R v Pikula
[2022] ACTSC 219
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pikula |
Citation: | [2022] ACTSC 219 |
Hearing Date: | 22 July 2022, 25 August 2022 |
DecisionDate: | 25 August 2022 |
Before: | Elkaim J |
Decision: | (a) The convictions are confirmed. (b) For the offence of aggravated burglary the offender is sentenced to imprisonment for 3 years and 10 months to commence on 19 July 2021 and end on 18 May 2025. (c) For the offence of assault occasioning actual bodily harm the offender is sentenced to 1 year, 3 months and 8 days’ imprisonment, from 11 August 2024 and ending on 18 November 2025. (d) The total effective sentence is 4 years and 4 months’ imprisonment. (e) I set a non-parole period of two years and six months to commence on 19 July 2021 and end on 18 January 2024. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – extra-curial punishment – extensive criminal record |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 Criminal Code 2002 (ACT) s 312 |
Cases Cited: | R v Forrest (No 2) [2021] ACTSC 259 R v King [2022] ACTSC 183 Saipani v The Queen (No 2) [2021] ACTCA 8 |
Parties: | The Queen ( Crown) Villiam Bo Pikula ( Offender) |
Representation: | Counsel D Swan ( Crown) J Cooper ( Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) | |
File Number: | SCC 263 of 2021 |
Elkaim J:
On 27 April 2021 the offender pleaded guilty to the following charges:
(i)Aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty is 20 years’ imprisonment and/or a fine of $320,000.
(ii)Occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is five years’ imprisonment.
The matter was originally listed on 22 July 2022. As will be seen below the offender relies on the report of a psychiatrist, Dr Furst. The Crown wished to cross-examine the doctor but he was not available on that day. Accordingly, the matter was stood over until today.
In summary, these are the background facts. The victim lived in a unit in Reid in the ACT. Early on 19 July 2021 the victim was in bed, watching television. At around 4:20am he noticed the offender and another person approaching his front door. He noticed them through a baby monitor. They were examining the locks on a screen door. They were wearing COVID masks, gloves and dark clothing. The offender had a long carving knife. The other man had a baseball bat, or something like it.
The victim took hold of a machete and opened his door. He asked the two men to state their business. One of them responded “Where is it? Give it to us?”.
The two burglars tried to break down the security screen door. The victim, and a woman who was also in the unit, pushed against the main door to prevent the offenders from entering. The offenders managed to remove the screen door from its hinges.
A woman in a neighbouring unit heard the goings-on. She heard the victim calling for help. She called the police. In the meantime the offenders gained entry into the unit where the victim struck the offender with his machete. At the same time his two dogs were attacking the offender’s legs.
The offender wrestled the machete from the victim and threatened to cut his head off. He struck the victim on the forehead and a fight ensued for a short time. The offender and his colleague then left the unit.
An ambulance was called. The paramedics identified an 8 cm deep cut on the victim’s head. There were less significant wounds to his forearms and hand. Exhibit A contains photographs of the bleeding victim.
The police followed a blood trail from the unit. It took them to a residence about 400 m away. They entered the residence and found the offender sitting at a table. He was bleeding. He had lacerations to his head, face, arms and legs. An ambulance was called. The police found a bloodstained knife and metal bar near the offender. There are photographs of these implements.
There is a victim impact statement in which the victim describes his continuing anxiety arising from the attack. He has daily flashbacks and difficulty processing the event. He has found that friends avoid him because of his irrational mood swings. He says he has lost “weight and muscle and motivation” and has also noticed a difference in his short-term memory.
The victim feels that even his dog, who was present during the attack, is less close to him. He says that his dog
“has also found it hard. He wishes to protect me – but must trust others to walk him – he doesn’t understand why I am being distant is for his own well-being.
The victim impact statement ends in this way:
In conclusion this unprovoked attack has brought nothing but distrust of anyone – anxiety – sleepness and un-justified thoughts of loss that doesn’t or hasn’t only affected me – but my family – my ones close – but still very good understanding friends and my dog and innocent yet scarred animal and my desire to even think about any future ventures – including work or travelling.
The offender was on parole when the offences occurred. Sentences had been imposed in New South Wales for break, enter and steal and assault charges. The offender also has many other convictions in New South Wales.
The offender was born in 1983. He is of Indigenous heritage. He was born in Canberra and is the eldest of a number of siblings. He thinks he has 11 siblings, but his mother told the authors of the pre-sentence report that there were eight siblings. The authors are not sure if the offender was exaggerating or his mother was confused.
The offender’s mother has provided a letter to the court in which she says her son is a decent person, in particular when he is not using drugs. She refers to his difficult upbringing and the fact that he telephones her every day.
Although his parents separated when he was 14, and despite what is said by his mother, the offender enjoyed living within his large family. Some of the siblings clearly have a good deal in common. Three of them are in prison, either in the ACT or New South Wales.
The offender has a child from a previous relationship. The child is now an adult and is in regular contact with the offender.
The offender completed Year 6 but was suspended and did not continue his schooling. Other than work in the prison, the offender has never been employed. He has relied upon a disability support pension for his income.
The offender does not drink alcohol anymore. At one stage he was taking a lot of illicit drugs including methamphetamine on a daily basis. He has attributed his offending to the effect of drugs.
The authors of the pre-sentence report noticed an inconsistency in the offender’s description of mental health problems. There is however a report from Dr Furst, a forensic psychiatrist, dated 10 July 2022. The doctor diagnosed a Substance Use Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and schizophrenia.
Dr Furst thought the offender was of lower-than-average intelligence and, because of alcoholism in his parents, was probably vulnerable to addiction himself. He thought the schizophrenia “was most likely precipitated at an earlier age than it otherwise would have emerged by virtue of his heavy drug use, especially the use of cannabis and methylamphetamines”.
The offender told the doctor that he was assisting his friend who had an issue with the victim. The offending was not directly drug related. The doctor thinks, not surprisingly, that the offender needs antipsychotic medication and drug rehabilitation.
Dr Furst gave oral evidence. He had recently been shown mental health records relating to the offender while in custody. They confirmed his views as expressed in his report. Under cross-examination Dr Furst maintained his diagnosis of ADHD and also of schizophrenia.
Dr Furst was at pains however to emphasise that his views were not an assessment of the background to the offending, rather they were a prescription for the future, in particular of the need for the offender to resolve his drug use.
It seems from the medical notes that some success has been obtained in dealing with the offender’s psychosis and that a degree of stability has been reached. The offender of course cannot remain in prison indefinitely in order to have the benefit of the mental health treatment. Sooner or later he must return to the community where it will be vital for him to cooperate with medical professionals and take full advantage of rehabilitation opportunities.
The plea of guilty was entered at a Criminal Case Conference. It nevertheless has a utilitarian value, which I assess at 15 per cent.
Mr Cooper, who appears for the offender addressed objective seriousness in this way:
This was a violent home invasion. There are several aggravating factors including conditional liberty, weapons, company and the violence inside the house.
While they arrived with weapons, they were used in the heat of a struggle and (the offender) was seriously injured. This is a degree of extra-curial punishment.
Mr Cooper’s first point, in respect of objective seriousness, is quite correct. I do not see the second point as necessarily mitigating the level of seriousness. The fact that the injuries were caused during a fight must be seen against the background of the offender arriving with a large knife.
The Crown’s written submissions referred to the existence of a degree of planning, the unprovoked nature of the visit to the victim’s unit, the company of another person, the carrying of a large knife and the damage caused to the premises.
The Crown submitted that a home invasion at a residence, in particular when residents are present, is more serious than a burglary at a commercial premises. I agree with these observations and their effect on objective seriousness. Although the machete belonged to the victim, once it had been taken off the victim, it was used as an assault weapon. The presence of the knife indicates the malicious intent of the offender. In my view the offences are at about medium objective seriousness.
The Crown also pointed out that although there was no specific charge relating to damage to property, the burglary had involved the breaking of the front door.
The Crown provided me with a list of sentences but cautioned against their reliability because of differences in the respective factual scenarios. I think the current facts are significantly more serious than in any of the cases referred to by the Crown (Saipani v The Queen (No 2) [2021] ACTCA 8; R v Palmer [2020] ACTSC 13; R v Ruby Schrattenholtz [2017] ACTSC 416).
The injuries suffered by the offender might be regarded as extra-curial punishment, although there is little detail of any continuing effect of the injuries.
The Crown has submitted, consistent with the pre-sentence report, that there is a high chance of reoffending. In addition there are “poor prospects of rehabilitation”. It was pointed out that the offender’s criminal history includes 14 convictions for breaking and entering and four convictions involving assault.
Dr Furst has a more positive attitude to rehabilitation, making suggestions, as already mentioned, for future rehabilitation needs.
Ultimately the offender has been involved in a violent home invasion resulting in quite significant injury. The fact that he was injured himself is better seen as a materialisation of the risk involved in this type of conduct than having any mitigatory aspect.
Recently I sentenced a man who had shot an elderly gentleman in the course of an attempted robbery (R v King [2022] ACTSC 183). The starting point for the sentence was six years and six months. I referred to the remarks of Murrell CJ in R v Rowland [2016] ACTSC 192 (Rowland), at [49]:
In this jurisdiction, sentences in the range of 3–4 years’ imprisonment are often imposed in “typical” cases, i.e. where a robbery is committed by one offender who is relatively young, has a limited criminal history and is armed with a weapon like a knife. In cases that are more serious, either because the objective circumstances are more serious or because the offender’s subjective circumstances (including prior criminal history) do not allow for significant leniency, the starting point is often at least six years’ imprisonment. In the most serious cases, the starting point can be significantly higher. This is not to say that the starting points for the sentences that have been imposed in other cases are necessarily correct, but the pattern of sentencing in other cases does provide a “yardstick” against which to assess the appropriate sentences in this case.
The offences in Rowland were different but her Honour’s remarks nevertheless provide some guidance. In another of her Honour’s decisions, R v Forrest (No 2) [2021] ACTSC 259, an offender was sentenced to a cumulative total of five years and eight months imprisonment for offences of attempted aggravated robbery and assault occasioning actual bodily harm. The sentence for the latter offence was three years and two months imprisonment which had been reduced from four years following a discount for a plea of guilty.
In seeking guidance from these two cases I acknowledge that the maximum sentence for aggravated robbery is five years longer than that for aggravated burglary.
On one approach rehabilitation will play very little part in sentencing. The offender, through his previous criminal conduct, has perhaps abandoned the possibility of leading a law-abiding life in society. But to take such an approach, I think, is wrong.
The offender is now 39 years of age. Of course he should have realised his wayward approach to life was not of any benefit to him by now. But, 39 is still an age when there is a prospect of a decent future. Rehabilitation should not be abandoned and should not be left out of consideration in sentencing.
The offender’s subjective circumstances, his schizophrenia and his ADHD must also contribute to the overall viewing of the appropriate sentences. Of course, his danger to society must also be considered and the need for general deterrence. Persons going out armed and looking for trouble, may not only confront trouble in their expeditions, but they should realise that when they are caught, they will be appropriately punished.
The offences were committed while the offender was on parole. This is an aggravating feature to be added to the various other aggravating features described above.
I think the starting point for aggravated burglary sentence should be four years and six months imprisonment. After the reduction of approximately 15 per cent the result is three years and 10 months. The parties agreed that the commencement date should be 19 July 2021.
The starting point for the assault occasioning actual bodily harm offence should be 18 months. After reducing the sentence by approximately 15 percent, the sentence is one year, three months and eight days. I have made the assault charge mostly concurrent with the burglary charge, noting that the victim is entitled to know that at least a portion of the sentence is entirely attributable to the attack upon him.
Notwithstanding the points made by the Crown about the almost futility of rehabilitation, I think, in line with Dr Furst’s view, some opportunity and encouragement should be given. I therefore intend to set a non-parole period of two years and sixth months.
I make the following orders:
(a)The convictions are confirmed.
(b)For the offence of aggravated burglary the offender is sentenced to imprisonment for 3 years and 10 months to commence on 19 July 2021 and end on 18 May 2025.
(c)For the offence of assault occasioning actual bodily harm the offender is sentenced to 1 year, 3 months and 8 days imprisonment, from 11 August 2024 and ending on 18 November 2025.
(d)The total effective sentence is 4 years and 4 months’ imprisonment.
(e)I set a non-parole period of two years and six months to commence on 19 July 2021 and end on 18 January 2024.
| I certify that the preceding fourty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
6
0