R v Smith
[2022] ACTSC 162
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Smith |
Citation: | [2022] ACTSC 162 |
Hearing Date: | 6 July 2022 |
DecisionDate: | 6 July 2022 |
Before: | Norrish AJ |
Decision: | See [85] |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Aggravated burglary — Attempting to inflict grievous bodily harm —Joint criminal enterprise — Deprived background — Late plea of guilty mid trial — Parity — Totality of criminality — Fixing non parole periods — Total term of imprisonment of six years and seven months, commencing on 13 November 2021 and expiring on 12 June 2028, with a non-parole period of 4 years expiring on 12 November 2025. |
Legislation Cited: | Criminal Code 2002 (ACT), ss 44, 308, 312, 318 Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 35 |
Cases Cited: | Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Taylor v The Queen [2014] ACTCA 9 |
Parties: | The Queen ( Crown) Robert James Smith ( Offender) |
Representation: | Counsel R Christensen SC ( Crown) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Sharman Robertson Solicitors ( Offender) | |
File Number: | SCC 83 of 2021 |
NORRISH AJ:
Robert James Smith appears for sentence today in relation to five offences for which he pleaded guilty three days into his trial, which was conducted before me a month ago. All the offences were committed on or about 1 September 2020.
The five offences are, by reference to the count numbers, in count 1, an offence of dishonestly riding in a motor vehicle, namely a blue BMW sedan belonging to Paul Buckley, the vehicle having been taken dishonestly without the consent of the owner. The maximum penalty for this offence, contrary to s 318(2) of the Criminal Code 2002 (ACT) (to which hereon after I will refer to as “the Criminal Code”) is five years' imprisonment and/or a monetary penalty, which is unrealistic in the circumstances of this offender.
Count 2 is an offence of entering and remaining in a building at Kambah in the Australian Capital Territory with Kye Rowe and trespassing with intent to commit an offence that involved causing harm or threatening to cause harm to anyone in the building, and being in company with each other. The maximum penalty for this offence, contrary to s 312 of the Criminal Code, is 20 years' imprisonment and/or a fine of $320,000, again impossible to be paid in any respect by this offender. This offence is referred to in that facts as an “aggravated burglary”.
Count 3, and the offence that I regard as the most serious of all the offences, is an offence of attempting to intentionally inflict grievous bodily harm upon Brendan Lampe. The maximum penalty for this offence, contrary to s 44(1) of the Criminal Code, is 20 years' imprisonment again with a fine of $320,000.
Count 5 is an offence alleging that he and Rowe dishonestly appropriated a 2013 black Ford Ranger belonging to Gregory Parkes with the intention of permanently depriving him of the property. I am informed the maximum penalty for this offence, contrary to s 308 of the Criminal Code, is 10 years' imprisonment and/or a fine of $160,000.
The fifth offence is count 6, that is, an offence of dishonestly appropriating property, namely a rose gold iPhone belonging to Brendan Lampe with the intention of permanently depriving him of the property. Again, the maximum penalty for this offence, as I understand it, is 10 years contrary to s 308 of the Criminal Code.
Ironically, I should point out, bearing in mind I have the remarks on sentence in relation to Mr Rowe, that as far as I am aware he was never sentenced in relation to the taking of the black Ford Ranger belonging to Mr Parkes, nor in relation to the iPhone.
It will transpire, as Mr Smith will discover shortly, that the sentences I impose in relation to those two offences are largely absorbed into the sentences to be imposed in respect of the offence of aggravated burglary as it is described, that is, the offence in count 2.
Mr Rowe pleaded guilty before her Honour the former Chief Justice, Murrell CJ, and was sentenced by her Honour on 11 October 2021 after she heard evidence and submissions on 27 August 2022. The particulars of that sentence I will set out later, because in this matter the issue of “parity”, or, to put it another way, “unacceptable disparity”, has to be addressed.
It needs to be borne in mind, of course, that Mr Rowe was entitled to consideration to his benefit in mitigation of the particular penalty to be imposed, discounts for his pleas of guilty, noting the timing of those pleas, and for his willingness to cooperate with the prosecution in the prosecution of Mr Smith. There were other matters of course taken into account in his sentencing, as I said, I will refer to shortly.
I note in relation to this matter that whilst we had heard just over two days of evidence, there had been no challenge of any substance to any of the evidence given by the witnesses then called including, I hasten to say, the two principal victims of the home invasion. Mr Smith ultimately pleaded guilty just prior to Mr Rowe being called to give evidence.
As I pointed out, parity is a significant issue, as is totality of criminality and of course consideration of the principles discussed by the High Court of Australia in the decision of Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 particularly, in the judgment of McHugh J at [51].
The facts of the matters that I am concerned with are these. In respect of the first count, Dr Buckley parked his blue BMW in his garage on the evening of 31 August 2020. His motor vehicle was in fact taken from his garage without his consent at some time prior to 3.20 am on 1 September 2020. The ACT number plates were replaced by New South Wales number plates.
There is clear evidence before me that throughout 1 September 2020 Mr Rowe was driving this vehicle and this offender Mr Smith was a passenger. On one occasion, as evidence in the trial disclosed, the two men in the BMW, possibly in the company of a third person, the evidence was a little unclear about this, picked up two young women who were being harassed at the Canberra Institute of Technology taking them to another location in Canberra before a police vehicle pulled up behind the BMW. The young women got out of the vehicle and the BMW drove off, unable to be pursued by the police vehicle.
The offender is to be sentenced on the basis that this vehicle was in the possession of Mr Rowe and the offender throughout 1 September 2020. It was subsequently recovered on 3 September, as I understand it, undamaged. But, importantly, in its GPS system was found logged the address of the victims of the home invasion.
In relation to those two people, at about 11.30 pm on 1 September 2020 Mr Parkes and Mr Lampe were resident in premises in Kambah that were owned by Mr Parkes. Mr Lampe was a type of tenant, apparently he had only lived at the premises for a relatively short period of time and was not previously known to Mr Parkes.
Rowe and this offender entered the premises wearing balaclavas. Rowe was holding a red-coloured jerry can filled with petrol and had a lighter. At the time of entry, Mr Parkes was asleep on his couch and Mr Lampe was in one of the bedrooms that he usually occupied.
In an aggressive way this offender and Mr Rowe asked for Mr Lampe and under compulsion Mr Parkes led the two men to Mr Lampe's bedroom. Rowe told the men who resided at the premises that “one of them” owed money and in various ways the two victims told the offender and his co-accused that they did not know what they were talking about. Rowe accused Lampe of owing “someone thousands of dollars” and threatened him with the jerry can of petrol, particularly threatening to splash petrol on him and set him on fire if he did not hand over the money.
At first, the two victims were made to sit on the bed within Mr Lampe's bedroom. They indicated they did not have any money. Ultimately the offender Rowe demanded that Lampe hand over his iPhone, the taking of which in company with this offender constitutes the fifth charge to which this offender has pleaded guilty.
Parkes was instructed to tie Mr Lampe's hands and legs together with a charging cable and an extension cord. Further demands were made for Mr Parkes to point out where the control mechanism for CCTV cameras in the house could be found. Mr Smith was told that they were in the ceiling outside Mr Lampe's bedroom and this offender proceeded to use a knife to pull the control box out and slice the cables, leaving a hole in the ceiling.
Whilst Parkes was tying up Lampe at the direction of either Rowe or the accused, Rowe ultimately left the bedroom where the victims were sitting and wandered around the house whilst Smith stayed in the doorway guarding the two victims. This offender was told by Mr Lampe that he did not know what this was about, but he would try to give money to them “just to have this over and for you guys to leave the house”. He told Mr Smith that he could call a friend to get the money. The offender handed Mr Parkes' phone to Lampe to call his friend and Mr Rowe cut the ties on Lampe's hands so he could make the call.
This offender, Mr Smith, told the two victims that Mr Rowe was his “apprentice” and was in “training for this sort of stuff”. When the two victims were talking to one another one of the accused said “If you keep talking we'll slit your throats” and Mr Smith held a knife to Mr Parkes' throat. Shortly after this Parkes was able to make his escape from the room and the house whilst the two offenders were distracted. He ran to a neighbour's house to raise the alarm. Naturally, Mr Lampe was fearful of running from the house, amongst other reasons, because he had a dog in his bedroom of which he was protective.
This offender poured petrol on Mr Lampe, his bed and his dog. This obviously distressed Mr Lampe and he begged Mr Smith, “Mate, please don't do this. I'll get the money, just don't do this”. Mr Smith ignited the lighter that he had and threatened to throw it when Lampe kicked him in the stomach, causing him to fall backwards. The act of pouring the petrol and lighting the lighter constitutes the third count to which this offender pleaded guilty. Mr Lampe then barricaded himself in the bedroom and when Mr Smith, after 30 seconds of attempting to do so, could not get into the room he left the premises, as must have Mr Rowe. Mr Lampe subsequently had to rinse his eyes and mouth out for petrol and was still smelling of petrol when interviewed by police.
One of the accused took Mr Parkes' black Ford Ranger parked at the premises. Mr Parkes had left the keys for the vehicle near the entrance of his residence, which were picked up by one of the accused. During the incident where the two victims were detained in the bedroom one of the accused dangled the keys of that car in front of Parkes, this is before he escaped of course, and said, “We're going to take your car”. At the trial the black Ford Ranger was shown in CCTV footage, obtained from premises where Mr Smith lived, parked in the carport allocated to Mr Smith's premises. Mr Rowe can be seen in the same footage parking the BMW nearby. The accused Smith can be seen moving around the black Ranger whilst it was parked in the car space. The rose gold iPhone that had been stolen from the premises was later found in the Ford Ranger. After the Ford Ranger was parked its numberplates were removed and a screen was placed at the back of the vehicle in an endeavour to disguise its presence in the carport.
The offence of entering the premises of Mr Parkes committed by this offender, in company with Mr Rowe, can probably be regarded as a home invasion. Neither Rowe nor this offender knew the two victims. If they were genuinely there to enforce some debt for whatever specious reason, it must have been almost immediately apparent that they were either at the wrong premises or that they had the wrong people, judging from the presentation of the two victims as they can be seen in the recorded interviews conducted shortly after the relevant events.
The experience for the two victims was a very frightening one, quite obviously. Being threatened with petrol being splashed on one is a serious matter, but the seriousness of that circumstance is substantially aggravated by actually splashing petroleum on a person and then lighting a lighter. The splashing of petrol upon the victim Lampe was a very significant act indeed and this was conducted by Mr Smith in the absence of Mr Rowe, although Mr Rowe had been present and actively involved himself in threats made to both occupants that they would in fact have petrol splashed upon them and that a lighter could be lit to set the petrol aflame. It must be said that carrying the petrol can and threatening to use it is one thing, but the conduct of the offender Mr Smith in the way I have described is more serious. The conduct of the two offenders was entirely unjustified and there can be no excuse for it in any way whatsoever.
In my view, the objective facts reveal no degree of intoxication. The offender wrote a handwritten note for me today claiming that when he committed the offence, he was affected by prohibited drugs and alcohol. But there is nothing in the evidence of the two victims to suggest that either offender was in any way inebriated or affected. They acted rationally, so far as the ambit of their criminal scheme was concerned, and they were very deliberate in their actions. For example, removing the control box for the CCTV cameras within the house. There was no legitimate reason, as I said, for illegally entering these premises and behaving the way these two offenders did.
Not only was it clear that both offenders were in company and involved themselves in a joint criminal enterprise, but everything they did was done to further objectives that were uttered either by Mr Rowe or Mr Smith in the presence of one another. The rights of the two victims were completely disregarded. In fact, the escape of Mr Parkes and the subsequent actions of Mr Lampe in barricading himself were the only things that appear to have brought the criminal enterprise within the house to an end in the manner in which it ended. It obviously was going to end at some point, but certainly their actions managed to bring things to a conclusion sooner than may have otherwise been the case.
I accept the Crown’s submission in general terms that the presence of the two offenders in the house was for a substantial period of time. The Crown used the word “significant”, but either expression might describe the time that the two offenders were in the house. It should be also borne in mind that when Mr Lampe did barricade himself in the room, this prisoner for another 30 seconds continued his attempts to get back into the room before realising that he could not do so and then abandoning his presence in these premises. The criminal enterprise in which the two offenders were jointly involved did not come to an end by any voluntary act on the part of either Mr Rowe or Mr Smith.
In dealing with the objective seriousness of the aggravated burglary, I adopt the analysis of the learned Chief Justice in sentencing Mr Rowe. There were a number of aggravating features present in relation to that offence. Apart from the fact the offenders were in company with each other, which is pleaded, the character of the weapons they carried, petrol and a cigarette lighter, and the accused Smith armed with a knife, reflects upon the seriousness of the situation they presented to the victims. There was planning in the offence. Both offenders wore balaclavas. They armed themselves respectively with either petrol and a lighter and/or a knife.
They attended the address for the purpose of collecting money, so they claimed, allegedly owed to a third party. The threats, in the context of dealing with count 2, to ignite petrol is a substantial aggravation upon the objective seriousness of the home invasion, per se. It was an offence committed at night. It involved entry into one victim’s bedroom. It involved a deliberation upon directing one of the victims to tie up the other victim. This was a deliberate and gross invasion of privacy and a deliberate and gross risk to the safety of the victims, as her Honour pointed out.
The seizing of property from within the house and the seizing of the vehicle of Mr Parkes constituted, as her Honour pointed out, a further violation of the privacy of the occupants of the premises. The co-offender, Mr Rowe, was on parole at the time of the commission of the offence, a significant aggravating factor so far as he was concerned. This offender, as I understand it, was on bail in relation to two groups of offences committed in late 2019 and July 2020 and, thus, he was subject to conditional liberty at the relevant time.
Although I have no victim impact statement from the two victims, as her Honour pointed out in her remarks in respect of Mr Rowe:
“There is in this matter an inescapable inference that the complainant, that is Mr Parkes, and his house mate, Mr Lampe, suffered substantial psychological harm as a result of the offence or offences committed against them.”
The taking of the blue BMW is not a short-term misappropriation of the property. The car was obviously used extensively at least on 1 September 2021. At one point it was the subject of a police pursuit where Mr Rowe was driving and for which this offender is not responsible. The recovery of the Ford Ranger was in no way due to any action on the part of Mr Smith or his co-accused. It is clear that the prisoner had taken steps to disguise the vehicle or to hide it to avoid it being located and it was, to my mind, clear that he intended to maintain possession of the vehicle at least for some indeterminate time into the future. It was only an efficient police investigation that interrupted any plans the prisoner may have had for the vehicle. Neither appropriation of vehicles without the owners' consent was a short term “take and use” where the thieves, of their own motion, abandoned the relevant car before its recovery.
In respect of the appropriate discount for the pleas of guilty, I have noted the trial proceeded over three days and a number of witnesses, including the two victims, were required to give evidence. It also involved requiring the co-accused, Mr Rowe, to be brought to court for the purpose of giving evidence against the prisoner.
The two parties before me today, however, have submitted that it is appropriate, having regard to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (which hereinafter I will refer to as “the Act”) that a discount no greater than 5 per cent is allowable. I have determined in the context of the submissions made by the parties that I should accord the offender that discount. In some respects in imposing particular individual penalties for each offence, I have rounded down the sentence greater than 5 per cent if only to ensure that a completed month is identified as part of the sentence.
However, in one particular respect, that is in respect of the theft of the phone, I have not accorded any discount. In my view, being by and large the least serious of the offences, an appropriate sentence for that matter is six months imprisonment. A 5 per cent discount is not a practical discount to apply particularly bearing in mind that that six months term is absorbed into other sentences. I should point out that whilst the plea of guilty represents some degree of facilitation of the course of justice and also some utilitarian benefit, the analysis of which is not affected by the strength of the Crown case I hasten to say, the Crown case in this matter, being a circumstantial evidence case, was an overwhelming case having regard to the various circumstances the Crown had pointed to in its Crown case statement and given the identification of the accused and Mr Rowe as being in the blue BMW when the young ladies were picked up from the college. That evidence only made the connection of the accused with the offending that much stronger. I will not go through the various circumstances relied upon by the Crown. I had prepared a schedule of circumstances that ran to almost four pages to identify circumstances consistent with guilt arising from the Crown case as I understood it at that time. As it transpired, very few, if any, questions were asked of Crown witnesses up until the time that the offender pleaded guilty. If I had been asked to accord a discount without the assistance of the submissions of the parties, I would have found it difficult really to have concluded that a discount of 5 per cent was appropriate. But, as I said, the approach taken by the parties has persuaded me that I should accord that discount as agreed.
If I might just turn to Mr Rowe's sentencing remarks because they are important in the context of both the consideration of the Markarian issue, that is the intuitive synthesis or instinctive synthesis of competing considerations, and also in the context of considering the parity principles to which I will refer in a moment. I note firstly that Rowe was sentenced by the Chief Justice in respect of a number of offences, some of which are different from and/or additional to the offences with which I am now concerned.
The common offences with Mr Smith relate to the use of Dr Buckley's car and the aggravated burglary which is count 2 here in this matter. Rowe also pleaded guilty to a count of common assault relating to him punching one of the victims in the face with a closed fist on two occasions. This offender is not charged with that matter. However, Rowe was not charged in relation to the intention formed, and attempted to be achieved, of inflicting harm upon Mr Lampe, as I have described it.
Mr Rowe, as I have pointed out, was not sentenced in any way in relation to the misappropriation of the Ford Ranger nor in relation to the mobile phone. I find this rather strange given the way in which the indictment was preferred against this offender. But he was to be sentenced in relation to a number of additional driving offences, including aggravated dangerous driving and failing to stop for police, which in the Local Court would attract maximum penalties of three years' imprisonment and 12 months' imprisonment.
Ultimately her Honour, by reference to the common matters with which I am concerned, determined that the offender, Rowe, was entitled to a combined discount of either 33 per cent, particularly in relation to the aggravated burglary, and discounts of 25 per cent in relation to other offences. In relation to the starting point of the sentences for the taking and driving of Dr Buckley's car and the aggravated burglary, they were respectively 12 months and four years' imprisonment. It should be noted that the primary distinction between Mr Rowe and this offender was that Mr Rowe was just turned 19 years of age when he committed the offences common to this offender, whereas this offender was at the time over 10 years older.
So far as Mr Rowe's personal circumstances, he was functionally illiterate, as it would appear Mr Smith is. He had a deprived background, as this offender has. Mr Rowe's mother was a drug addict and he was a person, although only 20 years of age at the time of sentencing, who had been in care through many periods in his life. He had been introduced to heroin at the age of 13, he had a diagnosis of depression and whilst on parole had commenced using methylamphetamines and had committed crimes to fund his drug habit.
In his case before her Honour he gave evidence. Mr Smith did not. He presented to her Honour as a “genuine young man” who was motivated to overcome obstacles in his life, who accepted responsibility for his offending, demonstrated genuine remorse and sympathy for the victims and showed insight in relation to his offending. It must be said, whilst I have noted the contents of the offender's letter, he could not be seen to have taken responsibility for his offending, demonstrating genuine remorse and/or sympathy for the victims, save for the implicit recognition of those matters in his pleas of guilty.
Mr Rowe had very severe childhood behavioural problems for which he had been medicated and whilst his background explained his attitude to substance abuse, the commission of crimes of violence and dishonesty, he was at the time of sentence demonstrating considerable maturity and capacity to engage with support services. In his matter, it was thought that rehabilitation was a dominant sentencing purpose, as well, he volunteered to give evidence against his co-accused for which he received a substantial discount.
His criminal history, it might be said, was more significant than the criminal history of this offender. [Redacted].
Then, just before his 19th birthday, in the ACT Supreme Court he was sentenced in respect of joint commission of an aggravated robbery in company, riding or driving a motor vehicle without the consent of the owner and other offences for which he was sentenced to a total sentence of 13 months' imprisonment with a non-parole period expiring on 9 May 2020. Those sentences were ordered to commence in August 2019. Thus, he was on parole at the time of the offending with which I am now concerned.
[Redacted].
This accused's criminal history is nowhere near as significant, but it is not a criminal history that entitles him to any particular leniency. He was born in July 1989 and thus at the time of the offending with which I was concerned was not 30 years of age as I earlier said but 31 years of age. As I earlier pointed out, he was in breach of conditional liberty as the Crown points out by reason of being on bail in respect of various offences committed in late 2019 and July 2020. For these matters he was sentenced in the Magistrates Court in December 2020, that is two or three months after the commission of the offences with which I am now concerned. One of the orders made by the learned Magistrate was to sentence him to imprisonment for 3 months. As far as I can work out he has not previously been on parole.
Before coming to the ACT, he had various findings of guilt in Queensland, particularly in relation to the use and possession of dangerous drugs, offences of assault occasioning actual bodily harm, breaching of probation orders, and other summary matters committed between June 2010 and October 2013, dealt with at either Townsville or in Rockhampton. The difference in age, I have already noted, between this offender this offender and Mr Rowe and the fact that Smith’s criminal history is not as significant as Mr Rowe are relevant matters to take into account. [Redacted].
This turns attention of the court to the issue of parity as it arises in this particular matter. The issue of parity has been discussed in a range of authorities, the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 is one such instance. To my mind, however, the best description of parity consistent with high authority is that given by Rothman J in the New South Wales Court of Criminal Appeal judgment of Jimmy v R [2010] NSWCCA 60.
There, his Honour identified parity of sentencing as an aspect of what he described as the “Aristotelian principle of equality”, expressed by me in my less elegant terms as alike being treated alike to the extent of their unalikeness and the unalike being treated unalike to the extent of their unalikeness on reasonable and rational grounds.
In this respect, where there are common offences, the sentences imposed on Mr Rowe are highly relevant in this sentencing exercise. That obviously requires balancing the competing features of both men both by reference to the objective facts and the subjective circumstances, particularly bearing in mind their great difference in age. But it is important, of course, in approaching the matter this way that one provides individualised justice to this offender to ensure that no disparity does arise.
I have concluded, insofar as the objective circumstances of the offending are concerned, taking into account relevant subjective matters, that in sentencing this offender, particularly in relation to the aggravated burglary, I am constrained, to some extent, by the measure of penalty imposed upon Mr Rowe. Because, at the end of the day, when one has regard to the varying considerations that relate to both offenders the objective facts as they relate to the common offences are the same for both offenders. It could not be concluded that Mr Rowe was more culpable than this offender in respect of the aggravated burglary matter, contrary to the submission of his learned counsel. Nor that this offender was more culpable by reason of his greater age or because of his expression, used during the course of the commission of the offence, that the co-offender was his “apprentice”. Each person was involved in a joint criminal enterprise and should be each jointly responsible for the actions of the others, in keeping with the principles that relate to joint criminal enterprise.
The same cannot be said, however, in respect of the facts relating to count 3, because it is quite clear that Rowe was not present at that particular time and the offender by that stage had taken control of Mr Lampe by himself. In fact, the facts do not refer to Mr Rowe coming back to the room after the accused starting splashing petrol upon the victim, his dog and his bed. The truth of the matter is that by regard to what are the facts in relation to count 2 in this matter, both offenders took active roles and made various representations, each in the presence of the other, demonstrating their determination to jointly commit that particular offence.
I have noted that the offender Rowe received a one-third discount in respect of the weight to be given to his plea of guilty and his cooperation, and I have also noted his greater contrition than this offender. But as I pointed out, it might be said that his criminal history was more significant. Thus, I have concluded that the starting point of any sentence to be imposed on this offender in relation to count 2 and in relation to count 1 should be the same as that identified for Mr Rowe.
In relation to the sentencing of this offender and Mr Rowe, there is also a need to give proper consideration to the concept of “totality” of criminality. This, of course, was discussed at some length by the High Court in Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 and also has been discussed more recently in decisions such as Pearce v The Queen [1998] HCA 57; (1998) 198 CLR 610, particularly at [45]. Pearce, interestingly enough, was a conviction appeal. But because of the way in which the matter had been dealt with in the Court of Criminal Appeal, the remaining sentences after the acquittal had been entered in respect of one offence would seem to be inadequate for the seriousness or the criminality of the offender.
The majority in the High Court discussed by reference to the anomaly that arose in Pearce the need for, when fixing sentences for multiple offences, to fix an appropriate sentence for each individual offence and then turn one’s mind to issues of concurrency and accumulation in the context of what is described as the “totality principle”. This has received attention in this Court. One such judgment is the decision of the Court of Appeal in O'Brien v The Queen [2015] ACTCA 47, particularly at [26] where their Honours identified some basic principles in relation to fixing appropriate sentences for multiple offences.
Their Honours noted what had been said by the majority in Pearce v The Queen, the need by reference to Mill to review the aggregate sentence and determine whether in all the circumstances the resultant aggregate settled upon is just and appropriate, but also to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits a greater number of offences. Their Honours pointed out that:
“The Court must avoid any suggestion that what is being offered is a discount for multiple offending.”
Their Honours also adopted what had been said in Cahyadi v The Queen [2007] 168 A Crim R 41, particularly at [27] in the New South Wales Court of Criminal Appeal where it was observed:
“Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.”
This is the case here in my view, except for the criminality involved in relation to count 3, being separate from, although connected in context to the criminality reflected in count 2.
In the “defence case”, if I could call it that, although part of this material arises from material tendered by the Crown, I have a pre-sentence report prepared by ACT Corrections to which I have had regard. I have had regard to the handwritten letter to which I earlier referred from the prisoner setting out details of his background of disadvantage and other observations about his offending, some of which I do not accept, as I have earlier indicated. I have a reference or a report from an organisation called “Directions”, an organisation concerned with drug and alcohol counselling and case management, and I have a discharge summary material from the ACT Health Services.
The pre-sentence report provides material which confirms previous supervision of the offender in Queensland and the character of the offending committed there. It sets out his background and notes a dysfunctional and traumatic upbringing. He had no opportunity to know his natural father. He was moved around from state to state over a period of time. He was subject to some sexual abuse as a teenager and he has suffered the grief of having a partner die from suicide in February 2020. He has no dependants.
He identifies as a Torres Strait Islander and he stays connected with a community organisation in Queensland, as I would understand it, relating to that community. He had at the time of his committal to custody, when he pleaded guilty in the trial, supported accommodation at Ainslie Village but has concerns about where he will live when he is released from custody. He has a background of drug and alcohol use over a period of time, drinking alcohol in very young years, using cannabis and amphetamines in his teens. He has undertaken from time-to-time rehabilitation, and counselling and has tried abstention as well.
He was willing to undertake any program made available to him by Directions ACT who, as I have said, provided a report. But the reality of the situation is this is a matter that will need to be addressed by the parole authorities when he is released to the community. He has had residential rehabilitation on three prior occasions. He had rehabilitation in Rockhampton and also was involved in local Canberra scheme and was there for 28 days before apparently being asked to leave as a result of a physical altercation had within the program.
He reported a history of mental health concerns, including depression, anxiety and post-traumatic stress disorder symptoms. The reference to a diagnosis for schizophrenia at one point could have been related to a drug induced psychosis given his use of drugs such as methylamphetamines. He also spoke to the author of the Corrections report of a possible diagnosis of ADHD. In his discussions with the Corrective Services people about the offending, he claimed to have taken “full responsibility for his actions” but stated that he had little recollection of the offences, attributing this to the effects of illicit substances.
I find it difficult to accept that he has little recollection of what he did, although he did say that his motivation to be involved in the offending was to fund further drug use. In the summary that was provided by the Corrective Services officers, it notes that it is a positive thing that Mr Smith expresses motivation to address his alcohol and illicit substance use. He has support from his sister, who is a pro-social person, and she may be able to provide him with stable accommodation on his release from custody. On the other hand, he is assessed at being at a medium/high risk of general re-offending, particularly having regard to his primary criminogenic risk factors such as substance abuse, mental health concerns and limited pro-social supports, as well as his criminal history.
There are various recommendations made if he was to be provided with the benefit of community-based sentencing orders, but they are not practical in the context of the orders made by the Chief Justice in relation to Mr Rowe and having regard to both the objective and the subjective matters here. I do not propose to go into the detail of the recommendations from Corrections. They offer support but the opportunity that arises there is not available at this particular time. I have had regard to the “discharge notes”, relating to an admission to hospital at The Canberra Hospital in Woden Valley, and the treatment he received there, particularly in March of this year.
He presented then with suicidal thoughts “in the context of multiple psycho-social stresses (mainly issues with his accommodation) in the background of personality vulnerabilities and anti-social personality traits”. The report provides little assistance in assessing his mental state at the time of the offending and nothing has been put to me that there is anything within his medical history available in the manner in which the material has presented to me that would require giving lesser weight to general or personal deterrence by reason of the presence of some particular mental illness or disability that could be either causally connected to his offending or in some way provide some context for it. But I do accept that he has mental health vulnerabilities, at least in recent times since the offending, requiring some hospitalisation.
I have referred to his handwritten note earlier. So far as his background is concerned, I am prepared to accept much of what he writes. However, I cannot accept his assertion, if I may quote it from the handwritten note, that:
“The day of the crimes I was very inebriated by alcohol and drugs and Kye came and said, 'Come hang out, it's my birthday.' I've never really had a birthday, so I went with him and just did whatever he did because I was depressed and lonely.”
The objective facts just do not accord with that assertion made by the prisoner as to his circumstances of being involved in the offending.
I am able to, from the material given to the court, identify his background of deprivation and disadvantage as a relevant matter to be considered in this sentencing exercise in the way that that is discussed in the High Court judgment of Bugmy v The Queen [2013] HCA 27; (2013) 249 CLR 571.
The issue of the offender's disadvantage of course is not just confined to his Torres Strait Islander background. It is very much reflected in the circumstances of his family from time to time as they have lived a somewhat eclectic life. As a consequence of which the offender has not had opportunities and education and the like that may have provided him with a more stable foundation upon which to live his life.
I have noted the submissions made by his counsel. I have earlier pointed out that I cannot accept, notwithstanding the fact that Rowe initially played a very active role in home invasion, that Rowe's role was a “leading role” sufficient to distinguish him from this offender, having regard to the objective circumstances of the offending.
I note by regard to count 3 that the offender did not actually inflict physical injury upon Mr Lampe. But it would seem that that is what he was endeavouring to do, given that his demands and the demands of Mr Rowe had not been met. It is because of the character of that offending, albeit on the back of what flowed from the involvement in count 2, that there must be a substantial degree of accumulation, if I could use that expression, of the sentence imposed in respect of count 3 upon the sentence imposed in relation to count 2.
Further, the sentence in relation to count 3, as I have earlier indicated, taking all relevant objective and subjective matters into account, should be greater than that imposed in relation to count 2. The character of what the offender did in the context of what had already flowed from the commission of the offence in count 2 was greatly more serious than the initial threats that were made by Rowe, for example, in the presence of the prisoner and by the prisoner himself during the time that the two victims were detained before Mr Parkes escaped.
I have taken into account the submissions made by his counsel about the mental health issues of the prisoner and the progress, if that be the correct expression, the prisoner may have made in the brief time he has been in custody.
Some of the matters identified by Mr Sabharwal in his submissions, to my mind, are relevant in fixing a non-parole period in this matter. In that regard, if I may just briefly turn to part of the submissions made by the Crown, I note the decision of the Court of Appeal here in the ACT of R v BC [2022] ACTCA 19 and particularly the part of the judgment at [12] where their Honours, adopting statements of principle from other decisions of the Court of Appeal, set out the relevant principles to be applied in fixing a non-parole period in the territory; particularly by reference to decisions such as R v Toumo'ua [2017] ACTCA 9 at [92]-[103], and within that citation are the principles summarised in Taylor v The Queen [2014] ACTCA 9, particularly at [19].
The matters that are relevant to fixing a non-parole period include having regard to all the sentencing purposes set out, for example, in s 7 of the Crimes (Sentencing) Act, the prospects of rehabilitation of the offender, the fact that the fixing of a minimum term is very much within the ambit of judicial discretion, but that ordinarily the non-parole period should constitute a substantial part of the total sentence. Ultimately, the non-parole period I impose, although I have not approached it with a mathematical formula in mind, reflects approximately 60 per cent of the head sentence to be imposed upon the offender. The issues, however, that are discussed in decisions such as Bugmy and in cases relating to mental illness or instability on the part of an offender, are reflected in the consideration of the fixing of the non-parole period in this matter.
The Crown provided written submissions, which I have obviously taken into account, and a number of comparative cases have been provided to the court. Naturally, I note in respect of the aggravated burglary matter, by reference to the decision of R v Fusimalohi [2015] ACTSC 220, the adoption by her Honour the Chief Justice of the various matters discussed by Grove J in R v Ponfield [1999] NSWCCA 435 that are useful in assessing the objective seriousness of an offence of breaking and entering into premises or “burglary”. In Ponfield the New South Wales Court of Criminal Appeal was sitting to determine whether it could fix a guideline in relation to breaking and entering and committing a serious indictable offence matters, but was unable to conclude that a mathematical guideline was appropriate given the multiple circumstances that can arise in that offending. By reference to those matters and s 33 of the Crimes (Sentencing) Act, I note the various matters identified by the Crown going to the nature and circumstances of the offence. Amongst the matters contemplated under s 33 of the Act, and I have already identified some of those features, are the personal circumstances of the victims, the loss and damage to property owned by them, the effect upon them of the offender's conduct, and the absence of apology to the victims notwithstanding statements of responsibility expressed to Corrective Services when preparing the report to which I have earlier referred. So far as the consideration of the seriousness of the attempt to inflict grievous bodily harm offence, that is in count 3, I have already noted the actions of the victim bringing the episode to an end without assistance from this offender.
So as far as other matters that are relevant, there are the issues of the plea of guilty and the degree to which one can identify proper remorse or contrition on the part of the prisoner. I have taken into account the period of time that the offender has been in custody and the sentences I impose will effectively date from the date identified by the Crown to take into account previous time in custody, that is 13 November 2021. I have not been told that that date is incorrect.
I note the Crown's submission, which I accept, that the offender acted without regard to the welfare of the victims or their property and that the victims would have suffered substantial psychological harm even in the absence of a victim impact statement. I accept that the “s 10 threshold” has been crossed and at least a substantial term of imprisonment is appropriate in all the circumstances of the matter. So far as comparative cases are concerned, the Crown has provided some cases and provided a schedule. The most helpful for my purposes I believe are the ACT cases although there are other jurisdictions that are cited, particularly Victoria and New South Wales.
In fact, the Crown very kindly cited a decision of my own after a judge alone trial. That was a very different case than this one here. The penalty I must impose, in respect of count 3, must be greater than that that I anticipated was appropriate for the offender in the case cited in the Crown schedule. But I have particularly had regard to R v Chevalier [2018] ACTSC 236, Salcedo v Stretton (No 3) [2018] ACTSC 305, R v Langi (No 2) [2021] ACTSC 239 and R v Lutze [2020] ACTSC 121, R v Lau [2020] ACTSC 120 and R v CN [2019] ACTSC 293.
Those judgments provide some assistance in setting a guideline, if that is the correct expression, for the range for sentences imposed in relation to aggravated burglaries and, where they arose, threats of violence or use of fire to achieve a particular criminal end. But as we all know, every case has to be seen on its own facts and, as I have earlier said, the sentencing of Mr Rowe does provide some “constraint” upon what might otherwise be the appropriate sentence to be imposed, particularly in respect of count 2 in the indictment. The Crown supplemented its written submissions with helpful oral submissions noting the seriousness of the offending with which I am concerned, particularly in relation to count 3. It is in the context of the submissions of the Crown, noting, of course, what Mr Sabharwal has said about the matter, I have concluded, as I have earlier indicated, that the sentence for Count 3 should be greater than that for Count 2 and there should be a substantial period of accumulation given the character of that criminality and the circumstances in which it occurred in the absence of Mr Rowe.
Thus, I concluded, as I had earlier foreshadowed to the offender, that making allowance for a discount of 5 per cent that I have incorporated into the calculation of the sentences that the total sentence to be imposed on this offender should be 6 years and 7 months' imprisonment commencing on 13 November 2021 with an effective non-parole period commencing on that date of 4 years' imprisonment expiring on 12 November 2025.
Thank you very much, Mr Smith. If you do not mind standing up, thank you very much. I make the following orders:
1) Convict of offender of the offences
2) Sentence the offender to a total term of imprisonment of six years and seven months, commencing on 13 November 2021 and expiring on 12 June 2028, with a non-parole period of 4 years expiring on 12 November 2025.
3) For each count, the offender is sentence as follows:
a. In respect of Count 1 – CC2020/10563 – ride motor vehicle without consent – sentence the offender to a term of imprisonment of 11 months (reduced from 12 months) commencing on 13 November 2021 and expiring on 12 October 2022;
b. In respect of Count 2 – CC2020/10565 – aggravated burglary – sentence the offender to a term of imprisonment of three years and nine months (reduced from four years) commencing on 13 June 2022 and expiring on 12 March 2026;
c. In respect of Count 3 – SCCAN 9/2022 – attempting to intentionally inflict grievous bodily harm – sentence the offender to a term of imprisonment of four years and three months (reduced from four years and six months) commencing on 13 March 2024 and expiring on 12 June 2028;
d. In respect of Count 5 – CC2020/11468 – Theft (joint commission) – sentence the offender to a term of imprisonment of 16 months (reduced from 18 months) imprisonment commencing on 13 March 2022 and expiring on 12 July 2023;
e. In respect of Count 6 – CC2020/11469 – Theft (joint commission) – sentence the offender to a term of imprisonment of six months commencing on 13 March 2022 and expiring on 12 September 2022.
You can sit down. Thank you.
That leads to on my calculation a total sentence of 6 years 7 months' imprisonment commencing on 13 November 2021 with a non-parole period of 4 years commencing from 13 November 2021.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish Associate: Date: 14 July 2022 |
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