R v Payne
[2021] ACTSC 221
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Payne |
Citation: | [2021] ACTSC 221 |
Hearing Date: | 1 September 2021 |
DecisionDate: | 1 September 2021 |
Before: | Mossop J |
Decision: | See [64] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – intentionally and unlawfully choke, suffocate or strangle – assault occasioning actual bodily harm – common assault – assault a frontline worker – borderline personality traits – medium to high risk of reoffending – conviction recorded – sentence of imprisonment imposed |
Legislation Cited: Cases Cited: | Crimes Act 1900 (ACT), ss 24, 26, 26A, 28(2)(a), 34 Crimes (Sentencing) Act 2005 (ACT), s 10 Magistrates Court Act 1930 (ACT), s 90B(3) Le Clair v The Queen [2017] ACTCA 19 R v Ayuel [2020] ACTSC 213 R v O’Brien [2014] ACTSC 156 |
Parties: | The Queen ( Crown) Warwick Payne ( Offender) |
Representation: | Counsel A Chatterton ( Crown) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) David Healey Solicitors ( Offender) | |
File Numbers: | SCC 212 of 2020 SCC 213 of 2020 |
MOSSOP J:
Introduction
The offender, Warwick Payne, has pleaded guilty to the following charges:
(a)Count 1: unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty is 10 years’ imprisonment;
(b)Count 2: intentionally and unlawfully choke, suffocate or strangle another person, contrary to s 28(2)(a) of the Crimes Act. The maximum penalty is five years’ imprisonment; and
(c)Count 3: assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act. The maximum penalty is five years’ imprisonment.
The offender has also pleaded guilty to the following two charges transferred to the Supreme Court under s 90B(3) of the Magistrates Court Act 1930 (ACT):
(a)a count of common assault, contrary to s 26 of the Crimes Act. The maximum penalty is two years’ imprisonment; and
(b)a count of assaulting a frontline worker, contrary to s 26A of the Crimes Act. The maximum penalty is two years’ imprisonment.
Facts
The facts were agreed and are in summary as follows.
Between approximately 3pm and 4pm on Friday, 26 June 2020 the victim, a woman in her 30s, was with her friend, who I will refer to as EI. EI was visiting Canberra for work at the time.
The victim and EI were at Woolworths in Hawker where they saw the offender. EI knew the offender because he had met him several times while staying at the Belconnen Way Motor Inn. The offender appears to have been having an adverse interaction with staff when approached by the victim. The victim tried to calm him down and make sure that he was okay. She said that she had some cannabis and asked the offender if he wanted her to bring some to his house. He said yes and invited the victim and EI over.
The victim and EI went to the offender’s unit in Hawker at approximately 5:30pm. They brought some cannabis and several beers with them. They smoked cannabis and drank at the unit for about an hour.
At approximately 9pm or 10pm, the victim and EI left the offender’s unit. The group did not make plans to meet up again. When she left the unit, the victim forgot to take her handbag with her because of her level of intoxication.
The victim realised that she had forgotten her handbag at the offender’s unit when she arrived home, because the handbag contained her house key. She decided that she would collect it the following day. The victim, EI and another friend made several attempts the next day to collect the handbag, but the offender was not home. Between 4pm and 6pm that day the victim made another attempt to collect the handbag, this time with a different friend. The offender was present. He invited the victim and her friend into the unit. They talked for a few minutes before the friend left. The victim said that she would stay bit longer. However, when she decided to leave, the offender pushed her on the shoulders, preventing her from leaving and causing her to fall to her buttocks. The victim stood up again and began walking towards the front door, but the offender pushed her to the ground again.
Each time the victim went to stand up, the offender pushed her back down. He told her that he would make her his “white bitch”. Thinking that he was joking, the victim told the offender that she was blacker than him and that his ancestors would be ashamed of him.
The offender then started to say things that did not make sense to the victim. This included that the victim had been sent to the offender’s unit to kill him. The offender asked the victim who had sent her. She replied that no one had sent her and that she was just there to get her handbag. At some point, the offender told the victim that he was a hitman for the Comancheros.
At some point, the victim tried to deescalate the situation by saying, “Look, I’m going to a family barbecue tomorrow, I need to go home to feed my cat”. However, the victim realised that she could not reason with the offender.
The offender’s conduct continued to escalate from pushing the victim by the shoulders to prevent her from leaving the loungeroom, to grabbing her hair and pulling her onto the floor. The offender punched the victim’s face at least three times. He prevented her from leaving the unit each time she attempted to do so.
At one point when the victim was trying to leave the unit, the offender grabbed her around her throat with both of his hands. He pushed her up against a wall near the kitchen. While holding her like this, the offender headbutted the victim in the face. After this, the offender used both of his hands to pull the victim around by her throat. He then threw her to the ground. This lasted for less than one minute and the victim did not lose consciousness.
At some point later, the offender grabbed the victim by her throat again and headbutted her. He then threw her to the ground. Again, this conduct lasted for less than one minute and the victim did not lose consciousness.
The victim’s nose was bleeding because of the headbutts occasioned during these choking incidents. The victim was unable to breathe while she was being choked, and had some difficulty breathing after the choking. She suffered a sore throat and neck, a cough and difficulty swallowing.
After preventing the victim from leaving the unit for about an hour, the offender then got some knives from the kitchen. He began to throw these knives at the victim, who was standing a few metres away from him near the balcony. The offender would point a knife at the victim using jabbing motions, before throwing it at her and picking up another one. None of the knives hit the victim. Instead, they bounced off walls and landed on furniture.
The offender kept getting knives from the kitchen. The victim tried to hide the knives once they had been thrown. She was extremely scared. The offender had thrown about three or four knives at this point.
At one point, the offender swiped a knife at the victim while blocking the hallway. The victim tried to defend herself by backing away, but the offender swiped at her open hand, cutting it and causing it to bleed. The offender said words to the effect of, “Oh, now you’re bleeding all over the fucking place.” He got a large pot of hot salted water from the kitchen and told the victim to put her hand in it, which she did. It was at this point that the victim noticed a small bottle of whisky, which she grabbed and drank from. She did so because she thought that she would never be able to get out of the residence.
The offender tried to help the victim wrap her injured hand, but she did not let him touch her. The offender threw a shirt at the victim and told her to wrap her hand in it, saying words to the effect of, “Please forgive me. Please forgive me”. The victim replied, “Well, can I go home now?”
At some point late in the evening, the offender realised that he had no more alcohol in the unit and he wanted to get some more. He used the victim’s phone to call a taxi, which took them to a Coles Express service station in Belconnen, then to Oaks Estate, then to the Queanbeyan shops and then back to Hawker. The taxi expedition took about one hour.
When they were back inside the unit, the victim said to the offender words to the effect of, “Look what you’ve done to me, like, you cut me, what else do you want to do?” The offender replied, “But I love you, you know, I’ve always been in love with you.” The offender continued to say, “Please forgive me” and the victim responded with, “Yeah, sure.”
The victim and the offender had been back at the unit for approximately 20 minutes before the victim left. She asked the offender to walk her home and he did.
When the victim arrived at her unit, she went inside by herself. She took a shower. She was still covered in blood from her hand injury. She tried to call both her mother and a friend, but neither answered.
The victim was able to reach her mother later in the morning of Sunday, 28 June 2020. The victim’s mother picked her up from her unit at around 7am. The victim told her mother what had happened. They went straight to the Belconnen Police Station.
The victim underwent a forensic medical examination at the Canberra Hospital that afternoon. Injuries to her head and face, neck, left hand, right arm and right hand were identified and documented. She required surgery to the wounds on her fingers. The treating doctor expressed the opinion that the victim would suffer permanent scarring as a result of her injuries and surgery.
Police attended the offender’s unit on the afternoon of 28 June 2020 in order to execute a search warrant. The offender said to police, “Is this about that girl from last night. Did she squeal?” He said that he had been drinking whisky the night before and did not remember anything. The offender was arrested and cautioned and subsequently lodged at the ACT Watch House. The police then executed the search warrant, observing blood spattered throughout the unit and seizing three knives. DNA on the knives provided strong support for them having been in contact with both the victim and the offender.
The offender was taken to Canberra Hospital where he abused a male nurse, hit the nurse on his right arm and spat at him. Further, he spat at a police officer. This conduct gives rise to the charges of common assault and assault a frontline worker respectively.
Whilst remanded in custody the offender had telephone conversations with people which included some admissions about his conduct.
The charge relating to choking is a rolled-up charge including the three incidents of choking described during the period of unlawful confinement. Similarly, the charge of assault occasioning actual bodily harm covers not only the cutting of the victim’s hand but also the various other abrasions and wounds caused during the course of the confinement which are described in more detail in the Agreed Statement of Facts at [42]‑[44].
Victim impact statement
The victim provided a victim impact statement which was read in court by the prosecutor. The victim impact statement records the longer-term effects of a traumatic incident such as this. The victim describes those consequences as “complex and difficult to describe”. The impacts include a fear of going out, impacts upon her relationships with her family, nightmares and ongoing psychological impacts and a loss of a sense of being part of a community which the victim had previously felt was significant. This is consistent with what would be expected from a violent, terrifying incident involving unlawful confinement and violence.
Objective seriousness
So far as the unlawful confinement is concerned, the period of confinement was between six and a half and eight and a half hours. The confinement was not premeditated but appears to have been driven by a sense of paranoia on the part of the offender. It involved him deploying his greater physical strength against the female victim. The victim was pushed to the ground twice, knives were thrown at her and she was choked. It is necessary to recognise that the choking and assaults that were committed against the victim during this period and that formed part of the unlawful confinement are subject to separate counts, and that the offender should not be doubly punished. I would place this incident in the mid-range of objective seriousness for an unlawful confinement.
The assault occasioning actual bodily harm involved the hand wound as well as a variety of other abrasions. It must be recognised that it is a rolled-up charge incorporating all of the assaults that caused actual bodily harm, except those involved in the choking offence. It is in the mid-range of objective seriousness for an assault occasioning actual bodily harm.
The choking offence is also a rolled-up charge incorporating the three occasions when pressure was applied to the victim’s neck. The victim was unable to breathe during the choking. However, she did not lose consciousness. The offending is in the mid-range of objective seriousness for this offence. Because it is a rolled‑up charge it must be considered at the upper end of the mid-range.
Subjective circumstances
The personal circumstances of the offender are disclosed in a pre-sentence report dated 27 August 2021, in a forensic psychiatric report prepared by Dr Anthony Barker dated 23 August 2021 and in a letter from Julie Tongs of the Winnunga Nimmityjah Aboriginal Health and Community Services (Winnunga) dated 27 August 2021.
The pre-sentence report discloses that the offender is a 53-year-old Ngiyampaa man from the Lake Cargelligo area in New South Wales. He considers his Aboriginal heritage as important to him and considers that he is classed as leader in the Aboriginal community. The offender described a positive childhood, being close to both his immediate and extended family. The majority of his nine siblings reside in South Australia. The offender is currently single and is the father of five children and two stepchildren. Three of his eldest children reside in Victoria. His two youngest children and two stepchildren all reside together in South Australia. Although the offender separated from the mother of these children approximately 13 years ago, he maintains a positive relationship with her. His ex-partner confirmed that and stated that she speaks to the offender daily and supports him throughout his hardships.
As a result of his incarceration, he no longer has accommodation within the ACT and when released from custody he intends to return to South Australia to be closer to his family.
He completed year nine at school and commenced work when he was 15 years old. This involved seasonal fruit crop and shearing work, as well as work in the removalist, carpentry, retail, farming and metal fabrication industries. He indicated a desire to return to employment after being released from custody.
The author of the pre-sentence report noted that the offender has provided conflicting information to ACT Corrective Services regarding his alcohol and drug use on different occasions. He appears to have a pattern of at least sporadic drinking to excess. The agreed facts disclose that he was planning a drinking session in the next few days and “when he drank whisky he needed to be away from people as he went wild”.
The offender also denied using illicit substances apart from cannabis. However, other documents available to the author of the pre-sentence report indicate past use of cocaine and amphetamines. He also denied needing to engage with alcohol or other drug interventions.
The offender suffered a heart attack in 2015 and is prescribed medication to manage a heart condition. The pre-sentence report also records a history of suicidal ideation, a report of a diagnosis of diabetes and a historic schizophrenia diagnosis. In the past, he has successfully completed an anger management program.
While in custody, the offender has had a history of disciplinary issues often involving being abusive towards staff. On 15 November 2020, the offender was assaulted by other detainees. He has consequently suffered feelings of anxiety and depression.
In relation to the current offences, the offender said that he was under the influence of cannabis at the time of their commission. He alleged that this was his first use of the substance in the past approximately three years and that he experienced paranoid delusions as a result.
The offender indicated that he felt sorry for the victim due to her “past issues”. He felt sorry for the way he treated her and acknowledged that his behaviour “would have scared her”. The offender stated that he “was not drunk” and could remember his actions regarding the offending. He stated that because of his paranoia, he believed that the victim had come to his unit to “take him out” and that there may have been people with guns at his front door.
The author of the pre-sentence report assessed the offender as having “a medium high‑risk of general re-offending”. The offender was assessed as not suitable for a community service work condition or an intensive correction order.
The author of the forensic psychiatric report expressed the opinion that it is reasonably medically certain that the offender suffers from several borderline personality traits, including impulsivity, affective instability, transient stress-related paranoid ideation and episodes of inappropriate, intense anger. The author expressed the opinion that it is likely that the offender’s cannabis use (and to a lesser extent, consumption of alcohol) prior to the commission of the current offences contributed significantly to the persecutory ideation that he alleges to have experienced at the time. The author considered that there was a realistic connection between the offences and the offender’s borderline personality traits, but that his use of cannabis and alcohol is also likely to have contributed significantly.
The author recommended that the offender engage in drug and alcohol counselling or court-ordered drug and alcohol treatment. The author expressed the opinion that given the offender’s limited coping skills, a custodial sentence may weigh more heavily upon him than a person of normal health. Further, the offender’s borderline personality traits place him at an elevated risk of suicide in custody.
The letter from Ms Tongs indicates that the offender has participated in the men’s group and the men’s anxiety and depression group run by Winnunga, that he is well-respected by the staff of the service and that he is always respectful to the staff and other participants in the groups.
The offender also gave evidence. He expressed some remorse for his actions. That did not appear to me to be remorse of a nature which would significantly influence my assessment of his prospects of reoffending. The evidence that he gave must be considered in the context of the evidence of his recorded telephone conversations whilst at the Alexander Maconochie Centre recorded in the Agreed Statement of Facts, in which he expresses his attitude to the victim.
Criminal history
The offender has a substantial criminal history, although it is largely in the nature of relatively minor offending. He was sentenced to two years and six months’ imprisonment in 1997 for malicious wounding causing grievous bodily harm. He was sentenced in 2015 for sexual intercourse and an act of indecency with a person under the age of 16 and given an aggregate sentence of three years’ imprisonment. He has a criminal history in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia and Victoria.
Although his offending has not been consistently serious, there is little room for leniency.
Plea of guilty
The offender pleaded guilty to the three offences in the Supreme Court on the first day of trial, 5 July 2021. There was still clearly utilitarian value in the plea, although that was reduced given that the plea was only entered on the first day of the hearing and the trial was otherwise ready to proceed. I will allow a discount of approximately 10 per cent on account of the utilitarian value of the plea of guilty.
Time in custody
The offender has spent 429 days in custody following his arrest prior to today. That whole period is attributable to this offending. That period will be taken into account by backdating the sentences to be imposed.
Comparable cases
The Crown provided a table of cases involving unlawful confinement which illustrated a range of starting points for sentences from 18 months’ to five years’ imprisonment. The sentences were R v Ayuel [2020] ACTSC 213, R v Le Clair; R v Yeboah [2016] ACTSC 126 (on appeal see Le Clair v The Queen [2017] ACTCA 19), R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Acting Justice Nield 4 September 2012), R v O’Brien [2014] ACTSC 156, R v Laipato [2019] ACTSC 386, R v Klickovic [2018] ACTSC 141 (Klickovic) and R v Barlow [2017] ACTSC 90. I note that the sentence imposed in Klickovic, which is at the bottom end of the range, involved quite unusual circumstances.
Consideration
The motivation for the offending is not clear. It appears to have been significantly contributed to by the offender’s voluntary use of cannabis. His age, criminal history and the identified borderline personality traits are all consistent with the assessment of the author of the pre-sentence report which is that he is of medium to high-risk of general reoffending.
So far as his mental health is concerned, I was invited by counsel for the offender to take into account those borderline personality traits simply as part of the offender’s subjective circumstances. There was no submission that the effects of cannabis upon him were unknown. The report of Dr Barker indicates that the effects of marijuana making him “paranoid and aggro” were known to him. As a result, to the extent that his paranoid thoughts were a result of him consuming cannabis and contributed to his conduct directed to the victim, that is not a mitigating factor.
The most significant sentencing considerations are specific and general deterrence, recognition of harm done to the victim, denunciation and holding the offender accountable. There is no doubt that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) has been passed in relation to the charges arising out of the incident on 27 June 2020.
In my view, having regard to the fact that the assaults and choking are separately charged, on the unlawful confinement charge the appropriate starting point is a sentence of imprisonment of three years reduced to 32 months on account of the plea of guilty.
On the assault occasioning actual bodily harm, the starting point is 20 months’ imprisonment reduced to 18 months’ imprisonment on account of the plea of guilty.
On the choking charge, the starting point is a sentence of 14 months’ imprisonment reduced to 12 and half months on account of the plea of guilty.
On the charges of assault contrary to s 26 and s 26A of the Crimes Act, the appropriate sentence must be determined in light of the other sentences to be imposed. While, absent other significant custodial sentences, the s 10 of the Crimes (Sentencing) Act threshold would not have been passed, in the context of those sentences and taking into account the plea of guilty, periods of imprisonment of 10 and seven days are appropriate.
So far as the incident on 27 June 2020 is concerned, there must be a significant degree of concurrency between the sentences, having regard to the related nature of the offending and to reach a total sentence which is appropriate.
The assault occasioning actual bodily harm will be cumulative as to four months on the sentence for unlawful confinement. The choking charge will be cumulative as to three months upon the earlier sentences. The two assault sentences will be concurrent and cumulative upon the other sentences.
The aggregate sentence will be a sentence of 39 months and 10 days. The non-parole period will be a period of 27 months.
Orders
The orders of the Court are:
1. On the charge of unlawful confinement (CC2020/7780) the offender is convicted and sentenced to imprisonment for a period of 32 months commencing on 28 June 2020 and ending on 27 February 2023.
2. On the charge of assault occasioning actual bodily harm (SCCAN2020/176) the offender is convicted and sentenced to 18 months’ imprisonment commencing on 28 December 2021 and ending on 27 June 2023.
3. On the charge of choking, suffocating or strangling (CC2020/7781) the offender is convicted and sentenced to 12 months and 15 days’ imprisonment commencing on 13 September 2022 and ending on 27 September 2023.
4. On the charge of assault (CC2020/7783) the offender is convicted and sentenced to 10 days’ imprisonment commencing on 28 September 2023 and ending on 7 October 2023.
5. On the charge of assault a frontline worker (CC2020/7784) the offender is convicted and sentenced to 7 days’ imprisonment commencing on 28 September 2023 and ending on 4 October 2023.
6. The non-parole period commences on 28 June 2020 and ends on 27 September 2022.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 15 September 2021 |
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