R v Rhodes
[2020] ACTSC 324
•4 December 2020
Yet
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Rhodes |
| Citation: | [2020] ACTSC 324 |
| Hearing Date: | 4 December 2020 |
| Decision Date: | 4 December 2020 |
| Before: | Elkaim J |
| Decision: | See [25] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – driving offences – causing grievous bodily harm – early plea |
| Legislation Cited: | Crimes Act 1900 (ACT) s 25 Criminal Code 2002 (ACT) ss 312, 318(2) Magistrates Court Act 1930 (ACT) s 90A Road Transport (Driver Licencing) Act 1999 (ACT) s 31(2) |
| Parties: | The Queen (Crown) |
| Jenard Jim Rhodes (Offender) | |
| Representation: | Counsel |
| V Conliffe (Crown) | |
| B Morrisroe (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
| File Numbers: | SCC 210 of 2020; SCC 211 of 2020 |
| ELKAIM J: |
1. On 21 September 2020 the offender pleaded guilty to four charges in the Magistrates Court. The offences were then committed to the Supreme Court on 23 September 2020 to be dealt with under s 90A of the Magistrates Court Act 1930 (ACT).
2. The four offences and their maximum penalties are:
(a) Aggravated burglary with intent to steal (CC7296/2020), contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty is 20 years’ imprisonment, a
fine of $320,000 or both.
(b) Ride/drive motor vehicle without consent (CC7297/2020), contrary to s 318(2) of the Criminal Code. The maximum penalty is 5 years’ imprisonment, a fine of
$80,000 or both.
(c) Causing grievous bodily harm (CC7300/2020), contrary to s 25 of the Crimes Act 1900 (ACT). The maximum penalty is 5 years’ imprisonment.
(d) Driving unlicenced (CC7299/2020), contrary to s 31(2) of the Road Transport (Driver Licencing) Act 1999 (ACT). The maximum penalty is 6 months’
imprisonment, a fine of $8000 or both.
3. The Crown Tender Bundle (Exhibit A) contains a detailed statement of the facts. Here is a summary: In the early hours of 15 June 2020 the offender and a 14-year-old girl, essentially lured a Ms Maniaci, then aged 70, to drive them to an address in Tuggeranong in her Toyota Rav 4. She was about to do so when the intended destination was changed to Gungahlin.
4. Ms Maniaci would not agree to the amendment and asked the two persons to leave the vehicle. They did so.
5. A little later however the victim heard her motor vehicle being started. She went to the vehicle and took hold of the front passenger door handle. Nevertheless the offender reversed the car out of the garage and drove away. This is the aggravated burglary. I note the vehicle was never returned and later found destroyed by fire.
As the Toyota was being reversed the victim, as a result of the vehicle’s momentum,
fell to the ground. She broke her hip. This is the offence of causing grievous bodily
harm. The Toyota was driven by the offender without a licence.7. A little later the young person was seen driving the Toyota. The offender was the passenger. This is the riding in a motor vehicle without consent offence.
8. The pleas of guilty were entered at a reasonably early stage and entitle the offender to a discount, subject to some rounding off, of 20%. This discount has been factored into the sentences I will impose.
9. The detail of the injury suffered by Ms Maniaci is described in a report of Dr Barry dated 21 August 2020. In summary the victim suffered a transcervical fracture of the left neck of her femur requiring surgery. While in hospital she was infected with pneumonia leading to acute pain.
10. The victim now has a replaced hip and will have a degree of reduced mobility. In other words her injuries will be life-long. She has prepared a victim impact statement which sets out the extensive effects on her life. The impact has been felt not only by her but also her husband who has become her carer. They need to have their house cleaned by a professional. They rely on takeaway meals a great deal.
11. Ms Maniaci tried to help the offenders. They repaid her with their criminal conduct.
12. In sentencing this offender it will be important to bear in mind principles of totality but also that there are four individual offences, although they essentially arise from one criminal escapade. Even though aggravated burglary carries the largest sentence I think the most serious of these offences, objectively, is causing grievous bodily harm. This is because of the substantial and long-term injury inflicted upon the victim.
13. I assess the causing of grievous bodily harm to be of medium objective seriousness. It would have been more serious had the offence not been committed by negligence as opposed to intent. I think the burglary, mostly because of the elements of a home intrusion and the vehicle being permanently lost, is also at about medium objective seriousness for offences of this type.
14. One aspect that is important, arising from the facts of the matter, is the joining together with a 14-year-old girl so as to involve that young person in criminal conduct.
15. The offender has a criminal record. It is fairly wide-ranging for a person of his age and quite extensive.
16. The offender was born in 2000. His parents separated when he was very young. Fortunately his stepfather has provided paternal support, unlike his biological father who was apparently abusive.
17. The offender completed Year 11. He has had two jobs one of which lasted four months. Illicit drugs are a problem for him. He really needs to sort out this problem if he is going to not have a permanent life in crime. He has been attending a drug and alcohol program in custody but he turned down a referral to the Drug and Alcohol Court, which is unfortunate.
18. The offender through his plea of guilty and from what he told the authors of the pre- sentence report seems to have some insight into his offending and has remorse for his actions. He reiterates these sentiments in his letter to the Court.
19. The pre-sentence report says that he is not suitable for an Intensive Corrections Order. It was submitted on behalf of the offender that the sentence should be deferred to enable him to try and bring his life under control while being under strict supervisory conditions. I disagree. I think he should be sentenced immediately but because of his age, and a strong call for rehabilitation, that his sentence should be tempered by a reasonably short nonparole period. I also reject the suggestion of a suspended sentence. I think the offender should be subject to scrutiny by the authorities in assessing his behaviour and progress in prison before he returns to the community.
There is a letter from the offender’s mother expressing her support for him and stating
that he will be welcomed back into the house. She says that he will be assisted
emotionally and physically and she has “every confidence that Jenard will do and
become better, make better choices and improve himself into becoming a healthier and
mature man”. One can only hope that this is correct.
21. There is a report from a psychologist, Dr Clout. She confirms his problem with drugs and says that he fits the criteria for a Stimulant Use Disorder, a Cannabis Use Disorder and an Alcohol Use Disorder. She says the disorders are in early remission but would have been more influential at the time of the offending. She says there is a need for long-term treatment.
22. Dr Clout thinks there are indications of a borderline personality disorder, although not
sufficient to fall within the diagnostic criteria of DSM – 5.
23. Thus yet again we have a young man who has fallen prey to the scourge of illicit drugs and found a life of crime to be an acceptable mode of behaviour. He must be deterred as must the young community from behaving in a similar fashion. There is a need for both specific and general deterrence.
24. The offender has spent 84 days in custody attributable to these offences.
25. I make the following orders:
(a)
For the offence of aggravated burglary (CC7296/2020), the offender is sentenced to 14 months imprisonment (reduced from 18 months) to commence on 12 September 2020 and end on 11 November 2021.
(b) For the offence of ride/drive motor vehicle without consent (CC2797/2020), the offender is sentenced to 3 months’ imprisonment to commence on 12
September 2020 and end on 11 December 2020.
(c) For the offence of causing grievous bodily harm (CC7300/2020), the offender is sentenced to 19 months imprisonment to commence on 12 December 2020 and end on 11 July 2022. (d) For the offence of driving unlicenced (CC7299/2020), the offender is sentenced to 3 months’ imprisonment to commence on 12 September 2020
and end on 11 December 2020.
(e) The total period of imprisonment is 1 year and 10 months to commence on 12 September 2020 and end on 11 July 2022. (f) I set a non-parole period of 12 months to commence on 12 September 2020 and end on 11 September 2021. I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.
Associate:
Date: 4 December 2020
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