R v Shepherd (No 2)
[2022] ACTSC 248
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Shepherd (No 2) |
Citation: | [2022] ACTSC 248 |
Hearing Date: | 3 June 2022 |
DecisionDate: | 9 June 2022 |
Before: | Refshauge AJ |
Decision: | 1. Jesse Dean Shepherd be convicted of aggravated robbery and sentenced to 2 years and 6 months imprisonment, to commence on 7 July 2021. 2. A non-parole period of 17 months be set, to commence on 7 July 2021 and end on 6 December 2022. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Subjective Circumstances – Drug Addiction – Mental Illness – Drug and Alcohol Treatment Order Application – Application Denied – Imprisonment |
Legislation Cited: | Bail Act 1992 (ACT) s 20C Criminal Code 2002 (ACT) ss 45A, 309, 310 Evidence Act 2011 (ACT) ss 4, 59 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Valencic v Jordan [2017] ACTSC 120 |
Parties: | The Queen (Crown) Jesse Dean Shepherd (Offender) |
Representation: | Counsel C Daly (Crown) C Brain (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal Service (Offender) | |
File Number: | SCC 220 of 2021 |
REFSHAUGE AJ:
Introduction
As was said in R v Boudelah (1991) 28 FCR 176 at 181, “observance of correct procedures in criminal matters is always important so as to ensure fairness to the Crown and to the accused.” An important part of correct procedure is, of course, the rules of natural justice.
Thus, an accused person is required to be told what is alleged, and indeed to be given an opportunity not only to see the evidence to be adduced, but to have a proper opportunity to answer it.
Sometimes the apparent width of this obligation is constrained by legislation and, of course, the courts are bound to apply the law as legislated. The courts will, however, strain to ensure fairness, as fairness of procedure is at least equally as important as the fairness of the outcome of criminal proceedings.
This can, however, sometimes be a challenge and such challenges do occur in the conduct of this Court’s Drug and Alcohol Sentencing List.
One such challenge has arisen in the case of Jesse Dean Shepherd, who has pleaded guilty to an offence of aggravated robbery. As a result of the plea, he now stands to be sentenced by the Court.
On sentencing, the Crown tendered without objection, save as to part of one document, the required Crown Tender Bundle. It contained the very helpful prescribed cover sheet, the indictment to which Mr Shepherd has pleaded guilty, the Agreed Statement of Facts and Mr Shepherd’s Criminal History.
The contents of none of these documents were challenged.
The Crown Tender Bundle also contained two Drug and Alcohol Treatment Assessments (Suitability Assessments) prepared under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) at the direction of the Court. One, dated 12 May 2022, was prepared by the Alcohol and Drug Service. There was no objection by Ms C Brain, counsel for Mr Shepherd, to the contents of that document.
The other Suitability Assessment dated 13 May 2022 was prepared by ACT Corrective Services. One section of the document was the subject of an objection by Ms Brain. After argument, the document was admitted. That issue will be dealt with further below.
Ms Brain tendered, without objection, a bundle of documents on behalf of Mr Shepherd. There was a transcript of evidence given before Loukas-Karlsson J earlier in these proceedings by Jacinda McKay, a Mental Health Assessment dated 24 July 2020 of Justice Health Services, a letter dated 23 May 2022 from the Justice Housing Program, a Psychological Report dated 27 January 2022 by Forensic Psychologist Dr Leesa Morris, and certain sentencing statistics from the ACT Sentencing Database.
She also tendered, by consent, a letter dated 11 April 2022 from Canberra Health Services. Again, no challenge was made to the contents of any of these documents. Both the Crown and Ms Brain provided helpful and targeted written submissions, and both counsel made thoughtful and useful oral submissions, as well as providing assistance to the Court in response to questions.
The challenged evidence
Noted above (at [9]) is the objection of Ms Brain to certain parts of the ACT Corrective Services Suitability Assessment. The challenged portion is as follows:
Living circumstances of the offender
If released to a Drug and Alcohol Treatment Order (DATO), Mr Shepherd has proposed to reside at a friend’s residence in Ngunnawal, ACT. On 13 April 2022, the Australian Federal Police (AFP) informed this service that the proposed property is linked to three known offenders. They further advised that at least eight active alerts are recorded on the AFP database in relation to these individuals. All three are known to this service, the two being supervised on current orders. Service records indicate that they have significant criminal records and are known users of illicit substances. On 13 April 2022, the AFP advised that they consider this address to be unsuitable for Mr Shepherd if he were to be released to a Drug and Alcohol Treatment Order (DATO). As a result of this advice, this service has assessed the proposed address as unsuitable.
Ms Brain sought to challenge these assertions and has called for the material provided by the Australian Federal Police to be produced so that it could be considered and, if available, countered by other evidence. This call was resisted by the Crown who advised that, because the source material may be protected by public interest immunity, it would have to be sought under a subpoena.
There being no time to do that if the current hearing was to proceed, Ms Brain, sought, instead that the passage be rejected as inadmissible. Ms Brain was offered an adjournment so that a subpoena could be issued, and any argument about production of the material could be properly ventilated. The offer was declined.
Given that Mr Shepherd is in custody, and is unsentenced, there is a reasonable basis for that decision, though the issue is one of some significance as Mr Shepherd did seek that the sentence to be imposed be served by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Sentencing Act and lack of suitable accommodation may render him unsuitable.
Ms Brain then relied on the inadmissibility of the material. It is, of course, hearsay and under s 59 of the Evidence Act 2011 (ACT), is inadmissible unless one of the exceptions to the rule set out in that section applies.
Of course, the Evidence Act does not apply to sentencing proceedings unless the Court makes a direction, which must be made if a party requests it and the Court considers the material involves proof of a significant fact in the proceedings: s 4. Although this clearly is a significant fact, no direction was sought by either party.
The non-application of the Evidence Act, however, does not leave the Court in an evidentiary vacuum. It has been held that the common law of evidence then applies: Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545 at 549; [19].
This has recently been affirmed in Edmonds v The Queen [2022] NSWCCA 103 at [25], along with the acknowledgement of the accepted caveat that sentencing proceedings should be conducted with as much informality as appropriate, subject to ensuring the important value of fairness. An appropriate degree of formality may be required, but without unnecessary insistence on strict rules of evidence, unless there is good reason and the other interests of the parties would be such a reason.
The prohibition against admission of hearsay, other than under specified exceptions, is also a rule of the common law.
It may be that the material is a business record of the Australian Federal Police, in which case it is an exception to the prohibition. This, however, was not explored in this case.
The Crown relied on s 80T(2)(d) of the Sentencing Act, which provides
(2) in deciding whether to make a treatment order for the offender, the court must consider the following:
…
(d) any evidence given, or submissions made, by a member of the treatment order team about the offender.
So far as can be ascertained, there is no court decision on this provision. While it would not be sufficient to provide an exception to the hearsay rule under s 59(4) of the Evidence Act, were a direction to be made under s 4(2) of that Act, it appears to override both any such provision and the common law.
The section refers to “any evidence” and not “any admissible evidence”, and it does not appear that the additional word, “admissible”, should be read into it. That would undermine the provision. It appears that the addition of “submission” in the provision reinforces that, for a submission is not usually regarded as evidence, though not infrequently evidentiary material is included in submissions, particularly in sentencing proceedings.
Quite often, assertions of fact are made from the bar table while counsel is making submissions. These assertions may be accepted, especially given the encouragement for appropriate informality in sentencing: Talukder v Dunbar at 549–50; [20]–[25].
They could, therefore, be considered to be submissions, as often in sentencing proceedings, such assertions are included in both written and oral submissions. That, of course, does not mean that, even if challenged, these assertions must be accepted by the judge: Valencic v Jordan [2017] ACTSC 120 at [28].
This privilege, of course, places a responsibility on the assessors preparing the Suitability Assessments, where they are members of the Treatment Order Team: see s 80M of the Sentencing Act.
This interpretation is also supported by the approach to be taken by assessors under s 46L of the Sentencing Act, especially if they are members of the Treatment Order Team.
It is further to be noted that the Suitability Assessment also expressed an opinion in the context of the indicators on suitability for a Treatment Order in Table 46K of the Sentencing Act.
This passage from the Suitability Assessment included the following:
Column 7: Living circumstances of the offender: Mr Shepherd does not have approved accommodation in the ACT. Although a lack of unsuitable accommodation is not a factor of unsuitability, it is considered that a lack of suitable and stable accommodation would render Mr Shepherd’s ability to comply with the strict requirements of a DATO untenable.
This opinion was not, and, in the circumstances, could not have been, challenged as inadmissible, which undermined the challenge to the other part of the Suitability Assessment in all the circumstances.
Accordingly, the evidence was admitted. That does not mean, however, that it does not have to be, nor indeed will not be, evaluated in the light of all the evidence admitted and the submissions of counsel.
Accordingly, from the evidence identified, including this evidence, the following findings are made.
The facts
While the Agreed Statement of Facts provided considerable detail which was helpful to show both the context of the offending to which Mr Shepherd has pleaded guilty and the careful investigation conducted by police to show the strength of the Crown case, the actual conduct is in relatively small compass.
Mr Shepherd has been living off and on in an apartment complex in Valley Avenue, Gungahlin which was tenanted by a woman with whom he had a relatively short relationship, which had, however, ended in mid-June 2021. She had a son and another residence in the apartment complex as well.
On 1 July 2021, messages were sent from the tenant’s son’s phone to a person who it appears may have been able to supply drugs, seeking some drugs. The recipient agreed to come to the apartment and provide them. Mr Shepherd later stated that he had contacted his drug dealer with the intent to acquire methamphetamine despite having no funds for the purchase.
It is an available inference that he used the phone of the tenant’s son to do so, or that he had requested him to do so, and that he intended to gain the drugs without paying for them.
Later that day, the recipient of the messages was driven by another young man to the apartment, arriving at about 10:10 pm. There were also two other persons in the motor vehicle, a Kia Rio. They messaged the tenant’s son upon their arrival, and he said that he would “be down soon”.
After they parked the motor vehicle at the end of the driveway, Mr Shepherd and another unidentified man approached them. Mr Shepherd was recognised by one of the occupants of the motor vehicle whom he had previously met, and who was the recipient of the earlier phone messages.
After a short conversation with the occupants, Mr Shepherd’s companion went round to the driver’s window and produced a knife, demanding that the occupants get out of the vehicle, and when the driver refused, he held the knife to his throat saying, “I’ll stab the fuck out of you if you don’t get out”. The driver felt the tip of the knife pushing into his throat.
Mr Shepherd also produced a knife and held it toward that occupant of the car who had recognised him. He told him to get out of the car. The knife was about 20 centimetres long and curved. Mr Shepherd, seeing that occupant’s phone, also told him to hand it over, which he did. The phone had $120 in cash stored between the phone and the phone case.
All four occupants then got out of the motor vehicle, leaving the keys in it behind. Mr Shepherd got into the passenger seat. Mr Shepherd’s companion got into the driver’s seat and drove the motor vehicle away. Also in the motor vehicle, when it was driven away, were the original driver’s driver licence and a pair of boxing gloves.
These were the events that led to the charge of aggravated robbery against Mr Shepherd, the circumstances of aggravation being that he was in company and had a weapon with him.
The original driver then reported the events to police, who were told the identity of Mr Shepherd. About 10 minutes later, the tenant’s son sent a message by Facebook Messenger to Mr Shepherd stating, “where you?”.
Three days later, police located the motor vehicle outside the building from where it had been stolen. On a search, the original driver’s driver licence and the boxing gloves were not found. Some fingerprints found in the vehicle were identified as those of the other resident in the apartment, but no fingerprints of Mr Shepherd were found, including on the driver’s controls.
On 8 July 2021, police executed a search warrant at the apartment when Mr Shepherd was present. The original driver’s driver licence, the motor vehicle ignition key and the boxing gloves were all found.
Mr Shepherd was arrested and interviewed the next day, stating that he stayed in the apartment off and on, and that he was in it on the night of the robbery. He denied, however, committing the robbery.
He was remanded in custody and on 16 July 2021, rang his mother from the Alexander Maconochie Centre. The phone call was, as is the practice of the prison, recorded and, in the phone call, he made numerous admissions to committing the offence.
At one stage, following a complete admission including a reference to robbing “an ounce of weed, his phone and a hundred and twenty bucks” and identifying where it was, he added, perhaps a little lamely, “well, allegedly. Allegedly. I’ll say that because, you know, recordings”. He then added, “yeah, I took his car”. He also admitted that he had held a knife to the throat of an occupant of the motor vehicle.
He did say, however, that he was pleading not guilty and, “taking it all the way to trial”.
He also threatened to rob again the recipient of the original text message, as he “snitched” on him. He did, perhaps very lamely, add, “I’m innocent”, adding, “I’m innocent until proven in a court of law”.
The driver was unable to adequately identify the other man involved when a photo identification board was conducted, but the recipient of the original text messages was able to identify Mr Shepherd.
The proceedings
As noted above (at [47]), Mr Shepherd was arrested on 8 July 2021. He appeared in the ACT Magistrates Court on 9 July 2021. Though the offence actually preferred was aggravated robbery, it was curiously described later as attempted aggravated robbery in the committal papers. It referred to s 310 of the Criminal Code 2002 (ACT), also s 45A which refers to joint commission of the offence, which is clearly appropriate. He was remanded in custody.
Mr Shepherd pleaded not guilty on the second mention three weeks later, and the proceedings were then adjourned. Prior to the date of that adjournment, the matter was mentioned in chambers when bail applications were withdrawn on three occasions.
Finally, on 15 September 2021, Mr Shepherd maintained his plea of not guilty and was committed for trial to the Supreme Court and a bail application was again withdrawn. He remained in custody.
After two mentions in this Court, the proceedings were, on 28 October 2021, listed for the hearing of a pre-trial application on 3 February 2022 and, on 8 November 2021, for trial in the week commencing 28 March 2022.
On 18 November 2021, Mr Shepherd applied for bail, which was refused. He renewed the application on 10 December 2021, which was also refused, though it was accepted that there had been a change of circumstances: s 20C of the Bail Act 1992 (ACT).
At the hearing of the pre-trial applications, Mr Shepherd sought to have excluded the record of conversation of the positive photo board identification, and the recorded telephone calls from the Alexander Maconochie Centre with his mother. All were admissible, though the Crown did not press one of the telephone conversations that had been recorded: see R v Shepherd [2022] ACTSC 16.
A Criminal Case Conference was held on 7 February 2022 and on 10 February 2022 Mr Shepherd pleaded guilty to the offence. He was referred to the Drug and Alcohol Sentencing List and, on 11 March 2022, having been found eligible for consideration of Suitability Assessments, these were directed to be prepared and the proceedings listed for sentence.
While the plea of guilty was entered following the Criminal Case Conference, and so justified a discount on sentence (s 35 of the Sentencing Act), the course of the proceedings were protracted by Mr Shepherd’s plea of not guilty and the pre-trial application, which somewhat moderates the discount available, though it must still be a proper one, though at the lower end of the range referred to by the Court of Appeal in Blundell v The Queen [2019] ACTCA 34 at [10].
During this time, Mr Shepherd has remained in custody, a total of 338 days. This is required to be taken into account.
The offence
Following Mr Shepherd’s plea of guilty to the offence of aggravated robbery, it falls to the Court to sentence him. In order to do so, the Court must synthesise the various matters which the legislature has required it to consider, set out in s 33(1) of the Sentencing Act, as well as other relevant matters including those of the common law: s 33(2) of the Sentencing Act.
It is convenient to consider first that referred to in s 33(1)(a) of the Sentencing Act, namely the nature and circumstances of the offence. In order to understand an offence’s nature, an important matter for consideration is the legislative maximum penalty for the offence, which is the legislature’s direction as to the seriousness of the offence and the penalty for the worst category.
It also acts as an invitation to compare the worst possible case and the case before the Court and, when balanced with all the other factors, it provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [31].
Then, as this offence, as with most offences, can be committed in various ways, the actual facts are important, as have now been found above (at [34]–[52]). The courts have, over time, identified the factors that bear upon the seriousness of the actual offence for which Mr Shepherd must be sentenced, and which are also part of the mandated consideration of current sentencing practice (s 33(1)(za) of the Sentencing Act).
Aggravated robbery is made an offence by s 310 of the Criminal Code which provides for a maximum penalty of 25 years imprisonment or a fine of $400,000 or both. It is, thus, a very serious offence with very few more serious offences, usually where life imprisonment is the maximum penalty.
In this case, Mr Shepherd jointly committed the offence with the unidentified man. Thus, the case is that Mr Shepherd entered into an arrangement with that man to commit the offence, and that the offence was committed in accordance with that agreement: s 45A of the Criminal Code. As a result, that section provides that, in that case, Mr Shepherd is considered to have committed the offence and is thus punishable as if he alone committed the offence.
The Court considered in R v Carberry [2022] ACTSC 208 that this means that each of Mr Shepherd and his companion, the co-accused, are equally responsible and liable for all the acts done in the course of carrying out the offence within the bounds of the agreement, though Mr Shepherd’s culpability is assessed by reference to his particular conduct: see R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 at 335; [32].
This offence is a robbery, that is the commission of a theft during the commission of which theft, or immediately before or after it, the offender uses force, or threatens to use force on someone else: s 309 of the Criminal Code. Robbery is, thus, serious because it is an offence of dishonesty as well as of violence: R v Watson [2021] ACTSC 339 at [38].
The offence committed by Mr Shepherd was a robbery aggravated because of the presence of aggravating circumstances. Those may be either that the offence was committed in the company of one or more others, or that he had at the time an offensive weapon with him. In this case, of course, both circumstances of aggravation applied, making it a more serious version of the offence.
There have been considerations of this offence in various decisions of the Court, recently in R v McColl [2022] ACTSC 386 at [51]–[58], R v Deng [2022] ACTSC 143 at [65]–[67] and R v Carberry [2022] ACTSC 208 at [87]–[89].
Among the relevant factors that need to be considered are the following. There was only one other offender, more than that would also have aggravated the offence.
The weapon was a knife, which is a serious weapon because of the threat to which it exposes the victim. Though, in this case, there was no actual violence inflicted, which would have made the offence more serious, the threat was very real and the knife was thrust towards the victim, perhaps slightly less seriously than that of Mr Shepherd’s co-offender, who held it against the victim’s throat where he could feel the tip of the knife. These would, of course, have caused fear in the victims, and no Victim Impact Statements were available. The Court can understand and accept the general effect of an offence such as this on the victim: R v Shepheard [2008] ACTSC 116; 189 A Crim R 165 at 172; [31].
The value of the property taken was, apart from the cash of $120, not quantified in the evidence. Nevertheless, a motor vehicle is quite an expensive item and the phone is also of moderate, but not insignificant, value. The driver licence is of lesser monetary value, but loss of it causes significant inconvenience. No evidence of the value of the boxing gloves was available.
While the offence was not particularly sophisticated, it did involve some degree of planning and was not merely opportunistic. Thus, there was some, but quite limited, seriousness by virtue of this factor.
The Crown submitted that the fact that one of the occupants of the vehicle knew Mr Shepherd was evidence of planning. That does not immediately seem to follow. The degree of planning is a little unclear. If, as may be speculated, Mr Shepherd sent the message that caused the car to be driven to the apartment complex for the anticipated drug deal, that involved some planning. If he had asked the son of the tenant to do so, that would have also involved some planning. Nevertheless, the exact one of these two scenarios cannot be found beyond reasonable doubt and so cannot aggravate the seriousness of the offence: R v Carney 2013 ACTSC 266 at [149](9).
Despite some suggestion by Ms Brain to the contrary, the front seat victims were, having been confined in the motor vehicle with offenders on both sides, in a vulnerable position, though perhaps not as vulnerable as in some other situations. There were, after all, four occupants of the vehicle, all of whom were 18 years old or younger, likely to have been quite affected by the events.
This was a serious offence, not the most serious version of the offence by any means, but certainly not among the less serious of such offences.
Subjective circumstances
Mr Shepherd was born 26 years ago in Yass, New South Wales, the eldest of his mother's children. He has four half siblings born to his mother, all of whom have different fathers. His mother did not engage in paid work but was often away from the home, limiting any parental supervision. His aunt provided some support to the family. He also had a close relationship with his maternal grandparents, though they have both now died.
His father was a truck driver. He also used methamphetamine. Mr Shepherd was close to his father, who died of a congenital heart condition when Mr Shepherd was 8 years old, causing him significant grief.
Apart from the lack of supervision and the limited exposure to his father's drug use, Mr Shepherd was the subject of violence from his mother's partners, as were his half siblings. Mr Shepherd left home when he was 17 years old and has limited and not close contact with his mother, his aunt and his half siblings.
Mr Shepherd struggled at school, with “disengagement and refusal” while in kindergarten. Primary school was no better and he often got involved in fights, leading to suspensions. He was also bullied.
He expressed significant problems with concentration which limited his learning experience, though he did receive help from one teacher who gave him additional support and tried to keep him out of trouble.
While in school at age 6, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed dexamphetamines, but his mother would give his medication away, leading him to a poor education experience and ongoing difficulties with school and with his peers. He was eventually expelled when he was aged 13 and did not resume education.
He gave different histories to various reporters. He may have had a retail job for a week or so at age 13. He first gained significant employment at age 18 as a “sheep marker”, but after four months an argument with his employer led to the end of that job. He has had other, but very limited, employment and has received Centrelink benefits. He appears unmotivated to find employment.
Mr Shepherd has had three significant relationships, the longest was with a woman who had two children by another partner. He became a parent to them, but, when the relationship ended, he lost contact with the children, causing him distress and grief. He has not since re-partnered and has no dependents.
Mr Shepherd has no current physical health issues, though he has experienced some in the past as a result of violence inflicted on him. His mental health situation is, however, much more complex. In addition to the diagnosis of ADHD, he was diagnosed with anxiety and depression when he was 16 years old and with schizophrenia when he was 17 years old. He has received some medical treatment while in custody, including injections and other medication.
While prescribed medication in the community, his compliance was inconsistent. Indeed, this has led to involuntary admissions to mental health facilities on four occasions, most recently in April 2021. He experiences symptoms of psychosis from time to time. He also experiences some manic symptoms, possibly connected with his ADHD.
He has attempted suicide on two occasions, the first following his father's death and the second in 2020 following his grandfather's death and his release from custody.
He has a long history of poor adherence to mental health treatment in the community.
Despite the medication, he continues to experience some residual psychotic symptoms, and had difficulty with focussing and concentration when interviewed for the Suitability Assessments. He did, however, express enthusiasm for the entry into a Treatment Order regime, was cooperative with the assessors and willing to engage openly.
Ms Leanne Morris’s Report is helpful, though she may not have had all the information available to the Court. She found Mr Shepherd “an engaging young man with considerable disruption to his development.” This supports Ms Brain’s submission, not challenged by the Crown, that his childhood disadvantage was significant.
She found that Mr Shepherd will require a moderate to high level of intervention and effort to prevent recidivism. She noted that he has “considerable insight into his psychological functioning, and has skills to manage this”. She also commented on the difficulties caused by his medication for his serious mental health issues, which were contra-indicated for his ADHD, clearly creating difficulties.
Ms Morris further commented on Mr Shepherd “having difficulties maintaining stable accommodation on his own”. It is reported that Mr Shepherd has been reasonably compliant with his treatment regime while in custody. This is consistent with Ms Morris' opinion, when she also noted his compliance with treatment and supervision in a psychiatric context, and general compliance in the custodial context. She added, however, that there “is some question as to whether Mr Shepherd will be able to successfully complete community-based supervision in the traditional format, and that Mr Shepherd’s ability to maintain consistency and attend appointments unaided is likely to be limited”. She concluded that it is important not to set Mr Shepherd up to fail.
Mr Shepherd has had a long history of drug taking. He began using alcohol when he was 12 years old as a result of peer pressure. He continued to drink and sometimes would do so to unconsciousness, though he considered his use was not problematic and that he was not a regular user.
He also started using tobacco at the same age and was soon smoking daily. He currently smokes 20 cigarettes a day and is not proposing to cease use.
His illicit drug use began with cannabis, which he started using when he was age 13. He was soon using daily. He found that he experienced auditory hallucinations when using. He used one ounce every two days up until he entered custody for the current offence, when he experienced significant withdrawal symptoms, addressed by medication
He began using methamphetamine when he was 14 years old, and, again, was soon using daily, consuming half a gram each day. At the time of the current offence, he was using an eight ball a day, that is, 3.5 grams.
The other significant drug he has been using is Gamma-hydroxybutyrate (GHB), though he could not recall his first use. He used it frequently, estimating 3 millilitres a day.
He has been assessed as likely having a severe substance use disorder at the time of his offending with cannabis, methamphetamine and GHB being the problem drugs. He does not use any drugs intravenously.
He has used cocaine a few times, but says that “it's not my thing”, and has occasionally used hallucinogenic mushrooms in the past, but he has no current desire for their use.
Mr Shepherd has not experienced a drug overdose and he has not had any Alcohol, Tobacco or Other Drug Treatment.
Mr Shepherd has a history of offending. [Redacted for legal reasons].
As an adult, he has been found to have committed 12 offences including an assault, two offences of stalking, and three offences of possessing weapons, including a knife. He has also committed three offences of damaging property, showing a propensity to be violent to people and property.
The current offence is clearly the most serious offence he has committed and there is much to be said for the need to stem the escalation in offending that this represents.
He has been breached for many of the community-based orders, such as parole orders, including conditions to maintain his mental health treatment and medications. This, of course, raises real concerns about his ability or willingness to comply with such orders.
As noted above, he has been reasonably compliant, including with treatment regimes, while in custody. His behaviour in custody in the ACT has been considered satisfactory. Indeed, since his induction in custody on 9 July 2021, he has voluntarily engaged and been actively involved with the custodial mental health services, case manager and psychiatrist, and no concerns have been expressed.
Current sentencing practice
As noted above (at [65]), current sentencing practice, so far as the Court sentencing an offender knows it, is required to be taken into account by that Court: s 33(1)(za) of the Sentencing Act. This has also been partly considered above when assessing the nature and circumstances of the offence.
Another part of this is to consider the actual sentences imposed. This can be done by interrogating statistics, where the Court is fortunate to have access to the ACT Sentencing Database, which records many, but not all of them. There are, as has been noted on many occasions, significant limitations on such statistics, but they nevertheless provide information of some value.
Ms Brain provided such statistics. They show that in the Supreme Court, out of 254 sentences recorded for the offence of aggravated robbery, 165 resulted in full-time imprisonment. The terms of imprisonment range from 9 months to 12 years imprisonment. Of these, more than half were in the range of 25 to 36 months, with 80% in the range of 13 to 48 months.
More helpful is the reference to actual decisions of the Court where the principles and the relevant factors can be identified to show which are comparable cases.
In this case, both counsel provided helpful decisions that they submitted were in this category, namely R v Craft; R v O'Connor [2014] ACTSC 327, R v Richards [2018] ACTSC 339, R v Serena [2019] ACTSC 231, R v Hawkins [2020] ACTSC 29, and R v Marshall(No 2) [2022] ACTSC 102. Both counsel referred the Court to the latter decision, R v Marshall (No 2).
There were differences in each case, though in each a knife (although in R v Craft; R v O'Connor it was a machete) was used as a weapon. In R v Richards, the victim was a taxi driver, a particularly vulnerable victim, and actual violence was used. Mr Richards was also at the time subject to a conditional liberty order. He was younger than Mr Shepherd, though he too had a history of mental health issues. His childhood disadvantage did not seem great, though it was not subject to much comment. He pleaded guilty at an early stage. He was sentenced on an attempted aggravated robbery to two years and three months, reduced from three years for the early plea of guilty.
It may be accepted, as submitted by Ms Brain, that R v Craft; R v O'Connor was not really comparable as, though of comparable age, Mr O'Connor, the only one charged with attempted aggravated robbery, had a more serious criminal record and he had two weeks prior to the offending completed a parole order. While Mr O'Connor pleaded guilty at a relatively early time, his subjective features did not include significant childhood disadvantage nor mental health issues. The sentence of 6 years imprisonment was not, so far as the sentencing remarks were concerned, addressed by reference to comparable cases. There was further significant concurrency with seven other sentences, though some were part of the same course of conduct.
In R v Serena, Dr Serena took a car after threatening the driver with a knife, but did not seem to thrust it at the victim. She was alone and without a co‑offender. She entered an early plea of guilty. Dr Serena was much older than Mr Shepherd and had a supportive upbringing, but did face some mental health challenges. She suffered from serious drug use. She did not appear to have any criminal history, though she had some disciplinary problems which resulted in her losing her registration as a medical practitioner. She was sentenced to 18 months imprisonment to be served by an Intensive Correction Order. This was a less serious offence with some more significant subjective circumstances.
In R v Hawkins, Mr Hawkins entered the victim's home with a co-offender and threatened him with a knife. He hit the victim in the back of the head with the hilt of a knife and then punched him and pushed his fingers in his eyes. Mr Hawkins was on conditional liberty at the time. He suffered childhood disadvantage and had a substantial criminal history. He entered a late plea. He was sentenced to 37 months imprisonment. The offence was more serious than that committed by Mr Shepherd.
In R v Marshall (No 2), Mr Marshall held a knife at the victim's throat. There was another offender, but he did not have a weapon. The vehicle stolen was found later but was damaged. Mr Marshall did not plead guilty, but was found guilty by a jury after a trial. The amount stolen was not very significant. Mr Marshall had little or no criminal history. He was subject to conditional liberty at the time of the offence. He was younger than Mr Shepherd. He had a disruptive upbringing. He also suffered from schizophrenia. He was sentenced to 3 years imprisonment. There were similarities to this matter, but also differences.
Consideration
In coming to a just and adequate sentence, the Court must synthesise the various factors to be taken into account in sentencing. To do that, it is helpful to have an objective of the sentence. There are, as set out in s 7 of the Sentencing Act, various objectives of sentencing. Each is relevant and will help to construct an appropriate sentence.
The offence is a very serious one, and there were aggravating features. The offence is one that disturbs the peace and good order of the community. Thus, punishment is a relevant object, as is the need to show by denunciation that such conduct is quite unacceptable. In addition, it is necessary to make clear that others should not behave in this way.
The objectives, however, of punishment and general deterrence, should, in this case, be moderated, having regard to the effect of Mr Shepherd’s mental challenges, which, as explained in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32], moderate the role that these objectives play in sentencing someone with such a condition.
Similarly, the childhood disadvantage that Mr Shepherd suffered will also reduce his moral culpability and render the punishment and general deterrence less significant: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594–5; [43]–[44].
Mr Shepherd should also be deterred from committing such offences again, or preferably any other offences. Perhaps, however, given his recognition that he needs to address the causes of his offending behaviour, rehabilitation will be a better approach. It is after all, as said in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32], the surest protection of the community, if achieved.
All these purposes do aim to protect the community. It is also, however, very important to acknowledge the harm done to the victim of Mr Shepherd’s offence. The Court has no Victim Impact Statement in this case, but, as noted above (at [73]), the Court can, in general terms, understand the harm done by offences such as this. Of course, Mr Shepherd is, while jointly sharing responsibility for the offence, solely responsible for his part in the offending.
While Mr Shepherd has a lengthy criminal history [Redacted for legal reasons].
Mr Shepherd pleaded guilty, but after the Criminal Case Conference, and that plea needs to be taken into account.
Having carefully considered the evidence and all these matters, as well as the nature and circumstances of the offending and Mr Shepherd’s personal circumstances, it is clear and accepted that no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
Sentence
[His Honour then spoke directly to the offender]
Mr Shepherd, please stand.
The Court orders as follows:
1) You are convicted of aggravated robbery, and sentenced to 2 years and 6 months imprisonment, to commence on 7 July 2021. Had you not pleaded guilty, you would have been sentenced to 3 years imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
Mr Shepherd has sought that he serve the sentence by a Treatment Order. Having decided on the sentence, it is necessary to address that request. In order to do that, it is necessary to decide whether Mr Shepherd is eligible for a Treatment Order to be made and, if so, whether he is suitable for such a sentencing disposition.
The eligibility is determined by considering the eligibility criteria in ss 12A and 80S of the Sentencing Act. That criteria in s 80S is, in addition to matters in s 12A, essentially whether Mr Shepherd is suitable for the Treatment Order. Thus, it is convenient to deal with the matters set out in s 12A first.
Mr Shepherd has pleaded guilty to the primary offence of aggravated robbery and has been sentenced to a period of imprisonment of 2 years and 6 months. That offence is an eligible offence, and the term of imprisonment is more than the minimum and less than the maximum sentence that renders an offender eligible.
The Suitability Assessments and the Report of Ms Morris show that Mr Shepherd has a long history of alcohol abuse and drug abuse and accepts that he has a significant dependency on cannabis and methamphetamine. This is sufficient to show that dependence on the balance of probabilities. Mr Shepherd has also asserted, and it is accepted in the Suitability Assessments, that his dependence was substantially related to his offending.
Mr Shepherd has lived in Canberra for some time, and the Court can be satisfied to the requisite degree that he will be resident in the Territory for the length of the sentence. Mr Shepherd has also signed a form consenting to the making of a Treatment Order. In this, therefore, he also attests that he has had sufficient information to make a balanced judgment as to whether to give that consent. That is also supported by his engagement and interaction with the assessments for the Suitability Assessments.
He also confirms that he has had the opportunity, particularly as indicated in the Suitability Assessments, to ask any questions about the Order, and has any questions answered. He appears to have understood the answers. Accordingly, subject to suitability, which is an eligibility criteria in itself, Mr Shepherd is eligible for a Treatment Order to be made.
The Suitability Assessments have been carefully, professionally and very comprehensively prepared, addressing thoughtfully the question of whether Mr Shepherd is suitable to be the subject of a Treatment Order. Both recommended that he is not suitable. The Crown supported that. Ms Brain submitted to the contrary. Such recommendations must be, and have been, carefully considered in coming to a conclusion on this issue.
The main difficulties are his living circumstances and his mental health issues. In relation to the proposed living circumstances, the challenge made to those has been referred to above (at [12]–[32]).
In addition to the Suitability Assessment, the Court had also the evidence of Janice MacKay given before Loukas-Karlsson J, in which she indicated that she was in a position that would be acceptable as a co-tenant, although at that time the Court had no evidence as to whether ACT Housing had consented to Mr Shepherd being a tenant or living in those premises.
The difficulty for the Court is that really there was no opportunity to explore, as would be the case in most situations, the relative merits of the assessment by ACT Corrective Services, as noted above (at [12]–[14]), and the evidence of Ms MacKay. Given that the Court has to find this on the balance of probabilities, it is difficult to make out a case, in this situation, that his living circumstances could under no circumstances be suitable.
It is also relevant that Justice Housing, although initially rejecting Mr Shepherd, has since indicated that he is suitable for their accommodation, but have not yet provided an opportunity for him to be resident in Justice Housing. A position in Justice Housing would be suitable, should it be available to Mr Shepherd.
It may be possible for Mr Shepherd to live with Ms McKay on a temporary basis, as has been done elsewhere in the Drug and Alcohol Sentencing List, until the Justice Housing position becomes available. Had that been the only issue, then it would appear that Mr Shepherd might be suitable for a Treatment Order.
The matter of his mental health, however, is much more concerning. It is noted in the Alcohol and Drug Services Suitability Assessment that:
Mr Shepherd has a severe and enduring mental illness, which has been reported as treatment resistant in the Canberra Health Services clinical electronic file, and his history of poor engagement and rapid decompensation in the community is well documented. Mr Shepherd at his last psychiatric review in April 2022 had ongoing auditory hallucinations and akathisia (restlessness).
Of particular concern is that when unmedicated Mr Shepherd places himself and others at risk due to his paranoia, auditory hallucinations, and thoughts of harm to others. It is also apparent that Mr Shepherd has minimal insights into the impact his substance use has on his mental health as well as his ongoing homelessness that impacts on his medication adherence when in the community.
That assessment is not entirely consistent with that of Ms Morris, and Ms Morris’ thoughtful Report must be taken carefully into account. Nevertheless, the general thrust of that situation is not inconsistent with what Ms Morris said, and she has indicated that there are real risks and difficulties of Mr Shepherd complying with a Community Order.
The assessment by ACT Corrective Services said in relation to this issue:
Mr Shepherd has been diagnosed with schizophrenia, and possesses a history of non-engagement and non-compliance in attending mental health treatment appointments and the administration of his medications
New South Wales Courts, by including conditions on numerous orders, demonstrated concerns with regard to his noncompliance with medications and mental health treatment. It is the opinion of that Service that the severity of Mr Shepherd’s diagnosed major psychiatric or psychological disorder is likely to prevent his compliance with a Drug and Alcohol Treatment Order. Ms Morris's comment that it would be inappropriate to set Mr Shepherd up to fail is also noted.
Accordingly, the Court finds that Mr Shepherd is not suitable for a Treatment Order.
Nevertheless, it is important to make, as far as possible, a sentence that is as rehabilitation-friendly as possible and, to this extent, a shorter than ordinary non-parole period would be appropriate.
A non-parole period should allow Mr Shepherd, if he seeks to do so, to undertake rehabilitation within the Alexander Maconochie Centre, namely in the Solaris Therapeutic Community Program. This would be desirable, and his capacity to manage that would be with his mental health compliance, which seems to be the greatest within the custodial environment, may be an opportunity to actually reset his situation and allow him back in the community.
It also appears appropriate to make a recommendation under s 67 of the Sentencing Act that Mr Shepherd be encouraged, as a condition of his parole, to undertake residential rehabilitation when he is released.
Accordingly, the Court declines to order that the sentence be served by a Treatment Order.
As a result, the sentence is now more than 12 months in length, and accordingly a non-parole period must be set.
[His Honour then spoke directly to the offender again]
The Court makes the following further order:
2) A non-parole period of 17 months be set, to commence on 7 July 2021 and end on 6 December 2022.
You have not had the most wonderful life in lots of ways, and unfortunately that has led you to drug use and to crime. I think you understand now that if you want actually to participate in the community, you need to address both of these matters. I have tried here to construct a sentence that will allow you to do that.
It is going to be really tough for you, but if you are really committed, now is the opportunity. You are young enough to do it. You can do it in the AMC. You do seem to be able to manage your mental health. If you can manage your drug use also, then you are on a long journey, but a very positive journey actually to have a positive time in the community, and I hope that works.
I do think, if it is at all possible, that you should try and get into the Solaris Community. I think you will be able to complete it before the non-parole period is up, but that would be a very good start, because you are then within that community where your mental health can be looked after, and you can have a real crack at getting your drug use under control.
Then you can apply for parole, and when you do that, I have recommended that you continue with some residential drug rehabilitation if that is possible. You will, with your case manager in the AMC, have to make some inquiries about that and you might like to start doing that now because waiting lists are long.
That would then flow on from Solaris and the time in the Community, and just give you that really long, careful, supportive opportunity to do this right. This is the most serious offence you have committed. You will be in and out of gaol if you continue in that way, and if you do not get your mental health and your drug use under control, that is what will happen.
That is no use to anyone, particularly not to you. You obviously had a good relationship with the kids of your partner. To have a family would be a great thing, and you will not have that to the best of your ability if you are in prison. You can still have a family, but your kids will not see you in the way that they ought if you are in prison.
I do encourage you. I do hope that this is a real opportunity for you and I hope that you will take it, but it will be hard work. I think you have got the strength and the capacity to do it, but you will really have to work hard at it.
I do wish you good luck. I am sorry, I have got to send you to prison for a lengthy period, although most of it has already been served, but I wish you the best of luck in coming to terms with that now that you have seen the need to do it, and you have expressed the willingness to those people who assessed you for the Suitability Assessment, that you understand what you need to do.
| I certify that the preceding one hundred and sixty [160] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 18 April 2023 |
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