R v Pikula-Carroll (No 2)
[2020] ACTSC 347
•1 December 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pikula-Carroll (No 2) |
Citation: | [2020] ACTSC 347 |
Hearing Date: | 11 November 2020 |
DecisionDate: | 1 December 2020 |
Before: | Burns J |
Decision: | See [78]–[85] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – three counts assault occasioning actual bodily harm – murder – aggravated robbery – pleas of guilty – expressions of remorse approached with caution – fair prospects for rehabilitation – consideration of sentences of two co-offenders |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12, 24 |
Cases Cited: | Forster-Jones v The Queen [2020] ACTCA 31 |
Parties: | The Queen (Crown) Jason Norman Pikula-Carroll (Offender) |
Representation: | Counsel A Williamson (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Bevan & Co Lawyers (Offender) | |
File Number: | SCC 109 of 2019 |
BURNS J:
Jason Pikula-Carroll, you have entered pleas of guilty to four offences that occurred on 22 September 2016 and to two offences that occurred on 3 November 2016. On
22 September 2016, you committed an offence of aggravated burglary (CC 2017/6413) and three offences of assault occasioning actual bodily harm (SCANN 19/3732; SCANN 19/3734; SCANN 19/3736).
The offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code), carries a maximum penalty of 20 years’ imprisonment, a fine of $320,000, or both. The offence of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (the Crimes Act), carries a maximum penalty of
five years’ imprisonment.
On 3 November 2016, you committed an offence of murder (CC 2017/6415) and an offence of aggravated robbery (SCANN 33/20). The offence of murder, contrary to
s 12 of the Crimes Act, carries a maximum penalty of life imprisonment. The offence of aggravated robbery, contrary to s 310 of the Criminal Code, carries a maximum penalty of 25 years’ imprisonment, a fine of $400,000, or both.
It is my responsibility to sentence you for these offences. Some factual matters were disputed between yourself and the Crown, and it is my responsibility to rule upon those matters. I must be satisfied beyond reasonable doubt of any fact that makes an offence more serious, but I need only be satisfied of the probability of any fact that may mitigate an offence.
Procedural history
On 14 May 2019, you were committed for trial to this Court on two charges of aggravated burglary and one charge of murder. On 5 July 2019 the Crown filed an indictment containing eight counts, being one count of aggravated burglary on
22 September 2016, three counts of assault occasioning actual bodily harm on the same date, one count of intentionally wounding on the same date, one count of intentionally or recklessly inflicting actual bodily harm on the same date, one count of murder on 3 November 2016 and one count of aggravated robbery on
3 November 2016.
On 7 August 2019, a Criminal Case Conference was conducted but the matter did not resolve. On 19 August 2019, these charges were listed for trial before me in the week commencing 30 March 2020 with an estimate of five to six weeks. The matter was listed for a further Criminal Case Conference on 21 February 2020 but it did not proceed on that date. On 5 March 2020, a further Criminal Case Conference was commenced and then adjourned until 10 March 2020. On 10 March 2020, the Criminal Case Conference continued and it was noted that you were to be arraigned that day before me on a fresh indictment.
Later that morning, the Crown filed a new indictment dated 5 March 2020 containing the six counts to which you have entered pleas of guilty. You were arraigned on that indictment and pleaded guilty to each of the charges. I vacated the trial date and set aside 30 April and 1 May 2020 for a Disputed Facts Hearing. On 28 April 2020, your lawyers made an application to vacate the dates set aside for the
Disputed Facts Hearing on the basis that they wanted to have you assessed for fitness to plead. The evidence presented in support of the application was not cogent and the application was refused.
On the morning of 30 April 2020, Senior Counsel appearing for you advised the Court that his instructions and those of his instructing solicitor had been withdrawn by you. After an adjournment, during which you had the opportunity to further consult with Senior Counsel, I was advised that you intended to make an application to withdraw your pleas of guilty and that you also intended to engage new legal representation. In the circumstances, I considered that there was no option other than to allow you an adjournment to bring an application to withdraw your pleas of guilty and incidentally to engage new legal representatives.
On 13 May 2020, Ms Musgrove of Counsel appeared on your behalf noting that she had only been instructed the previous day. She was instructed to proceed with commencing an application to withdraw the plea of guilty. On 2 June 2020, a different legal practitioner appeared before me on your behalf indicating that he had just been instructed. On 16 June 2020, another legal practitioner from the same firm appeared and stated that you maintained your pleas of guilty but that there may still be some dispute regarding the facts. By 2 July 2020, no agreement on a Statement of Facts had been reached and I directed that an Agreed Statement of Facts be filed by
2 August 2020 or alternatively the parties were to notify my chambers that a
Disputed Facts Hearing was required. I allocated 13 October 2020 for the
sentence hearing.
At some time, subsequent to 2 August 2020, you changed lawyers again and
re-engaged your original lawyers. An Agreed Statement of Facts was emailed to the Court on 29 September 2020. A number of listing difficulties arose which resulted in the sentence hearing date of 13 October 2020 being vacated and the matter proceeded to a sentence hearing on 11 November 2020.
I understand that your legal representatives advised the Crown sometime between
5 and 10 March 2020 that you would enter pleas of guilty to the present charges. The trial, had it proceeded, would have been lengthy and accordingly your pleas of guilty ultimately had significant utilitarian value.
This value was, however, eroded by your conduct of withdrawing your instructions from your lawyers on the date set for the Disputed Facts Hearing and drawing out the sentence process over a period of some months while you indicated to the Court an intention to seek to withdraw your pleas of guilty. In my opinion, a discount on sentence of approximately 10 per cent is justified because of your pleas.
The facts
22 September 2016
Eden Waugh and NC were partners and had been in an on-again-off-again relationship for approximately five years.
They resided in a third floor unit in a complex in Watson in the ACT. They were both involved in selling heroin and methylamphetamine from the unit. Their unit was a regular place drug users would visit to purchase or use illicit drugs. David Baxter stayed in the second bedroom of the unit in Watson from about the end of September 2015 until early October 2016. Jamie-Lee Weaver is a friend of Mr Baxter. Jairo Cajina was a friend of Mr Waugh's and would occasionally stay at the unit. Mr Baxter, Ms Weaver and Mr Cajina were present at the unit when the offences of 22 September 2016 occurred.
At approximately 5:10 am on 22 September 2016, an associate of yours attended the unit in Watson to purchase heroin. He knocked loudly on the door a number of times and called out Mr Waugh's name. No-one responded. After a period of time, a male visitor to the house appeared at the door and threatened your associate with a knife.
Between 5:52 am and 6:09 am you and Mr Waugh exchanged text messages about this altercation at the unit. You stated that you were angry as a knife had been pulled on your associate, to whom you referred as your “little brother”, and stated that you wanted an apology, the money back and to sort out the issue with the male visitor “man to man”.
Shortly before 7:30 am on 22 September 2016, you and your two co-offenders,
Peter Forster-Jones and Phouthakone Sikounnabouth arrived at the Watson unit and went to the front door. You were armed with a sawn-off double barrel shotgun.
Mr Forster-Jones was armed with a machete and Mr Sikounnabouth was armed with a metal pole or bat. Inside the unit were Mr Waugh, Ms Barr, Mr Baxter, Ms Weaver and Mr Cajina. Mr Baxter and Ms Weaver were together in the second bedroom. You knocked on the front door and Ms Barr opened it. You and your two co-offenders then entered the unit. Ms Barr grabbed her bag and ran out the door.
Outside the unit Ms Barr contacted her friend for help. Ms Barr’s friend then contacted police to inform them of the home invasion. You told Mr Waugh to sit on the couch which he did. You then gratuitously struck him to the head with the butt of the shotgun leaving a laceration. You and your co-offenders demanded drugs and money from
Mr Waugh. Mr Forster-Jones raised the machete to strike Mr Waugh and Mr Waugh raised his arm to shield himself. The machete struck Mr Waugh's right wrist leaving a deep laceration with his dorsal tendons exposed through the wound.
You and your two co-offenders broke down Mr Waugh's bedroom door to look for drugs and money. Mr Waugh said that he did not have anything and kept apologising and calling out for help. Mr Forster-Jones struck Mr Cajina to the head with the machete. Mr Cajina jumped out a window to escape sustaining fractures to the L2 and L4 vertebrae of his lumbar spine. He also sustained lacerations to his scalp from being struck with the machete and multiple lacerations to his hands. Mr Baxter and Ms Weaver were in the second bedroom while this was going on. You barged into that bedroom and demanded your money or your drugs. Mr Baxter stood up quickly and shouted.
By now you were in possession of the machete and you struck Mr Baxter in the head with it, leaving him with a laceration over his left eye. You ransacked the room saying, “[w]here's our cash?” Mr Forster-Jones then entered the room and handed you the shotgun while you handed him the machete. You then struck Mr Baxter to the forehead with the shotgun before waving it in the air. You also pointed it at him. You and your two co-offenders then left the unit carrying your weapons. You got into a parked car before driving away. Police attended the unit and, to some extent, Mr Waugh
co-operated with them in their investigation of these offences.
You gave evidence at the sentence hearing that you went to the unit at Watson on the morning of 22 September 2016 to “fix [your] relationship” with Mr Waugh. If by use of the phrase “fix [your] relationship” you intended to suggest that you had not gone to the unit with the intention of threatening the occupants and engaging in violence, I do not accept your evidence. You gave evidence that weapons were taken with you and your co-offenders as a means of protecting yourselves. This is not consistent with what occurred when you entered the unit. None of the occupants of the unit offered you any violence and, in fact, Mr Waugh sat down on the couch as directed by you before you struck him with the butt of the shotgun and Mr Forster-Jones struck him with the machete.
Mr Waugh was helpless, unarmed and compliant and yet both you and
Mr Forster-Jones viciously attacked him. When you went into the second bedroom, you were not attacked by Mr Baxter, but you nevertheless struck him with the machete. There is no evidence that Mr Cajina behaved aggressively towards you or your
co-offenders or failed to comply with your directions and yet Mr Forster-Jones struck him with the machete. The evidence clearly establishes that you and your co-offenders went to the unit armed with weapons and with the intention of acting aggressively and inflicting injuries or wounds on the occupants. This was intended to be retribution for the treatment of your associate earlier that day. In your evidence, you agreed that it was your idea to go to the Watson unit on that occasion.
Objective seriousness
In assessing the objective seriousness of the offence of aggravated burglary, I take into account that the offence involved both forms of statutory aggravation, being that it was committed in company and with all of the offenders possessing offensive weapons. The offending was pre-meditated, and the purpose of the offending was to punish the occupants of the unit for the incident that had occurred earlier that day involving your associate. You were the instigator of this offence.
I do not take into account the fact that a number of people were injured during the course of this offence because that fact is taken into account with regard to the offences of assault occasioning actual bodily harm. While not falling within the category of the worst type of such offences, the present offence of aggravated burglary is certainly towards the top of the range of objective seriousness of such offences. You personally inflicted some of the injuries which are the subject of the charges of assault occasioning actual bodily harm and your co-offender, Mr Forster-Jones, inflicted the remainder of the injuries.
With regard to the injuries inflicted by Mr Forster-Jones, you are culpable because they were inflicted in accordance with an agreement between yourself and Mr Forster-Jones. By virtue of the provisions of s 45A of the Criminal Code, you are culpable with regard to the offences committed by Mr Forster-Jones. The injury inflicted on Mr Waugh's arm was particularly serious. It required him to be hospitalised and to undergo corrective surgery on his dorsal tendon. This injury is towards the top of the range of injuries that would fall within the description of actual bodily harm. He was also struck to the head with the butt of the shotgun causing a laceration. Offensive weapons were used. The offence occurred in the victim's own home. At the time of the offence, the victim was particularly vulnerable because he was unarmed and seated on a lounge. I would assess this offence of assault occasioning actual bodily harm as towards the top of the range of such offences.
The injuries sustained by Mr Cajina were also particularly serious. His actions in jumping out of the third floor window speak of the terror which you and your co-offender intentionally inflicted upon him. This offence also falls towards the top of the range of such offences.
The injury sustained by Mr Baxter was not as serious as those sustained by the other victims, but it was not trivial. This offence falls in the mid-range of such offences.
While the offences of assault occasioning actual bodily harm were clearly
pre-meditated, I do not take them into account in sentencing you for these offences. The element of premeditation attending these offences is subsumed in sentencing for the offence of aggravated burglary and to take premeditation into account for the offences of assault occasioning actual bodily harm would be to inflict a punishment on you twice for the same conduct.
3 November 2016
At about 7:40 pm on 3 November 2016, you, together with Mr Forster-Jones and
Mr Sikounnabouth returned to the Watson unit in a silver Toyota Corolla.
Mr Sikounnabouth waited in the car while you and Mr Forster-Jones went up to the unit. Forster-Jones was armed with a 12 gauge sawn-off shotgun and was carrying a bag with a machete inside. The gun was the same gun procured by you and used in the aggravated burglary on 22 September 2016. Mr Forster-Jones was dressed in black, wearing a hoodie, gloves and a balaclava to cover his face. You were armed with a crowbar and dressed in lighter coloured clothing, wearing a hoodie, gloves and a balaclava to cover your face.
The front screen door and the front wooden door of the unit were both locked. You and your co-offender knocked on the front door and attempted to force entry into the unit. You shook open the screen door and then started kicking the locked wooden door. Mr Waugh and Ms Barr were both inside the unit at the time, attempting to keep the door closed to prevent you from entering the unit.
Mr Waugh was kneeling on the floor holding the door. Mr Forster-Jones fired a single shot through the wooden front door at close range below the door handle. The projectile penetrated through the wooden door and entered the left side of Mr Waugh's chest causing fatal injuries to his heart and lung. Prior to this shot being fired, Ms Barr had used her mobile phone to call 000. The call commenced at just after 7:45 pm and recorded for about four and a half minutes. The shot can be heard in the recording as can you and your co-offender demanding heroin.
After shooting through the front door, Mr Forster-Jones put the shotgun away in the bag that he was carrying and took the machete from the bag. You and he then forced the front door open and entered the unit. You demanded heroin before grabbing
Ms Barr by her shirt and pushing her to the ground. She was grabbed by the shirt and hair and dragged along the floor.
You took her handbag in which there was about $200 cash and the mobile phone that she had commenced the 000 call from. That call remained connected when you left the unit and got back into the Toyota Corolla. Your conversations with your co-offenders were recorded for a period while you were in the car.
In your evidence before me you said that you did not know that the shotgun which
Mr Forster-Jones was carrying was loaded before he discharged it and that when you had the conversations in the car after the event you did not know that Mr Waugh was dead.
The 000 recording satisfies me that both of these assertions are untrue. Inside the vehicle you are the first to speak. Obviously speaking to Mr Forster-Jones you said “[y]ou're a gangster. You're a fucking gangster”. Shortly after that statement,
Mr Forster-Jones said, “I fucking killed a cunt, bro” to which you replied “I know”. I accept as accurate the Crown's submission that your tone of voice when making these statements can be described as jubilant. There is nothing in the 000 recording suggestive of surprise on your part that the shotgun had been fired either immediately after it was fired or during the period in which your conversations with your co-offenders in the car were recorded.
After the gun was fired, you simply continued with the task of breaking through the front door of the unit. When you forcibly entered the unit, you were confronted with
Mr Waugh's body lying on the ground. In your evidence, you said that you did not know at that point that Mr Waugh had been shot. I do not accept that evidence. It is simply incredible that knowing that a gun had been discharged into the door at close range and that there were occupants of the unit on the other side of the door trying to bar your entry, it never occurred to you that the person lying on the ground inside the door may have been shot.
Neither you nor Mr Forster-Jones took any steps to ensure that Mr Waugh did not get up and interfere with you as you searched the unit for drugs and money.
On 22 September 2016, one of the first things that you did on entering the unit was to attack and subdue Mr Waugh even though he was compliant with your demands. The fact that you ignored his presence after you entered the unit on 3 November 2016 speaks of your belief that he presented no threat to you or your plans because you knew he had been shot. When you got back to the car and Mr Forster-Jones said, “I fucking killed a cunt, bro” your response was “I know”.
You expressed no surprise at the proposition that Mr Waugh had been shot or that the shotgun was loaded or that Mr Waugh was dead. You expressed no remorse for the shooting or concern for Mr Waugh. You lauded Mr Forster-Jones for his actions and did so at a time when, in your own words, you knew that he had killed Mr Waugh. Your evidence that you said what you did in the car because you were concerned for your own safety is simply not credible.
You gave evidence that you were highly intoxicated on a mixture of heroin and methamphetamine on 3 November 2016 when you committed these offences. I am not persuaded that this is the truth. Much of what you said during your evidence was directed towards minimising your culpability. You were not so impaired by any intoxicating substance as to impede your ability to force entry into the unit and to engage in a search of the unit for drugs and money. There is no indication in the recording of the 000 call that you were significantly impaired by any intoxicating substance. I am satisfied on the standard of beyond reasonable doubt that you were aware that the shotgun was loaded on 3 November 2016 when you and
Mr Forster-Jones approached the unit.
The Crown suggested that the reason that you and Mr Forster-Jones wore balaclavas on 3 November 2016 was that you went to the unit intending to inflict serious injury on Mr Waugh and that you did not want to reveal your identities. I am not satisfied to the requisite standard that you went to the unit intending to either kill Mr Waugh or to personally inflict serious injury on him. By 3 November 2016, you were aware that
Mr Waugh, although a member of the criminal underworld as a drug dealer, was willing to co-operate with the police in prosecuting you for the offences on 22 September 2016. This would explain the fact that you chose to disguise your appearance on
3 November 2016 whereas you had not done so on 22 September 2016.
I am also satisfied beyond reasonable doubt, for the reasons that I have given, that you contemplated that the shotgun may be discharged during the anticipated aggravated robbery on 3 November 2016. This is consistent with your plea of guilty to the charge of murder. The basis of the charge of murder against you was that you and
Mr Forster-Jones were part of an agreement to commit an offence, being an agreement to commit the offence of aggravated robbery and in the course of carrying out that agreement the offence of murder was committed.
Proof of the offence of murder in this way is permitted by s 45A of the Criminal Code. By virtue of your plea of guilty, you accepted that you were reckless about the commission of the offence of murder by Mr Forster-Jones. In that regard, see s 45A(3). Recklessness, for the purpose of this provision, is a reference to the common law test of recklessness. I am satisfied that you were aware of the possibility that
Mr Forster-Jones may commit the offence of murder in one of the forms that that offence may be committed in the course of carrying out the agreement to commit the offence of aggravated robbery.
The offence of murder is found in s 12 of the Crimes Act. The offence may be committed in one of three ways. Firstly, by causing the death of another person while intending to cause the death of any person. Secondly, by causing the death of another person with reckless indifference to the probability of causing the death of another person. Thirdly, by causing the death of another person while intending to cause serious harm to any person.
Your co-offender, Mr Forster-Jones, pleaded guilty to the offence of murder and came to be sentenced on the basis that he had committed the offence in the second way I referred to, that is by acting with reckless indifference to the probability of causing death to a person.
Section 45A(3) of the Criminal Code focusses on the mental processes of the person who did not commit the actual crime but was party to an agreement to commit a crime in the course of which the actual crime was committed. Section 12 of the Crimes Act, on the other hand, addresses the mental processes of the person who actually commits the crime. Knowledge of the mental processes or intention of Mr Forster-Jones should not necessarily be imputed to you. I will proceed on the basis that you were aware of the possibility that Mr Forster-Jones may cause the death of another person while he was intending to cause serious harm to another person during the course of the proposed aggravated robbery, including causing serious harm by discharging the shotgun.
It is probable that the decision to commit the offences on 3 November 2016 was a decision arrived at jointly by you and your co-offenders. I have no doubt that part of the motive for committing the offences on 3 November 2016 was to deter Mr Waugh from further co-operating with police in the investigation of the offences of
22 September 2016. This was a motive which all three of you possessed.
Objective seriousness
In assessing the objective gravity of the offence of murder to which you have pleaded guilty, I take into account a number of circumstances. Firstly, the offence involved the use of an offensive weapon, being a shotgun. Secondly, the offence was committed in company. It is an aggravating circumstance of the offence that it was committed, at least in part, with a view to deter Mr Waugh from co-operating with the police investigating the crimes you committed on 22 September 2016. I also take into account that the offence of murder occurred in the course of another offence, being a robbery. It is also relevant to observe that the offence occurred in the victim's own home and was an instance of repeated offending against the same victim. The offence was cowardly in that it was committed against an unsuspecting and unarmed victim.
Mr Waugh could not have anticipated that the shotgun would be discharged through the front door. While the offence of murder itself cannot be described as being planned or premeditated, the proposed offence of aggravated robbery during which the murder occurred was both planned and premeditated. In your case, at least, you were aware of the possibility that Mr Forster-Jones may cause the death of another person in the course of committing the offence of aggravated robbery. While you did not pull the trigger, there is little difference in moral culpability between yourself and Forster-Jones for the offence of murder.
Turning to the offence of aggravated robbery, I take into account that this offence occurred in circumstances of extreme callousness. It was submitted by the Crown that you stepped over the body of Mr Waugh after he had been shot to commit this offence. You disputed the suggestion that you stepped over his body. To my mind, nothing much turns upon this dispute. It is clear that at the least you walked past the body of Mr Waugh in order to commit the offence and showed no concern for him. The offence of aggravated robbery involved the use of actual violence and occurred in the victim's own home.
Both statutory elements of aggravation were present as the offence was committed in company and both you and your co-offender possessed offensive weapons. The robbery was premeditated. The weapons used, being a loaded shotgun and a machete, were capable of inflicting lethal injury. While not falling within the category of worst offences of aggravated robbery, this particular offence is in the upper range.
Victim Impact Statements
Victim Impact Statements were received from the mother and father of Mr Waugh. They speak of the sorrow they continue to feel because of the death of their son and the manner of his death. He was clearly a much-loved son and his loss will remain with those who loved him for the rest of their lives.
Objection was taken by your counsel to parts of each of the Victim Impact Statements on the basis that they did not comply with the provisions of the
Crimes (Sentencing) Act 2005(ACT) (the Crimes (Sentencing) Act). I am satisfied that this submission should be rejected. Those parts objected to set out the opinions of the author of each of the Statements regarding your culpability for the death of Mr Waugh. The feelings described by the authors are inextricably linked to their grief and reveal their state of mind.
The Statements made by the deceased's parents are not received as proof of your culpability, merely as proof of their beliefs and their state of mind. It is for me to determine the level of your culpability for these offences. I will therefore vacate the
non-publication order that I made regarding the contents of those Statements on
11 November 2020.
Subjective features
A report dated 1 October 2020 from Ms Leesa Morris, a forensic psychologist, was tendered at your sentence hearing. She assessed you at the
Alexander Maconochie Centre (AMC) on 21 September 2020.
You provided her with a history of childhood trauma and of substance abuse commencing at a relatively early age. I would infer that the circumstances of your childhood fed into your commencing substance abuse at an early age.
Ms Morris considered that you met the criteria for diagnosis of
Post-Traumatic Stress Disorder and three severe substance use disorders. She believed that as a result of your childhood trauma and substance abuse your ability to develop emotional maturity has been affected. This has impacted on your understanding of yourself and your ability to interact with the world around you. She assessed you as being at medium to high risk of re-offending, but this could be reduced through appropriate interventions.
Ms Morris does not describe a clear causal connection between your
Post-Traumatic Stress Disorder and the commission of the present offences. It would appear that, at best, the connection is indirect in that your
Post-Traumatic Stress Disorder fed into the development of your addiction, particularly to heroin. The evidence does not support a reduction in your moral culpability for these offences by reason of any mental health condition. I will take Ms Morris' opinions into account as part of your subjective circumstances, but there is nothing in her report which would warrant a significant reduction in sentence.
You are currently 25 years old although you were 21 years old at the time of these offences. You had no convictions recorded against you at the time that you committed these offences. After you committed the offences on 3 November 2016, you committed a further offence of aggravated breaking and entering in New South Wales for which you were sentenced to a term of imprisonment in the Queanbeyan District Court on
9 February 2018. You were sentenced to terms of imprisonment commencing on
4 November 2016 and expiring on 3 April 2019 with a non-parole period concluding on 3 April 2018. As I understand it, when you were released from custody in
New South Wales you were immediately extradited in custody to the ACT and you have remained in custody since that time.
A Pre-Sentence Report stated that you have been in custody at the AMC since
16 March 2019. It is reported that you have been subject to numerous disciplinary actions and warnings for poor behaviour. In your evidence before me, you disputed the allegations raised by the Crown about your conduct in the AMC. As the Crown led no evidence to support the allegations that you have been involved in disciplinary offences in the AMC, I propose to ignore those allegations.
The Report states that you are an Aboriginal man but your mother gave evidence that you identified as Tongan. You have one sibling and 11 step or half-siblings, many of whom are involved in the criminal justice system. Your parents separated when you were young. You were exposed to drug and alcohol use and domestic violence during your childhood, mostly when you visited your father on weekends. Undoubtedly, you continue to feel the effects of your childhood to the present day.
You completed your education to Year 10 in the ACT. You completed Year 11 but you did not complete it according to the Pre-Sentence Report. Your mother gave evidence that while completing Year 10, you commenced an apprenticeship in plumbing. You apparently had to abandon that apprenticeship when your employer suffered an injury. You left school to take up a chef's apprenticeship, but you injured your back in the course of that employment. You subsequently received compensation amounting to approximately $80,000 of which you gave half to your mother and some to your
step-brothers. You were unable to return to work as a chef. You told the author of the Pre-Sentence Report that you spent the remainder of the compensation money on purchasing a car and illicit drugs.
You told the author of the Report that after your workplace injury in 2014 you developed an addiction to the pain relief medication you were prescribed. Your mother gave evidence of a similar nature. You told the author of the Report that this addiction to prescription medication was a major contributing factor in the significant increase in your use of heroin and methylamphetamine around that time.
Your mother testified that after your back injury you enrolled at Reid CIT, but you were subsequently arrested for offences in New South Wales of which you were ultimately acquitted. At that time, however, you lost your Working With Vulnerable People card. This had an impact on you because you had been working as a volunteer since 2010 with the Canberra Attention Deficit Disorder Support Group and the loss of the card meant that you could no longer continue in that endeavour. Your mother stated that about this time you began associating with your co-offenders and you lost touch with your pro-social football friends.
On the balance of probabilities, I accept that you commenced alcohol and drug abuse at a relatively early age because of your childhood experiences. Your substance abuse escalated after your back injury. Clearly, your abuse of illicit drugs played a role in the present offences and in particular your desire to obtain illicit drugs to feed your addiction. The fact that you were addicted from an early age and that your addiction was exacerbated through the use of prescription medication after your back injury are matters that shall be taken into account as mitigatory. I do note, however, that the desire to obtain illicit drugs was not the only motive for these offences. The seriousness of the present offending, however, means that the degree to which the circumstances that I have referred to can mitigate the appropriate sentence is limited.
It is in your favour that you have commenced opioid replacement therapy in the AMC. You have also recommenced anti-depressant medication. You have completed the First Steps Alcohol and Drug program and the SMART Recovery program in the AMC. When you were initially remanded in the AMC, at least one of your step-brothers was also being held there. Your mother gave evidence that your step-brothers are a bad influence on you. Certainly it appears that since your step-brother has left the AMC your behaviour has improved.
The Co-ordinating Chaplain at the AMC has provided a reference speaking of your positive behaviour in custody and I note that on 15 October 2020 you received a medium security classification within that institution.
Section 33(1)(w) of the Crimes (Sentencing) Act requires me to have regard to any demonstration of remorse. You have expressed remorse to your mother, the author of the Pre-Sentence Report, Ms Morris and to the Court. You have expressed remorse to the victims and their family. It is not easy to gauge whether your expressions of remorse are genuine or are simply calculated to obtain a more lenient sentence.
In my opinion, your expressions of remorse must be approached with great caution. One of the hallmarks of true remorse is utter frankness and I am satisfied that you have been less than frank in the evidence which you gave. Much of the evidence was directed towards minimising your responsibility particularly for the offence of murder. As I have said, you showed no remorse immediately after you committed the offences on 3 November 2016 and you apparently continued to feel no remorse the next morning when you committed an aggravated break and enter at Jerrabomberra in
New South Wales.
There appears to have been very little by way of remorse expressed or demonstrated prior to you pleading guilty to these charges. On balance, I accept that you feel some remorse for your actions, but this is mixed with regret for yourself for the position that you are now in. I would assess your prospects for rehabilitation as fair.
Consideration
The offences of 22 September 2016 occurred as part of the one course of conduct justifying a significant degree of concurrency in sentencing for those offences. Similarly, the offences of 3 November 2016 also occurred as part of a single course of conduct.
The Crown submitted that the sentences imposed for the offences of 3 November 2016 should be entirely cumulative upon the sentences imposed for 22 September 2016 offences, but I do not accept that submission. While it is true that the respective groups of offences occurred about six weeks apart, it is nevertheless necessary to consider whether the aggregate sentence produced by accumulating sentences for separate offences is greater than that which reflects the overall criminality involved.
On 9 May 2019, Mr Sikounnabouth was sentenced to seven years’ imprisonment in relation to the aggravated burglary, four years’ imprisonment for being an accessory after the fact to murder and five years’ imprisonment for the aggravated robbery. The aggregate sentence imposed was 12 years’ imprisonment with a non-parole period of seven years and three months. See: R v Sikounnabouth [2019] ACTSC 119.
On 5 June 2020, Mr Forster-Jones was re-sentenced by the Court of Appeal as follows:
· for the aggravated burglary on 22 September 2016, six years’ imprisonment;
· for the assault occasioning actual bodily harm on Mr Waugh, two years’ imprisonment;
· for the offence of wounding Mr Waugh by use of the machete, two years’ imprisonment;
· for assault occasioning actual bodily harm on Mr Cajina by use of the machete, two years’ imprisonment;
· for inflicting actual bodily harm on Mr Cajina, one year’s imprisonment;
· for assault occasioning actual bodily harm on Mr Baxter, one year’s imprisonment;
· for the offence of murder, 20 years’ imprisonment; and
· for the offence of aggravated robbery, eight years’ imprisonment.
These sentences were aggregated such that the total sentence was
30 years’ imprisonment with a non-parole period of 18 years being set. I note that the discounts applied to the sentencing of Forster-Jones for pleading guilty was similar to those which I intend to apply in your case. However, a discount of only five per cent was applied with regard to the offence of murder. See: Forster-Jones v The Queen [2020] ACTCA 31.
Both you and Mr Forster-Jones had similar roles in the September 2016 home invasion. Both of you were in your early 20s at the time that you committed these offences. You had no prior criminal history and Forster-Jones had a minor one. You both came from similar backgrounds. You both entered late pleas of guilty. Both of you had developed illicit drug use habits in your teens. Although Forster-Jones discharged the shotgun on 3 November 2016, you were the person who had originally sourced the shotgun and your moral culpability for the offence of murder is similar to that of Forster-Jones.
Unlike Forster-Jones, you were on bail at the time of these offences in relation to an alleged home invasion in New South Wales. This is a significant aggravating feature calling for greater punishment. In addition, you were the driving force behind the offences on 22 September 2016. Balancing all relevant factors, I propose sentencing you to similar terms of imprisonment for the individual offences to those imposed upon Mr Forster-Jones by the Court of Appeal with a similar degree of concurrency and accumulation.
I note that you were charged only with one offence of assault occasioning actual bodily harm against Mr Waugh encompassing the injuries inflicted when he was struck with the gun butt and with a machete. Your co-offender, Mr Forster-Jones, faced two charges relating to those injuries, one of assault occasioning actual bodily harm and one of inflicting actual bodily harm. I will impose the same sentence that was effectively imposed by the Court of Appeal. Similarly, Mr Forster-Jones faced two charges relating to Mr Cajina whereas you face only one which encompasses the same injuries. I will also impose the same sentence that was effectively imposed by the Court of Appeal.
Sentence
For Count 1 (CC 2017/6413), I record a conviction and you are sentenced to
six years’ imprisonment, commencing on 16 March 2019 and expiring on
15 March 2025.
For Count 2 (SCANN 2019/3732), I record a conviction and you are sentenced to
three years’ imprisonment, commencing on 16 March 2023 and expiring on
15 March 2026.
For Count 3 (SCANN 2019/3734), I record a conviction and you are sentenced to
18 months’ imprisonment, commencing on 16 March 2025 and expiring on
15 September 2016.
For Count 4 (SCANN 19/3736), I record a conviction and you are sentenced to
one year’s imprisonment commencing, on 16 March 2026 and expiring on
15 March 2027.
For Count 5 (CC 2017/6415), I record a conviction and you are sentenced to
20 years’ imprisonment, commencing on 16 September 2026 and expiring on
15 September 2046.
For Count 6 (SCANN 2020/33), I record a conviction and you are sentenced to
eight years’ imprisonment, commencing on 16 March 2041 and expiring on
15 March 2049.
The aggregate sentence which I have imposed is therefore one of
30 years’ imprisonment, commencing on 16 March 2019 and expiring on
15 March 2049.
I will set a non-parole period of 18 years, commencing on 16 March 2019 and expiring on 15 March 2037.
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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