R v Pearson
[2020] ACTSC 375
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pearson |
Citation: | [2020] ACTSC 375 |
Hearing Date: | 27 November 2020 |
DecisionDate: | 30 November 2020 |
Before: | Refshauge AJ |
Decision: | 1. The charge of threatening to kill be amended to include [redacted due to legal reasons] as one of the threatened children. 2. Blair Keiran Pearson be convicted of threatening to kill Robert Rowe and his children, being reckless as to whether Mr Rowe would fear that the threat would be carried out, and be sentenced to 12 months imprisonment, to commence on 31 July 2020. 3. Blair Keiran Pearson be convicted of assaulting Robert Rowe and occasioning him actual bodily harm and be sentenced to 9 months imprisonment, to commence on 31 July 2021. 4. Blair Keiran Pearson be convicted of assaulting Andrew Heron and be sentenced to two months imprisonment, to commence on 28 February 2022. 5. Blair Keiran Pearson be convicted of assaulting Robert Rowe and be sentenced to two months imprisonment, to commence on 31 March 2022. 6. Blair Keiran Pearson be convicted of intentionally destroying the property of Mr Healy and be sentenced to four months imprisonment, to commence on 31 March 2022. 7. Blair Keiran Pearson be convicted of intentionally destroying property of Robert Rowe and be sentenced to four months imprisonment, to commence on 31 May 2022. 8. Blair Keiran Pearson be convicted of trespassing on the property of Robert Rowe and be required to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months from 30 September 2022, with a probation condition that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate, and to obey all reasonable directions of the person supervising him for that period or such lesser period as the person supervising him considers appropriate. 9. Blair Keiran Pearson be convicted of trespassing on the property of Michael Healy and be required to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of five months from 30 November 2022, with a probation condition that he accept the supervision of the Commissioner of ACT Corrective Services or his delegate, and to obey all reasonable directions of the person supervising him for that period or such lesser period as the person supervising him considers appropriate. 10. It be noted that Blair Keiran Pearson is in breach of the Good Behaviour Order made by the ACT Magistrates Court on 9 January 2020, and it be ordered that the Good Behaviour Order be amended by extending the date of the Order for 6 months from 9 January 2021. 11. A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for 18 months from today, to commence on 30 November 2020 and end on 29 May 2022, in respect of the charge of threatening to kill Richard Rowe, of which Blair Keiran Pearson has been convicted and for which he has been sentenced. 12. That Order be extended to the offence of assault occasioning actual bodily harm, the two offences of assault and the two offences of damaging property, of which Blair Keiran Pearson has been convicted and for which he has been sentenced, all of which are associated offences. 13. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order. Those convictions and sentences constitute the custodial part of the Drug and Alcohol Treatment Order. 14. The total sentence of imprisonment of two years and two months, being the total of the sentences for the primary and associated offences, be suspended from 30 November 2020 until 30 September 2022, under s 80W of the Crimes (Sentencing) Act 2005 (ACT). 15. Blair Keiran Pearson be required to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, from 30 May 2022 to 30 September 2022, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services, or his delegate, for the period of the Good Behaviour Order or such less period as the person supervising him considers appropriate, and that he obey all reasonable directions of the person supervising him, especially as to counselling, treatment and urinalysis. 16. For the treatment and supervision part of the Drug and Alcohol Treatment Order, Blair Keiran Pearson be required to comply with the core conditions, set out in s 80Y of the Crimes (Sentence Administration) Act 2005 (ACT), for the term of the Order and complete such treatment programs as may be required by the Treatment and Supervision Team from time to time or by order of the Court, including as to counselling, medical treatment, urinalysis, attendance at programs, and such other programs of treatment as may be required from time to time. 17. Blair Keiran Pearson be directed to comply with any directions that the Court may make from time to time about attendance in court in person or by electronic means. 18. Blair Keiran Pearson be directed to attend court on 4 December 2020 at 11:30 am. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threat to kill – occasioning actual bodily harm – assault – intentionally destroying property – trespass – victim impact statements – reparation order not made – Drug and Alcohol Treatment Order made |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 26, 30, 116(3), 375 Crimes (Sentencing) Act 2005 (ACT) ss 7(1), 12A, 12(3), 13, 19, 33(1)(za), 46K, 63, 80W; Table 46K Supreme Court Act 1933 (ACT) Pt 8 |
Cases Cited: | Ashdown v The Queen [2011] VSCA 408; 37 VR 341 Auld v The Queen [2013] ACTCA 21 |
Parties: | The Queen ( Crown) Blair Keiran Pearson ( Offender) |
Representation: | Counsel C Muthurajah; K Reardon ( Crown) T Kelliher ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 226 of 2020 SCC 227 of 2020 |
REFSHAUGE AJ:
Introduction
The Drug and Alcohol Sentencing List of the ACT Supreme Court regularly sees the effects that the abuse of illicit drugs causes on the users in the destruction of their family, employment and health, but also in the predations on the community through home invasions and thefts, including of significant property such as motor vehicles and jewellery, and other similar crimes of dishonesty.
The eight offences to which Blair Keiran Pearson has pleaded guilty, namely a threat to kill, assault occasioning actual bodily harm, two offences of assault, two offences of intentionally destroying property and two offences of trespass, show a further dimension to the damage illicit drug abuse inflicts on our society by its distortion of mental health leading to wanton personal violence and property damage.
The Facts
An Agreed Statement of Facts was tendered without objection or challenge to its contents. Also tendered without objection were some photographs of certain property which had been damaged and two images of the victim's injuries, though they were not particularly clear photographs. From this material, I make the following findings.
Late in the afternoon on 31 July 2020, Mr Pearson entered the backyard of a residential premise in Kambah, ACT, disturbing a dog, which commenced barking. This constituted the first offence of trespass.
The barking, which continued for about five minutes, drew the attention of the owner, Robert Rowe, who lived there with his wife and three young children. Mr Rowe went to the backyard to investigate and heard someone call him over in aggressive, vulgar and lewd terms. He turned to the sound of the voice and Mr Pearson punched him with a closed fist, hard on the left side of the jaw, causing a small cut to his bottom lip. Mr Rowe also immediately felt a dull pain to his jaw and stepped back. He was clearly shocked by the attack. This constituted the offence of assault occasioning actual bodily harm.
Mr Rowe put his hands up to protect himself, and Mr Pearson continued to yell at him, behaving as if he wanted to fight him. He behaved quite erratically, however, apologising one moment and threatening to fight the next. It must have been concerning for Mr Rowe. Mr Rowe's father, Andrew Heron, then came into the backyard and yelled at Mr Pearson to get out, but Mr Pearson tried to punch him by swinging his arm in a manner reminiscent of the swinging of a scythe, described in the Agreed Statement of Facts as ‘a haymaker style punch’. Mr Heron managed to sway backwards and avoided being hit. This constituted the first offence of assault.
Fearful that he would be further assaulted, Mr Rowe picked up a sledgehammer for protection, as Mr Pearson, yelling at the time, stepped towards Mr Heron, who stepped backwards to avoid him. Mr Rowe hit Mr Pearson in the back between the shoulder blades with the sledgehammer, the impact of which ‘made the offender snap out of his rage’. Mr Pearson turned and ran to the back of the yard and jumped into the next-door neighbour’s backyard. This constituted the first part of the second offence of trespass.
Still yelling aggressively at Mr Rowe and Mr Heron, and mumbling incoherently, Mr Pearson continued to behave erratically, sitting down then standing up. A short time later, he grabbed a shovel and swung the handle at a glass sliding door to the next-door neighbour’s house, which led to the laundry of the house. He broke the glass, which almost completely shattered. Mr Pearson then pushed out the remaining fragments of glass attached to the door frame onto the laundry floor. This constituted the first offence of damaging property.
The owner of the neighbouring premises, Michael Healy, was upstairs at the time and, when he heard the noise, he came downstairs. He noticed the broken glass and heard the yelling and swearing but did not recognise the voices. Mr Pearson then walked through the broken glass door into the house with the shovel in his hand. This was the second part of the second offence of trespass, the first part of which was mentioned above (at [7]).
Mr Healy yelled at him to get out, and Mr Pearson did so, continuing to yell at someone outside. Mr Healy called the police. At some time, Mr Healy suffered a small cut to the outside of his left foot from the broken glass. This did not, of course, constitute an offence.
A few minutes after Mr Healy contacted the police, Mr Pearson walked back inside Mr Healy's house, and when Mr Healy yelled at him to get out, he did so. After leaving Mr Healy’s house, Mr Pearson picked up a cream-coloured brick and threw it towards Mr Rowe, though it did not hit him. This constituted the second offence of assault.
Mr Pearson then picked up and threw the shovel at Mr Rowe, narrowly missing him by hitting the house, and causing some sparks upon impact. Mr Pearson continued yelling abuse at Mr Rowe and Mr Heron and jumped over a small retaining wall and rushed towards them, charging at the Colorbond fence on which they were perched. They leapt off the fence and Mr Rowe picked up a shovel for protection.
When Mr Pearson charged at the fence between the houses, he knocked out one of the panels of the fence. It flew off, and the panels on either side bent towards Mr Rowe's house. This constituted the second offence of damaging property, the first of which was mentioned above (at [8]).
Mr Pearson tried to get through the gap created in the Colorbond fence, but Mr Rowe hit the fence with the shovel and Mr Pearson backed off. Mr Pearson continued to yell abuse at Mr Rowe and Mr Heron. This included him saying words to the effect of, ‘I'm going to kill you, I'm going to rape your wife and I'm going to kill your kids’. This constituted the offence of threatening to kill Mr Rowe, being reckless as to whether the victim would fear the threat would be carried out or not. Mr Rowe in fact believed that Mr Pearson would carry out the threats and felt really scared, though this is not an element of the offence.
The police arrived shortly after Mr Healy contacted the police. They saw that Mr Pearson was rapid and twitchy in his movements and was chewing the inside of his cheek and smacking his lips. He alternated from crying and being apologetic to rambling incoherently and being verbally aggressive. Police formed the view that he was heavily intoxicated with drugs and they, therefore, did not consider it appropriate to offer him the opportunity to participate in a record of interview at that stage. Mr Pearson was arrested and has remained in custody since 31 July 2020.
Mr Healy incurred a cost of $870 to re-glaze the sliding door of the house, the glass of which Mr Pearson smashed.
The Proceedings
Arrested on 31 July 2020, Mr Pearson was brought before the Magistrates Court on 1 August 2020. He was refused bail and remanded in custody. On the next appearance in the Magistrates Court, namely on 17 August 2020, he pleaded not guilty to each of the eight charges that had been preffered against him. He was further remanded in custody for just over five weeks, and after two further short adjournments during which period the prosecution supplied the brief of evidence, he entered a plea of guilty to each offence and was committed to the Supreme Court for sentence with a view to him appearing in the Drug and Alcohol Sentencing List.
The offences committed on the same day and in the same incident that were not subject to the committal, as they were summary offences, were then transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
Mr Pearson appeared in this Court on 16 October 2020. He was assessed as eligible for a Drug and Alcohol Treatment Assessment (a Suitability Assessment) and was recommended as suitable for such an assessment. The relevant Director-Generals were ordered to prepare those assessments, namely the Director-General of the Health Directorate, and the Director-General of Justice and Community Safety. The proceedings were adjourned to 27 November 2020 for sentence, and the matter was adjourned until today, 30 November 2020, for imposition of sentence. Mr Pearson has remained in custody and sentence proceeded today.
The Offences
Mr Pearson has pleaded guilty to each of the offences with which he has been charged, as noted above (at [17]). Making a threat to kill, being reckless as to whether Mr Rowe would fear that the threat would be carried out, and the making of that threat without lawful excuse, in circumstances where a reasonable person would fear that it would be carried out, is an offence under s 30 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of ten years imprisonment. As noted in R v Loulanting [2015] ACTSC 172 at [37], the surrounding circumstances are very relevant to the seriousness of such an offence.
While the subjective beliefs of Mr Rowe are not an element of the offence (see Luu v Cook [2008] ACTSC 54; 185 A Crim R 403 at 406-7; [18]), they are a relevant surrounding circumstance for the purpose of sentencing. Here, the fact that Mr Pearson was heavily under the influence of drugs, and the irrationality and unpredictability this would have suggested, would have increased the fear that the threat is likely to have engendered in Mr Rowe. Mr Pearson's use of violence as well as his use of a weapon would also have increased that fear. The fact that Mr Pearson threatened to kill Mr Rowe's children is a fact which makes the offences more serious. The anxieties that such a threat would cause when directed to children who are generally more defenceless and who are likely to be, at times, outside the direct protection of their parents, would have instilled great anxiety in Mr Rowe and his wife.
While Mr Pearson's behaviour included personal violence and damage to property, which would have likely caused a reasonable person to fear that the threat to kill would be carried out, he was not carrying a knife or a gun which would have made the offence more serious: R v Griffiths (No 2) [2020] ACTSC 118 at [31], [43]. Similarly, it is not as serious an offence as it would have otherwise been had Mr Pearson been able to carry out the threat immediately, as was the case, for example, in R v Randall Williams [2016] ACTSC 389, where the two parties were in a vehicle, which the offender threatened to drive thereupon into a lake.
The question was raised as to whether this could be described as a hollow threat of the kind described by Nield AJ in R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, SCC 74 of 2011, 4 September 2012) at [41]. In my view, it cannot be so described. Given Mr Pearson's state of mind and irrationality, the threat may well have been one that he genuinely intended to carry out when he made it. That when he sobered up, he may have thought better of the threat to kill that he had made, or may indeed have forgotten that he had made it, does not mean that it falls into what Nield AJ described as follows:
… often made, particularly during or after an argument, and is a hollow threat, which the maker does not intend to carry out and the recipient knows that the maker does not intend to carry out.
Assault occasioning actual bodily harm is an offence contrary to s 24 of the Crimes Act, which provides for a maximum penalty of five years imprisonment. In order to assess the seriousness of this offence, it is necessary to consider the nature of the offending (see R v Newman; R v Reid [2016] ACTSC 102 at [14]). In this case, the assault was a closed fist punch at Mr Rowe's head. The seriousness of such an offence, where the assault is directed to the victim's head, the most vulnerable part of the body, has been discussed in R v Stanley [2015] ACTSC 322 at [65].
Obviously, the severity of the actual harm suffered by a victim is highly relevant to an assessment of the seriousness of such an offence. Here, Mr Rowe suffered a small cut to the bottom lip. Without minimising the significance of any injury, it was not a severe injury in this case. Also relevant, however, is the suddenness of the attack, which was entirely unexpected.
It was also an assault on Mr Rowe's head, as mentioned above (at [24]). Mr Rowe suffered shock and a dull pain in the jaw. It was a gratuitous and vicious attack but did not cause very serious injury. It appears from Mr Rowe's Victim Impact Statement that Mr Rowe has recovered physically from the injury, though he suffered pain for some days afterwards and has some lingering mental or emotional consequences from the events.
As I said in R v McMahon [2014] ACTSC 280 at [89]:
Anger and aggression fuelled by alcohol is always a serious matter. The alcohol means often that the chance to reason with or calm the assailant is unlikely to be successful.
This applies equally to the anger and aggression fuelled by drugs, especially where it is likely to disinhibit the assailant and intensify his reactions. The psychotic state of Mr Pearson must have been of concern, as was his violence. Indeed, any assault is a matter of concern. As I noted in R v Roberts (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, SCC 126 of 2009, 31 May 2010):
Violence in any form is unacceptable in a civilised society.
Common assault also is an offence that the legislature has made a crime under s 26 of the Crimes Act and renders Mr Pearson liable, for each of the two offences, to a maximum penalty of two years imprisonment.
The offence committed on Mr Heron was a punch thrown at him, but which never connected with or caused any actual injury. Given the assault on his son, however, Mr Heron was obviously in fear from this attack. The offence committed on Mr Rowe was also an assault that did not connect with the victim. The missile was a brick, however, which would have likely caused significant injury had it landed on Mr Rowe, especially on a vulnerable part of his body such as his head. Nevertheless, unrealised harm should not unduly influence a sentence: Beniamini v Craig [2017] ACTSC 30 at [138]. Clearly, however, the nature of how the assault was perpetrated, whether with a weapon or only with fists, is relevant to the seriousness of the assault.
Acts of damaging property are made offences under s 116(3) of the Crimes Act and the maximum penalty prescribed by the subsection is two years imprisonment or a fine of $8,000, or both. The value of the damage is always a very relevant factor to determine the seriousness of the offence: Halden (1983) 9 A Crim R 30 at 36. The amount payable for repair of the destroyed sliding door, namely, $870, was not large, but neither was it inconsequential, and is, in any event, a reasonably substantial amount for a citizen to pay out. I had no evidence about the cost of the damage to the Colorbond fence, but I can accept that it would also have been a reasonably substantial amount. In this event, Mr and Mrs Rowe completely replaced the side fence at quite a substantial cost. This amount, however, is not the value of the damage caused, which affects the seriousness of the offence.
Finally, the trespass offences are prohibited by s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The Act provides for a maximum penalty of a fine of $2,100. The maximum penalty, as pointed out by the High Court in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]-[31], is an important yardstick when considering the seriousness of an offence. Clearly the trespass offences are the least serious of those for which Mr Pearson must, on his plea of guilty, be sentenced, but they are not to be disregarded, as the maximum fine is still a significant amount.
In addition, the trespass on Mr Healy's property did include his entry into Mr Healy's house. It is relevant also to the seriousness of the offences that the events occurred over a relatively short period of time, between 5:50 pm when Mr Rowe heard his dog barking, and 6:05 pm when police arrived.
Nevertheless, it is properly described as a course of conduct which, as pointed out in R v Di Bitonto [2016] ACTSC 280 at [93]-[94], can make the offences more serious. It was a course of conduct that was persisted in, despite many demands by the victims that he leave the premises. Where there are no overlapping factual or legal elements between the offences, sentencing principles do not necessarily require concurrency of the sentences despite the offences being part of the same course of conduct: see R v Harrington [2016] ACTCA 10; 11 ACTLR 215.
I do not, however, see it as a course of conduct which makes each succeeding offence more serious as a result, as described in R v Thorn [2016] ACTSC 217 at [51]-[54]. It is also relevant that the offences did not seem to be the result of any particular planning or premeditation, which puts the offending at a lower degree of seriousness: see R v JM [2014] ACTSC 380 at [55].
Finally, the offences were all committed outside the residences of Mr Rowe and Mr Healy. Had this not been so, they would have been more serious. Nevertheless, they occurred in the backyard of their premises, involving multiple trespasses and an invasion. This factor is relevant to the seriousness of the offences. They occurred, after all, in a private space where the occupants were entitled to feel safe: Sampson v De Haan [2016] ACTSC 327 at [97]. The punishment for the trespasser will of course mean that overlapping facts, so far as this factor is relevant to the seriousness of the offences, need to be taken into account.
Subjective Circumstances
I had a comprehensive Drug and Alcohol Sentencing List Suitability Assessment by Canberra Health Services tendered without objection or challenge, and also a Suitability Assessment from ACT Corrective Services, also tendered without objection or challenge. They, most helpfully and usefully, gave the background to Mr Pearson’s personal situation and life to date. The reports were tendered as part of the Crown's Sentencing Tender Bundle and I heard no challenge to their contents. It also included Mr Pearson's Criminal History. Accordingly, I can and do make the following findings about Mr Pearson's subjective circumstances.
Mr Pearson was born in Canberra. In just over a week, that will have been 27 years ago. He was the youngest of three children and had good relationships with his older sisters. His parents separated when he was in late primary school, but he has good relationships with both. During his period of custody, he has had regular phone contact with his father, and his mother had recently visited him. His father and mother both re-partnered about 10 years ago and he has stepsisters from both these relationships whom he sees at family occasions, including at Christmas time.
After growing up in his early years in Canberra, Mr Pearson moved with his father to Wollongong and Kooralbyn when he was six, as his father moved for his employment. He returned to Canberra when aged 10 years old. When he is released from custody, he proposes to live in Canberra with his father and his stepmother.
He was somewhat of a loner at school, recalling that he suffered bullying, and this had a significant effect on him. He did have some friends at school but has not maintained contact. Friends he had then, he had tended to lose as he began using illicit drugs. He left school at Year 11. The reports I received did not specify whether he finished Year 11, but he has had no further study since that time.
Since leaving school, he has had a few jobs. These include landscaping work, which he enjoys. He would like to follow that further in the future. His longest period of employment was when he engaged in cabinetry work for three years. He was employed in 2019 as a stonemason but left because he was often paid by the supply of illicit drugs.
Mr Pearson smokes tobacco regularly and has done so since he was 16 years old. He now smokes about 20 cigarettes a day. He also started drinking alcohol at that age, initially at weekends, ‘to get drunk’. By the time he was 18 years old, he was drinking in town and getting into fights. He has not recently consumed alcohol much, other than at the weekends, however.
His first illicit drug that he consumed was cannabis which he started smoking when he was 17 years old, using about one to one and a half grams every two or three days. He has, however, become a daily user, though he tried to hide his use from family and friends. He now uses up to three grams a day, which he has been using for about the last seven years.
He first used MDMA when he was 18 years old, also then at the weekends, though his use did progress to daily use. More recently, he was, at the time of his incarceration, only using every six months.
Mr Pearson first used methamphetamine when he was 21 years old, but after experiencing a psychotic episode, he stopped using for some years. About two years ago, however, he resumed use, which was instigated by a low period in his life when, after losing his dog, he felt little that could motivate him. He used it only by smoking it and not by injecting it. By the time of his arrest, he was using about two grams every three days. I infer that he was under its influence when he committed the current offences, as he admitted.
Mr Pearson appears also to have a gambling problem for which he has had no treatment or counselling.
Mr Pearson appears to be in good physical health. His mental health has, however, provided him with some challenges. He has, for some time, suffered anxiety and depression. He was the victim of a home invasion about 12 months ago, when he was repeatedly assaulted, and this left him with symptoms of Post-Traumatic Stress Disorder, though it is unclear whether this was a formal medical or psychological diagnosis. He was admitted to hospital in June this year when he stabbed himself in the stomach during a disagreement with his girlfriend. It was, he said, because he felt unheard, not from suicidal intent. On admission, the attending registrar noted that Mr Pearson struggled with intrusive thoughts, nightmares and hypervigilance, and may have cluster B personality traits which are characterised by dramatic, overly emotional and unpredictable thinking and behaviour.
He no longer suffers from most of these symptoms. He attributes his current sleep disturbance to his anxiety and fleeting suicidal ideation from his incarceration, and anxiety and decreased motivation to his use of cannabis. He has been treated with antidepressants, which he reports as having been somewhat useful, and has had some limited counselling through Headspace.
Mr Pearson has a relatively short Criminal History, though he started it in a quite significant way. [Redacted due to legal reasons].
In 2014, he was convicted for a traffic offence and later a drug driving offence. Of concern is a prior conviction for assault occasioning actual bodily harm and common assault in 2017. Since then, he has been convicted of further traffic offences in 2020, including a further drug driving offence, and of one offence of trespass. That drug driving offence resulted in him being sentenced to a Good Behaviour Order, which the trespass offence breached, but apparently no action was taken, and these offences for which I will now sentence him will also breach that Good Behaviour Order, which I will deal with below (at [62]-[64]).
Sentencing Practice
Under s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), I am required, in deciding how to sentence an offender, to have regard to ‘current sentencing practice’. The court is often informed of this by the provision of comparable sentencing decisions from this and other jurisdictions. Thus, the court is provided with what has been called ‘the collective wisdom of the judges’: Ellis v The Queen (1993) 68 A Crim R 449 at 460. They are, however, by no means binding precedents: Hili v The Queen; Jones v The Queen [2010] HCA 45; 85 ALJR 195 at 206: [53].
In this case, Mr T Kelliher, Mr Pearson's counsel, as well as thoughtful and comprehensive submissions, provided a table summarising three decisions which were directed principally to the offence of threatening to kill another person. One was also relevant to the offence of assault occasioning actual bodily harm. These were R v Griffiths (No 2), R v Randall Williams and R v Potts [2018] ACTSC 299. As Mr Kelliher frankly and appropriately accepted, they were not particularly helpful as they involved very different circumstances.
In R v Griffiths (No 2), the offender was sentenced to imprisonment for two years for threatening the victim while the offender was holding a knife and who had earlier been holding a star picket when they first encountered each other. The offender had been acting oddly but there appears to be no allegation of drug taking. This appears to be a more serious version of the offence than the current offence.
In R v Randall Williams, the offender was sentenced to imprisonment for two years for a threat made in a family violence context after a volatile relationship, and which occurred in the context of a property dispute between the parties when they were both in a car which the offender threatened to drive into a lake. Again, this appears to be a more serious version of the offence than the current offence.
Finally, in the R v Potts, the offender was sentenced to three years' imprisonment when he and the victim were both sentenced prisoners in custody. As the offender threatened to kill the victim, he placed his handcuffed hands against the offender's throat. Again, I find this a more serious version of the offence than the current offence.
Another valuable source of sentencing practice is the ACT Sentencing Database, though its use has recently been somewhat compromised by what appears to be few recent decisions being uploaded to it. I have also remarked before of the problem resulting from a number of the sentencing remarks, to which a link is ordinarily provided in the Database, not being available for unexplainable reasons: R v Massey (No 1) [2020] ACTSC 256 at [74]. There are of course limits to the value of statistics, as Ashley JA said in Ashdown v The Queen [2011] VSCA 408; 37 VR 341 at 395; [151](31):
[S]entencing statistics throw some light on sentencing patterns for a particular offence, and thus provide some window on the accumulated experience of sentencing judges. Of course they do, to the extent that such information can be of assistance. But the assistance is limited, and too much emphasis upon statistics by sentencing judges may well lead to error ...
In the case of the offence of threat to kill, statistics show that of the 13 offences recorded that were dealt with in the Supreme Court, 12 were sentences of 12 months imprisonment or more, of which one was a sentence of just over three years imprisonment, and the remaining one of the 13 was a sentence of less than 12 months imprisonment. Of these 13 offences, 2 were partially suspended, and 1 was wholly suspended.
The sentences recorded in the Database for sentences imposed in the Magistrates Court for that offence showed a very different picture. They were fines and Good Behaviour Orders included in the imposition of the sentences. Of the 61 cases recorded, 45 offenders received prison sentences, of which 33 were partly or fully suspended, and the vast majority received prison terms of less than 12 months. Unfortunately, no details are available on the Database as to what the threats were and the circumstances in which they were made. This makes comparison difficult. Nevertheless, I am comfortable that even had this case been dealt with in the Magistrates Court, as would have been possible under s 375 of the Crimes Act, it is likely that it would have been regarded as a more serious case than the majority of such cases dealt with in that Court.
So far as the offence of assault occasioning actual bodily harm was concerned, the vast majority are dealt with in the Magistrates Court where less than 10 per cent are sentences of imprisonment, whether suspended or not, of 12 months or more. In the Supreme Court, however, 96 of the 111 recorded cases were dealt with by the imposition of a sentence of 12 months or more. This again ordinarily would have been dealt with in the Magistrates Court, though the circumstances of the offence do make it a rather serious version of the offence, though with less serious injuries.
Victim Impact Statement
I received Victim Impact Statements from Mr and Mrs Rowe. Neither Mr Heron nor Mr Healy provided one. The Statements were read out in Court by the Crown prosecutor so Mr Pearson could hear them. Mr Rowe described the emotional and mental difficulties the offences had caused him, including the development of hypervigilance for the care of his children. He suffered some ongoing pain but not for very long, but he does wake at night. He refuses to leave his children home alone and this continues to have financial consequences. He also built a higher fence and installed security cameras at his home, which was relatively expensive. His care for his wife and children has also adversely affected his social life.
Mrs Rowe also suffered extreme stress and anxiety and felt that they should move to a different home. She had to seek medical treatment and lost time from work. She has become sensitive to the sound of the dog barking and feels quite anxious when home alone. The children were provided with counselling at school, but have also expressed concerns, and the daughter has begun sleeping in her parents’ bedroom.
It is helpful to the court to have such Victim Impact Statements. Although the court does appreciate that there will be some disturbing consequences of such serious crimes, to hear the extent to which particular victims have had their mental equilibrium, financial affairs, work and social life adversely affected after each particular case, is of great assistance and it is appropriate that the offender, Mr Pearson, hears them.
Conditional Liberty
Mr Pearson was, at the time of the offence, subject to a Good Behaviour Order imposed by the Magistrates Court when he was convicted of driving with a prescribed drug, methylamphetamine, in his oral fluid or blood. The Good Behaviour Order was made for 12 months from 9 January 2020 under s 13 of the Sentencing Act, and not after a sentence of imprisonment was suspended (s 12(3) of the Sentencing Act). These offences breached that Order.
Even though the Good Behaviour Order was made in the Magistrates Court, I can deal with the breach if, as is inevitable in this case, I find Mr Pearson guilty of at least one of the current offences: see Robertson v Leferve [2012] ACTSC 22; 258 FLR 1 at 4-5; [22]. Thus, it is perhaps not inappropriate to regard the offending while on conditional liberty as abusing the privilege of that liberty, was described, though in a slightly different context, in R v Turkmani [2002] NSWCCA 388; 133 A Crim R 328 at 333-4; [19].
Whilst committing offences when subject to a Good Behaviour Order, or indeed any other form of conditional liberty, is a serious matter, and while it does not strictly render more serious the objective seriousness of an offence (Sampson v De Haan at [92]), it is an aggravating feature of the offending (R v Forrest(No 2) [2017] ACTSC 83 at [89]; Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at 367; [61]; R v Loulanting at [38]; and Auld v The Queen [2013] ACTCA 21 at [9]). These matters must be taken into account when sentencing Mr Pearson for the offences to which he has now pleaded guilty.
Reparation Order
The Crown has, on behalf of Mr Healy, sought a Reparation Order under s 19 of the Sentencing Act, that he pay the $870 that Mr Healy had to incur to repair the glass door to his laundry. I am satisfied, from the invoice tendered without objection or challenge as part of the Crown's Sentencing Tender Bundle, that this cost has been incurred.
Mr Kelliher submitted that it would be inappropriate in this case to make such an order. He referred to what I said about such orders in R v Steen [2015] ACTSC 259 at [51]-[52], namely:
[51] I note that compensation is sought in the sum of $4430 for the occupant of the bedroom Mr Steen entered and $400 for the other item. Bell J made a most useful and thorough analysis of the principles surrounding the making of compensation orders in RK v Mirik. His Honour made the following points:
· the making of such orders is discretionary;
· It is not wrong in principle, however, to order compensation against an offender without means;
· the order is a means of vindicating the invasion of the victim's rights by avoiding the need for expensive civil action;
· the court may have regard to the effect such an order may have on the rehabilitation of the offender and the means available to meet such an order. An order for compensation is not a punishment and it is different in its effect on sentencing to a confiscation order;
· a lengthy period of payment is not reasonable; and
· compensation should generally only be ordered in straight forward cases.
[52] In this case, an order for compensation would be largely symbolic. In the United Kingdom it has been held that a compensation order should not be made where there is no realistic prospect of its payment. See R v Inwood. That approach was followed in New Zealand in R v Rollo, though legislation has since changed that situation there. Given Mr Steen's age and circumstances, I do not consider that a compensation order should be made.
[citations omitted]
It has been reinforced in decisions such as R v West [2015] [2015] ACTSC 134 at [79] that the decision of whether to make such an order is entirely discretionary, though, of course, that discretion must be exercised judicially. A wide range of relevant considerations, when deciding to make such an order, were taken into account in R v Pahl (No 2) [2017] ACTSC 155 at [78].
Since that time, however, there has been some modification of these principles in decisions of this Court without necessarily making reference to R v Steen or RK v Mirik and Mirik (2009) 21 VR 623. Thus, it has been held by Mossop J in R v Wright (No 2) [2019] ACTSC 46 at [13], that there should be consequences for the breach of a Reparation Order. This would suggest that, as in the United Kingdom, there is no point in making such an order if there is no prospect of the offender being able to pay it or if there are no consequences for non-payment. Thus, in R v Hudson [2019] ACTSC 110 at [86], Murrell CJ declined to make such an order where ‘the offender will be in custody for several years and … he has no available assets.’
Relevant reasons for declining to make such an order have included where the court considered that an offender with no means would simply be highly likely to be in prison because such an order, made as a condition of a Good Behaviour Order when a sentence of imprisonment was suspended in respect of an offender who had little, if any prospect of payment, would likely result in a breach of the Good Behaviour Order and in the imposition a sentence of imprisonment: KN v Wilson [2016] ACTSC 313 at [9].
In R v Denniss [2019] ACTSC 283, the court declined to make a Reparation Order as it would be likely to impede the offender's rehabilitation. In R v GD [2015] ACTSC 401 at [30], such an order was refused because it was described as, ‘crushing’. Despite the suggestion in RK v Mirik and Mirik that it is unreasonable for an order to be made where there would be a lengthy period of payment, orders of this kind have been made: see R v DM (No 2) [2016] ACTSC 385 at [50], where an order was made requiring payment over seven to eight years, and R v Ngerengere (No 3) [2016] ACTSC 299 at [85], where the period of payment was four years.
There is no doubt that such an order can be made as a condition of a Good Behaviour Order: Pearce v Tanner [2010] ACTSC 122 at [26]. Indeed, it has been suggested that this is appropriate: R v Parker [2018] ACTSC 55 at [48]. It is, however, not necessary that it be made as a condition of such an order: R v Kirby [2016] ACTSC 47 at [17].
Mr Kelliher particularly referred to the fact that, as Mr Pearson has few assets and little prospect of employment in the immediate future, any period of payment would be lengthy. Ms C Muthurajah, counsel for the Crown, submitted, during her helpful and comprehensive submissions, which were both written and oral, that while the order was sought, it would not be pressed if the Court considered that it would impede Mr Pearson’s rehabilitation.
Given that Mr Pearson has had some employment in the past, there may be some prospect of future employment later in the period of his sentence, so long as he is not incarcerated.
Remorse
Remorse is always an important factor in sentencing: see Neal v The Queen (1982) 149 CLR 305 at 314. In Fusimalohi v The Queen [2012] ACTCA 49 at [32], I pointed out the various ways in which remorse can be shown. One of these may be by a plea of guilty, as noted by the High Court in Siganto v The Queen (1998) 194 CLR 656 at 663-4; [22]. Of course, where the plea is given in the face of an overwhelming Crown case, it may simply be acknowledging the inevitable. As noted below (at [79]), this may still have some utilitarian value. I accept, of course, that a plea of guilty is not necessarily indicative of remorse: Miles v The Queen [2014] ACTCA 41 at [40]. Other indicative factors would include a willingness to engage in rehabilitation.
Mr Pearson has agreed to participate in a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Sentencing Act. Further, Mr Pearson, in his interview with officers from ACT Corrective Services for their report for this Court, did not challenge the Crown's Statement of Facts, acknowledged his problematic drug use, and stated that the victims were not targeted. I recognise, as explained in R v Scerba (No 2) [2015] ACTSC 359 at [90], in reliance on R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377; [58], that, while statements made outside court, such as those made to psychiatrists or psychologists, are admissible, some caution should be expressed in relying on them because the offender had not given sworn evidence of them nor had they been subject to cross-examination. See, to the same effect, what Loukas-Karlsson J said in R v Baxendale [2018] ACTSC 260 at [37]. I did refer to some modification that might need to be made to that approach, particularly in relation to Pre-Sentence Reports, in light of the different statutory regime in this Territory in R v Ashman [2010] ACTSC 45 at [27].
Taking into consideration his subsequent behaviours and remarks, I am satisfied that Mr Pearson has expressed a certain degree of remorse which should be taken into account.
Consideration
A sentencing court in this Territory is required, when sentencing an offender, to have regard to the purposes of sentencing set out in s 7 (1) of the Sentencing Act. In relation to Mr Pearson, some element of personal deterrence is required, given that he is now moving from committing relatively minor offences to committing more serious offences.
Of course, punishment is always important and, given the serious nature of personal violence offences, some element of general deterrence is also required. The serious effect of the offences on the victims requires that this be recognised in the sentence that is to be imposed. Nevertheless, the seriousness of Mr Pearson's relatively short Criminal History, despite being aggravated by some serious offences, is moderated by the penalties imposed which show the assessment of sentencing courts of his prospects of rehabilitation and his willingness to commit to that rehabilitation. This can play a more significant part, as rehabilitation, if achieved, will protect the community.
An important act that the Sentencing Act requires courts to take into account are the pleas of guilty entered by Mr Pearson. As they were entered in the Magistrates Court, before the matters were committed to this Court, they were entered at a relatively early stage. Nevertheless, the utilitarian value is somewhat less because they were only entered after the prosecution had gone through the trouble of preparing a brief of evidence. That was understandable, however, in this case, as Mr Pearson's drug induced psychosis would have prevented him from having a good recall of the events, and he would have needed to rely on the advice of his solicitor, which would not have been available until the brief was available. That is, of course, not to say that many offenders are not able to recognise the crimes they have committed and quite properly plead guilty at the earliest opportunity. In my view, a significant but not maximum discount should be afforded to Mr Pearson for his pleas of guilty.
That Mr Pearson was heavily under the influence of drugs is a relevant factor. Although it can reduce his moral culpability, especially in light of his heavy dependence on them, it has to be noted that he is not in the category of those who commenced using drugs at a very early age. At age 17, he was still a young man with his maturity not yet achieved. This factor of drug addiction is to be taken into account, but not as a reason for mitigation (see R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 384, 388-389;[193], [224]), and not so as to overwhelm and reduce the sentence below what is otherwise appropriate.
In my view, no sentence but a sentence of imprisonment is just and appropriate for this offending. Mr Pearson has been in custody since he was arrested. This period of custody must be taken into account. The usual method, in accordance with s 63 of the Sentencing Act, is to backdate any sentence of imprisonment to the date when he first went into custody for these offences, and I will do so.
For the reasons set out above (at [65]-[73]), I decline to make a Reparation Order at this time. It seems to me likely to be futile at present, as would imposing any fine, but I may consider it later in time, if appropriate, as it is desirable that the cost Mr Pearson has imposed on Mr Healy is recognised and is, if possible, compensated.
Finally, there are eight offences to be considered. That these are multiple sentences to be imposed raises important matters that need to be considered and should be taken into account. The sentence for each offence must be appropriate. I cannot, in this jurisdiction, make a general sentence to encompass the criminality of all the offences.
I have, then, reviewed each sentence to ensure that where there are common factual or legal elements between any offences, that Mr Pearson is not punished twice. Overlapping does not feature largely in these proceedings.
I have also considered whether any of the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. This is relevant here since the events, which occurred over a relatively short period of time, were part of one course of conduct.
In addition, I have reviewed the length of the whole term of imprisonment to ensure that the principle of totality is respected, that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and retains the hope of achieving Mr Pearson's goals when he is permitted into the community. This is to be achieved by making the appropriate degree of concurrency and accumulation between the sentences. It is necessary, however, to ensure that Mr Pearson is not mistaken into believing that he was able to commit additional offences with impunity.
Finally, I will take into account the presentence custody by backdating the sentences, as I have mentioned.
Sentence
His Honour then spoke directly to the accused:
Mr Pearson, please stand.
I amend the charge of threatening to kill to include [redacted due to legal reasons] as one of the threatened children.
I convict you of threatening to kill Robert Rowe and his children, being reckless as to whether Mr Rowe would fear that the threat would be carried out. I sentence you to 12 months imprisonment, to commence on 31 July 2020. Had you not pleaded guilty, I would have sentenced you to 15 months imprisonment.
I convict you of assaulting Robert Rowe and occasioning him actual bodily harm. I sentence you to 9 months imprisonment to commence on 31 July 2021, that is to be wholly cumulative on the sentence for the threat to kill. Had you not pleaded guilty, I would have sentenced you to 11 months imprisonment.
I convict you of assaulting Andrew Heron. I sentence you to two months imprisonment, to commence on 28 February 2022, that is, to be wholly cumulative on the sentence for assaulting Mr Rowe and occasioning him actual bodily harm. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I convict you for assaulting Robert Rowe. I sentence you to two months imprisonment to commence on 31 March 2022, that is to be cumulative as to one month on the sentence for assaulting Mr Heron. Had you not pleaded guilty, I would have sentenced you to three months imprisonment.
I convict you of intentionally destroying the property of Mr Healy. I sentence you to four months imprisonment to commence on 31 March 2022, that is to be cumulative as to two months on the sentence for assaulting Mr Healy. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
I convict you of intentionally destroying property of Robert Rowe. I sentence you to four months imprisonment to commence on 31 May 2022, that is to be cumulative as to two months on the sentence for intentionally destroying property of Michael Healy. Had you not pleaded guilty, I would have sentenced you to five months imprisonment.
I convict you of trespassing on the property of Robert Rowe. I require you to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four months from 30 September 2022, with a probation condition that you accept the supervision of the Commissioner of ACT Corrective Services or his delegate, and to obey all reasonable directions of the person supervising you for that period or such lesser period as the person supervising you considers appropriate.
I convict you of trespassing on the property of Michael Healy. I require you to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of five months from 30 November 2022, with a probation condition that you accept the supervision of the Commissioner of ACT Corrective Services or his delegate, and to obey all reasonable directions of the person supervising you for that period or such lesser period as the person supervising you considers appropriate.
I note that Mr Pearson is in breach of the Good Behaviour Order made by the ACT Magistrates Court on 9 January 2020, and order that the Good Behaviour Order be amended by extending the date of the Order for 6 months from 9 January 2021.
Mr Pearson, you may be seated.
I note that the sentence of imprisonment for the offence of threat to kill is for 12 months, and that the total sentence of the offences of which I have convicted him and for which I have sentenced Mr Pearson is two years and two months imprisonment, with an additional period of six months added to the Good Behaviour Order.
I also note that he is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
Accordingly, he is eligible for a Treatment Order.
I have read and considered carefully the Drug and Alcohol Sentencing List Suitability Assessment of the Alcohol and Drug Services dated 19 November 2020 and the Supplementary Report dated 24 November 2020, and the Drug and Alcohol Treatment Assessment report of ACT Corrective Services dated 19 November 2020. I have carefully considered the recommendations in them, especially that Mr Pearson is suitable for a Treatment Order. I am satisfied that Mr Pearson is dependent on illicit drugs, and that his dependency substantially contributed to his offending behaviour of threatening to kill Mr Rowe and his children.
I am also satisfied from those reports that Mr Pearson will live in the ACT for the next 18 months. I have not identified any indicators of unsuitability for a Treatment Order, as set out in Table 46K of the Sentencing Act.
I note that, in the past, Mr Pearson has successfully completed community-based orders, including an Intensive Correction Order, despite his breach of the Good Behaviour Order. I note that although I have commenced the sentence of imprisonment from 31 July 2020, which period from that date to today has been served in custody, that does not prevent Mr Pearson from being subject to a Treatment Order for the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]-[111], even though it will be necessary to suspend the sentence today.
Finally, I reserve the option of reviewing the Treatment Order as I may, if it is deemed appropriate, make a condition that Mr Pearson pay compensation for the costs he has caused Mr Healy to incur.
Accordingly, I am satisfied that Mr Pearson is suitable for a Treatment Order. I note and accept the recommendation that it should be for 18 months from today.
Drug and Alcohol Treatment Order
His Honour spoke directly to the accused again:
Mr Pearson, please stand again.
I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for 18 months from today, to commence on 30 November 2020 and end on 29 May 2022, in respect of the charge of threatening to kill Richard Rowe, of which I have convicted and for which I have sentenced you.
I extend that Order to the offence of assault occasioning actual bodily harm, the two offences of assault and the two offences of damaging property, of which I have convicted you and for which I have sentenced you, all of which are associated offences.
I note that I have recorded convictions for the primary offence and the associated offences and have imposed sentences for them, which convictions and sentences are hereby incorporated into the Drug and Alcohol Treatment Order. Those convictions and sentences constitute the custodial part of the Drug and Alcohol Treatment Order.
I suspend the total sentence of imprisonment of two years and two months, being the total of the sentences for the primary and associated offences, from 30 November 2020 until 30 September 2022, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
I require you to sign an undertaking to comply with the offender's Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, from 30 May 2022 to 30 September 2022, with a probation condition that you accept supervision by the Commissioner of ACT Corrective Services, or his delegate, for the period of the Good Behaviour Order or such less period as the person supervising you considers appropriate, and that you obey all reasonable directions of the person supervising you, especially as to counselling, treatment and urinalysis.
For the treatment and supervision part of the Drug and Alcohol Treatment Order, I require you to comply with the core conditions, set out in s 80Y of the Crimes (Sentence Administration) Act 2005 (ACT), for the term of the Order and complete such treatment programs as may be required by the Treatment and Supervision Team from time to time or by order of the Court, including as to counselling, medical treatment, urinalysis, attendance at programs, and such other programs of treatment as may be required from time to time.
I direct that you comply with any directions that the Court may make from time to time about attendance in court in person or by electronic means.
I direct that you attend court on 4 December 2020 at 11:30 am.
Mr Pearson, that is a very long version of the legal situation, but in short order, this was a pretty awful series of offences, a course of conduct which obviously caused great distress to the victims and which was caused by your drug addiction.
I have assessed that, in all the circumstances, it would be appropriate to sentence you to two years and two months imprisonment for this offence. However, given your commitment to address your drug addiction, which clearly has been the cause of that offending, I am prepared to make a Treatment Order and allow you to address that drug addiction. It will be hard. It will be long. It has been clear that it is not going to happen overnight, and that 18 months is the period that has been assessed by the health professionals, who have conferred amongst themselves and discussed the matter with you, as the time that is needed for you to address that.
You will be released from custody now, but you will have to undertake programs, urinalysis, attendances in court, counselling, case management and other things, as directed by the Treatment and Supervision Team. If you do not do so, then I can review the Order, I can cancel it and I can send you back to prison and that, at the end of the day, is the stick. However, we hope in this Court that there is a carrot too, that we will support you and if you are genuinely committed to addressing your drug addiction and reforming, then we will support you with that, and there are indeed a very substantial number of professionals that will be there to assist you and to help you with that.
If it gets difficult, and it will, as drug addiction is a pernicious addiction and is described, I suppose, most graphically by saying a druggie will sell their grandmother to get the next hit, you must nevertheless stick at it. There will be times when it will be tough, and I encourage you to not run away, to not put your head in the sand. Come back to court, talk to your counsellors.
I do not say that the difficulty of addressing your drug addiction will not result in problems. If you commit further offences, I cannot wave a wand and erase that, and it may be that you will have to go back to prison for a short period of time or for the balance of the sentence, or whatever period, but I remind you that people are certainly here to try and get you, for your benefit but principally for the community's benefit, to manage your drug addiction.
You will always be an addict but if you can manage your addiction, then that will be better for you. You can live a useful life. You can get back to the landscaping work if that is what you really want to do. You can make a contribution to the community. You can have a family and you can do well, but if you do not, then the ordinary consequences of the criminal justice system are to be effected.
Now, one issue that has been raised, but which I have not addressed, is the question of Restorative Justice. I am sympathetic to that. I need to have explained to you exactly what that means, and what I suggest is that your counsel will no doubt do that to you, and I will adjourn the consideration of that until next Friday. A referral for Restorative Justice will be made if I am satisfied that you have had that explained to you and satisfied that the other criteria for that are there. I have not really taken that into account in the sentence because it is so much up in the air, but it is part of the basis for mitigation that I have accepted that you are remorseful to some extent, and that you are intent on committing to rehabilitation.
In relation to participation in Restorative Justice, you will have to be assessed by the Restorative Justice Unit, and they may find you unsuitable. Your victims may not be prepared to participate, though it can be very cathartic and therapeutic for them. There are extraordinary stories that I have heard, for example, where a woman has felt extraordinarily anxious after home invasions, and this is a kind of home invasion, feeling that she was targeted and worrying about that, and has felt much better after hearing from the offender that he was just out of it on drugs or being opportunistic in a situation where it happened to be, for instance, a house without a security camera.
But you have heard also the Victim Impact Statements and the severe anxiety that some of the victims have suffered, and it may be that Mr and Mrs Rowe simply cannot face you. So it may not come about, but I congratulate you for offering to go down that path and, if it can be achieved, then it will be better for you. But you will still have to go through the 18 months Treatment Order and hopefully not have the Treatment Order cancelled, which will result in you serving the balance of the two years and two months imprisonment.
I wish you every good luck. We will see each other quite a lot over the next months. I hope that you will not get too bored with my loquacity, which means I talk too much, and that you will be able to address this difficult problem in your life and put it behind you.
You may be seated.
| I certify that the preceding 127 [one hundred and twenty-seven] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Samuel Xiang Date: 22 July 2021 |
********************************
Amendments
| 21 July 2021 | 1. In “Decision” in the headnote, omit from Order 14 “31 January 2022 for a period of 8 months until 29 September 2022” and substitute “30 November 2020 until 30 September 2022”. |
| 2. In “Decision” in the headnote, omit from Order 15 “for a period of 8 months from 31 January 2022 to 29 September 2022” and substitute “from 30 May 2022 to 30 September 2022”. | |
| 3. In paragraph [112], omit “31 January 2021 for a period of 8 months until 29 September 2022” and substitute “30 November 2020 until 30 September 2022”. | |
| 4. In paragraph [113], omit “for a period of 8 months from 31 January 2022 to 29 September 2022” and substitute “from 30 May 2022 to 30 September 2022”. |
The text of this judgment has been amended in accordance with this corrigendum.
10
48
0