R v Sanderson
[2016] ACTSC 277
•19 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sanderson |
Citation: | [2016] ACTSC 277 |
Hearing Dates: | 19 September 2016 |
DecisionDate: | 19 September 2016 |
Before: | Elkaim J |
Decision: | (i) In relation to the offence of assault occasioning actual bodily harm, the offender is sentenced to a period of imprisonment of 9 months to commence from 10 October 2015 and to end on 9 July 2016. (ii) In relation to the offence of forcible confinement, the offender is sentenced to a period of imprisonment of 3 years to commence from 10 October 2015 and to expire on 9 October 2018. (iii) The non-parole period is to commence on 10 October 2015 for a period of 1 year, 6 months and 9 days, and is to expire on 18 April 2017. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – co-offenders – guilty pleas – assault occasioning actual bodily harm – unlawful confinement – offender giving evidence against co-offenders |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24(1), 34 Criminal Code 2002 (ACT) s 45A Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33(1)(za) |
Cases Cited: | Barlow v The Queen [2012] VSCA 37 R v Anforth [2003] NSWCCA 222 R v Le Clair; R v Yeboah [2016] ACTSC 126 |
Parties: | The Queen (Crown) Jamie Sanderson (Offender) |
Representation: | Counsel T Hickey (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Daryl Perkins Solicitor (Offender) | |
File Number: | SCC 234 of 2015 |
ELKAIM J:
Introduction
The offender was due to face trial this Wednesday (21 September 2016) on four counts in an indictment dated 10 March 2016. There are two co-accused to each of the counts.
The offender pleaded guilty to Counts 2 and 4 today. The Crown accepted the pleas in full satisfaction of the indictment against the offender.
The Crown and the offender have joined in requesting that the offender be sentenced today. This will facilitate with him giving evidence for the Crown in the trial against the co-offenders. Because of the urgency sought in the passing of a sentence, my judgment is necessarily brief, but hopefully will state the reasons behind the sentence imposed.
The offences
The offences to which the offender pleaded guilty are:
(a)That on 7 July 2015 at Canberra, he assaulted Adam Amos and thereby occasioned to him actual bodily harm in contravention of s 24(1) of the Crimes Act 1900 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum term of imprisonment for this offence is 5 years.
(b)That on 7 July 2015 at Canberra, he unlawfully confined Adam Amos in contravention of s 34 of the Crimes Act by virtue of s 45A of the Criminal Code. The maximum term of imprisonment for this offence is 10 years.
The offences arise from events that took place on 7 July 2015 after the offender and two other persons (the two co-accused) entered premises in Lamport Place, Richardson in the ACT. A family resided at this residence, made up of a Mr Amos, his de facto partner and their two infant daughters.
Over the preceding year or so, a relationship had been built up between the male co-offender and Mr Amos. This relationship had its origin in the sale of illicit drugs. After a disagreement, relations were ‘normalised’ by the co-offender being allowed to use a shed on the premises for his own purposes. Regrettably the co-offender took advantage of Mr Amos’s hospitality and was frequently present on the premises and also parked a number of motor vehicles on the property.
Relations between the co-offender and the resident broke down leading to the confrontation on 7 July 2015. At about 8 AM, the offender and the two co-accused entered the house as trespassers and with the intent to commit an offence.
Mr Amos confronted the trio. They hit him on a number of occasions which included the use of hard blunt objects. Mr Amos fell to the ground but the three intruders continued to attack him, including kicking him. He suffered some injury.
A little later, outside the house, the male co-accused struck Mr Amos on the head with an axe handle. This caused a laceration which caused blood to flow down Mr Amos’s head.
After this assault the offender walked Mr Amos along the driveway and put him in the back seat of a Nissan motor vehicle. The offender entered the front passenger seat and another person drove the vehicle from the premises. The two co-offenders had also driven away in a separate vehicle. A short time later the police were alerted to the events and attended the address in Richardson.
Soon after the commencement of the journey, illustrating the somewhat amateur status of the criminal ‘team’, the Nissan ran out of petrol. Mr Amos was moved to the other vehicle, a Subaru. The offender sat beside him. Mr Amos was taken to a residential unit. His head was wrapped in duct tape leaving an opening for his mouth and nose. He was assaulted and threatened by the male co-offender. The detention of Mr Amos in the unit is the basis for Count 4 in the indictment.
Shortly before midday Mr Amos was taken to a car park and released. He went home. He was taken to hospital where a number of injuries, including a fractured clavicle and concussion, were diagnosed.
On 9 July 2015 the offender was arrested. He has been in custody since this date, although three months of this period are also related to a separate sentence imposed in the ACT Magistrates Court.
The elements of the bizarre do not lessen the gravity, let alone stupidity, of the group’s actions. They entered a residence occupied by a family including very young children. They assaulted a man and then kidnapped him, all the while continuing the assaults. The offender was not a prime mover but he was certainly a willing participant. I think the offences should be regarded as of medium objective severity.
The offender’s background
The offender was born in March 1974. His criminal history started early and has continued through to 2015. Most of his many offences involve a motor vehicle but assault, theft and drugs also play their part.
Based on the pre-sentence report, the offender has four children. The youngest two were living with him when he went into custody. They are now being cared for by his ex-partner.
The offender does not have a very good work record. However I do note that he sustained an injury at work in 2010 which resulted in him having a laminectomy in the same year. He has been on a disability pension. He has had continuing pain problems to the extent that he is now on a methadone program designed for pain relief. Strong pain relief tablets have not been available to him while in custody.
The offender has had problems with both illicit drugs and alcohol, although it does not appear that he has any ongoing addictions. The CADAS report prepared in July 2015 recommends ongoing counselling and participation in a recovery group.
The offender is of indigenous background however his learned counsel did not suggest that this fact should influence his sentencing.
While in custody, the offender has taken part in a number of courses, details of which are set out in Exhibit 1.
The sentence
As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.
In relation to s 10 however, the offender through his counsel, acknowledged that a custodial sentence is inevitable.
It is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act. The cases I have had reference to include: R v Eimerl [2015] ACTSC 72, R v Le Clair ; R v Yeboah [2016] ACTSC 126, R v Britt [2015] ACTSC 402, R v Dalton ; R v Fleet [2014] ACTSC 204, R v Catanzariti [2014] ACTSC 333, Barlow v The Queen [2012] VSCA 37, R v Anforth [2003] NSWCCA 222 and R v Flentjar [2008] NSWSC 771.
I think two of the above authorities are of particular relevance here. Firstly in Le Clair, Burns J conducted the precise examination which is required here, from [55].
In Eimerl, Burns J approved of the approach taken by Nield AJ in stating the considerations that need to be taken into account in respect of the offence of confinement. The period of confinement in this case was about three hours, but during that period the victim was subjected to a particularly frightening experience. The use of the duct tape would have instilled in him the distress and fear that he refers to in his Victim Impact Statement. He also refers to the injuries that he suffered. They are not overly serious but nevertheless did result in a fracture, headaches and blurry vision for some time.
Although the Crown suggested a degree of overlapping of sentences, I am of the view that the enterprise in which the offender engaged was effectively a single incident which included both offences. Accordingly the sentences will be concurrent.
The offender has pleaded guilty, but at a very late stage. Nevertheless his plea is of utilitarian value but, more importantly, combined with his willingness to cooperate in the trial against the co-offenders, becomes of significant value.
I think the sentence for the assault should be a period of imprisonment of 12 months to commence from 10 October 2015 and to be concurrent with the sentence for the forcible confinement count. I think both sentences should be reduced by 25% for the pleas of guilty and the assistance to the authorities. As such, the period of imprisonment is reduced to 9 months, which has been completed so that there is no need to impose a non-parole period.
In respect of the forcible confinement count, I think the sentence should be for 4 years. After the 25% reduction, this period is reduced to 3 years. The sentence should commence on 10 October 2015 and will therefore expire on 9 October 2018.
I will set a non-parole period for the forcible confinement offence to commence on 10 October 2015 for a period of one year 6 months and 9 days, to expire on 18 April 2017.
Orders
I make the following orders:
(i)In relation to the offence of assault occasioning actual bodily harm, the offender is sentenced to a period of imprisonment of 9 months to commence from 10 October 2015 and to end on 9 July 2016.
(ii)In relation to the offence of forcible confinement, the offender is sentenced to a period of imprisonment of 3 years to commence from 10 October 2015 and to expire on 9 October 2018.
(iii)The non-parole period is to commence on 10 October 2015 for a period of 1 year, 6 months and 9 days, and is to expire on 18 April 2017.
(iv)The reasons for this judgment are not to be published until the trials of the co-offenders are completed.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the reasons for sentence of His Honour Justice Elkaim Associate: Date: 20 September 2016 |
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