R v Perry (a pseudonym)
[2018] ACTSC 299
•22 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Perry (a pseudonym) |
Citation: | [2018] ACTSC 299 |
Hearing Date: | 22 October 2018 |
DecisionDate: | 22 October 2018 |
Before: | Murrell CJ |
Decision: | For threat to kill, three years’ imprisonment. For unlawfully inflicting grievous bodily harm, 30 months’ imprisonment. For assault occasioning actual bodily harm, 18 months’ imprisonment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence against a corrections officer – offences by a prisoner – special circumstances - sentencing purposes – punishment – denunciation – good prospects of rehabilitation - accountability |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 25 and 30 Crimes (Sentencing) Act 2005 (ACT) ss 72(2) and 72(3) |
Parties: | The Queen (Crown) Tom Perry (a pseudonym) (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Masters (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Marjason and Marjason Solicitors (Offender) | |
File Number: | SCC 229 of 2017 |
Murrell CJ:
On 24 July 2018, a jury found that the offender was guilty of the following offences:
(a)Threaten to kill Marshall Steen, being reckless as to whether Mr Steen would fear that the threat would be carried out and in circumstances in which a reasonable person would fear that the threat would be carried out, contrary to s 30 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty is 10 years’ imprisonment;
(b)Unlawfully cause grievous bodily harm to Officer Aristotle Trikas, contrary to s 25 of the Crimes Act. The maximum penalty is five years’ imprisonment;
(c)Assault occasioning actual bodily harm to Officer Edward Wylie, contrary to s 24 of the Crimes Act. The maximum penalty is five years’ imprisonment.
Facts
In January 2015, the offender was a sentenced prisoner at the Alexander Maconochie Centre (AMC). He shared a cell with Mr Steen.
On 14 or 15 January 2017, the offender use methamphetamine (ice) and developed psychotic symptoms (he “heard” voices and experienced ideas of reference). The offender knew that methamphetamine could cause similar symptoms but was unaware that symptoms could be as extreme as those which overcame him on 15 January 2017.
On the morning of 15 January 2017, there was in an incident between the offender and Mr Steen which resulted in Mr Steen activating the cell alarm. Officers attended the cell.
The offender’s behaviour became more agitated.
The offender was asked to place his hands through the cell hatch to be handcuffed. The offender placed his hands through the hatch, but withdrew them after only one hand had been cuffed.
The offender started punching Mr Steen. The offender threatened to kill him. He placed the handcuff chain against Mr Steen’s throat.
The officers decided to enter the cell and remove the offender in order to protect Mr Steen’s safety.
When the officers entered the cell, there was a scuffle between the offender and the officers. The offender swung at the officers and attempted to charge through to the cell exit door.
Officer Wylie was struck in the face.
Officer Trikas was struck in the face and thrown onto a desk at the rear of the cell.
Victim impact
Officer Trikas suffered a fracture at the base of his skull, fractured nasal bones, facial injuries including nerve damage, and spinal injuries including a fracture of the C7 vertebrae. He was hospitalised for nine days. He now suffers from Post-Traumatic Stress Disorder (PTSD). He has been unable to return to work because of his physical and psychological injuries.
The incident has taken a terrible toll on Officer Trikas. He says that his injuries have led to the breakup of his marriage. His financial security and confidence have been undermined. He says that his neck has not recovered to its pre-injury condition.
Officer Wylie suffered minor facial lacerations.
Objective seriousness
The offences against the officers were objectively serious. They involved unprovoked and deliberate unlawful assaults against corrections officers who were endeavouring to fulfil their duties and protect a prisoner who had been threatened.
The grievous bodily harm that was suffered by Officer Trikas was very significant and multifaceted. The ongoing sequelae are substantial. However, serious as the injuries are, they are not in the most serious category.
Fortunately, Officer Wylie suffered only minor injuries. However, there was a risk of serious injury associated with striking the face, which is a vulnerable part of the body.
The offence against Mr Steen was, objectively, very serious. Prisoners are vulnerable when in custody. The custodial environment should be free from violence and the threat of violence. Corrections officers cannot supervise prisoners on a close, continuous basis. Further, as the facts of this case illustrate, among inmates there is a regrettable “code of silence” that applies to protect violent perpetrators. These factors mean that a court should deal very sternly with violence against prisoners. In this case, the threat to kill was reinforced by physical assaults, including holding the handcuff chain to Mr Steen’s throat. The offender was younger and physically stronger than Mr Steen.
Subjective features
The offender has spent much of his adult life in custody, primarily for offences of dishonesty. Offences of violence are prominent on his criminal history.
In August 2009, he received an effective sentence of three and a half years for numerous offences of dishonesty and culpable driving.
In August 2010, the offender was released from the AMC on parole.
He remained in the community for nine months, until 17 May 2011, when his parole was cancelled.
In November 2011, he was released. He remained at large until the second half of 2012.
In January 2015, the offender was released on parole and entered a three month residential rehabilitation program in Wollongong. He successfully completed the program.
However, on 20 June 2015, the offender was returned to custody. He has been in custody since that date. He had a non-parole date of 5 July 2017 and was granted parole from 4 December 2017 but remained in custody because of the present matters. The sentence expired on 14 September 2018.
The offender is 28-years-old.
The offender described a supportive upbringing, despite the fact that his father was an alcoholic who failed to provide his four children with the attention that they needed. The offender lacked a responsible and consistent male role model in his life.
As a child, the offender experienced difficulties at primary school. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and dexamphetamine medication was prescribed. Unfortunately, the offender experienced side effects when taking the medication. He began to sell it to other children.
The offender left home at 11 years of age. He began “couch surfing” with undesirable older people who were involved in illicit drug use and criminal behaviour.
The offender used cannabis from 11 years of age and later commenced methamphetamine use, but was not a heavy drug user until he became an adult. As an adult, he used heroin and methamphetamine, both within custody and in the community. He says that he has been virtually drug free since committing the offences in January 2017.
The offender has a history of mental health difficulties, particularly anxiety. Since early 2018, he has been medicated for anxiety and he is now feeling much better.
During 2017 and 2018, the offender engaged strongly with counselling services and positive behavioural programs at the AMC, achieving excellent outcomes.
As a result of his criminal activity, the offender’s relationship with his family has been strained. However, over the past six months, his relationship with his parents and siblings has improved.
In early 2018, the offender’s relationship ended. However, the couple remain in contact in relation to their three-year-old son. The offender’s son visits him in the company of the offender’s parents. The offender’s relationship with his son provides him with a strong motive to rehabilitate.
At 18 years of age, the offender undertook a glazier apprenticeship for less than a year.
The offender is remorseful about his conduct. He wrote a letter of apology which was tendered in evidence. In July 2018, he contacted the restorative justice service because he wished to apologise to Officer Trikas. This request did not yield a result. The offender was very affected when he heard Officer Trikas’ evidence at the trial. He sympathises with Officer Trikas’ experience of PTSD because of his own psychological experiences.
Upon release, the offender wishes to enter a residential rehabilitation program and then to obtain employment.
In the past, the offender has committed serious offences (including the offence of culpable driving) but, despite expressing good intentions to reform, has not managed to do so. I am persuaded that, as the offender said in evidence, he is now at the point where “the penny has dropped”. He is aware of the rewards of pro-social behaviour and strong positive family relationships and is committed to rehabilitation.
One of the ways in which the offender has demonstrated this commitment is adopting an informal role within the AMC as a peer mentor. This informal role evolved into a more formal role and the offender now supports other prisoners, in part, by demonstrating appropriate behaviour.
The offender impressed me as intelligent, mature and insightful. Given his level of insight, the fact that he has remained drug-free while in custody and the fact that he enjoys strong support from his family, I am as optimistic as one can be that the offender has reached a “crossroads” and will maintain rehabilitation when he returns to the community.
Sentencing considerations
The present offences were committed while the offender was in lawful custody as a sentenced prisoner. Two of the offences involved causing harm to a corrections officer. Consequently, absent “special circumstances” and absent a direction under s 72(3) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentences that I impose must be served consecutively on the sentences that the offender was serving at the time of the incident, i.e. should not commence before 14 September 2018: ss 72(2) and 72(4) Sentencing Act.
The purpose of s 72 is unclear, as is the manner in which it sits with the sentencing purposes in s 7 of the Sentencing Act, which are a codification of uniformly accepted sentencing purposes that apply in this jurisdiction and, indeed, in most Australian jurisdictions. Presumably, the purpose of s 72 is to emphasise the sentencing purpose of punishment and to state that, where the victim is a corrections officer, adequate punishment requires severe punishment. I would not have thought that the proposition required statement, but I cannot think of any other obvious purpose for s 72.
On its face, s 72 requires that the sentences that I impose be served in such a way that a “primary sentence” is served consecutively with any “existing sentence”. What is considered to be an existing sentence is broad; it includes a sentence that is already being served when the primary sentence is imposed, a sentence that has been imposed but has not yet commenced when the primary sentence is imposed, and a sentence imposed in the same proceeding as the primary sentence: s 70(1)(a) Sentencing Act.
Each of the sentences currently under consideration falls within the meaning of an “existing sentence” pursuant to s 70(1)(a)(iii) of the Sentencing Act and, prima facie, must accumulate upon the other sentences that I impose.
In my view, there are special circumstances for commencing the current sentences prior to 14 December 2018, being the fact that the offender was granted parole from 4 December 2017 and the only matters that have held him in custody since that date are those which are currently pending. Consequently, I propose to backdate the sentences that I impose to 4 December 2017. In the absence of s 72, I would have backdated the sentences to 5 July 2017, being the date when the offender’s previous non-parole period expired.
Further, I find that there are special circumstances for the impending sentences to be made partly concurrent rather than entirely consecutive, being that the offences were part of the same incident and were virtually contemporaneous.
I consider that it is appropriate that the offender serve a sentence of five years, dating from 5 July 2017, the date when the offender was eligible for parole in relation to the pre-existing sentences. However, as I have mentioned, the sentences will not commence until 4 December 2017.
In sentencing the offender I have regard to the sentencing purposes in s 7 of the Sentencing Act. I have already referred to the purpose of adequate punishment. Other important purposes are accountability, denunciation and the protection of corrective services officers and prisoners, both of whom require special protection by virtue of their heightened vulnerability within the prison environment.
The purpose of specific deterrence is of some relevance, as is the purpose of rehabilitation, to which I have already devoted consideration attention. The principle sentencing parameter—and I do not take s 72 to override this—is the maximum available penalty and I have had significant regard to that parameter that when formulating these sentences.
I impose the following sentences:
(a)For the offence of threaten to kill, three years’ imprisonment dating from 6 July 2019 to 5 July 2022;
(b)For the offence of unlawfully inflicting grievous bodily harm, 30 months’ imprisonment from 4 June 2019 to 3 December 2021;
(c)For the offence of assault occasioning actual bodily harm, 18 months’ imprisonment from 4 December 2017 to 3 June 2019.
I set a non-parole period to expire on 19 February 2020, that being a period of four years and eight months from the date that the offender entered custody in relation to the pre-existing sentences (20 June 2015).
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate to the Acting Judges with the permission of the Chief Justice. Date: 26 September 2025. |
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