R v Roberts
[2020] ACTSC 296
•14 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Roberts |
Citation: | [2020] ACTSC 296 |
Hearing Dates: | 2 June; 6 October 2020 |
DecisionDate: | 14 October 2020 |
Before: | Burns J |
Decision: | See [18]–[24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four counts assault occasioning actual bodily harm – pleas of guilty – offences occurred while offender and victims in custody – guarded prospects for rehabilitation – limited remorse |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 |
Cases Cited: | R v Roberts [2018] ACTSC 250 |
Parties: | The Queen (Crown) Cedric Roberts (Offender) |
Representation: | Counsel K Lee (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins (Offender) | |
File Numbers: | SCC 187 of 2019; SCC 188 of 2019 |
BURNS J:
Cedric Roberts, you appear before me today for sentence with respect to four charges of assault occasioning actual bodily harm. All of these offences occurred on
20 September 2018. You were committed for trial on three of these charges, and an indictment dated 29 August 2019 was presented by the Crown containing three counts. I will refer to those offences in due course by their numbers on the indictment.
A plea of guilty was entered in the ACT Magistrates Court to the fourth charge. I will refer to that by the ACT Magistrates Court number being charge CAN 2019/3904.
A plea of guilty, as I have said, to the charge CAN 2019/3904 was entered in the
ACT Magistrates Court. This was on the fifth mention date. I accept this was an early plea of guilty, and I will reduce the otherwise appropriate sentence by approximately 25 per cent, in order to reflect your plea of guilty. The victim in relation to that was KR.
Counts 1, 2 and 3 on the indictment had pleas of guilty entered on 6 April 2020, although it appears that pleas of guilty had been indicated at an earlier date. I propose to reflect the utilitarian value of those pleas by reducing each of the otherwise appropriate sentences by approximately 15 per cent.
The victim with regard to Count 1 on the indictment was AO. The victim with regard to Count 2 was DT. Finally, the victim with regard to Count 3 was SH.
Each of the offences of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT), carries a maximum penalty of five years' imprisonment.
An Agreed Statement of Facts was tendered. For the purposes of sentencing you, I will simply note that these offences occurred in the Alexander Maconachie Centre (AMC) in Hume in the ACT. Three of the offences involved a jugging, when you tipped boiling water mixed with jam and sugar over three victims. The fourth offence occurred subsequent to the jugging when you were confronted by another inmate who was then stabbed in the mouth area with a shiv, being an improvised knife, by you.
The Agreed Statement of Facts provides minimal information in terms of the injuries sustained by the victims. With regard to the burn injuries, it appears that the worst injuries were suffered by KR. He suffered severe burns over a relatively large area of his body. The next in severity appears to be AO, who suffered burns over a significant part of his body. The next in order of severity is DT, who suffered burns over a smaller body area. No evidence was placed before me of the ongoing effects of those injuries to the victims.
With regard to the assault with the shiv, the victim, SH, required 10 stitches. I note that in assessing the objective seriousness of that offence, the weapon was directed towards the head of the victim. I take into account the Victim Impact Statement and the ongoing consequences suffered by the victim with regard to that offence.
The infliction of the burn injuries was clearly premeditated. You had also armed yourself with the improvised knife or shiv, and to that extent there was planning or preparation involved with regard to the offence of assault occasioning actual bodily harm against SH. However, I do accept the circumstances in which the offence occurred was not one of preparation on your part. I, of course, take into account that all offences occurred within a custodial setting. I would assess the objective seriousness of each of these offences as in the mid-range.
You are 22 years of age, although I note that you were 20 years old at the time of these offences. You have a significant criminal history which disentitles you to any leniency in the present proceeding.
Previous sentences
On 29 March 2018, I sentenced you to terms of imprisonment totalling six years and one month, commencing on 8 August 2016 and expiring on 7 September 2022. I set a non-parole period of three years and four months commencing on 8 August 2016 and expiring on 7 December 2019: see R v Roberts [2018] ACTSC 250. Subsequent proceedings in the ACT Magistrates Court extended the head sentence to
7 February 2023, and the non-parole period to 7 February 2020.
When I sentenced you in 2018, I recommended that any application to transfer your sentences to NSW be treated favourably, because of your lack of family and community support in the ACT, and the prospect that your rehabilitation may be enhanced by reconnecting with your Indigenous culture in the Lismore district. Sadly, no application for transfer occurred because of the present offences.
Subjective features
In my reasons for sentence in 2018, I set out at some length your history. I will not now repeat those matters. I note that your childhood and formative years were marred by exposure to violence and drug abuse. You reported spending most of your childhood on the streets. You commenced alcohol and drug use at an early age. Undoubtedly the effects of your childhood deprivation continue to have an influence on your attitudes and actions. An Updated Pre-Sentence Report notes that you were refused parole on 2 June 2020. I understand that a further application for parole is currently outstanding.
Your conduct in the AMC appears to have been initially problematic, with suggestions of poor behaviour and continued drug use within the AMC being reasons given by the Sentence Administration Board for refusing parole in June 2020. It is heartening to note that there have been no disciplinary reports against you since May 2020, and that in June 2020 you commenced employment as a sweeper. You applied to join the
Solaris Therapeutic Program in the AMC, but this was unsuccessful because of your ongoing court matters. You applied to enter the Oolong Residential Rehabilitation Program as part of your application for parole.
Based on this material, I am satisfied that there has, at least since May 2020, been a significant improvement in your attitude and your approach to rehabilitation. Nevertheless, your prospects for rehabilitation must remain guarded. You have shown limited remorse. I accept that your pleas of guilty demonstrate a degree of remorse, and I also observe that the author of the Updated Pre-Sentence Report refers to you demonstrating some victim empathy. Your counsel has rightly accepted that
full-time imprisonment is inevitable with regard to the present charges.
The effect of the operation of s 72 of the Crimes (Sentencing) Act 2005 (ACT)
(the Crimes (Sentencing) Act) is that in the absence of a direction under s 72(3), all sentences I impose must be served consecutively with the sentences of imprisonment that you are currently serving.
It is accepted by the Crown that it is appropriate to make orders that the sentences I impose be served mostly concurrently against each other, because they all occurred as part of one incident. In addition, the three assault occasioning actual bodily harm offences involving the boiling water had a single actus reus. I think there is also some reason for making the commencement date of the sentences that I intend to impose somewhat earlier than the expiration date of the existing sentences. The recent change in your attitude and approach to rehabilitation should be recognised and fostered by ameliorating the full impact of s 72 of the Crimes (Sentencing) Act.
Sentence
For the offence of assault occasioning actual bodily harm on KS, being charge
CAN 2019/3904, I record a conviction and you will be sentenced to
13 months' imprisonment, which I have reduced from 18 months’ in order to reflect your plea of guilty, commencing on 8 August 2022 and expiring on 7 September 2023.
For the offence of assault occasioning actual bodily harm of which AO was the victim, which is Count 1 on the indictment being charge CAN 2019/3905, you are convicted and sentenced to 12 months' imprisonment, which I have reduced from
14 months’ because of your plea of guilty, commencing on 8 August 2022 and expiring on 7 August 2023.
With regard to the offence of assault occasioning actual bodily harm of which DT was the victim, which is Count 2 on the indictment, being charge CAN 2019/3906, you are convicted and sentenced to eight months' imprisonment, which I have reduced from
10 months’ because of your plea of guilty, commencing on 8 August 2022 and expiring on 7 April 2023.
With respect to the offence of assault occasioning actual bodily harm of which TH was the victim, which is Count 3 on the indictment, being charge CAN 2019/68, you are convicted and sentenced to 15 months' imprisonment, which I have reduced from
18 months’ because of your plea of guilty, commencing on 8 February 2023 and expiring on 7 May 2024.
The aggregate term of imprisonment I have imposed is one year and nine months, commencing on 8 August 2022 and expiring on 7 May 2024.
The total sentence comprising the existing sentences and the sentences that I have imposed is one of seven years and nine months' imprisonment, commencing on
8 August 2016 and expiring on 7 May 2024.
I set a non-parole period of four years and eight months, commencing on
8 August 2016 and expiring on 7 April 2021.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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