R v Po'oi
[2018] ACTSC 364
•17 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Po’oi |
Citation: | [2018] ACTSC 364 |
Hearing Date: | 17 December 2018 |
DecisionDate: | 17 December 2018 |
Before: | Wigney J |
Decision: | See [80] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – intentionally inflicting grievous bodily harm – joint criminal enterprise |
Legislation Cited: | Crimes Act 1900 (ACT) s 19 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Criminal Code 2002 (ACT) ss 45A, 310, 312(a) |
Cases Cited: | Beale v The Queen [2015] NSWCCA 120 Postiglione v The Queen (1997) 189 CLR 295 R v Minnis [2014] ACTSC 268 |
Parties: | The Queen (Crown) Daniel Ronald Po’oi (Offender) |
Representation: | Counsel Mr J De Bruin (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sarah Boxall Legal (Offender) | |
File Number: | SCC 8 of 2017; SCC 9 of 2017 |
Wigney J:
Introduction
On 27 July 2018, the offender, Mr Daniel Ronald Po'oi was found guilty by a jury after a trial of three offences. Those offences were: first, an offence of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT); second, an offence of aggravated burglary contrary to s 312(a) of the Criminal Code; and third, a charge of intentionally inflicting grievous bodily harm contrary to s 19 of the Crimes Act1900 (ACT). The jury acquitted the offender of four other offences, being two counts of assault occasioning actual bodily harm, threat to inflict grievous bodily harm, and inflicting actual bodily harm.
The Court’s task now is to impose sentences in respect of those offences for which the offender was found guilty and convicted.
Facts
The facts of the offences which I have found to be proved beyond reasonable doubt, and which are consistent with the verdicts reached by the jury, are as follows.
Shortly after 5.00 am on the morning of 26 September 2016, the offender and a co-offender, Mr Manoa Chevalier entered unit 14/6 Beetaloo Court, Beetaloo Street, Hawker, in the Australian Capital Territory. Mr Adrian Johnson was asleep on the couch in the unit. Mr Johnson was also known by his initials, “AJ”.
Shortly after 5.00 am, Mr Johnson woke up after someone said “AJ”. Mr Johnson believed it was the offender who had spoken to him.
Mr Johnson saw the offender and co-offender. The offender was sitting on a coffee table facing Mr Johnson. The offender was armed with a sledgehammer. The offender put the sledgehammer down.
The co-offender was standing behind the offender and was holding a knife. The co-offender’s hands were covered with socks.
The offender said, “Don't worry, AJ. We’re not going to hurt you. We’re just here for the money and drugs.”
Mr Johnson feared for his safety at the time.
Mr Johnson told the offender that he did not have any money or drugs.
The offender then searched the jeans and bum bag of Mr Johnson. The offender also told the co-offender to look around. The co-offender commenced searching the unit.
Mr Johnson asked the offender if he could have a “bumper” cigarette from the table. The offender told Mr Johnson not to touch anything.
Mr Johnson was the recipient of Centrelink payments. Mr Johnson’s Centrelink payment was due on the same day. Mr Johnson offered the Centrelink payment to the offender. Mr Johnson had cancelled his key card the week before. Mr Johnson knew that St George would decline any attempt to withdraw money from his account.
The co-offender asked Mr Johnson if his Centrelink payment was available in his account. Mr Johnson replied that he did not know. The co-offender asked Mr Johnson, “What bank are you with?”. Mr Johnson told the co-offender that he banked with St George. The co-offender then said, “Don't be a smart cunt. That goes in there at a quarter past 5, or 5.25 am, or something like that, and that should already be there.”
Mr Johnson handed his key card to the offender. Mr Johnson also provided the PIN for his key card.
The offender then said to the co-offender, “Don’t touch him. Don’t hurt him.” The co-offender replied, “I won’t – word.”
The offender then left with a key card and an iPhone belonging to Mr Johnson. The iPhone was subsequently located by the police in the bedroom of the offender at the time of his arrest.
It should be noted at this point that the property the subject of the aggravated robbery charge was the key card and the iPhone. Needless to say, the value of the property was not substantial.
The co-offender approached Mr Johnson after the offender had left the apartment. The co-offender said, “I’m leaving with two of your fingers.”
Mr Johnson then attempted to run from the unit. The co-offender stabbed Mr Johnson.
There was medical evidence at trial by Dr Amanda Van Diemen. Mr Johnson’s injuries were described in Dr Van Diemen’s report as follows:
1.Adrian JOHNSON sustained very serious injuries resulting from an alleged assault on 26th September 2016, in which he reported being stabbed in the back with a knife. These injuries included;
a.Penetrating chest injury of the left upper back,
b.Left haemothorax,
c.Left pneumothorax;
d.Wound to left shoulder
…
3.…
a.… The penetrating chest injuries sustained by Adrian JOHNSON were very serious and without immediate specialist medical intervention may have resulted in death.
Shortly after he left Mr Johnson, the co-offender attempted to withdraw money from the account of Mr Johnson. The transaction was declined.
It is important to emphasise at this point that the Crown case was that the offences of which the offender was convicted were jointly committed by him and the co-offender, Mr Chevalier, pursuant to s 45A of the Criminal Code.
That is particularly significant in respect of the offence of intentionally inflicting grievous bodily harm. That is because, as will have been clear from the outline of the facts, the offender was not directly responsible for the physical act which resulted in grievous bodily harm being inflicted on Mr Johnson.
Section 45A of the Criminal Code relevantly provides as follows:
(1)A person is taken to have committed an offence if—
(a)the person and at least 1 other person enter into an agreement to commit an offence; and
(b)either—
(i)an offence is committed in accordance with the agreement; or
(ii) an offence is committed in the course of carrying out the agreement.
(2) For subsection (1) (b) (i), an offence is committed in accordance with an agreement if—
(a)the conduct of 1 or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b)to the extent that a physical element of the joint offence consists of a result of conduct—the result arises from the conduct engaged in; and
(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, happens in the circumstance.
(3)For subsection (1) (b) (ii), an offence is committed in the course of carrying out an agreement if a person is reckless about the commission of an offence (the joint offence) that another person in fact commits in the course of carrying out the agreement.
(Emphasis in original).
The Crown case was, in short, that the offender and the co-offender entered into an agreement to commit an offence or offences, being either aggravated burglary or aggravated robbery, and that the offence of intentionally inflicting grievous bodily harm was committed by the offender in accordance with carrying out that agreement. That was because the offender was reckless about the commission of the offence of intentionally inflicting grievous bodily harm that was in fact committed by the co-offender in the course of carrying out the agreement to commit the offence or offences of aggravated burglary or aggravated robbery.
In convicting the offender, the jury must have been satisfied beyond reasonable doubt of the Crown case in that regard. For the purposes of sentencing the offender, I am also satisfied beyond reasonable doubt that the offender was reckless as alleged by the Crown in relation to the commission of the offence of intentionally inflicting grievous bodily harm.
Objective seriousness of the offences
Each of the offences of which the offender has been convicted are serious offences. That is reflected in the maximum penalties that parliament has chosen to assign to those offences.
The maximum penalty for the offence of aggravated robbery is 25 years’ imprisonment, a fine of $375,000, or both.
The maximum penalty for the offence of aggravated burglary is 20 years’ imprisonment, a fine of $300,000, or both.
The maximum penalty for the offence of intentionally inflicting grievous bodily harm is 13 years’ imprisonment.
The facts, circumstances and nature of the offending were also, self-evidently, serious. The offender and the co-offender entered the residence where Mr Johnson was staying, that being a place where he was entitled to feel safe. Mr Johnson apparently knew the offender, though he did not know the co-offender, or at least did not know him well. Both the offender and the co-offender were armed and Mr Johnson was awoken by their intrusion into the house. It must have been a terrifying experience for him. The only consideration that somewhat lessens the seriousness of the aggravated robbery and burglary offences is that the value of the property taken was not great, though that was perhaps only because Mr Johnson did not have anything much of value to take.
The injuries sustained by Mr Johnson as a result of the stabbing, as evidenced by the medical evidence at trial, were very serious indeed, to the point of being life-threatening. As I have already indicated, however, it was the co-offender who inflicted those injuries. The offender’s liability as joint offender in relation to the offence of inflicting grievous bodily harm arose because he was reckless as to the commission of the offence in the course of the aggravated burglary or robbery. No doubt important in that regard was the fact that the offender knew that the co-offender was armed with a knife when he and the co-offender entered Mr Johnson’s apartment that morning. The words spoken by the offender as he left the unit also plainly indicated that the offender knew that there was at least a risk that the co-offender might harm Mr Johnson.
Procedural history
The offender was arrested on 26 September 2016. He first appeared the in ACT Magistrates Court on 27 September 2016, entered pleas of not guilty, and was remanded in custody on the same day. He was committed for trial to this Court on 16 January 2017.
On 5 September 2017, the offender was granted bail. However, on 11 September 2017, this Court issued a warrant for the arrest of the offender. The offender was arrested and appeared before this Court on 13 December 2017. On that date, the offender was refused bail and remained in custody following that appearance.
Sentence imposed on co-offender
On 22 November 2017, the co-offender was found guilty, following a trial, of a number of offences.
On 8 March 2018, the co-offender was sentenced by Burns J in respect of the offences of aggravated robbery, assault occasioning actual bodily harm, inflicting actual bodily harm, and intentionally inflicting grievous bodily harm: R v Chevalier [2018] ACTSC 236.
The sentences imposed by Burns J were as follows:
(a)With regard to the offence of intentionally inflicting grievous bodily harm on 26 September 2016, the co-offender was sentenced to five years’ imprisonment, commencing on 14 December 2016 and expiring on 13 December 2021. That offence related to the stabbing of Mr Johnson.
(b)With regard to the offence of aggravated robbery on the same date, the co-offender was sentenced to three years’ imprisonment, commencing on 14 December 2019 and expiring on 13 December 2022. I note in that regard that the co-offender was not charged with or convicted of the offence of aggravated burglary.
(c)With regard to the offence of assault occasioning actual bodily harm, the co-offender was sentenced to four months imprisonment, commencing on 14 December 2019 and expiring on 13 April 2020.
(d)With regard to the offence of inflicting actual bodily harm on the same date, the co-offender was sentenced to 12 months imprisonment, commencing on 14 December 2019 and expiring on 13 December 2020.
The offences of assault occasioning actual bodily harm and inflicting actual bodily harm involved the co-offender punching Mr Johnson and also cutting Mr Johnson’s hand in the course of a struggle. It should be noted that the offender was found not guilty by the jury in respect of his joint commission of those offences. The co-offender was also sentenced by Burns J in relation to a number of unrelated offences.
It should also be noted that, as was apparent in the procedural history recited earlier, the offender has been in custody in relation to those offences for which he is being sentenced since 26 September 2016, other than an approximately three-month period between 5 September 2017 and 12 December 2017, that being the period that he was on bail prior to his arrest.
Subjective circumstances of the offender
The offender adduced no evidence in relation to his subjective circumstances on sentence. There was, however, a pre-sentence report tendered by the Crown. That pre-sentence report reveals the following relevant matters in relation to the offender’s subjective circumstances.
The offender was born on 8 May 1985. He is currently 33 years of age. He was 31 years of age at the time of the offences. The pre-sentence report reveals that the offender has had prior contact with ACT Corrective Services. The Crown also tendered records of the offender's previous convictions. It is unnecessary to go through those convictions in great detail. It suffices to say that the offender has an extensive criminal history dating back to at least 2001, where he was convicted of some relatively minor property damage offences in the ACT Childrens Court.
Since that time, he has appeared before the ACT Magistrates Court and this Court to be sentenced on a number of occasions. Many of those occasions involved relatively minor property offences, though he has been sentenced to imprisonment for some more serious offences by this Court. He was convicted on 30 March 2006 of aggravated burglary as well as some other offences and received sentences of imprisonment, which were suspended upon the offender entering into a good behaviour bond. In 2012, he was convicted of the offence of aggravated robbery, again by this Court, and sentenced to a term of imprisonment with a non-parole period.
In relation to the last-mentioned offence, the offender was sentenced to a term of six years’ imprisonment, commencing on 16 June 2011. He was granted parole on 2 June 2015 but that parole order was cancelled on 11 August 2015. He was released on grant of parole again on 22 March 2016 and that parole order expired on 10 August 2017.
Returning then to the pre-sentence report, the relevant background information as reported to the Community Corrections Officer in the pre-sentence report included the following.
The offender was born in Canberra and raised with his two brothers by both parents. He described a stable upbringing, and further claimed to maintain a close relationship with both parents. He advised the Community Corrections Officer that he is currently single and has no dependents.
He has an eight-year-old son who resides in Newcastle with his mother. He described his relationship with his son’s mother as amicable and noted that he had irregular phone contact with his son.
The offender advised that he resided with his parents prior to entering custody. He claimed that his accommodation was still available for him if he was to return to the community, which was confirmed by his mother.
The offender completed his Year 10 education. However, he described to the Community Corrections Officer an inconsistent and sporadic employment history since leaving school, which he attributed to his illicit substance use and periods of incarceration.
The offender noted that, during his most recent period of parole, he was employed as a full-time labourer for approximately five months. He identified the money he was making from that employment as a contributing factor to his subsequent relapse into illicit substance abuse. The offender advised that his increased drug use resulted in him losing his job prior to entering custody.
The offender advised the Community Corrections Officer that he had no debts in the community. He was reliant on Centrelink benefits prior to entering custody.
The offender also told the Community Corrections Officer that he began consuming cannabis on a daily basis at the age of 12 years. Whilst he claimed that his cannabis use decreased to occasional social use from the age of 13 years, he described commencing use of the substance heroin from that age.
The offender disclosed using a quarter of a gram of heroin and a point of methamphetamines per day in the final month prior to his most recent period of incarceration.
A self-directed drug use questionnaire assessing the offender’s level of drug-related harm in the preceding 12 months was administered on 4 October 2018. The offender was assessed as being at a severe level of drug-related harm. The offender described his mental and physical health as stable.
The offender spoke with the Community Corrections Officer about his attitude to the offences. He pleaded not guilty to those offences at trial and would appear to maintain his innocence. It could accordingly not be said that he was contrite or remorseful. He was, however, nevertheless able to verbalise some victim empathy, noting that no one deserves to have their home invaded and that the victim had the right to feel safe in his own home.
In submissions on behalf of the offender on sentence, Mr Lawton confirmed that those words of empathy were spoken on a largely hypothetical basis. The submission was that the offender was able to empathise with the victim, Mr Johnson, despite continuing to maintain his innocence in relation to the offences.
The pre-sentence report contains the following opinion in relation to the offender:
Mr Po’oi is a 38 [sic] year old man with a substantial criminal and illicit drug history. It is positive that the offender has the support of his parents, has a stable and supportive accommodation option in the community and has expressed some insight into this offending behaviour and the impact his action may have had on the victim.
However, Mr Po’oi’s continued failure to remain abstinent from illicit drug use and maintain stable employment is of significant concern. It is clear that Mr Po’oi requires further interventions if he intends on being successful in addressing his long standing addiction issues. If he was to be released to the community, this Service holds the opinion that a residential rehabilitation program would offer the offender a more appropriate, intensive and long term intervention opportunity to meet the needs of his drug related risk.
Mr Po’oi has been assessed at being at a medium-high level of generalised reoffending and would benefit from engagement with an intensive drug intervention; maintenance of stable employment; and addressing anti-social attitudes towards offending behaviour, decision making and supervision.
Relevant factors
In sentencing the offender, I should have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Those purposes are said to be:
(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender; and
(g)to recognise the harm done to the victim of the crime and the community.
I am also required to have regard to the list of relevant considerations in s 33 of the Sentencing Act, to the extent that they are relevant and known to the Court. I will not go through the extensive list of relevant considerations, other than to note a number of the relevant considerations, some of which I have already adverted to.
As I have already noted, the offences are objectively very serious. Parliament has chosen to assign significant periods of imprisonment as the maximum penalties for those offences. Equally, for the reasons I have already described, the facts, circumstances and nature of the particular offences committed by the offender in this case make them very serious offences.
Mr Lawton, on behalf of the offender, submitted that the offences were towards the lower end of the spectrum. The Crown’s submission was that they were towards the lower end or middle of the spectrum. Ultimately, I am not entirely convinced that describing where the offences fit on a spectrum is particularly relevant, though I would perhaps accept the Crown’s submission that they are within the lower to middle range of seriousness for these types of offences.
There is very little in the offender’s subjective circumstances, as described in the pre-sentence report, to warrant any particular leniency in sentencing. He has an extensive criminal history and has been in and out of jail at various times.
His offending, according to the pre-sentence report, is largely attributable to his illicit substance abuse and the sort of lifestyle that goes along with it. It does not appear that he has yet been able to conquer his habits involving illicit substances. Nevertheless, he was able to show some empathy for the victim.
As I have indicated, one of the purposes of sentences is rehabilitation. Unfortunately, the information contained in the pre-sentence report does not give one much cause for optimism in terms of prospects of rehabilitation in the offender’s case.
Cases
I have had regard to some comparative cases that the Crown provided in its bundle of material. As well as Burns J’s remarks on sentence in respect of the co-offender, the Crown provided the following cases involving sentences imposed for aggravated burglary: R v Lindley-Jones [2014] ACTSC 296; R v Lockwood [2018] ACTSC 288; R v Greentree (No 2) [2017] ACTSC 315 and R v Minnis [2014] ACTSC 268.
I will not refer in detail to the circumstances of those cases. Suffice it to say that they all involve offences that are different, and offenders who had different subjective circumstances to the offender in this case. I do not think that they establish any particular pattern of sentencing, other than that the courts obviously regard offences of this nature as serious and almost invariably impose sentences, sometimes significant sentences, of imprisonment.
Parity
In sentencing the offender, it is important to have regard to the principle of parity. In simple terms, the principle of parity is that like offenders should be treated alike. However, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295. There are cases where the evidence permits a differentiation between the roles of participants in a joint criminal enterprise: Beale v The Queen [2015] NSWCCA 120.
The co-offender and the offender both were convicted of the offence of aggravated robbery. This is a case where the principle of parity is significant. It is difficult, if not impossible, to differentiate the roles of the co-offender and the offender in relation to that particular offence. That would suggest that the offender should receive the same penalty as the co-offender received in relation to that offence.
The same cannot be said in relation to the offence of intentionally inflicting grievous bodily harm. As I have said, whilst the offender jointly committed that offence, he was not directly responsible for inflicting the injury to Mr Johnson. His culpability and the basis of his liability was recklessness as to whether the co-offender might commit that offence.
I consider that the offender’s culpability and the criminality involved in his joint commission of the offence of intentionally inflicting grievous bodily harm is significantly less than his co-offender and he should receive a lesser sentence than his co-offender received in relation to that offence.
Sentence
I have had regard to all of the relevant objective and subjective circumstances, as well all of the relevant considerations in the Sentence Act. I consider the following sentences adequately reflect the purposes of the Sentencing Act.
I intend to backdate the sentences of imprisonment to start from 1 January 2017, which is about three months after the period when the offender was taken into custody as a result of these offences, to take into account the period of approximately three months when he was on bail.
In relation to the offence of aggravated robbery, I consider the appropriate penalty is imprisonment of three years to commence on 1 January 2017 and to expire on 31 December 2019.
It should be noted that the aggravated robbery and the aggravated burglary offences were committed as part of the same course of criminal conduct. Many of the elements significantly overlap, though there are some additional elements in relation to the offence of aggravated burglary.
In all the circumstances, I consider that a sentence of imprisonment of three years is appropriate for the offence of aggravated burglary. However, that penalty should be largely served concurrently with the penalty imposed in relation to the aggravated robbery offence. I consider that the three year sentence should commence on 1 July 2017 and expire on 30 June 2020. That is, effectively, an additional penalty of six months’ imprisonment for the offence of aggravated burglary.
In relation to the offence of intentionally inflicting grievous bodily harm, as I have said, the offender jointly committed that offence, but was less culpable than the co-offender. The criminality and culpability involved was the offender’s recklessness. I nevertheless consider it to be a serious offence in all the circumstances, warranting a sentence of imprisonment of three years.
Again, the three year sentence is to be served partly concurrently with the sentences imposed in relation to the other offences. I consider that the three year sentence should commence on 1 January 2018 and expire on 31 December 2020.
Effectively, the offender is sentenced to an aggregate term of imprisonment of four years commencing on 1 January 2017 and ending on 31 December 2020.
I consider that an appropriate non-parole period in respect of that aggregate sentence of imprisonment of four years is a non-parole period of two and a half years, that period to commence on 1 January 2017 and expire on 30 June 2019.
Orders
I make the following orders:
(a)In respect of the offence of aggravated robbery the offender is sentenced to a term of imprisonment of three years commencing on 1 January 2017 and ending on 31 December 2019.
(b)In respect of the offence of aggravated burglary the offender is sentenced to a term of imprisonment of three years commencing on 1 July 2017 and ending on 30 June 2020.
(c)In respect of the offence of intentionally inflicting grievous bodily harm the offender is sentenced to a term of imprisonment of three years commencing on 1 January 2018 and ending on 31 December 2020.
(d)I set a non-parole period of two years and six months commencing on 1 January 2017 and ending on 30 June 2019.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney. Associate: Date: 27 February 2019 |
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