R v Shearer
[2020] ACTSC 100
•28 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Shearer |
Citation: | [2020] ACTSC 100 |
Hearing Dates: | 11 February 2020 and 21 April 2020 |
DecisionDate: | 28 April 2020 |
Before: | Mossop J |
Decision: | See [130] - [131] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted robbery of vehicles – took a vehicle without consent – culpable driving causing grievous bodily harm – taken to hospital in custody – attempted to escape hospital – took possession of police firearm and discharged firearm – assault occasioning actual bodily harm of a police officer – offender under the influence of methamphetamine at time of offending – long-term user of methamphetamine – offences committed whilst subject to good behaviour orders – significant criminal history – low prospects of rehabilitation – sentence of full-time imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 27(3)(d), 29(4), 160 Crimes (Sentencing) Act 2005 (ACT), s 72 Road Transport (General) Act 1999 (ACT), ss 62, 69 |
Cases Cited: | Brown (aka Davis) v R [2020] VSCA 60 Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 Veen v R (No 2) (1988) 164 CLR 465 |
Parties: | The Queen (Crown) James Shearer (Offender) |
Representation: | Counsel A Jamieson-Williams (Crown) J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 24 of 2019 SCC 25 of 2019 |
Mossop J:
Introduction
The offender, James Shearer, pleaded guilty to the following offences on an indictment dated 6 May 2019:
(a) Four counts of attempted robbery contrary to s 309 of the Criminal Code 2002 (ACT) by virtue of s 44 of the Criminal Code (counts 1, 5, 6 and 7). The maximum penalty is 14 years’ imprisonment, 1400 penalty units or both.
(b) One count of taking a motor vehicle without consent contrary to s 318 of the Criminal Code (count 2). The maximum penalty is five years’ imprisonment, 500 penalty units or both.
(c) Two counts of culpable driving of a motor vehicle causing grievous bodily harm contrary to s 29(4) of the Crimes Act 1900 (ACT) (counts 3 and 4). The maximum penalty is 10 years’ imprisonment.
(d) One count of attempting to escape contrary to s 160 of the Crimes Act by virtue of s 44 of the Criminal Code (count 8). The maximum penalty is five years’ imprisonment, 100 penalty units or both.
(e) Two counts of an act endangering life contrary to s 27(3)(d) of the Crimes Act (counts 10 and 12). The maximum penalty is 10 years’ imprisonment.
(f) One count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act (count 13). The maximum penalty is five years’ imprisonment.
The offender also pleaded guilty to the following offence:
(a) one count of possessing a prohibited substance contrary to s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT).
At the sentencing hearing, at the request of the Crown, I dismissed a charge of unlicensed driving.
The commission of these offences puts the offender in breach of good behaviour orders imposed on 18 August 2017 in the Magistrates Court in relation to charges of:
(a) choking, suffocating or strangling another person (CC2016/7079);
(b) common assault (CC2017/1153);
(c) contravening a protection order (CC2016/7076); and
(d) destroying or damaging property not exceeding $5000 (CC2015/11416).
Facts
The Crown tendered an agreed statement of facts. The offending occurred on 18 July 2018. The offender attempted to rob people of their vehicles, stole a vehicle and drove it in a manner which caused a collision with another vehicle and grievous bodily harm to the occupants of the vehicle. The offender attempted to leave the scene by robbing other people of their vehicles. He was restrained by members of the public until police arrived. He was then taken in custody to the Canberra Hospital for medical treatment. While under police guard in the emergency department of the hospital he became agitated and attempted to escape from the hospital. There was a violent struggle with police officers during which the offender gained possession of a police firearm which was discharged four times before it was rendered safe and the offender subdued using a Taser.
Count 1 is a charge of attempted robbery. The attempt was made at 7:05am in the car park of the Tuggeranong Hyperdome in Greenway. Ms BT was sitting in her car. The offender opened the side door and yelled at her “get out of the fucking car”. The offender reached in and turned the ignition on. He grabbed her clothing and attempted to pull her from the car. He repeated the same instruction. She resisted and told him to “fuck off”. The offender gave up and left the area on foot.
At 7:15am the offender was at the Tuggeranong bus interchange. He was observed to grab onto the door handle of a ute which was stopped at a red light. The ute drove off although the offender held onto the door until he fell to the ground. He got up and walked erratically on the roadway into the bus interchange. An ACTION employee asked him if he was okay. He replied “I’m sick”.
He walked out of the bus interchange down Athllon Drive. He was staggering and walking down the centre of the road, causing cars to swerve around him. He crossed the road without appearing to look for traffic and cars had to slow down to avoid hitting him. He entered the northbound lanes of Athllon Drive. As cars slowed down to avoid him the offender went up to two cars and tried to open their doors.
Count 2 is a charge of taking a motor vehicle without consent. The vehicle belonged to Mr BC. The offender went into the car park of a Repco store on the corner of Athllon Drive and Soward Way. A white van was in the car park with its keys in the ignition. It had been left in this state by Mr BC who was unloading goods from the vehicle and taking them into the store. The offender got into the van and drove it out of the car park quickly with tyres skidding and hitting several bollards as he drove. The rear door of the van was open and some items fell out. He drove onto Soward Way and then onto Erindale Drive which ultimately turned into Yamba Drive. He drove very dangerously for approximately eight kilometres including driving on the wrong side of the road. The back door of the van remained fully open and items continued to fall out of the vehicle. A number of drivers had near misses or observed the offender to be driving in an extremely dangerous manner at speed. The vehicle drove through red lights on a number of occasions.
Counts 3 and 4 are two counts of culpable driving causing grievous bodily harm. At about 7:35am the offender drove into the intersection of Yamba Drive and Mawson Drive against a red light on Yamba Drive. There, his vehicle collided with a 4.5 tonne flatbed truck. The truck had been turning from Mawson Drive onto Yamba Drive. The offender’s vehicle struck the driver’s side door in the middle of the intersection, causing the truck to rotate anticlockwise. The offender’s vehicle collided with the traffic light and streetlight in the middle of the road and the traffic light was knocked down. The driver and passenger of the flatbed truck both suffered grievous bodily harm. The driver, Mr OF, suffered life-threatening head injuries including a severe traumatic brain injury requiring emergency surgery and hospitalisation for 45 days. He also suffered fractures to the bones of his face, a pneumothorax and fractures to his collarbone and shoulder blade. The passenger, Mr AU, suffered a broken forearm, a fractured pelvis, a rupture of a tendon in his left bicep, an injury to his lung and cuts and bruises on his torso and groin. Mr AU spent nine days in hospital.
The offender then ran from the vehicle that he had been driving. A bystander approached him and asked if he was alright, but he did not respond. He moved in the direction of a Toyota four-wheel-drive. The driver got in the vehicle and locked the doors. He then moved towards a small black four-wheel-drive vehicle with a female driver alone in the car. He tried to open the door but was unsuccessful. He punched the driver’s window two or three times.
Count 5 is a charge of attempted robbery. The offender then ran to a white Kia Rio driven by Ms MC. He punched the front windscreen of the car. He came to the driver’s door and tried to open it, but it was locked. He punched the driver’s window about six times. Ms MC started to scream and put her head between her legs. She was terrified and thought the offender was going to hurt her. She screamed “help me” to a male who was standing on the nearby grass median strip.
Count 6 is a charge of attempted robbery. The offender moved to a darker grey Mazda that was near Ms MC’s car. The offender tried to open the driver’s side door of the Mazda. The driver of the vehicle, Ms KI, started screaming. The offender could not open the door. He moved to the rear driver’s side door and kicked it, causing damage to the door. He then opened it. A bystander, Mr UX, ran towards the vehicle and told the offender to “get back”. The driver of another vehicle drove his ute up to the Mazda, blocking the offender’s access to it and nudging him out of the way. Mr UX screamed at the offender to stay back and calm down and the offender ran off towards the southbound lanes of Yamba Drive before moving back to the north side of the intersection.
Count 7 is a charge of attempted robbery. Mr LE approached the offender, intending to assist him. They spoke briefly by his car. The offender moved away and sat in Mr LE’s vehicle, a silver Holden Astra. Mr LE reached in and put his hands on the keys. Mr LE said to him “you are not taking this vehicle”. There was a small struggle as the offender tried to get Mr LE’s hands off the keys. The offender ended up outside the vehicle where he was restrained by members of the public. Multiple people were involved in pinning him to the ground until police arrived.
Police arrived at about 7:36am and arrested him. The offender was highly agitated and fighting the officers. He continued to resist officers for a period of 70 minutes. He vomited on a number of occasions. Even three officers working together were unable to completely restrain him. He appeared to be under the influence of an intoxicating substance. He told a police officer that he had recently consumed “meth”. When he was searched a small amount of cannabis was found on his person. This is the related summary charge of possessing a prohibited substance (CC2018/11062).
He was assessed by officers of the ACT Ambulance Service. He was sedated using ketamine and conveyed to the Canberra Hospital. He remained under police guard in the emergency department.
He arrived at hospital at about 9am. After about 30 to 40 minutes he was considered to be stable, although he had been agitated and speaking incomprehensibly. A blood test revealed tetrahydrocannabinol at the level of 6 ng/mL, methamphetamine at 0.12 mg/L, amphetamine at 0.03 mg/L and ketamine at a level of 1.9 mg/L.
He was kept in the emergency department throughout that day. A number of pairs of police officers took turns in guarding him. At about 3:45pm two male officers, who I will refer to as Officer A and Officer B, took over the task of guarding the offender. The offender was sitting up with a vomit bag and intermittently vomiting, sitting up and lying down. His demeanour was consistent with being compliant. As the previous police officers were leaving the offender jumped off the bed and started yelling, growing increasingly agitated. He was directed to get back into the bed.
Count 8 is a charge of attempting to escape lawful custody. At about 4pm the offender jumped up again and took hold of a chair at the base of his bed and threw it at Officer B. He then threw the stand for the intravenous drip towards the police officers. Officer B pushed the offender backwards and secured his taser which had been dislodged by the chair. The offender then ran past Officer A to the emergency exit but could not open it. He then rushed at Officer A and Officer A took hold of the offender’s chest and pushed him backwards into the wall. Officer B got the offender in a bear hug from behind and attempted to pull the offender away from Officer A and bring him to the ground so that he could be restrained.
Counts 10 and 12 allege that the offender “intentionally and unlawfully… [discharged a loaded firearm] … so as to cause another person reasonable apprehension for his or her safety”. Count 10 relates to Officer A and count 12 relates to Officer B. During the altercation the offender removed Officer A’s Glock pistol from Officer A’s holster. Both officers attempted to take hold of the offender’s hands and arms to prevent him from firing the pistol. The offender violently resisted this and fired a shot from the firearm. The offender kept turning the muzzle of the firearm in the direction of Officer B. The officers managed to force the muzzle of the firearm away from Officer B’s head. The offender fired another shot from the firearm. This struck the ceiling of the emergency management unit and burst a water pipe which then gushed water onto the officers and the offender and caused parts of the ceiling to collapse upon them. This added to the extremity and chaos of the struggle that was occurring. The officers struck the offender in order to protect themselves from further shots. The offender continued to violently resist. At some point Officer B put his finger through the trigger guard of the pistol so as to prevent the offender firing the gun again. Another two shots were fired, one of which was fired after Officer B had released the magazine from the pistol. The ejected magazine contained 11 bullets.
There is a dispute as to the factual basis for sentencing the offender in relation to these two counts. I will return to this later in these reasons.
Count 13 is a charge of assault occasioning actual bodily harm. During his attempts to restrain the offender and gain control of his hands, Officer B’s right forearm was bitten by the offender, breaching the skin. The bite mark left defined individual teeth marks and when a medical examination occurred on 31 August 2018 scarring was visible.
After the magazine had been released from the firearm and the final bullet in the chamber had been fired, Officer B was satisfied that the firearm did not contain any further ammunition and was able to use his taser on the offender. Although the taser was initially effective the offender soon commenced thrashing his body around to avoid being restrained by police. As the probes of the taser remained attached, Officer B used the taser again and this allowed Officer A to handcuff the offender. The offender continued to resist, growling, spitting, kicking and attempting to head-butt the officers. As a result of the water leaking from the roof, both officers were saturated. The offender continued to resist being restrained by police and said to police “if you’re going to shoot me then shoot me”. He was screaming and yelling.
During the incident medical officers within the emergency management unit had declared a “code black” and other patients were evacuated from the area.
The offender was subsequently escorted out of the hospital by six police officers although he continued to violently resist.
Dispute over agreed facts
At the sentencing hearing there was some dispute between the parties as to the basis upon which the offender should be sentenced on counts 10 and 12. That was because the offender contended that the statement of facts was not sufficient to establish that the third and fourth shots fired from Officer A’s pistol were fired intentionally. The submission was that in the chaotic circumstances of a desperate struggle taking place as water poured from the ceiling, the court could not be satisfied on the basis of the agreed statement of facts that the offender had intentionally fired those two shots. It was submitted by the offender that it was not possible to exclude the possibility that Officer B caused the offender to depress the trigger when he put his finger into the trigger guard.
The offender did not, however, withdraw his agreement to the statement of facts or contend that there needed to be a disputed facts hearing in order to resolve the issue.
The statement of facts does not say expressly that the third shot or the fourth shot was fired intentionally. The guilty plea to counts 10 and 12 would be appropriate even if only one of the shots fired was fired intentionally. In fact, notwithstanding the absence of any express statement in the statement of facts that the firing of each shot was intentional, the offender accepts that the first two shots were fired intentionally.
The offender’s solicitor submitted that it was not open to use a victim impact statement, particularly that of Officer B, to supplement the agreed facts.
In my view, it is appropriate to sentence the offender on the basis of the agreed statement of facts. I adopt what Howie J said in R v Falls [2004] NSWCCA 335 at [37]-[39] about reliance upon the agreed statement of facts and the desirability that if there is an area of the facts not covered in the statement and that is in dispute, that should be made clear to the judge and determined appropriately by evidence and submissions. I have used the victim impact statements only for their statutory purpose, assessing the impact of the offending upon the victims, rather than supplementing or departing from the agreed statement of facts. As was recognised in R v UG [2018] ACTCA 64; 14 ACTLR 70 at [54], for offences involving an element of causing grievous bodily harm it may be relevant to assess the degree of harm caused to the particular victim. In the present case, the extent of harm caused to the officers was uncontroversial and hence no tension arose as a result of any difference between the statement of facts and the victim impact statement.
The statement of facts is sufficient to establish that the offender fired the third and fourth shots intentionally. The relevant part of the statement is paragraph [106]:
The offender continued violently resisting [Officer A] and [Officer B]. During this struggle, the offender continued trying to point the firearm at police, using actions of twisting his hand and his arm, and the offender fired another two shots. At one point, [Officer B] was able to put his finger through the trigger guard to stop the offender accessing the trigger and firing off more rounds.
While the agreed statement does not use the word “intentionally”, it would be inconsistent with the statement to read it as if it included the possibility of the shots being fired unintentionally. Had the offender (who has no relevant recollection in relation to this aspect of the events) been seeking to leave open the possibility of a submission that the firing of the third and fourth shots was unintentional, then he should not have agreed to the positive statement that he “fired another two shots”, particularly in the context of continuing to try to point the firearm at the police.
I observe that, generally speaking, the court must take care to carefully consider the scope of the facts which are agreed. That is because the terms of the agreed facts are often negotiated and their terms reflect the agreement that the parties are able to reach in order to both permit the entry of a plea of guilty and to then avoid a contested facts hearing for the purposes of sentencing. Plainly enough, it is for that reason that parties and their legal representatives should carefully check the facts which are being agreed to: see R v Crowley [2004] NSWCCA 256 at [46].
The agreement as to the facts may leave open the making of submissions as to what those facts establish beyond reasonable doubt. An example of such a case is R v Nozhat (No 2) [2019] ACTSC 81. In that case, the issue was at what point during an attempted importation of drugs the offender became reckless as to the possibility of the imported items being drugs. That was determined by the court based upon submissions made about what was established beyond reasonable doubt by the agreed statement of facts.
If any ambiguity as to the basis for sentencing is to be avoided, then clearly it is open to the parties to agree on a statement of facts which makes it explicit which of the acts are said to establish the relevant offences. Thus, it would have been open in the present case for the parties to have expressly agreed that one or more of the shots fired constituted the relevant offences. In some cases, in order to avoid uncertainty as to the basis for the sentence, it will be prudent to include in the agreed statement of facts an express articulation of exactly how the facts are admitted to constitute the elements of the offence. An example of a case in which this was done was R v Vickerstaff (No 2) [2019] ACTSC 343 at [14]. That was a case which relied upon the joint commission provision of the Criminal Code, and the terms of the statement of facts removed any uncertainty as to how s 45A applied in the circumstances so as to establish the relevant offences.
For these reasons, I have sentenced the offender on the basis that each of the shots from the gun was intentional and hence constituted count 10 and count 12. Because each shot was capable of establishing the charge, each of the counts involves a rolled-up charge. Because the third and fourth shots are included in counts 10 and 12, I must not take the discharge of the firearm into account as an aggravating feature of count 8, his attempted escape from custody.
Licence disqualification
Whether or not the offender was unlicensed at the time of the offending was relevant to the charge of unlicensed driving to which he had pleaded not guilty and which the Crown asked me to dismiss. That meant that whether or not the offender was disqualified from driving was only relevant as a possible aggravating factor for the culpable driving charges.
On 22 December 2014 the offender was convicted of a level four drink driving offence (CC2014/1168). He was sentenced to three months’ imprisonment, but that sentence was suspended. He was disqualified from holding or obtaining a licence for five years, from 22 December 2014 until 21 December 2019. He was also convicted of an offence of driving while unlicensed (CC2014/1169) and disqualified from holding a licence for a period of three years, but that was to be served concurrently with the disqualification on the other charge.
Notwithstanding this disqualification, the offender was able to obtain a Queensland drivers licence effective from 27 July 2017. The evidence does not establish on the balance of probabilities that at the time of the offending he considered (wrongly) that he was lawfully entitled to drive. That is certainly a possibility having regard to the evidence to which I will refer about his intellectual functioning, but it is, in the absence of evidence given by the offender, not more probable than not. The alternative is that he was aware of the disqualification both at the point in time when he applied for the Queensland licence and at the time of the offending.
I therefore sentence the offender on the basis that he was a disqualified driver and that this constitutes a circumstance of aggravation in relation to the culpable driving charges.
Conditional liberty
At the time when the offender committed the present offences he was on conditional liberty as a result of certain orders made by the Magistrates Court on 18 August 2017 in relation to prior offences.
The first was CC2015/11416, which was a charge of destroying or damaging property not exceeding $5000, for which he was given an 18-month good behaviour order. This offending involved his former partner, the mother of his child. It occurred on 1 November 2015 and involved the offender ripping a necklace from around his former partner’s neck.
The other offences occurred on 4 and 5 July 2016. They were as follows:
a)CC2016/7079: choking, suffocating or strangling another person. He was sentenced to 12 months’ imprisonment, which was suspended upon entering into a good behaviour order for a period of 18 months.
b)CC 2017/1153: common assault, for which he was sentenced to four months’ imprisonment suspended upon entering into a good behaviour order for a period of 18 months.
c)CC2016/7076: contravening a protection order. He was sentenced to four months’ imprisonment suspended upon entering into a good behaviour order for a period of 18 months.
These offences involved unpleasant family violence offending committed against the offender’s former partner. As reflected in the sentences, the choking offence was the most serious.
In each case, the 18 month period of the good behaviour order commenced on 18 August 2017 and ended on 17 February 2019. As a result, each good behaviour order was in effect on 18 July 2018 when the present offences were committed.
The fact that the offender was on conditional liberty of this type at the time that he committed the current offences is an aggravating circumstance. However, he also needs to be dealt with for the breach of the good behaviour orders, which were the condition of the suspension of the sentences of imprisonment.
Victim impact statements
Five victim impact statements were tendered.
The victim of count 1, Ms BT, records that as a result of the incident she now is hypervigilant and that it has increased her fear and made her nervous. It is also brought up for her previous trauma from the past.
Ms MC, the victim of count 5, a count of attempted robbery, called her mother during incident and screamed into the phone “He is going to kill me, help me!”. She feared that she was going to die. Her mother got her sister to ring the police and her father drove down to Yamba Drive to help. Subsequently she has felt unsafe going places on her own. She has sought counselling about the issues that she has in trusting people and feels that she will be scarred by this event for the rest of her life.
The wife of Mr OF, the driver of the flatbed truck which the offender’s vehicle collided with, provided a victim impact statement dated 23 September 2019. That statement disclosed that since the accident her husband’s memory has become worse, he has become very forgetful, his sleep is disrupted, and he is angrier and has less patience than previously. It describes that he got a brain injury, a fractured shoulder, as well as many fractures in the face. He had surgery twice following the accident, once for his knee and on another occasion for his vocal cords. He has had to get a variety of health and allied health treatment.
The victim impact statement that was read by Officer A is a witness statement dated 29 January 2020. It describes the offender’s attempted escape and apprehension in significant detail. It describes the uncertainty of the officer during the interaction as to whether he had been shot or not. It describes the fear that either he or somebody else was going to get killed, particularly when the muzzle of the firearm was pointed towards his face. It describes the ongoing psychological impact of the incident, involving feelings of anxiety and the replaying of events in his head. He records that there was a very real chance that the offender’s actions could have resulted in a loss of life or serious injury to himself, Officer B or an innocent bystander.
The victim impact statement of Officer B also describes the incident in significant detail. The statement indicates that when he saw that the offender was in possession of a firearm and was pointing it towards Officer A, he considered drawing his own firearm and shooting the offender because of the immediate threat to Officer A’s life. However, because of the urgency of the situation he ran towards the offender and took him to the ground in a bear hug position. He records that he was “absolutely terrified” in a way that he had not been during his military career. He thought that he would not be alive by the time he hit the ground. He recalls being unsure whether he was dead or alive as he hit the ground. He remembers looking up to see the offender firing rounds towards his head. He describes being bitten by the offender and having permanent scarring, in the shape of the offender’s mouth, which is a reminder to him of the incident. He describes the process by which he ejected the magazine from the pistol. He records the difficulties that he had in hearing police radio transmissions at the conclusion of the incident because of the recent discharge of the firearm near his head. He describes the significant effect of the incident on himself, his family and his colleagues and the change in his approach to situations at work and in everyday life. He describes the anxiety he feels, but also his determination to remain operational, the professional standards investigation that followed the incident and the impact of inaccurate reporting of the incident in the media.
Each of the effects of the offending described in the victim impact statements are effects which might be expected in the circumstances. I have considered the statements when sentencing the offender in relation to each of the offences to which they relate.
Objective seriousness
The offending involved a course of aggressive, high risk, unplanned and violent conduct by the offender, under the influence of methamphetamine. All of the offending is aggravated by the fact that the offender was on conditional liberty at the time.
Attempted robbery (counts 1, 5, 6 and 7)
In relation to each of the offences involving an attempt I have endeavoured to assess its seriousness consistently with the approach adopted in Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79 at [29], which picks up the approach articulated by Badgery‑Parker J in R v Taouk (1993) 65 A Crim R 387 at 390. That requires the court to consider the chances that the attempt would have succeeded and the seriousness of what was attempted:
…There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all the circumstances.
It is also relevant to take into account that the harm that would have arisen from the completed offence has not arisen: see R v BI (No 4) [2017] ACTSC 71 at [40] point 7.
In the present case, none of the attempted robberies were planned or very sophisticated. To a greater or lesser extent, they involved an attempt to persuade persons to surrender their vehicle to the offender by threat of force or actual force. Although the conduct of the offender was terrifying for some of the victims, he was able to be deterred by their resistance, lack of cooperation or the intervention of bystanders. He therefore did not pursue the threat of actual violence to any great extent.
The attempted robbery in the Tuggeranong Hyperdome car park which gives rise to count 1 involved an unsophisticated attempt to steal the vehicle. It involved physical attempts to pull Ms BT from the car. The offender did not persist in the face of her resistance. It was a serious attempt involving actual use of force although not carried through to the point of completion. It is a case which is almost as serious as if the offending had been completed. Had it been completed it would have been in the mid range of objective seriousness for the offence of robbery, which covers a broad spectrum of offending.
Count 5 is the attempted robbery involving Ms MC, in which the offender attempted to open the door and then punched the driver’s window. Once again, this was a serious attempt to deprive, by violence or threat of violence, a person of their vehicle. It was not pursued in the face of the locked door and the inability to get into the vehicle. Had it been pursued further it is likely to have been in the mid range of objective seriousness for a robbery, however, it was not pursued beyond the attempted break-in and the blows struck to the vehicle.
Count 6 involved the Mazda of Ms KI parked behind the vehicle that was the subject of count 5. The offender adopted the same course, attempting to open the driver’s door of the vehicle then kicking the vehicle and opening the rear driver side door. It was only the intervention of bystanders that prevented the offender from directing further threats or force against the driver of the vehicle in order to force her from the vehicle and steal it. It is therefore more serious than count 5.
Count 7 involved the Holden Astra of Mr LE. The offender occupied Mr LE’s vehicle when he was out of it and hence did not need to use threats or force to remove him from the vehicle. However, there was a physical confrontation when Mr LE prevented him from using the keys. The nature of the interaction is shown on a mobile phone video which was tendered by the Crown. It is an attempt which is slightly less serious than the subject of counts 1, 5 and 6 because it did not involve the threat or use of force to remove the driver from the vehicle.
Taking a motor vehicle without consent (count 2)
Count 2 relates to the white van taken outside the Repco shop. It was an unsophisticated and opportunistic crime. It is an offence in the mid range of objective seriousness for this offence.
Culpable driving of a motor vehicle causing grievous bodily harm (counts 3 and 4)
Counts 3 and 4 involve the driving leading to the grievous bodily harm to the driver and passenger in the flatbed truck. In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (Whyte) at [216], the New South Wales Court of Criminal Appeal identified as aggravating factors that may exist in an offence of this type a number of matters which are relevant here:
(a)the extent and nature of the injuries inflicted;
(b)the number of people put at risk;
(c)the degree of speed;
(d)the degree of intoxication or substance abuse;
(e)erratic or aggressive driving; and
(f)the length of the journey during which others were exposed to risk.
Items (c), (d), (e) and (f) were identified as directly affecting the moral culpability of the offender. The approach to aggravating factors identified in Whyte was adopted by the Court of Appeal in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 (Monfries) at [89]-[90].
So far as these matters are concerned the position is as follows:
(a)A summary of the individual injuries suffered in counts 3 and 4 has been given earlier. In relation to count 3 the injuries are more serious as they involved a severe traumatic brain injury. So far as count 4 is concerned, it is also a form of grievous bodily harm well above the threshold for that description.
(b)A significant number of people were put at risk because the offending occurred at 7:30am when the traffic on the roads was building up. The agreed statement of facts discloses a significant number of people who made observations or otherwise interacted with the offender during the period of dangerous driving.
(c)The speed involved was significant, being up to 120 km/h.
(d)At the time of the driving the offender was significantly intoxicated by methamphetamine.
(e)The driving was erratic and aggressive, involving overtaking vehicles in dangerous circumstances and driving on the wrong side of the road. It took place over a substantial distance – approximately eight kilometres. It also involved driving with the rear door of the vehicle fully open so that items fell from it, creating hazards for other drivers. It involved driving through red lights. It was the last of those red lights at which the incident occurred.
Further, for the reasons given earlier, the offender was disqualified from holding or obtaining a driver’s licence at the time of the offending.
Each of the offences is in the high range of objective seriousness for this offence.
Attempt to escape (count 8)
The offender was in lawful custody, being under arrest at the hospital. The attempt to escape was a serious one in which the offender was prepared to use significant violence in pursuit of that attempt. As it is separately charged, the biting and discharge of the four bullets should not be taken into account in assessing the seriousness of the attempt. However, the preparedness of the offender to take a police officer’s gun and to engage in a struggle with police increases the seriousness of this offending. The desperation involved in this offending is illustrated by the footage from the Taser which shows a chaotic struggle between the officers and the offender as water from the burst water pipe falls down upon them. A further aggravating feature of the offence is that it took place in the emergency department of a hospital where staff and vulnerable patients were also present. This offending is in the high range of objective seriousness for this offence.
Discharge loaded arms (act endangering life) (counts 10 and 12)
The offence under s 27(3)(d) of the Crimes Act occurs where a person “intentionally and unlawfully … discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety”. Section 27(3) also covers a diverse range of other circumstances involving choking, drugs, offensive weapons, explosives, traps, conveyances and road traffic devices. While a number of the other provisions refer to “circumstances likely to endanger human life or cause a person grievous bodily harm”, paragraph (d) extends to the creation of a reasonable apprehension for the victim’s safety. In that sense it might be considered to be a lesser example of the variety of matters covered by the section. Yet the threshold for the operation of the paragraph is that there are “loaded arms” being discharged and hence it is dealing with a circumstance which is necessarily inherently likely to endanger human life or cause a person grievous bodily harm. It is, however, clear that it is the reasonableness of the apprehension for safety that is required to be proved, rather than the likely endangerment of life or causing of grievous bodily harm, and hence it does involve a lower threshold. This must be taken into account when assessing the objective seriousness of the offending conduct in the context of the offence provision as a whole.
It is clearly a matter of aggravation that these acts were directed at police officers. Because of the function that they perform and that they are called to place themselves in danger for the benefit of the community at large, courts accept that the fact that the victim is a police officer is a substantially aggravating factor: see R v Penisini [2004] NSWCCA 339 at [20].
I do not accept the submission made by the offender that he did not attempt to point the firearm at the officers. That is inconsistent with the agreed statement of facts, in particular the following passages:
101. During this altercation, the offender kept turning the muzzle of the firearm in the direction of [Officer B]. [Officer B] saw at one point that [the] offender had the firearm in two hands trying to point it towards him. [Officer B] and [Officer A] managed to force the muzzle of the firearm away from [Officer B’s] head.
…
103. At one point, the offender had the gun fully in his hand and the offender had the barrel of the gun up towards the roof and pointed up towards [Officer A]. The offender appeared to have his finger in the trigger guard.…
106. The offender continued violently resisting [Officer A] and [Officer B]. During this struggle, the offender continued trying to point the firearm at police, using actions of twisting his hand and his arm, and the offender fired another two shots.
For the reasons I have given earlier (at [31]), I consider that the agreed statement of facts provides a sufficient basis to allow the offender to be sentenced on the basis that all four shots were intentionally fired. The offending involved the discharge of a police officer’s gun in an attempt to resist apprehension by police. It would have been more serious had the offence to which the offender pleaded guilty been the discharge of the loaded arms “at another person”. However, even in the absence of that circumstance, it is offending in the upper end of the range of objective seriousness.
Assault occasioning actual bodily harm (count 13)
Count 13 relates to the biting of Officer B. The harm inflicted was not at the upper end of the range, but it has left permanent scarring. It was an assault on a police officer acting in the course of his duty. I consider the offending to be at the upper end of the mid range of objective seriousness for this offence.
Subjective circumstances
Pre-sentence report
The subjective circumstances of the offender are described in a pre-sentence report dated 10 February 2020.
The offender is currently 28 years old. He was born in Sydney. He described experiencing a turbulent and difficult childhood, stating that while he was young, his mother was the victim of his father’s alcoholism and domestic violence. His father left the family home when the offender was around three years old, and he subsequently moved with his mother, brother and sister to Queensland. He described his childhood in Queensland as “the best days of his life”, but when he was 12 his family relocated to Canberra.
The offender stated that his behaviour worsened after moving to Canberra, and from the age of 13 he was using illicit drugs and alcohol. He spent time in foster homes due to ongoing involvement with the juvenile justice system, frequent truancy and other misbehaviour at home.
He also behaved poorly at school, and this resulted in him leaving prior to the beginning of Year 9. He began a TAFE course after school but ceased attending shortly after due to his drug and alcohol use escalating and the worsening of his mental health. The offender noted that he is currently participating in education courses within the AMC and is slowly learning to read and write.
He has been employed in several short-term positions, mainly in the construction industry. The offender stated his most recent employment prior to being remanded in custody was for approximately six months, and he is hoping that further work will be available once he returns to the community. Within the AMC, the offender has been employed in several cleaning roles since October 2018 and service records indicate that he has performed these roles satisfactorily.
The offender acknowledged that his mother is his most consistent primary support. However, in April 2016 his mother returned to Queensland to reside with her daughter. His mother remains supportive. His mother also stated that the offender tried to get in contact with his biological father in 2019, but this was not productive, and he has since ceased any further attempts to reconnect.
The offender has two older siblings. He reported no contact with his brother since his remand in custody. Although his sister lives in Queensland they have some contact via email and social media. He also continues to receive support from an uncle who resides in Casino, NSW, stating that they email regularly and they have begun sharing bible verses. The offender explained his uncle has helped him find God which he finds comforting.
The offender has a five-year-old daughter who resides with his ex-partner. Service records indicate that he was subject to a domestic violence order which has recently expired, which prevented him from approaching his ex-partner or her home. He advised that his main incentive for making changes in his life is his daughter and wanting to increase his visits with her and be a positive role model. The offender’s mother noted that her son and his ex-partner are now civil with each another and can have some contact regarding their daughter.
Concerning accommodation, the offender stated that he became homeless after his mother left Canberra and was couch-surfing with his friends in the lead up to his arrest in 2016. Prior to this period of remand in custody the offender reported that he resided with his older brother. He stated that this was not a good situation as they fought often, and the offender’s illicit substance use began to negatively affect his brother.
The offender reported that most of his friends and acquaintances are illicit drug users or otherwise associated with the criminal justice system. He stated he had some prosocial friends, which his mother confirmed, but he would need to remain abstinent from illicit substances if he were to successfully reconnect with them.
The offender’s own history of alcohol and illicit substance abuse extends back to when he was 13. He stated he began drinking alcohol to intoxication regularly from this age and would dilute petrol with water if he could not obtain alcoholic beverages. He stated that he began to smoke cigarettes when he was nine and first smoked cannabis at the age of 11. Aside from brief stints of abstinence following entering into rehabilitation facilities, the offender has largely smoked cannabis on a daily basis since. He first used MDMA-type substances at the age of 13 and advised he took approximately three tablets per week for approximately three years. He first used methamphetamine from the age of 16 and was smoking this daily by the age of 18. He also reported first using heroin at the age of 18, however did not use it again until he was around 26 years old. He smoked heroin regularly in the 12 months preceding his arrest for these offences.
The offender was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed medication. He began abusing this medication in primary school by crushing it and combining it with alcohol.
In 2016 the offender successfully completed a residential rehabilitation program and claimed no alcohol or illicit substance use for 18 months. However, in early 2018 he returned to drinking heavily and using illicit substances. His mother confirmed he had successfully completed three rehabilitation programs, however he always returned to illicit substance use afterwards.
His mother advised that the offender had attempted suicide on multiple occasions, his first attempt at 10 years old. The offender confirmed that he had attempted suicide on many occasions, most recently during the initial weeks of his current remand period. He acknowledged that he would need assistance in the community to address the risk factors relating to his mental health and wellbeing.
ACT Health provided a letter dated 29 January 2020 which indicated that the offender has previously been diagnosed with borderline personality traits, anxiety, depression and cannabis abuse. Following his admission to the AMC in July 2018, the offender was placed on medical observations in relation to the injuries he sustained on the day of the offences, as well as for alcohol and opioid withdrawal. He has received ongoing assessments from Forensic Mental Health Services whilst in custody after reporting frequent auditory hallucinations and persistent low mood resulting in suicidal ideation. At his last psychiatric review on 14 June 2019 he denied present thoughts of self-harm and did not present with mental health problems.
The offender also advised that he was diagnosed with schizophrenia in 2013 and noted that he experiences hallucinations, which are often exaggerated by his illicit substance use. He stated that in the weeks leading up to the offences his mental health was at its lowest and he was feeling highly suicidal. He stated he has now been prescribed anti‑psychotic medication and believes his mental health has been quite stable in the past six months. He also stated he has been prescribed with anti-depressant medication and sleep-inducing medication which he found was working appropriately.
The offender cannot remember the events of the current offences. However, he does not disagree or doubt the statement of facts. He attributes his actions to the result of the psychosis he was experiencing and his declining mental health. The offender recollected auditory and visual hallucinations that told him to go to hospital, and stated he recalls attempting to ride his bicycle to the Canberra Hospital before being hit by a car. His recollection beyond this point is only flashbacks.
The author of the pre-sentence report assessed the offender as a high risk of general reoffending:
His primary risk factors are attributed to his illicit substance and alcohol use, significant mental health issues, lack of family and pro-social companion support within the ACT, unemployment, financial issues and lack of stable of [sic] accommodation.
The offender was found suitable for a high level of intervention good behaviour order. He was assessed as not suitable for community service work.
The offender has agreed to participate in restorative justice and the assessment process is ongoing.
Expert reports
The offender tendered three expert reports going to his state of mind at the time of the offending.
Dr Richard Furst, a forensic psychiatrist, considered that the offender did not have a mental impairment within the meaning of s 27 of the Criminal Code. Rather, the available history was that he was coping reasonably well prior to visiting Canberra but that once his intention of seeing his daughter was unfulfilled, he had a relapse into heavy use of drugs including methamphetamine, cannabis and alcohol. It was that which triggered his high level of mood disturbance, paranoid thinking and hallucinations, all of which were transient in nature. He made a diagnosis of borderline and antisocial personality disorder, substance use disorder (methamphetamine and cannabis), attention deficit hyperactivity disorder and substance induced mental disorder (drug induced psychosis). He did not consider that the offender was suffering from a mental impairment at the time of the commission of the offences, although he did suggest some further investigation of the effect of ketamine upon the offender.
He considered that the personality disorder and drug addiction issues were commonly seen in inmates at the AMC and that this would not significantly impact on the offender’s capacity to cope with a term of imprisonment. He suggested drug and alcohol counselling as well as cognitive behaviour therapy.
Professor Olaf Drummer, a forensic pharmacologist and toxicologist, expressed the opinion that it was “possible” that the offender experienced “a paradoxical reaction to the midazolam”, a drug administered at the Canberra Hospital, involving loss of inhibitions and gross behavioural disturbances. He also said that he “may” have had a “treatment-emergent adverse reaction” to ketamine, a drug administered by the paramedics who treated the offender. Such reactions occur in approximately 12% of patients and may include hallucinations, nightmares and delirium which may be accompanied by confusion, excitement and irrational behaviour. He found it difficult to assess the combined effects of the administered drugs in a person who was dependent on methamphetamine, alcohol and perhaps other drugs and who had a complex psychiatric profile in a situation that would give rise to extreme anxiety.
The mere possibility that ketamine or midazolam may have contributed to the offender’s conduct at the hospital is not sufficient to establish that as a mitigating factor. Instead, it would be necessary to establish that on the balance of probabilities: see R v Olbrich [1999] HCA 54; 199 CLR 270 (Olbrich) at [27].
Dr Sally McSwiggan, a consultant neuropsychologist, identified that the offender was “on the cusp of Borderline to Extremely Low range of intelligence on a standardized measure of intellectual ability”. She considered that he “likely sustained at least an uncomplicated (no gross abnormalities on CT Brain imaging) Mild Traumatic Brain Injury (TBI)” at the time of the offending. She considered that this met the criteria for “brain damage” in s 27 of the Criminal Code. She considered that a pharmacology opinion would be required to assess whether he appreciated the nature and quality of his conduct, knew it was wrong and could control it.
Insofar as the offender relied upon the report of Dr McSwiggan to support the proposition that at the time of the offending he was suffering from a mild traumatic brain injury, the relevance of that would be that it had some causal effect in relation to his offending conduct or otherwise somehow reduced his culpability for that conduct. Being a matter relied upon in mitigation, these are matters for the offender to establish on the balance of probabilities: see Olbrich at [27]. Neither the report nor the other evidence available establishes on the balance of probabilities that any mild traumatic brain injury caused his conduct or otherwise affected him in a way that reduces his culpability for that conduct.
Offender’s mother
A letter from the offender’s mother corroborates his personal history, the long-term nature of his mental health issues and the difficulties that he has faced as a result of his level of intellectual functioning. She suggests that there is an underlying reason why he keeps turning to drugs and that he would benefit from “intense long-term counselling”. She also records, consistently with the other evidence, that he is motivated by the desire to be a father to his daughter.
Criminal history
The offender has a significant but not overwhelming criminal history in the Australian Capital Territory. It includes assaults and driving offences. A notable feature of his history involves the failure to comply with good behaviour obligations and the necessity to deal with breaches of those obligations. He has not had a sentence of full-time imprisonment. There are periods which correspond to participation in rehabilitation programs where he has no offending. In 2015 and 2016 he had a number of convictions for family violence offences for which he received suspended sentences of imprisonment. I have referred earlier in these reasons to those offences because, as a result of his current offending, he is in breach of the good behaviour orders which were a condition of the suspensions. His criminal history means that there is limited scope for leniency in relation to the current offending.
Plea of guilty
Following criminal case conferencing on 5 and 7 August 2019, the offender agreed to plead guilty to a number of offences but maintained his right to raise mental impairment in relation to the events at the Canberra Hospital. On this basis, no trial date was obtained and the matter was adjourned on a number of occasions so as to permit the offender to obtain an expert report. He indicated his intention to plead guilty on 26 November 2019 and he pleaded guilty to the charges for which he is now to be sentenced on 11 December 2019. Notwithstanding that the Crown case was a very strong one, the plea still has significant utilitarian value. In the circumstances where pleas of guilty were entered following a criminal case conference and prior to the setting of a hearing date, a discount of 15% is appropriate.
Time in custody
The offender has been remanded in custody since his arrest on 18 July 2018. He has spent 21 months and 10 days in custody attributable solely to these offences, being 18 July 2018 to 27 April 2020.
Consideration
The offending occurred after the offender relapsed into the use of methamphetamine in the days prior to the offending. He had returned to Canberra from Queensland where he was living in order to see his daughter. He was denied access to his daughter and subsequently recommenced the use of methamphetamine.
There is no doubt that he was aware of the consequences of taking methamphetamine. He had previously participated in residential rehabilitation programs for his methamphetamine addiction. He was a long-term methamphetamine user. He told the author of the pre-sentence report that his suffering of hallucinations was exaggerated by his illicit substance use. No submission was made that his moral culpability was reduced because he was unaware of the risk of psychosis being induced by the use of methamphetamine. His moral culpability was unaffected by the fact that at the time of the offending he was suffering from substance induced psychosis: R v Pahl (No 2) [2017] ACTSC 155.
The offender has not established on the balance of probabilities that his offending at the hospital was as a result of “a paradoxical reaction” to midazolam, a drug he was administered at the hospital, or as a result of being administered ketamine.
So far as the offending at the hospital is concerned, leaving aside the risks that the offender created for the police officers and others present in the emergency department, the remarkable feature of the incident is that, notwithstanding the desperate circumstances in which the officers found themselves, the offender was not shot by the officers in self-defence. The situation could easily have resulted in the death of the offender. It is to the credit of the officers involved that they ultimately resolved the matter with only the force that they did. Notwithstanding the reprehensible conduct that the offender engaged in, it is obviously much better that he faced the court for his offending rather than be the subject of a coronial inquest.
So far as the purposes of sentencing are concerned, clearly this is a case in which the different purposes point in different directions: cf Veen v R (No 2) (1988) 164 CLR 465 at 476. General and specific deterrence, denunciation, community protection and recognition of harm done to the victims are obviously very significant matters. Given the offender’s youth and difficulties with drug abuse, rehabilitation must remain a purpose of sentencing as the offender’s rehabilitation is always in the long-term interests of the community.
Given the offender’s level of intellectual functioning and his history of unsuccessful attempts at rehabilitation, his prospects of rehabilitation in the future are not obviously good. However, he is still young and shows some motivation for rehabilitation. His willingness to participate in restorative justice is an indication of his acceptance of responsibility for the offences, his willingness to attempt to reduce the impact of the offending upon the victims and hence is a positive sign as to his attitude towards rehabilitation.
The parties referred me to a large number of authorities in relation to the offences of culpable driving causing grievous bodily harm, acts endangering life under s 27(3)(d) of the Crimes Act and attempting to or actually escaping from lawful custody. I have considered the sentences imposed in those cases and it is not necessary to refer to them in any detail other than to note the disturbing similarity between the facts here and in Monfries, insofar as it involves the offence of culpable driving causing grievous bodily harm.
I have taken into account the existence of the COVID-19 coronavirus pandemic. Recognising that the situation is an evolving one and the actual consequences for persons in prison are uncertain, I accept that there is a risk that a period in custody may involve greater restrictions as a result of the risk of COVID-19 and that in any event the existence of the pandemic is a source of additional stress and concern for detainees and their families: see Brown (aka Davis) v R [2020] VSCA 60 at [48].
Breach of good behaviour orders
In relation to the good behaviour orders which are the condition of the suspension of sentences (CC2016/7076, CC2017/1153 and CC2016/7079), the alternatives are to impose the suspended sentence orders or to re-sentence the offender: Crimes (Sentence Administration) Act 2005 (ACT) s 110. How to proceed involves a consideration of the whole of the circumstances of the underlying offending, the offender’s conduct during the period of the good behaviour orders and the nature of the conduct involved in the breach of those orders. In the present case, the underlying offences were unpleasant family violence offences directed to his former partner. While the offender had completed a year of the good behaviour orders and in some cases that might lead a court to re-sentence rather than impose the suspended sentences, in the present case the breaches of the good behaviour orders were by further offending and further offending of a very serious nature. In those circumstances I consider that the appropriate course is to simply impose the suspended sentences. The magistrate’s sentencing decision did not identify whether the suspended sentences would otherwise have been concurrent or cumulative. Some recognition may be given to the offence free time spent under the good behaviour orders by making the sentences wholly concurrent, even though had the sentences been imposed at the time then there is likely to have been a significant component of cumulation, even though they arose out of conduct in relation to a single victim on two adjacent days.
So far as the good behaviour order simpliciter is concerned (CC2015/11416), in light of the nature of the offending and the other sentences imposed today it is appropriate to take no further action under s 108(2)(a) of the Crimes (Sentence Administration) Act.
Sentences
It is clear, having regard to the volume and gravity of the offending, that only sentences of full-time imprisonment are appropriate. The sentences to be imposed upon the breaches of good behaviour orders are completely separate from and unrelated to the balance of the offending. There will, however, be some concurrency with the 18 July 2018 offending, only because of totality considerations.
The two culpable driving sentences will be concurrent with each other. That is because the same conduct is relied upon even though there were two victims, and also because of the totality of the sentences to be imposed. Otherwise, sentences are made partially concurrent because they arise out of events on a single day and in order to ensure that the totality of the sentences is appropriate.
Section 72 of the Crimes (Sentencing) Act2005 (ACT) applies to sentencing for counts 8, 10, 12 and 13. That is because, notwithstanding his attempts to escape, the offender was in lawful custody and hence s 72(1)(a) was satisfied. That means that the default position under s 72(2) is that the “primary sentence” must be served consecutively with the existing sentence of imprisonment. As to what constitutes a “primary sentence” and an “existing sentence”, I adopt what I said in R v Potts [2020] ACTCA 12. However, the requirement to establish “special circumstances” before sentences are made concurrent does not apply because each of the police officers was not “a corrections officer” within the meaning of s 72(4). I will direct that the sentences on counts 8, 10, 12 and 13 have start and end dates which incorporate a degree of concurrency. That is most obviously appropriate in relation to counts 10 and 12, where the same conduct on the part of the offender is relied upon for each offence. So far as counts 8 and 13 are concerned, I consider that start and end dates which involve some concurrency are appropriate to reflect the overall criminality involved in the incident. Having taken into account the fact that the offender was in custody, and that the offences were committed against police officers, in assessing the sentences to be imposed I do not consider that it is necessary, in order to give effect to the statutory policy behind the provision as explained in R v Rappel [2019] ACTCA 11 at [24], to require that the offences be served wholly cumulatively.
The effective sentence to be imposed as a result of the breaches of the good behaviour orders associated with suspended sentences is 12 months, as they are all to be served concurrently. On count 1 the starting point is a sentence of 30 months reduced to 25 months on account of the plea of guilty. This will be cumulative as to 19 months upon the sentences imposed for the breaches of good behaviour orders.
On count 2 the starting point is a sentence of 24 months reduced to 20 months on account of the plea of guilty, which will be cumulative as to 12 months upon the previous sentence.
On count 3 the starting point is a sentence of 54 months reduced to 45 months on account of the plea of guilty. It will be cumulative as to 36 months upon the previous sentence. The sentence on count 4 will be the same and it will be concurrent with the sentence on count 3.
On count 5 the sentence will be 24 months reduced to 20 months on account of the plea of guilty. It will be cumulative as to three months upon the previous sentence.
On count 6 the sentence will be 24 months reduced to 20 months on account of the plea of guilty. It will be cumulative as to three months upon the previous sentence.
On count 7 the sentence will be 18 months reduced to 15 months on account of the plea of guilty. It will be cumulative as to three months.
On count 8 the sentence will be 36 months reduced to 31 months on account of the plea of guilty. It will be cumulative as to 24 months.
On count 10 the sentence will be 42 months reduced to 35 months on account of the plea of guilty. It will be cumulative as to 24 months. On count 12 the sentence will be the same and it will be wholly concurrent with the earlier sentence.
On count 13 the sentence will be 12 months reduced to 10 months on account of the plea of guilty. It will be cumulative as to two months upon the earlier sentence.
This gives a total aggregate sentence of imprisonment of 138 months or 11 years and six months. Having regard to the offender’s limited criminal history, his past attempts at rehabilitation and his youth, I consider that it is appropriate to give a non-parole period at the middle of the usual range. The non-parole period will be six years and ten months which is approximately 60% of the head sentence.
The sentences will be backdated to the date when the offender went into custody, namely 18 July 2018.
A period of automatic disqualification arises under s 62 of the Road Transport (General) Act 1999 (ACT) in relation to counts 3 and 4. In relation to each offence I will make no order increasing the period of disqualification required under that section. The default position under s 69 of the Act is that the periods are cumulative upon each other and I make no order to vary that, as the periods of disqualification will be served whilst the offender is in custody.
Orders
The orders of the Court are:
1.On CC2015/11416 (destroy or damage property) in relation to the breach of the good behaviour order, no further action is taken.
2.On CC2016/7079 (choke/suffocate/strangle another person) in relation to the breach of good behaviour order, the good behaviour order is cancelled and the suspended sentence of imprisonment of 12 months is imposed starting on 18 July 2018 and ending on 17 July 2019.
3.On CC2017/1153 (common assault) in relation to the breach of the good behaviour order, the good behaviour order is cancelled and the suspended sentence of imprisonment of four months is imposed starting on 18 July 2018 and ending on 17 November 2018.
4.On CC2016/7076 (contravene protection order) in relation to the breach of a good behaviour order, the good behaviour order is cancelled and the suspended sentence of imprisonment of four months is imposed starting on 18 July 2018 and ending on 17 November 2018.
5.On count 1, a count of attempted robbery (CC2018/9139), the offender is convicted and sentenced to 25 months’ imprisonment starting on 18 January 2019 and ending on 17 February 2021.
6.On count 2, a count of taking a motor vehicle without consent (CC2018/9140), the offender is convicted and sentenced to imprisonment for 20 months starting on 18 June 2020 and ending on 17 February 2022.
7.On count 3, a count of culpable driving of a motor vehicle causing grievous bodily harm (CC2018/11063), the offender is convicted and sentenced to imprisonment for 45 months starting on 18 May 2021 and ending on 17 February 2025.
8.On count 4, a count of culpable driving of a motor vehicle causing grievous bodily harm (CC 2018/11064), the offender is convicted and sentenced to imprisonment for 45 months starting on 18 May 2021 and ending on 17 February 2025.
9.On count 5, a count of attempted robbery (CC2018/11060), the offender is convicted and sentenced to imprisonment for 20 months starting on 18 September 2023 and ending on 17 May 2025.
10.On count 6, a count of attempted robbery (CC2018/11059), the offender is convicted and sentenced to imprisonment for 20 months starting on 18 December 2023 and ending on 17 August 2025.
11.On count 7, a count of attempted robbery (CC2018/11061), the offender is convicted and sentenced to imprisonment for 15 months starting on 18 August 2024 and ending on 17 November 2025.
12.On count 8, a count of attempting to escape (CC2018/9163), the offender is convicted and sentenced to imprisonment for 31 months starting on 18 April 2025 and ending on 17 November 2027.
13.On count 10, a count of discharging loaded arms so as to cause another person reasonable apprehension for his safety (CC2018/9162), the offender is convicted and sentenced to imprisonment for 35 months starting on 18 December 2026 and ending on 17 November 2029.
14.On count 12, a count of discharging loaded arms so as to cause another person reasonable apprehension for his safety (SCCAN2019/125), the offender is convicted and sentenced to imprisonment for 35 months starting on 18 December 2026 and ending on 17 November 2029.
15.On count 13, a count of assault occasioning actual bodily harm (CC 2018/9161), the offender is convicted and sentenced to imprisonment for 10 months starting on 18 March 2029 and ending on 17 January 2030.
16.The non-parole period commences on 18 July 2018 and ends on 17 May 2025.
17.On the charge of possessing a prohibited substance (CC2018/11062), the offender is convicted and required to enter into an undertaking to be of good behaviour subject to the core conditions only for a period of one month.
Note: No order is made to vary the statutory period of disqualification in relation to counts 3 or 4.
| I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 14 May 2020 |
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