R v Ruwhiu
[2022] ACTSC 290
•30 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| R v Ruwhiu | |
Citation: | [2022] ACTSC 290 |
Hearing Date: | 24 June 2022 |
DecisionDate: | 30 June 2022 |
Before: | Refshauge AJ |
Decision: | 1. Jay Ruwhiu be convicted of burglary and be sentenced to 11 months imprisonment, commencing from 2 March 2022 and expiring on 1 February 2023. 2. Jay Ruwhiu be convicted of theft and be sentenced to 6 months imprisonment, commencing from 2 September 2022 and expiring on 1 March 2023. 3. Jay Ruwhiu be convicted of aggravated robbery and be sentenced to 3 years 3 months imprisonment, commencing from 2 December 2022 and expiring on 1 March 2026. 4. I decline to make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT). 5. I set a non-parole period of 12 months, commencing from 2 March 2022 and end on 1 March 2023. 6. I recommend that Jay Ruwhiu engage in the Solaris Therapeutic Community Program of the Alexander Maconochie Centre. 7. I recommend under s 67 of the Crimes (Sentencing) Act 2005 (ACT) that the Sentence Administration Board, in granting parole, make a condition that requires Jay Ruwhiu to engage in further drug rehabilitation, including, if appropriate, residential drug rehabilitation. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Aggravated Robbery – Drug and Alcohol Treatment Order Application – Application Denied – Risk of Visa Cancellation – Rehabilitation – Recommended Parole Condition |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 63, 65, 67, 80S Migration Act 1958 (Cth) s 501, 501CA |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 Boney v The Queen [2015] NSWCCA 291 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Texts Cited: | Bugmy Bar Book Committee, ‘Early Exposure to Alcohol and Other Drug Abuse’ in The Bar Book Project (Sydney, NSW; The Public Defenders, 2019) |
Parties: | The Queen ( Crown) Jay Ruwhiu ( Offender) |
Representation: | Counsel C Daly ( Crown) C Duffy (24 June 2022); T Cobden (30 June 2022) ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 262 of 2021 |
REFSHAUGE AJ:
Introduction
The Drug and Alcohol Treatment Order (Treatment Order) introduced in 2019 into the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) under s 12A is intended to address criminality that is committed because of the dependence of the offender on alcohol or other drugs.
Such dependence often starts at a young age and prevents completion of proper education which makes it highly likely that, together with drug use, the offender will have difficulty in finding or keeping employment. This mostly leads to a long history of offending, often commencing in the Childrens Court.
Now appearing for sentence on his plea of guilty to offences of aggravated robbery, burglary and theft is Jay Ruwhiu, who presents a different side of this common scenario. Mr Ruwhiu is a 48 year old man who, so far as records are available to the Court, has only a criminal record from 2020. It seems clear that this is because it was at about that time that he experienced difficulties in retaining his employment, leading to homelessness, without the support of family. His story shows the difficulties that poverty and homelessness can cause and how the community can address the risk to safety and the community by addressing, not just alcohol and drug dependency, but some of the causes leading to that dependency.
On sentencing, the Crown tendered without objection the Crown Tender Bundle which contained the required cover sheet, the committal documents, an Agreed Statement of Facts, Mr Ruwhiu's Criminal History, a Compensation Schedule, and a Victim Impact Statement.
Also included were the Drug and Alcohol Treatment Assessments (Suitability Assessments) prepared under s 46J of the Sentencing Act, being the Drug and Alcohol Treatment Assessment dated 18 January 2022 of ACT Corrective Services and the Drug and Alcohol Sentencing List Suitability Assessments dated 12 January 2022 prepared by Alcohol and Drug Services together with a Case Plan. None of the contents of this material was challenged, save for a date which was incorrect.
At the adjourned hearing of the sentencing proceedings, the Crown tendered by consent an amended Crown Tender Bundle which contained the documents included in the original Crown Tender Bundle, but also a Breach of Bail Report, Arrest Warrant and a Police Statement of Facts for the breach by Mr Ruwhiu of his bail, for which he was dealt with in the Magistrates Court. This was shown in the updated Criminal Record also included, as well as amended Suitability Assessments of the Alcohol and Drug Services. Also tendered without objection was an updated Suitability Assessment by ACT Corrective Services. The contents of none of the documents tendered by the Crown were challenged.
Ms T Cobden, counsel for Mr Ruwhiu, tendered without objection the consent form signed by Mr Ruwhiu to the making of a Treatment Order, a letter from his sister and an extract of the entry records of Mr Ruwhiu arriving in Australia. The contents of none of these documents were challenged.
Both Ms C Daly, counsel for the Crown, and Ms Cobden provided very helpful, thoughtful and comprehensive written submissions and supplemented them with valuable oral submissions.
The facts
Early in the morning of 9 January 2021, Mr Ruwhiu broke into a restaurant in Civic, ACT. He had been loitering outside for some time, looking into the windows, apparently to check that no one was inside. He then damaged the lock of the door of the restaurant and entered it. He had no permission to do so. No one was on the premises.
He went straight to the till and removed $750 in cash, walked to the rear of the restaurant briefly and then left the same way he had entered. He did not cause any further damage to or on the premises.
Footage from CCTV cameras both inside and outside the premises showed the incident and police, who were called by the owner after he had been alerted by a tradesperson who noted that the door of the restaurant was ajar, were able to identify Mr Ruwhiu as the trespasser.
These facts were the basis for the charges of burglary and theft.
Police also obtained a search warrant for the then residence of Mr Ruwhiu and, on 1 April 2021 when executing the warrant, found a pair of shoes and a black backpack resembling items that Mr Ruwhiu was wearing, or had with him, during the incident.
Police then proceeded by way of summons, requiring Mr Ruwhiu to appear in the ACT Magistrates Court on 19 July 2021 for these offences.
On 5 August 2021, also early in the morning, Mr Ruwhiu went to a campervan parked on a street in Braddon, ACT, and broke a window of the van. The owner, however, was in the van and saw Mr Ruwhiu reaching through the broken window and taking a laptop.
The owner got out of the campervan and ran after Mr Ruwhiu. He grabbed Mr Ruwhiu and demanded the laptop back, but Mr Ruwhiu produced a chisel with which he threatened the owner who, however, kicked Mr Ruwhiu and restrained him while, as requested, a neighbour called police. During the struggle, Mr Ruwhiu threw the laptop on the ground where it smashed and the chisel, carried by Mr Ruwhiu, made contact with the owner on several parts of his body. The struggle continued until police arrived.
When police arrived soon afterwards, they arrested Mr Ruwhiu.
These events constituted the offence of aggravated robbery, the matter of aggravation being that Mr Ruwhiu had on him a chisel which he used as a weapon.
The owner sustained some injuries, described as superficial injuries and abrasions, during the incident. Photographs were taken of them and, though not included in the evidence, apparently showed a 10 centimetre gash to the back of the owner's neck, a superficial abrasion across the left of his chest, a 10 to 15 centimetre gash down the centre of his chest, a light graze to his forehead, superficial grazing of the knuckles of two fingers on his right hand, a superficial gash across his right hand palm, several light scratches and grazes to his left hand, a graze to his right knee, a deep graze to his left knee, cuts to his left leg and superficial scratches to both his feet. Police arranged for him to attend Calvary Hospital, Bruce, ACT, but he was not admitted. Mr Ruwhiu was also taken to the hospital, but the evidence does not disclose what, if any, treatment he received.
The proceedings
The course of the proceedings is a little confusing from the material before the Court. The summons issued for the burglary and theft charges was made returnable on 19 July 2021, but Mr Ruwhiu is shown to have appeared in the ACT Magistrates Court in custody when he was charged on 5 July 2021. It is not clear why he was then in custody. The charge of burglary was slightly amended and Mr Ruwhiu was granted bail that day.
After several adjournments, the proceedings were listed for Mr Ruwhiu to plead to the charges on 16 August 2021. He was, however, arrested on 5 August 2021, as noted above (at [17]), and appeared that day in Court on the charge of aggravated robbery. The other charges were also mentioned and the date of 16 August 2021 was vacated. Mr Ruwhiu did not apply for bail and he was remanded in custody. He has remained in custody since then, until granted bail in this Court, as noted below (at [24]).
Mr Ruwhiu's solicitors made representations to the Director of Public Prosecutions and the proceedings were further adjourned a number of times. In the meantime, the prosecution prepared and served the Brief of Evidence.
On 4 November 2021, Mr Ruwhiu entered pleas of guilty to the three offences and was committed to the Supreme Court with the request that the proceedings be referred to the Drug and Alcohol Sentencing List.
While Mr Ruwhiu had been in custody since 5 August 2021, he has been sentenced to terms of imprisonment for other offences, which commenced on 3 August 2021 and ended on 31 January 2022. These days, being periods of custody under sentence, were not to be counted towards any Pre-Sentence Custody to be taken into account for the sentence on the current charges before this Court: see R v Po’oi [2021] ACTSC 151 at [39]–[44].
On 6 April 2022, Mr Ruwhiu was granted bail in this Court to permit him to attend the day program at Canberra Recovery Services in Fyshwick, ACT, a drug rehabilitation facility. He appears to have attended the program for a few days, but, by the second week, he failed to attend the program or attend for supervision, as required as conditions of his bail and, on 29 April 2022, he failed to appear again in Court as directed. A warrant was issued for his arrest.
He was arrested on 8 May 2022 and has remained in custody until sentenced. Thus, he has been in custody for various periods of time since 5 April 2021, but on these offences only, the period which must be taken into account in sentencing him, under s 63 of the Sentencing Act, is 119 days. It is noted that the total period of custody, however, has been 301 days, though most of it serving other sentences.
The offences
A court sentencing an offender is required to have regard to the factors set out in s 33(1) of the Sentencing Act. Consistent with the common law, this includes a consideration of the nature and circumstances of the offences. That requires the court to address the maximum penalty for the offences because it is what the legislature has prescribed and it provides a comparison, when considered with all the other factors in assessing the comparative seriousness of the offence, with a yardstick.
Of course, most offences can be committed in a wide variety of ways and circumstances, thus the courts have, over time, set out the factors that will make the actual version of the events for which the offender has to be sentenced more or less serious. This is part of the required consideration of current sentencing practice, set out in s 33(1)(za) of the Sentencing Act.
Aggravated robbery is an offence contrary to s 310 of the Criminal Code 2002 (ACT) which section prescribes a maximum penalty of 25 years imprisonment, a fine of $400,000 or both. It is, thus, to be accounted a very serious offence. In R v Coleman [2021] ACTSC 349 at [31]–[32], the Court explained:
31. It is, of course, an offence of both violence and dishonesty, no doubt one of the reasons why it is regarded so seriously. Unjustified violence is never acceptable in a civilised society and, of course, almost invariably creates harm, even if not physical, at least mental harm for the victims.
32. Dishonesty offences deprive people of property of value, sometimes the more valuable to them because the personal or sentimental value, which can be more valued by the victim than the actual monetary worth. They can deprive the victims of property they have worked hard to obtain and have unfortunate effects more widely though insurance premiums generally.
In New South Wales, a Guideline Judgment under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) regarding armed robbery, an equivalent offence in that jurisdiction, has been issued by the Court of Appeal: R v Henry [1999] NSWCCA 111; 46 NSWLR 346. It described the “reasonably typical version” of the nevertheless serious offence from which the matters of aggravation or mitigation can be identified. The Court of Appeal in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49] accepted that these were relevant factors in this jurisdiction and they have been generally followed. The Court has, however, noted that this does not apply to the sentence actually to be imposed (R v NF [2018] ACTSC 165 at [25]), relying on the Court of Appeal cases of Barrett v The Queen [2016] ACTCA 38, especially at [40]–[41] and Hall v The Queen; Barker v The Queen [2017] ACTCA 16. See also R v Nicholas;R v Palmer [2019] ACTCA 36 at [74], [137].
There were, in this case, some relevant factors. The owner was someone vulnerable, being asleep in his car parked on the street in the early hours of the morning, though Mr Ruwhiu did not know that he was there and his presence was reasonably unexpected. The weapon, though not a knife, was quite similar, which is an aggravating factor. There was no evidence of any planning or pre-meditation, other than that the chisel was, at least, an unusual weapon to have, but may have been for the purposes of another burglary. The injuries inflicted were properly described by the Crown as “superficial”, nevertheless they were injuries to the victim.
There was actual violence, though not at the time of the robbery, but when the owner tried to recover his property and to restrain Mr Ruwhiu. There was no evidence as to the value of the property, but it would not have been large, though certainly not trivial. The property stolen was a laptop, but no evidence was given of its value. While of a significant, though unlikely very great, monetary value, its loss may well have also caused inconvenience. As the owner did not provide a Victim Impact Statement and there was no other relevant evidence, it cannot be a significant consideration as a factor of aggravation in this case. In this case, while recovered, it was damaged and unlikely to have been able to be used again.
Burglary is an offence proscribed by s 311(1)(a) of the Criminal Code and attracts a maximum penalty of 14 years imprisonment, a fine of $224,000 or both. It is, thus, a serious offence, but not as serious as aggravated robbery.
While an offence of dishonesty, it also involves a trespass into someone else’s property, whether business premises or a residence. It can engender feelings of lack of safety, even violation, by the victims and disturbs the peace and the harmony of the community. It causes victims and others to feel worried about their property which is the target of this kind of theft and it can have wider effects, as insurance premiums for all are increased as a result.
The Court has, after consideration of the authorities, set out the relevant aggravating or mitigating factors in R v Hancock [2021] ACTSC 52 at [33]. Again, it is not necessary to address each of them, but the Court will refer to the relevant ones.
Making the offence somewhat less serious, the premises that were the subject of the burglary were commercial premises. No one was on the premises and, at the time, it was unlikely that this would be so. There was damage on entry, but none while Mr Ruwhiu was inside the premises.
It is clear from the evidence, as in the unchallenged report in the Alcohol and Drug Service Suitability Assessment, that Mr Ruwhiu's purpose was to gain funds to buy drugs. While Mr Ruwhiu did loiter and reconnoitre the target premises, there was no evidence of particular planning or pre-meditation, nor that the premises had been targeted or the subject of earlier burglaries by Mr Ruwhiu or anyone associated with him. As the Crown properly accepted, “the offending in this instance appears to be opportunistic”.
The Crown asserted in written submissions that the burglary caused inconvenience and referred to the owner's Victim Impact Statement in which the victim identified the extra time and resources he and his staff had to expend, the extra security that he had to install, the unsettling effects of making statements to police and the cost of repairs. He estimated the costs at over $1,000.
Theft is made a crime by s 308 of the Criminal Code, for which the legislature has specified a maximum penalty of 10 years imprisonment, a fine of $160,000 or both. Though the offence is centrally one of dishonesty, it deprives the owner of property which has value. He, she, or it as owner of a business, will have worked hard to acquire the property, cash being presumably business proceeds, and the loss will cause some inconvenience. So far as penalty for the offence involving this amount of property, see Rees v The Queen [2012] ACTCA 6 at [5].
Thus, the central issue was the value of the property and this is not limited to monetary value, which, in other cases, can encompass the sentimental or inconvenience values: see R v John [2017] ACTSC 144 at [44]–[45]. This probably does not have much effect here. The property was cash, neither an insignificant nor a very large sum.
Again, the nature of the premises may be relevant, as noted in R v Parker [2018] ACTSC 55 at [21], as is the motivation, which is, of course, the same as for the burglary, namely, the acquisition of drugs.
Inconvenience can also be relevant in other ways, especially where there is some need for the victim to make insurance claims, as explained in R v Forrest (No 2) [2017] ACTSC 83 at [76], [145]. There was no mention of that here. It does not seem particularly relevant.
Again, also, the level of premeditation or planning and the nature of the consequences of such thefts can also be important: see R v Leighton [2016] ACTSC 354 at [22]. That does not play a large part here.
It is further to be noted that, ordinarily, the sentence for a theft associated with a burglary will be wholly or substantially concurrent with that burglary: R v McMahon [2014] ACTSC 280 at [94].
Subjective circumstances
Mr Ruwhiu was born 48 years ago in Murupara, New Zealand — a rugged, rural area. He identifies as Māori. He is the youngest of the six children of his parents and the only son. He is, unfortunately, not a very good historian and there are gaps and difficulties in the history he has given to various reporters.
His parents were violent and abusive and do not appear to have provided the warm and supportive environment, and certainly not the supervision, all of which their children should be able to expect of their home life.
His father was violent to him every day and his mother was vicious, though she directed her abuse to his sisters. His parents worked during the day and drank at night, leaving him with “too much time on his hands”. [Redacted for legal reasons]
The family moved to the city when he was 10 years old. The distress caused by his home life led to him attempting to take his life at age 13. He hated school, though he was an average student. He completed his school certificate, but was expelled at age 15 for smoking cannabis. He has had no further formal education.
He followed his father’s occupation as a logger and forester. He found this environment one where his fellow workers would drink alcohol and smoke cannabis, but he liked the work, being outdoors and that it helped him stay fit and strong.
He has had one significant relationship which lasted for 14 years. The relationship was marred by the use of alcohol by both of the partners. He has two adult children, but both are resident in Brisbane. He last had contact with them in January 2021. Their relationship is satisfactory, but he is keen to become closer to them. He has now a grandchild, whom he has not met.
He has become estranged from his parents and sisters, which essentially was caused by his substance use becoming problematic. He has not had contact with them for about 10 years. He does appear, however, to have had some current contact and support from a sister in Perth.
When his employer moved to Australia, he followed. There was some uncertainty about this initially, but departmental records indicate that it was in November 2012. He has been admitted under a special category of visa which, however, does not permit him to access Centrelink and unemployment benefits. He will, however, be eligible to access Centrelink benefits after 10 years, that is, in November 2022.
Mr Ruwhiu eventually regarded himself as too old for the forestry employment and sought other work and other employment. He obtained labouring jobs in dairy factories and in construction work. Most recently, he has worked intermittently as a stone mason. When the COVID‑19 pandemic hit, his work dried up and, as did any income he could access, this led to homelessness. This was exacerbated by the response to the COVID‑19 pandemic which imposed restrictions on travel, locking him in to staying in Canberra where he had little social support. In particular, he could not travel to Western Australia where his sister lives, and who, judging from her letter to the Court, may have been able to provide some support to him.
Significantly, the homelessness and lack of social support also led to the most recent criminal offending. He is optimistic about obtaining employment on his release, but that has not been able to be confirmed.
His physical health is currently not a problem, though in his former employment, he did suffer significant injuries, including a severed toe and facial fractures. He also has no particular mental health issues, and the Suitability Assessments of the Alcohol and Drug Services indicated that he has no symptoms of any major mental illness.
Mr Ruwhiu began use of substances at an early age. He dates his use of alcohol, tobacco and cannabis from when he was 13 years old. He found that this use was normalised in the industry in which he was employed.
He found alcohol was problematic for him for a while, but ceased use five years ago and has not drunk alcohol since.
He smokes about 10 cigarettes a day.
His use of cannabis was initially on weekends with friends, but soon extended to him using two grams a week. He continued to use up until his arrest.
He has used MDMA/ecstasy and cocaine once or twice, but no more than that. There is no evidence that he has used heroin.
He was not introduced to methylamphetamine until he was 42 years of age. It quickly became his drug of choice; he reports, it made “everything clearer”. It allowed him to “focus”, and he said that “I’d smoke before work and get everything done really well”. He “loved the high” and craved it while in custody. Before his arrest, he was using about a few thousand dollars worth of the drug each week.
He has had no treatment for alcohol and other drug dependencies. Indeed, he simply stopped drinking alcohol, which is generally described as “going cold turkey”.
Mr Ruwhiu’s criminal record is not long. The evidence is only of an Australian criminal history. [Redacted for legal reasons]
His record in Australia only commenced in 2020. That is not insignificant. In the first place, the period without a criminal record is rightly regarded as highly relevant, as pointed out in Rees v The Queen at [2]. Secondly, it began when he moved to Canberra and found himself without employment, leading to poverty, homelessness and using serious drugs. Thirdly, of the 19 offences on his record, the evidence shows, apart from two entries for unlawful possession of stolen property and two recent offences of failing to appear in accordance with a bail undertaking, all are for traffic offences. None are of the more serious kind, such as dishonestly taking, driving or riding in a motor vehicle without the owner's consent, or dangerous driving. There were offences consistent with his drug use, such as driving with a drug in his oral fluid and refusing a breath test or to provide oral fluid for a drug test. There were three offences of driving whilst disqualified and one of driving whilst his licence was suspended. There were two offences which showed some dishonesty, namely, stating a false name. The others were what have been called “technical offences”: R v Norton [2019] ACTSC 111 at [6].
Mr Ruwhiu has served time in custody, but, except on one relatively recent occasion on 12 November 2021 for the third offence of driving whilst disqualified, the sentences of imprisonment have been imposed for breaches of community-based orders rather than as the primary sentence for the offence. This shows that the current offending is significantly and substantially more serious and an escalation to his prior offending. This escalation is not only problematic, but does seem to call for an approach to de-escalate it so that the escalation does not continue.
He has, however, breached every grant of conditional release on a Good Behaviour Order to which he has been sentenced.
When being interviewed for the Suitability Assessments, Mr Ruwhiu was described as enthusiastic, motivated and engaged. He asked many questions about Treatment Orders and appeared highly motivated to participate.
The only negative comment was that he did not disclose any empathy for his victims, nor any insight into the impact of his behaviour. His counsel, however, submitted that his plea of guilty and his commitment to rehabilitation did show remorse.
Remorse is important, being required to be considered by a court sentencing an offender under section 33(1)(w) of the Sentencing Act. In Fusimalohi v The Queen [2012] ACTCA 49 at [27]–[44], the nature of remorse was considered at some length. There, it was contrasted with self-pity and with contrition. It was accepted that a plea of guilty can be evidence of remorse, even in the face of an overwhelming case or a very strong one, as here. Of course, a plea is, in any event, to be taken into account: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 663–4; [22]. Remorse has been described as “the feeling of regret or sorrow for what one has done”: Fusimalohi v The Queen. Thus, even if the empathy or insight into the impact on others is not shown, the insight into the unacceptability of the offending is relevant and trying to reform and do better is a reasonable consequence of that.
In this case, Mr Ruwhiu has shown some level of remorse, though it is not, by any means, sufficiently ample to justify a significant effect on sentence from that perspective.
His sister's assessment of him was that he had “the most gentle and kind-hearted nature. Violence and aggressiveness were not in his character”. Clearly, as the aggravated robbery offending shows, he can act out of character, if her assessment is correct and there is no real reason even in this to doubt it. There is certainly no history of aggressiveness or violence either in his short criminal history or in the reports of his earlier life.
Mr Ruwhiu's sister acknowledges that he had made some poor choices. Given his current circumstances of being isolated from family, it is slightly concerning that she said that his opportunity to rehabilitate “ has been done through supports from family who positively inspire him”. While entirely commendable and likely to be positive in the long term, his isolation at the present and, given his legal circumstances, into the near future, will dilute that influence. Nevertheless, his sister has noticed recently “little changes in how Mr Ruwhiu wishes to make life changing decisions, completing rehabilitation programs upon his release”. While expected that family will support him, no challenge was made to this reference and, of course, family are likely to know a person very well.
Mr Ruwhiu's counsel also provided very helpful excerpts from “The Bar Book Project” (Bugmy Bar Book Committee, ‘Early Exposure to Alcohol and Other Drug Abuse’ in The Bar Book Project (Sydney, NSW; The Public Defenders, 2019)) on the effects of early exposure to alcohol and other drug abuse and on the effects of childhood exposure to domestic and family violence, which have been helpful and taken into account.
Current sentencing practice
When describing the offences earlier and evaluating the seriousness of them, regard was had to current sentencing practices as required by s 33(1)(za) of the Sentencing Act. What was addressed there, however, is only part of that consideration. In addition, it is appropriate to consider the actual sentences currently being imposed, not to set limits or boundaries, but to assess the consistency that is an important value in sentencing and to give information as to the principles behind the actual imposition of sentences currently.
There are generally two ways of doing this. The Territory is fortunate to have the ACT Sentencing Database. There are, of course, well-known limitations on such statistical information. As explained in R v Mathews [2020] ACTSC 364 at [44]–[45], they can provide some information, but must be treated with care though they do have a number of relevant factors recorded, such as whether the sentence followed a plea of guilty or not; the age and sex of the offender; the number of offences for which the offender has been sentenced; whether other offences were taken into account; the Indigenous status of the offender; whether the offender was on conditional liberty at the time of committing the offence; and whether the offender has a prior record, including of similar offences or not. The Statistics still do not identify less generic and more specific matters, which are often more relevant. For instance, they show sometimes, in the case of aggravated robbery, whether a weapon was used, but, if so, not what it was. In the case of burglary, they do not show whether the premises were residential or not and, in the case of theft, the value of the property stolen is not shown, much less all the other relevant factors which have been already identified.
An important matter, however, is that sometimes the Database provides a link to the remarks on sentencing so that, having identified the general range of sentencing from the Statistics, the court sentencing an offender can look at the specific and relevant circumstances and, where discovered in those remarks, to see why the sentence imposed was imposed and how that was determined, which regrettably is not always easy. Very unfortunately, large numbers of the records on the Database do not have those links, which considerably diminishes the value of its use.
Bearing in mind these caveats, the following may be assessed from the Database as to sentences imposed in the Supreme Court:
1. For aggravated robbery, 64% were sentences of full time imprisonment. The range of sentences was from 9 months to 12 years. Of those, 80% of sentences were in the range of 30 months to 5 years and 6 months. Of those, 25 to 26% were of sentences of between 31 and 36 months.
2. For burglary, 72% of the sentences were of full time imprisonment. The range of the sentences was from 6 months to 6 years imprisonment, with 80% in the range of 18 to 36 months imprisonment, and 35% were of 13 to 18 months imprisonment.
3. For theft, 67% of sentences were of full time imprisonment, with 80% in the range of 6 to 18 months imprisonment, and 42% in the range of seven to 12 months imprisonment.
The other and usually more helpful way to assess current sentencing practice is to consider comparable cases. Again, such cases do not bind. No sentence is a precedent: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605; [57]. Such comparable cases can provide guidance as to the identification and application of relevant sentencing principles and may yield discernible sentencing patterns and possibly a range of sentences: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 535; [49], 537; [54] and 538; [57].
In this case, neither party directed the Court’s attention to comparable cases. Some comparable decisions have been considered in other cases. In relation to aggravated robbery, such decisions were discussed in R v Lovelock [2020] ACTSC 376 at [42], which showed that “a common sentence of the offence of aggravated robbery is three years”. This is confined, to some extent, by the decisions of Barrett v The Queen, though the offence there was attempted aggravated robbery, and also some extent by R v Nicholas; R v Palmer.
Consideration
The difficult task of sentencing an offender, especially for the commission of serious offences, is made easier if there is clarity about the purpose or purposes for which the sentence is to be imposed. In this Territory, the purposes of sentencing are helpfully set out in s 7 of the Sentencing Act. The Court is required to have regard to them.
In this case, the serious offending requires a sentence that will punish Mr Ruwhiu. This will also help show other persons who might be minded to commit such offences that this is not acceptable and the sentence imposed may deter them from committing them, though the efficacy of this has not been clearly shown: R v Lloyd [2022] NSWCCA 18 at [40].
Of course, the sentence must denounce the conduct constituted by the offending, which is inconsistent with a peaceable and civilised community. Thus, Mr Ruwhiu will be held accountable. The sentence should also deter him from committing any further such offences, though recognition of the need for rehabilitation will be an important element, because Mr Ruwhiu is recognising the need for that and, if addressed, will benefit not merely himself but also the wider community. The possibility of rehabilitation is a very relevant consideration, as described in Director of Public Prosecutions v Herrmann [2021] VSCA 160 at [112]. These matters will, of course, protect the community and, thus, the sentence will promote that objective.
Finally, the sentence must recognise the harm done to the victims. Though a Victim Impact Statement was provided from the victim of the burglary and not of the more serious offence of aggravated robbery, the Court can, from the evidence adduced before it, understand in general terms the harm done to each victim: R v Lam (No 3) [2014] ACTSC 362 at [93]. It would not, however, allow the Court to speculate or identify special harm unless other evidence allowed such an inference to be drawn to the requisite degree.
As noted above (at [23]), Mr Ruwhiu pleaded guilty. While the evidence against him was probably overwhelming in relation to the offence of aggravated robbery, some, but limited, discount on the sentence is still available for its utilitarian value.
As the pleas were entered in the Magistrates Court, the discount will be appropriately significant. The other offences do rely heavily on identification and circumstantial evidence. Though still strong, probably very strong, they could not be described as “overwhelming” cases against Mr Ruwhiu.
Mr Ruwhiu’s childhood was affected by violence, exposure to alcohol abuse and by the disruption to his schooling that this caused. While he has, especially while employed in a job he enjoyed, been able to rise above that, it is not unreasonable to see that when his life became very tough because of the COVID-19 pandemic, he did not have the supports and childhood formation to avoid the unravelling of his life, leading to drug use and crime.
It was accepted by both counsel that this attracted the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, to reduce his moral culpability to a degree. Thus, this has also been informed for this sentencing by the material extracted from The Bar Book Project referred to above (at [73]).
Mr Ruwhiu has been assessed as having poor compliance with community-based orders. Indeed, his record shows that for all of the offences for which he was sentenced to a Good Behaviour Order on the suspension of a sentence of imprisonment or to a Good Behaviour Order alone for the offences committed between 17 July 2020 and 14 January 2021 — 13 offences in all — he breached each one of the Orders. This is compounded by his behaviour when released on bail by this Court, when he breached his bail conditions shortly after.
This, however, does not permit or require the sentencing Court to resentence Mr Ruwhiu for any of these earlier offences and care must be taken not to do that. Nevertheless, it will affect the nature of the sentence to be imposed. When committing the offences on 9 January 2021, he was on conditional liberty under several Good Behaviour Orders made for 12 and 18 months and currently 18 months. Those Orders, however, were cancelled on 12 November 2021 and so no further action is required, though the fact of the circumstances will be relevant to sentence.
When committing the offence on 5 April 2021, he was not only under those Good Behaviour Orders, but also four concurrent Good Behaviour Orders made for six months on 26 February 2021. Those Orders were also cancelled on 12 November 2021 and the same situation applies. To commit further offences while on conditional liberty does make the offences more serious, though it does not increase the objective seriousness of the offence: Boney v The Queen [2015] NSWCCA 291 at [18]-[20]; Sharma v The Queen [2017] NSWCCA 85 at [66], Daher v The Queen [2018] NSWCCA 287 at [58].
The granting of conditional liberty, whether as an Intensive Correction Order, a Good Behaviour Order, or on bail, is the granting of a trust that an offender or accused person can be in the community and not in custody, so long as he or she complies with relevant conditions, including that no further offences be committed by him or her. That trust is breached by the commission of the further offences. It is, however, important that an offender is only further punished for the breach of trust and not for the actual offences, which would constitute double punishment, which cannot be permitted: Irving v Head [2016] ACTSC 37 at [69], though as to the principle in a different context, see also Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at 367; [61].
The Court must take into account the nature and circumstances of the offending, and this has been described, as well as the personal circumstances of Mr Ruwhiu. It is also required that account be taken of his plea of guilty, the childhood disadvantage he suffered and that he was on conditional liberty when he committed the offences. The fact that he is enthusiastically seeking rehabilitation, which he has not previously had access to, is also relevant.
Having considered all these matters and considered all other alternative sentencing options, the offending, in the context of all the other facts, is serious, though not the most serious examples of the offences committed. Nevertheless, no sentence but a sentence of imprisonment is required: s 10 of the Sentencing Act.
The sentence will also take into account the Pre-Sentence Custody applicable to these offences, in accordance with s 63 of the Sentencing Act.
There are, of course, three offences. As explained in R v Montgomery [2022] ACTSC 291, each must have a just and adequate sentence imposed on them. It is also important to consider whether the sentence should be wholly or partly concurrent because, for example, they are part of the same course of conduct or contain common elements. That applies in particular to the offences of burglary and theft and, as noted above (at [44]), the sentence for these offences will ordinarily be served concurrently. As to the offence of aggravated robbery, that is wholly separate from the others.
Nevertheless, the court sentencing an offender to imprisonment for multiple offences must then consider the length of the total term of imprisonment to ensure that the sentencing principle of totality is respected and that the total sentence adequately represents the criminality of all the offences committed, but no more than that, and that the total sentences are not excessive and crushing, but will leave open the realistic prospect of reform and the hope required for Mr Ruwhiu to take again an effective part in the community and achieve his aims when he is released. See Mill v The Queen (1988) 166 CLR 59 at 62–3.
It is relevant that some of the offences committed by Mr Ruwhiu had to be sentenced in the Magistrates Court while he was awaiting sentence in this Court. The application of the principle of totality in Mill v The Queen at 62–7 was explained in the context of sentences imposed for offences committed in different geographical jurisdictions and held that the principle still applied to moderate a sentence that would be affected by the appropriate allowance that would have been made if the whole of the sentence were to have been heard by the same Court.
It was submitted that this applies where different jurisdictions are curial and not geographical, so that the sentences imposed in the Magistrates Court for the offending committed between 9 January 2021, the date of the first of the three offences now for sentence and today is a relevant factor. That submission may be accepted, though this does not mean that those sentences will be wholly absorbed into the current sentence, only that the current sentence will be appropriately moderated.
Thus, this process must not give the impression that an offender may commit multiple offences with any kind of impunity. Justice requires that the sentence does not overwhelm Mr Ruwhiu's growing sense of the need for rehabilitation and help with that, but does respond appropriately to each offence, giving full weight to the appropriate purposes for which each is to be imposed. The sentence to be imposed will be proportionate to the criminality, appropriate to Mr Ruwhiu's personal circumstances, take into account all relevant factors and be just and adequate but no more than that, reflect the effect they have had on the community including especially the victims and respect his wish to reform and the value that that has to the community and himself.
Sentence
[His Honour then spoke directly to the offender]
Mr Ruwhiu please stand.
The orders of the Court are as follows:
(1) You are convicted of burglary on 9 January 2021 and sentenced to 11 months imprisonment, to commence on 2 March 2022 to take into account Pre-Sentence Custody and expire on 1 February 2023. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment.
(2) You are convicted of theft on 9 January 2021 and sentenced to 6 months imprisonment, to commence on 2 September 2022 and expire on 1 March 2023. That is to be cumulative as to one month on the sentence for burglary offence. Had you not pleaded guilty, you would have been sentenced to 8 months imprisonment.
(3) You are convicted of aggravated robbery on 5 August 2021 and sentenced to 3 years and 3 months imprisonment, to commence on 2 December 2022 and expire on 1 March 2026. That is to be concurrent as to three months on the sentence for theft. Had you not pleaded guilty, you would have been sentenced to four years imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
Having been sentenced to a significant period of imprisonment, Mr Ruwhiu has sought that the sentence be served by way of a Treatment Order. In order to determine whether that should be done, it is necessary to determine his eligibility and suitability for such an Order.
The eligibility for such an Order is set out in ss 12A and 80S of the Sentencing Act. The principal considerations are in the earlier section, as s 80S really refers to the suitability of Mr Ruwhiu for such an Order, without which he becomes ineligible.
This requires consideration of the appropriateness or otherwise of suspending the sentence of imprisonment so as to serve the Order and whether appropriate arrangements can be made for the administration of a Treatment Order. Threshold issues set out in s 12A of the Sentencing Act will be addressed first.
Mr Ruwhiu has pleaded guilty to three offences for which he has been sentenced and which are all eligible offences within the meaning of the section. He has been sentenced to a term of three years and three months imprisonment for the offence of aggravated robbery, the primary offence, and a total of four years imprisonment for all the offences.
These periods of imprisonment are within the eligibility limits specified, namely between at least one year and no more than four years imprisonment. In addition, he is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
The Suitability Assessments show, without challenge, that Mr Ruwhiu has a significant history of drug dependence, though only a more recent dependence on methylamphetamine, but severe nevertheless and that drug has caused him the most problems. In addition, he has explained, without challenge, that he committed the current offences because he wished to fund his dependency, which therefore contributed substantially to that behaviour.
Mr Ruwhiu has lived in Canberra since at least 2020 and has not indicated any intention to leave the Territory for the next four years, though he has no supports or family here. His sister lives in Perth and his children in Brisbane. He acknowledges that he needs the rehabilitation which a Treatment Order will encourage, but his past behaviour has been influenced by loneliness and lack of social supports, which weakens the assessment that he will remain in Canberra for the length of the sentence. After the end of any Treatment Order, he could, of course, seek a direction of the Court permitting him to reside out of the ACT.
He has signed a form consenting to the making of a Treatment Order, which also attests that he has had the obligation of the Treatment Order explained to him and has had sufficient information to make a balanced judgment as to whether to give the consent he has. He also confirms, as does the Suitability Assessment of the Alcohol and Drug Services, that he has had the opportunity to ask any questions he has about the Order and has had those questions answered in a way that shows he appears to understand the answers.
Accordingly, subject to suitability, and with some reservations about whether he will remain in Canberra for the term of the sentence, he is eligible to have a Treatment Order made for the service of the sentence.
The Suitability Assessments have professionally and thoughtfully set out, not only his history, but also an assessment of the situation and whether a Treatment Order should be made. Both initially assessed him as suitable, subject to one reservation as to whether he had suitable accommodation. The place he offered as to where he could reside was unable to be assessed and this cannot then be considered suitable. Further, his inability to access Centrelink payments; lack of currently available employment, while he is confident of obtaining this upon release; and his resources for accommodation are, at the very least, uncertain.
He has now, however, been offered a residential drug rehabilitation placement at Canberra Recovery Services for three months. That would give him accommodation until September 2022 and his sister has agreed to pay costs of that accommodation and any further accommodation until he can access Centrelink payments, though there is no evidence or submission as to how likely it is to eventuate or whether such payments would be adequate for ongoing accommodation. He has had an offer of employment, but the owner of the business is currently in custody and the offer has not been able to be verified.
While these matters may be worked out later, it has become clear in the Drug and Alcohol Sentencing List that the fragility of accommodation for participants is a major stressor and can seriously impede the success of the rehabilitation. While it would be a major adverse step to decline to make a Treatment Order because no certain accommodation arrangements have been made at the end of a period of residential drug rehabilitation, it would be unfair to set up a prospective participant to fail and to risk the benefit of that rehabilitation because of those difficulties.
Mr Ruwhiu's period on bail was, in part, to permit some further assessment to be made of his suitability. His complete lack of success, evidenced by the need to issue a warrant (see [25]–[26] above), has been highly relevant. Both ACT Corrective Services and Alcohol Drug Services amended or updated their Suitability Assessments. Both now recommend that he is unsuitable to have his sentence served by a Treatment Order. Apart from the issue of accommodation, reliance is placed on his non-compliance with community-based orders, thus, as noted above (at [66], [88]), he has so far breached every Good Behaviour Order to which he has been sentenced. More recently, he has breached his bail conditions granted for the purpose of pursuing the matters he needed to address for his rehabilitation.
Ms Cobden thoughtfully and strongly submitted that this should not bar such a sentencing disposition. She submitted that his loneliness and isolation was a significant cause and that the supports available in a residential facility would address much of his. That is a sensible and relevant submission, though somewhat undermined by both Mr Ruwhiu's almost immediate failure to comply. He appears to have failed to attend from the second week after his release, either at Canberra Recovery Services in the Day Program run by that facility, or for supervision at ACT Corrective Services. This occurred despite directions given to Mr Ruwhiu to do so in the first week and messages left on his nominated mobile phone number, which he acknowledged, including a further direction to report, which he did not do.
Further, he failed to appear in Court as directed, despite being encouraged to do so. Ms Cobden further pointed out that he had not committed any further offences and, while that is to be taken into account to his credit, it does not really detract from the concerns that his behaviour arouses. Rehabilitation from drug dependence is a difficult task. Such dependence is quite pernicious and requires commitment and effort to achieve rehabilitation. These signs from Mr Ruwhiu are far from promising.
One of his explanations given to ACT Corrective Services was that he was “distracted by friends”. While one can speculate as to whether such friends are pro-social or anti-social, it rather undermines the submission that loneliness and lack of social support has been a cause of his failures.
Mr Ruwhiu also explained that he had become concerned that Australian Border Force may take action to cancel his visa. It is not clear what the basis of this concern is, but it is likely to persist and is a concern that, when rehabilitation gets difficult, this is a further worry that will detract from his need to commit to his rehabilitation under a Treatment Order. This concern was also repeated by him to Alcohol and Drug Services, constituted by its re-assessment of his now unsuitability.
While the benefit of his rehabilitation to the community is important and the comments of the Victorian Court of Appeal in Director of Public Prosecutions v Herrmann, noted above (at [82]), must be given full weight, it is relatively clear that Mr Ruwhiu is not suitable to serve his sentence under a Treatment Order.
Another relevant matter is the question of Mr Ruwhiu’s immigration status. Under s 501(3A) of the Migration Act 1958 (Cth), the Minister administering the Act must cancel Mr Ruwhiu's visa if he does not pass the character test and is serving a sentence of imprisonment on a full time basis.
Under s 501(6)(a) of the Migration Act, a person does not pass the character test if the person has a substantial criminal record. This is defined in s 501(7) to mean, inter alia, that he has been sentenced to a term of imprisonment of 12 months or more. Applying this, Mr Ruwhiu's visa must be cancelled if the Court does not suspend the sentence of imprisonment, either when making a Treatment Order or by making a Good Behaviour Order.
Mr Ruwhiu can, however, under s 501CA(4) of the Migration Act, seek the revocation of this mandatory decision by making appropriate representations to the Minister. His residence in Australia has now been for nearly 10 years. He has family support and relatively short and recent criminal offending, clearly facilitated by the pandemic consequences and drug use, and that, together with any rehabilitation that he may be able to achieve, may justify such a revocation.
The Minister has, in any event, a discretionary power under s 501(3) of the Migration Act to cancel a visa on character grounds as defined above (at [122]). Thus, even if the sentence is suspended, the visa may still be cancelled.
Once a visa is cancelled, Mr Ruwhiu will be deported and, if deported, there are restrictions on his re-entry to Australia and limitations on his possibility of achieving permanent residence here. Given that his family are here, though it appears he has limited connections only with his sister and to some extent, but limited, with his children, he will thus be separated from them and his chances of reconnecting with his children will be substantially reduced.
While, as noted in R v Aniezue [2016] ACTSC 82 at [63], the attitude of courts in Australia to the question of whether a person will be deported is relevant to sentence has not been uniform. It appears from that decision, followed in this Territory in other decisions of R v Butters [2019] ACTSC 143 and R v Igwebuike [2017] ACTSC 323, though in the latter it was held not to actually have an effect on the sentence.
While it appears that a shorter or inappropriate sentence must not be imposed in order to avoid the prospects of deportation, the burden of that prospect may be taken into account in sentence: R v Saran [2019] ACTSC 37 at [41]–[51]. Thus, it would be contrary to sentencing principle to make a Treatment Order to avoid any deportation.
Nevertheless, Mr Ruwhiu’s continued expression of commitment to rehabilitation cannot be ignored, nor should the current support he has from his sister.
In deciding to make a Treatment Order, the Court has determined that he is unsuitable, which, under s 80S of the Sentencing Act, makes him ineligible.
Accordingly, the Court must then consider whether to set a non-parole period under s 65 of the Sentencing Act. There is no reason not to do so.
The length of that period must be considered carefully. Relevant considerations are his expressed commitment to rehabilitation, though these words have yet to be translated into action; the support, including an offer of financial support from his sister; the possibility of employment on release; the burden that the prospects of deportation would impose on his imprisonment; and the length of time he has already been incarcerated continuously, even though serving other sentences.
Accordingly, a relatively short non-parole period should be set and, in the circumstances, a recommendation under s 67 of the Sentencing Act should also be made.
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender again]
Mr Ruwhiu, please stand.
The Court makes the following further orders:
(4) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) is declined.
(5) A non-parole period of 12 months be set, to commence on 2 March 2022 and expire on 1 March 2023.
(6) I recommend that Jay Ruwhiu engages in the Solaris Therapeutic Community Program at the Alexander Maconochie Centre.
(7) I recommend under s 67 of the current Crimes (Sentencing) Act 2005 (ACT) that the Sentence Administration Board, in granting parole, make a condition that requires Jay Ruwhiu to engage in further drug rehabilitation, including, if appropriate, residential drug rehabilitation.
Mr Ruwhiu, that is the sentence I have imposed. It is not the one that you wanted, but I have tried to craft it to recognise the very serious offences that you have committed in the context, however, of your relatively short criminal history. I have tried to craft it also to allow you, if you are committed to rehabilitating from the dreadful drug addiction that has blighted your last few years, to do so.
Firstly, I have set a relatively short non-parole period, which will end in about nine months time.
Secondly, I have recommended that you engage in the Solaris Therapeutic Community in the Alexander Maconochie Centre. It is a program that is based on proper therapeutic principles and should assist you, although it is more difficult in custody, but should assist you to be able to address your drug addiction, if you are genuinely able to do so.
Thirdly, I have encouraged the Sentence Administration Board to make it a condition that you continue that, so that, when you return to the community, you can actually make sure that your rehabilitation is complete, and that will give you the possibility of returning to what appears to be a relatively drug‑free and crime-free lifestyle, despite these really serious and bad lapses and crimes that you have committed.
I cannot affect the migration status at the end of the day, and you are at risk. That will be a burden for you, but it is not an absolute risk. There is some possibility of avoiding that.
Given your circumstances, it may be possible, particularly with what appears to be a changing relationship between Australia and New Zealand in that area, it may be possible for you, if you show genuine and achievable rehabilitation, to show that, in the circumstances of your children being here and your sister being here, that that should not happen. That, however, is not something that I can affect, other than to note that these are important matters that are important for the community.
I regret that I have not been able to see my way clear to granting a Treatment Order to you in all the circumstances, but some of it comes back to you and your inability, in the recent past, to be able to translate that wish into real commitment in action.
Nevertheless, I hope that this sentence will enable you to address those issues and to live a proper life in the community, and even if you are deported, there is the possibility of being a useful, productive, civilised member of the community in New Zealand.
| I certify that the preceding one hundred and forty-two [142] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 24 October 2022 |
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