depo injections. You stated that using illicit drugs increases the frequency of command hallucinations which you experienced. You said that your depo injections commenced six months ago and it made a significant positive difference. You said that when you were remanded in custody you were hearing voices telling you to hurt yourself. You were homeless, felt isolated with no support and you were not taking any prescribed medication. You were also binge drinking, smoking cannabis and using methylamphetamine daily.
You reported that you had attended the Oolong House Residential Rehabilitation Program for 1 to 2 months when you were aged 18 or 19. You also attended the Ted Noffs Foundation on 4 occasions between December 2010 and January 2012 for a total of 84 days over that period. You self-discharged on three occasions and you were discharged on one occasion. The report notes that CADAS staff met with AMC case management on 3 and 7 November 2016. They reported that you had been offered alcohol and other drug treatment in the AMC and you initially expressed an interest in attending the Solaris Therapeutic Community but you attended only one session of this program for one day on 2 August this year and changed your mind.
It was also reported that you refused to meet and engage with services including the Detention Exit Community Mental Health Outreach Program which could offer you supported accommodation post release. You told the author of the Assessment that your personal goals were to be released from custody, to be a father and to work. You stated that you might work in landscaping although you have had no clear plan on how this might occur. You said that your treatment goal was to become abstinent from both alcohol and other drugs and you expressed an intention to attend Oolong House. You demonstrated insight into the negative impacts of your substance use on your mental health.
A Psychological Assessment prepared by a clinical psychologist, Dr Tram Dinh and dated 9 November 2016 was also tendered at your sentence hearing. Dr Dinh noted your history of substance abuse and that you were on depo medication at the time he saw you. Due to your poor reporting style, significant substance abuse history and lack of other available information, Dr Dinh was unable to confirm your schizophrenia diagnosis. Dr Dinh said the symptoms of hallucinations and delusions can be caused by both schizophrenia disorder and heavy methamphetamine and/or alcohol abuse. You told Dr Dinh that you had no memory of events occurring in the week of these offences. However, you reported feelings of depression within that month associated with being homeless. You reported increased substance use which you attributed to you attempting to improve your mood. You said that in the few weeks prior to the offences you were bingeing on methamphetamine and alcohol and had no sleep for about a week. You were feeling increasingly worse with strong suicidal ideation and thoughts of self-harm.
The police Statement of Facts indicates that you were engaging in somewhat bizarre behaviour on the day of the offences. Dr Dinh expressed the view that you may have suffered from an acute psychotic episode at the time of the offences and that you may not have been in control of your thoughts and behaviours at the time. That psychotic episode may have been induced by alcohol or methamphetamine intoxication or schizophrenia or a combination of those factors.
You gave evidence at the sentence hearing. You said that at the time of these offences, you were suicidal and you were using methylamphetamine and alcohol. You expressed remorse for your actions and accepted that the police would have been scared and worried by what you had done. You suffered burns to your face, chest and arms in the course of these offences. You were taken to Canberra Hospital and then a short time later flown to Sydney where you remained in hospital for four days. You did not require skin grafts for your burns. With regard to your drug and alcohol issues, you said that when you were released from prison you want to reside at a residential rehabilitation facility. You accepted that you have not completed residential rehabilitation in the past but your circumstances are different now because you have a child. In cross-examination you said that you left the Solaris program because “I couldn’t deal with it at the time”. You said that you were depressed at the time.
Consideration
I take into account your pleas of guilty. They were not entered at the earliest opportunity but I accept that you have limited, if any, recollection of the events surrounding these offences. I accept the submission made by your counsel that it was reasonable in the circumstances for you to see the evidence against you and for those advising you also to see that evidence before you entered your plea of guilty. That is not to say that your pleas should be treated as being entered at the earliest opportunity. I will accept, however, that the lateness of your plea is not indicative of a lack of remorse and I will accept that your pleas had utilitarian value. The Crown suggested that the case against you was overwhelmingly strong which should reduce any discount for your pleas. I accept that that is a matter which should be taken into account in determining the extent of any discount. I will reduce by approximately 15 per cent the sentences that would otherwise have been appropriate in order to reflect your pleas of guilty.
Your counsel submitted that you were significantly affected by drugs at the time of these offences with a possible underlying mental illness. Certainly the report from Dr Dinh does not allow me to make a finding that your actions were the result of any mental illness as opposed to the effects of the alcohol and drugs which you had consumed. There is no suggestion that any underlying mental illness will make it more difficult for you in custody nor am I satisfied that your moral culpability for these offences is reduced by reason of any underlying mental illness. While you may have been suffering a psychotic episode at the time of these offences, it is most probable that this was a consequence of your voluntary consumption of alcohol and drugs. I am satisfied that at the time that you consumed the alcohol and drugs in the period leading up to these offences, you were aware of the risk that bingeing on these substances could lead to psychosis. I do, however, give some weight to the circumstances in which you found yourself at the time and your emotional state.
With regard to the breaches of the Good Behaviour Orders as I have already noted, your counsel accepted that the only reasonable option was to impose the suspended sentences. It was submitted that the Court may consider imposing a lower than usual non-parole period on the basis of you undertaking a residential rehabilitation program. On the material before me, it appears that your mental health has significantly improved while you have been in custody such that your initial inability to cope with the Solaris program should not indicate a continuing inability to undertake that program. In any event, there is no reason to believe that you would be able to cope with an external rehabilitation program if you are unable to cope with the Solaris program.
I do not accept the proposition advanced by the Crown that in committing the arson offence you were trying to destroy evidence of offences relating to your driving earlier in the day. That in my opinion simply does not make any sense. It was accepted by the Crown that the value of the car was minimal and indeed the car was described by the Crown as “a bomb”. No owner of the car has been identified. The offence appears to have been one without any particular motive. The fact that the offence occurred at night is not in the particular circumstances of this case of any real significance. There was no attempt by you to hide the offence as the police were standing nearby at the time. There appears to have been little if any premeditation. You, of course, had to obtain the petrol but there is no evidence from where the petrol was obtained. It may indeed be the case that the petrol was already on site before that evening.
The offence of arson is always a serious offence in part because of the potential for any fire to spread beyond the control of the offender or others. Offences of arson almost always raise the risk of potential unintended damage to property and danger to others, not least those who are called upon to try to extinguish the fire. It is an aggravating circumstance that an accelerant was used to commit the offence of arson on this occasion. I would assess the objective seriousness of the present offence of arson as on the borderline between the lower and middle range of such offences. The offence of committing an act endangering life constituted by your act of spreading the petrol throughout the house and directing a quantity of petrol at the police from the sauce bottle is also a serious offence which I would assess as being in the mid-range of such offences.
Your extensive criminal history makes it clear that individual deterrence is an important sentencing consideration. General deterrence is always important in sentencing for these types of offences. In my opinion, nothing less than immediate terms of imprisonment will be adequate to appropriately punish you and to deter you from continuing to commit serious criminal offences. I accept that you are still a young man such that rehabilitation must not be utterly neglected. You may of course commence that program of rehabilitation within the AMC. I will set a non-parole period such that the Sentence Administration Board may, if it deems it appropriate, bearing in mind your progress towards rehabilitation on drug and alcohol issues in the AMC, release you at an early time to undertake a program such as that offered at Oolong House. In structuring the ultimate sentence, I am mindful of the need to apply the principle of totality.
Sentence
I will deal firstly with the breach of the Good Behaviour Orders attended upon the suspended sentences. With respect to charge CC2014/1746, I cancel the Good Behaviour Order. I impose the sentence of 11 months and 26 days imprisonment which had been suspended. That sentence will commence on 25 June 2016 and expire on 19 June 2017.
With respect to charge CH2012/1629, I cancel the Good Behaviour Order and I impose the sentence of 18 months imprisonment which will commence on 20 December 2016 and expire on 19 June 2018.
With respect to charge CH2012/1630, I cancel the Good Behaviour Order and I impose the sentence of 15 months imprisonment commencing on 20 December 2017 and expiring on 19 March 2019.
With respect to the offence of arson (charge CC2016/5022), I record a conviction and you are sentenced to two years and six months imprisonment which I have reduced from three years in order to reflect your plea of guilty. That sentence will commence on 20 February 2018 and expire on 19 August 2020.
With respect to the offence of committing an act endangering life (charge CC2016/2353), you will be convicted and sentenced to three years and two months imprisonment which I have reduced from three years and nine months to reflect your plea of guilty. That sentence will commence on 25 April 2018 and expire on 24 June 2021.
There is therefore an aggregate sentence of five years imprisonment commencing on 25 June 2016 and expiring on 24 June 2021. I will set a non-parole period of two years commencing on 25 June 2016 and expiring on 24 June 2018. I recommend that any early release on parole by the Sentence Administration Board be dependent upon you demonstrating progress towards addressing alcohol and drug rehabilitation within custody.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 17 February 2017 |
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