R v Stephen
[2020] ACTSC 283
•15 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stephen |
Citation: | [2020] ACTSC 283 |
Hearing Date: | 13 October 2020 |
DecisionDate: | 15 October 2020 |
Before: | Mossop J |
Decision: | See [66] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – recklessly inflicting grievous bodily harm – mid to upper range of objective seriousness – aggravated burglary – driving while disqualified – above mid range of objective seriousness – attempt to take a motor vehicle without consent – driving a motor vehicle without consent – mid range of objective seriousness – possessing a prohibited firearm – low range of objective seriousness – offending related to aggravated burglary of a residential premises – offender inflicted very serious injuries on the victim – extensive criminal history – offending driven by drug addiction – consideration of the costs of such offending – sentences of full-time imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 20 Crimes (Sentencing) Act 2005 (ACT), s 11 Road Transport (Driver Licencing) Act 1999 (ACT), s 32 |
Cases Cited: | R v Henry [2018] ACTSC 34 R v Hutchinson [2014] ACTCA 29 R v Torbert [2015] ACTSC 331 |
Parties: | The Queen (Crown) Joshua Stephen (Offender) |
Representation: | Counsel K Lee (Crown) M Lalor (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender) | |
File Numbers: | SCC 1 of 2020 SCC 2 of 2020 |
MOSSOP J:
Introduction
The offender, Joshua Stephen, has pleaded guilty to the following offences:
(a)Count 1: aggravated burglary (CC2019/7589), contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 20 years’ imprisonment, a fine of $320,000 or both.
(b)Count 2: attempting to take a motor vehicle without consent (SCCAN2020/37), contrary to ss 44(1) and 318(1) of the Criminal Code. The maximum penalty for this offence is five years’ imprisonment, a fine of $80,000 or both.
(c)Count 3: recklessly inflicting grievous bodily harm (SCCAN2020/133), contrary to s 20(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 13 years’ imprisonment.
(d)Count 4: possessing a prohibited firearm (SCCAN2020/38), contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.
(e)Count 5: driving a motor vehicle without consent (CC2019/7590), contrary to s 318(2) of the Criminal Code. The maximum penalty for this offence is five years’ imprisonment, a fine of $80,000 or both.
The offender also pleaded guilty to a transfer charge of driving while disqualified as a repeat offender (CC2019/7591), contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT). The maximum penalty for this offence is 12 months’ imprisonment, a fine of $16,000 or both. There is an automatic disqualification period of 24 months.
Facts
The facts were agreed and are, in summary, as follows.
26 June 2019
On 26 June 2019 the victim, a 36-year-old man, was upstairs in his house, making dinner and having a shower. His parents, who also reside at the same address, were away on holiday. Between 7pm and 7:30pm an unknown person entered through a downstairs room and stole the keys to two vehicles, a Mazda MX5 and a Mazda RX8. The unknown person stole the Mazda MX5 and drove it away. It is not alleged that the offender stole the Mazda MX5 or the keys to the Mazda RX8. However, at some stage, he came into possession of the keys to both vehicles.
30 June 2019
At about 3:30am on 30 June 2019 the victim was asleep in his bed, which is in the downstairs part of the house. His parents were still away. Entry to his room is via an external glass sliding door that opens into the carport. There is no internal access from his room to the rest of the house. The Mazda RX8 was parked in the carport. The victim had parked another car in front of the Mazda RX8 to prevent it from being able to be driven down the driveaway. The carport was sealed off from the driveway by window roller shutters.
The offender and an unknown female gained entry into the loungeroom area of the house by breaking a window at the front of the house. The offender was in possession of a machete. This makes up count 1. The offender and the unknown female ransacked several rooms.
The offender and the unknown female then proceeded downstairs to where the Mazda RX8 was parked. The offender entered the driver’s seat and started the ignition. The headlights turned on. This makes up count 2. The noise of the engine and the headlights caused the victim to wake up. He went into the carport through the opened glass door to confront the offender, who was still in the vehicle. The offender exited the vehicle and approached the victim. The victim saw he had a machete and returned to his room and shut the glass door. He grabbed his phone, intending to call the police, but was in a panic and could not unlock it. While the victim was attempting to use his phone, the offender approached the glass door and use the machete to strike it. Following a number of blows, the glass shattered and the offender gained entry into the victim’s bedroom.
The offender swung the machete at the victim as he entered the bedroom. The victim picked up a tomahawk, which was near the front door, to defend himself. He swung the tomahawk a few times at the offender in an attempt to get him away. However, the offender continued to swing the machete at the victim and struck him multiple times, including to his head, face, both arms and hands. This caused the victim to drop the tomahawk, as he was extensively injured and bleeding profusely. This makes up count 3.
The unknown female came towards the victim and said words to the effect of “Open the door so we can go. Just give him what he wants. Give him what he wants and we won’t hurt you.” The offender threw a towel over the shattered glass and the victim, who was barefoot at the time, walked over to the remote control for the carport roller shutters and pressed it to open them. The offender walked over to the shutters and kicked them hard, causing them to buckle and only open half-way.
10. Once the offender returned to the Mazda RX8 the victim ran to his neighbour’s house but was unable to get any help. He then returned home to use the landline to call 000. He was significantly injured and his ears were filled with blood so he was unable to hear the police operator but managed to provide his details to police. Around this time the offender and the unknown woman left the scene. Police arrived. Bones and tendons were able to be seen protruding from the victim’s right hand. His right hand flopped down and he could not hold it up. Bone was visible through an injury to his left elbow. His teeth were damaged and there were other injuries of varying severity on his head, arms, hands and lower body. He was transported to the Emergency Department of the Canberra Hospital where he was triaged as a category 1, meaning he had an immediately life-threatening condition.
11. The Statement of Facts identifies 43 individually identifiable injuries, including defensive injuries sustained when the victim was attempting to protect himself. They will not be set out in these reasons, but I have taken into account the full list of the injuries set out in the Statement of Facts. The tendered material includes very confronting photographs of the extent of the victim’s multiple wounds on his right hand, his head, a very deep wound to his left elbow, a wound to his ears and multiple wounds to his face. The victim required surgical procedures which were undertaken on 1 July 2019, including exploration, washout and debridement of injuries to his right wrist, left hand, right ear, left ear, left shoulder and left elbow.
12. Police found a backpack located in a laneway alongside the premises. It contained an airgun that duplicated the appearance of a 9 mm Glock Model 18 self-loading pistol. That is a pistol which can switch between semi-automatic and full-automatic firing mode. Because the airgun duplicated the appearance of that pistol it was a “prohibited firearm” under the Firearms Act. Forensic analysis of the DNA profile found on the gun provided “extremely strong support” for the proposition that the offender contributed to that profile. Parts were missing from the airgun so that it was not able to discharge a projectile. The offender did not have a licence to possess it. This gives rise to count 4.
13. Police also found bloodstained gloves in a neighbouring property. Forensic analysis provided “extremely strong support” for the proposition that the offender had contributed to the DNA profiles obtained from inside each glove.
14. On 5 April 2020 a large silver machete was located in the garden of a property near the victim’s premises.
3 July 2019
15. At about 3:30pm on 3 July 2019 the offender drove the stolen Mazda MX5 (that is, the vehicle that had been stolen on 26 June 2019) in the area around Fairhall Street, Coombs. This makes up count 5. At the time, he was disqualified from holding or obtaining an Australian driver licence, which makes up the transfer charge. He drove the vehicle very fast up and down the street, causing the tyres to screech. He did this multiple times and the vehicle eventually spun, fishtailed and drove up onto the footpath. The area that the offender was driving in was a small street, close to a school and local shops.
16. The Mazda MX5 and a large number of items that had been stolen from the premises were located on 5 July 2019 at a unit in Weston, where the offender had been staying for about two weeks. DNA and fingerprints were found within the Mazda MX5 linking the offender to the driving controls.
Admissions
17. On 9 August 2019, while held on remand, the offender had a telephone conversation with a woman which was recorded. It included the following:
[Woman]: You’re the one that did this though, I told you.
[Offender]: I know I’ve fuckin done this. But, like, I can’t fucking make it happen any quicker. Like I’m trying, like, I can’t---
[Woman]: I know.
[Offender]: I’m lucky I’m not fucking in on worser charges.
[Woman]: That’s what I was saying to you, you can’t do that sort of shit to people, even if they‑‑‑
[Offender]: I know that, but it was – I’d rather talk to you about it when I’m looking at you. Because they are recording this shit, and I’m telling you they’re probably using this right now for evidence, you know what I mean?
[Woman]: Oh, I ( … indistinct … ) line, Josh.
[Offender]: Oh. I didn’t intentionally go there to hurt him.
[Woman]: I know, I know you didn’t. We’ve already spoken about this, I know you didn’t. But - but what it turned into, you should’ve been the bigger person and just fucking walked away.
[Offender]: I know that. And I don’t know why I---
[Woman]: Because you let them provoke you.
[Offender]: No, it’s because of how fucking drug-fucked I was, and I wasn’t myself. Like---
Victim impact
18. Three victim impact statements were read in court by the prosecutor. These were statements from the victim who was home at the time of the attack, as well as his parents. The victim elaborated upon the consequences of the injuries that were inflicted. He has had weekly physiotherapy to get movement in his hand and fingers. He had a further operation on his hand to remove scar tissue. In the weeks after leaving hospital he was dependent on his parents for all of his personal care which he records as giving him “no dignity at all”. He refers to the anxiety and pain with which he lives, as well as the disturbance of his sleep. He is worried about his future as he had considered that the job he had was one which he could do until retirement. Because of the injuries he is going to have difficulty getting work in the area that he has been working in for the last 20 years and is most qualified for, namely, using machinery and applying physical strength. He refers to the loss of the Mazda MX5 which was written off. It was a showpiece and investment.
19. The victim impact statement of the victim’s mother records the impact upon her of seeing her son lying on a hospital trolley covered in blood and returning to her son’s room to see it “like [a] war zone with blood even up the walls and the ceiling”. It refers to the burden of providing 24-hour care to her son for nearly eight weeks following the incident. She also explained the longer-term burdens of caring for her son and the opportunities that she has had to forego because of this obligation.
20. The statement of the victim’s father refers to his worry about what lies ahead for his son. It describes the financial burdens that were imposed as a result of the damage to the house, dental costs, ongoing physiotherapy for the victim’s hand and the need to support the victim over the past 14 months.
21. It also refers to the effects upon him and his wife as elderly persons who have had to sacrifice a significant amount in their lives for the victim’s daily care. He says:
It has been tough and to date we are just coping getting through day by day. I want you to reflect on this and perhaps think about where you are heading and what you have done. We didn’t deserve this nor [should] anyone else in the community have to endure the same pain and suffering that we have endured now and forevermore.
22. Consistent with what is said in the victim impact statements, the evidence disclosed that because of the injuries the victim was medically assessed and, as a consequence of that assessment, was on 2 July 2020 terminated from his employment with the Queanbeyan‑Palerang Regional Council. The operation referred to in the victim impact statement was further described in documents that were tendered. In September 2020 the victim underwent a further operation to address the consequences of scarring on his right hand. That operation was carried out successfully but did not solve the difficulties with his hand which resulted from the shortening of the tendons.
Objective seriousness
23. My assessment of the objective seriousness of each of the offences is as follows.
Aggravated burglary
24. Both forms of statutory aggravation are alleged, namely, being in company and having an offensive weapon. The offensive weapon was the machete – not the most serious weapon but nevertheless one which, as the events demonstrate, can be extremely dangerous. The burglary was on a residential home. It was in the middle of the night. It involved breaking a window to effect entry. It involved what may reasonably be described as “ransacking” of the premises. That is clearly demonstrated by the photographs of the state of the premises after the burglary had occurred. Thus, there are a number of features here which, consistent with what was said in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at [48], enhance the seriousness of the offending. These features put the burglary above the mid range of objective seriousness for this offence.
Recklessly inflicting grievous bodily harm
25. The objective seriousness of this offence is to be determined by reference to the culpability of the offender and the degree of grievous bodily harm that was occasioned.
26. The offender inflicted the wounds. He did so after making the choice to pursue the victim into his premises. There was no need for this to occur. In order to get access to the victim, the offender smashed his way through the glass door into the victim’s bedroom. He pursued his attack, notwithstanding that the victim picked up and used a tomahawk in his own defence. The offending occurred over a period of time. It involved multiple blows. There was blood all over the victim’s hands and arms, as well as spattered around the room. On the spectrum of recklessness, it was at the upper end because it must have been very obvious that striking somebody with a machete carried with it a very high risk of grievous bodily harm to the victim.
27. The evidence does establish that the offender has a history of paranoid thinking and a diagnosis of unspecific nonorganic psychosis but does not establish any causal link between these conditions and the offending.
28. I accept the offender’s assessment of the state that he was in, as set out in the last line of the transcript of the recorded telephone call set out above. The fact that the offender was under the influence of methamphetamine at the time of the offending is not a mitigating factor. However, it can be taken into account in explaining the conduct as impulsive, rather than planned. In this case, there was a degree of planning in the offending, relevantly, coming armed with a machete. However, there was no pre-existing intention to attack any occupants of the house.
29. Although the offender submitted that it “is highly likely that he was in a state of ice psychosis” the evidence does not establish that on the balance of probabilities. In any event, as a long-term methamphetamine user, he must have been aware of the consequences of methamphetamine use on his thought processes. In assessing his culpability, the methamphetamine addiction provides the context for his offending and some explanation of the offending which may not be present in the absence of such an addiction. In the absence of that explanation, the offending may have been characterised as more serious.
30. So far as the degree of grievous bodily harm is concerned, it was at the upper end of the range. While it is possible to conceive of more serious examples of grievous bodily harm, the wounding caused in the present case was at the very serious end of the spectrum. The photographs of the wounds suffered by the victim are very confronting but appropriately illustrate the grave nature of the wounds inflicted.
31. I assess the objective seriousness as in the mid to upper range of objective seriousness for this offence.
Attempt to take motor vehicle
32. The attempt to take the motor vehicle was at the more serious end of the spectrum because it occurred on residential premises and was only unsuccessful as a result of the intervention by the victim. It is in the mid range of objective seriousness for this offence.
Possess prohibited firearm
33. The range of prohibited firearms the subject of s 42 of the Firearms Act is wide. The weapon in this case was a prohibited firearm because it was a replica of a pistol that could fire in automatic mode. The difference in appearance between a pistol that could fire in automatic mode and one that did not have that facility – and hence would not be a prohibited firearm – was minimal and unlikely to be appreciated by a non-expert observer. While the weapon was an airgun, it had pieces missing which meant that at the time that it was found it could not discharge a projectile. Having regard to the wide range of prohibited firearms that may be the subject of this charge and the purpose for which it was possessed, the offending is in the low range of objective seriousness for this offence.
Drive motor vehicle
34. The driving of the Mazda MX5 without consent is driving, rather than riding it. It is in the mid range of objective seriousness for this offence.
Drive while disqualified
35. The drive while disqualified charge involved driving fast and causing the tyres to screech multiple times, as well as spinning and fishtailing, and driving on the footpath. It is above the mid range of objective seriousness for this offence.
Subjective circumstances
36. The offender is currently 36 years old. He has Aboriginal heritage through his father but has never engaged with Aboriginal culture. He is currently single but noted to the author of the pre-sentence report that at the time of the offences he was in a relationship and the couple were co-dependent drug users. He has three children from previous long-term relationships, both of which involved drug use.
37. As a child he was treated with Ritalin for symptoms of ADHD. He rode motorcycles and played rugby league, both at an elite level.
38. As a young adult he witnessed a horrific accident, involving multiple fatalities including his best friend. His parents record their impression that, from this point, his life spiralled out of control. He has suffered head injuries as a result of being assaulted, which have left him with memory problems.
39. He was homeless at the time of the offences and reported that he had been couch surfing for a number of months prior to entering custody. He has no post-release accommodation, although he stated an intention to secure a bed at a residential rehabilitation facility. His family would provide accommodation on the condition that he had completed residential rehabilitation. The author of the pre-sentence report found that the offender appeared genuine in his plans for residential rehabilitation, although noted that he was yet to submit an application. Case notes available to the author of the pre-sentence report indicated that he has commenced discussions with his Sentence Management Officer to obtain documents to review suitable rehabilitation options.
40. His parents continue to support him, although he acknowledged his contact with them is sporadic due to his illicit substance use. His mother confirmed her support and her desire for him to lead a lawful life.
41. He was last employed in 2013. He worked as a machine operator but his substance abuse interfered with his ability to maintain employment. He expressed a desire to return to work following his recovery. He is currently employed in the bakery at the Alexander Maconochie Centre.
42. The offender reported that he commenced using methamphetamine at 22 years of age. He described his use as “recreational” in his twenties and noted that it became problematic from the age of 30, when he began intravenous use. From this time, until his incarceration, he used one gram daily. He also used cannabis simultaneously and would consume cannabis when withdrawing from methamphetamine.
43. He expressed a desire to address his substance abuse issues and acknowledged that the seriousness of the current offences highlighted the degree to which his drug abuse impacted upon his behaviour. He expressed his desperation in wanting to cease his drug use and told the author of the pre-sentence report “I am scared I will do worse if I stay on drugs”. He denied any drug use since these offences.
44. He reported that when in the community he did not participate in organised prosocial activities. He stated he intends to join local sporting groups following his release and recovery.
45. The offender reported a history of depression and anxiety. He is currently prescribed antidepressant medication which he maintained inconsistently due to his illicit substance use. He said he is currently complying with his medication regime and is taking antidepressants and antipsychotic medication. He noted a history of paranoid thinking which he attributes to his methamphetamine use. An ACT Health Summary dated 22 September 2020 confirmed a diagnosis of unspecific nonorganic psychosis in 2016. He reported that his current mental state is stable, but he does still experience paranoid thinking at times.
46. He agreed with the Statement of Facts. He expressed guilt and shame for his offending behaviour and claimed he frequently reflects on his actions and how they would have impacted upon the victim and his family. The author of the pre-sentence report noted that whilst the offender did express regret for his offending, he also attempted to shift partial responsibility onto his partner at the time, stating that she encouraged him to commit the offences. He acknowledged that his drug use was a fundamental factor in his offending. His parents say of him:
Josh is a good person and needs help with his drug addiction before he can get back to the person he used to be. Joshua understands what he has done and the pain and suffering that he has caused innocent people, and the charges that he faces and knows that he needs to spend a length of time in prison. On release, Joshua wants to be able to be admitted to a long term Rehabilitation Facility so that he can get the help he needs and then to leave Canberra and join his children in [Queensland].
47. The author of the pre-sentence report assessed the offender as having a medium to high risk of general reoffending. His primary criminogenic risks are his significant substance abuse history and homelessness. It was noted that should he successfully complete a 12‑month residential rehabilitation then his risk would likely reduce.
48. He has a poor history of compliance with good behaviour, bail and parole orders. He was assessed as suitable for a good behaviour order and a community service work condition. He is identified as not being suitable for an intensive correction order due to having no approved accommodation.
Criminal history
49. The offender has an extensive criminal history in the ACT dating back to 2002, including offences of a similar type to the current charges. He has convictions for numerous driving offences including negligent driving and aggravated furious, reckless or dangerous driving, drug possession offences, obstructing and resisting public officials, attempting to escape arrest or lawful custody, providing a false name or address, theft and minor theft, damaging property, possession of stolen property, aggravated burglary, common assault, assault occasioning actual bodily harm and intentionally inflicting grievous bodily harm. He has been given numerous sentences involving full-time detention, including significant sentences for aggravated burglary in the past.
50. He has convictions in New South Wales for possessing a prohibited drug and larceny.
51. He is, unfortunately, not entitled to any leniency based on his record.
Plea of guilty
52. The offender pleaded guilty to these charges on 27 August 2020 in the Supreme Court. This was after a criminal case conference and 11 days before the trial was listed to commence. The pleas on counts 1, 2, 4 and 5 had been indicated earlier, during discussions between the parties commencing 14 July 2020. Count 3, recklessly inflicting grievous bodily harm, was a fresh charge on a new indictment filed in court and the plea entered on this charge was on the first day it was before the court. The Crown case was strong but not overwhelming. In those circumstances a discount of approximately 15% is appropriate.
Time in custody
53. The offender was arrested for these offences on 5 July 2019 and has been in custody since that date, solely referable to these offences. The sentences that I will impose will be backdated to take this period into account.
Comparable cases
54. The parties provided a range of cases involving aggravated burglary and recklessly inflicting grievous bodily harm. I was also provided with some sentences for aggravated robbery on the assumption that a sentencing pattern for that offence might be useful in assessing appropriate sentences for one or both of the most serious charged offences. I have taken those sentences into account as indicating the sentencing practice of the court.
55. So far as the sentences for aggravated burglary were concerned, there were relatively few of them and only one approaching the gravity of the present offending. That was R v Hutchinson [2014] ACTCA 29 which, even on appeal, involved a moderate sentence having regard to the offender’s criminal history and the maximum penalty available for the offence. It is notable that in that case there was no confrontation between the offenders and the occupants. Having reviewed previous sentences imposed by the court, Ross J with whom the other judges agreed simply said at [75] “For my part, the other sentences reveal a significant range of available sentences for this particular offence, depending on the objective seriousness of the offending and the subjective circumstances of the offender.” The starting point was a sentence of four years’ imprisonment.
56. So far as sentences for recklessly inflicting grievous bodily harm are concerned, I make the following remarks in relation to some of the sentences said to be comparable. R v Torbert [2015] ACTSC 331 was a sentence for recklessly inflicting grievous bodily harm. It involved a very nasty attack with a machete, severing the victim’s Achilles tendon and cutting into the bone. The offender had a long but minor criminal record. The starting point was seven years, reduced to five years and three months on account of the plea of guilty. I observe that the injuries were less serious, as was the criminal history of the offender.
57. R v Krook [2020] ACTSC 93 involved a stabbing by a drug supplier who had been ripped off on two occasions by the victim. The victim suffered a punctured and cut lung. He lost a litre of blood at the scene and the injuries could easily have been fatal. The offender was 26 years old and had a negligible criminal history. The starting point for the offence was five years, reduced to three years and nine months on account of the plea of guilty.
58. Cases such as R v Henry [2018] ACTSC 34 and R v Jacky [2017] ACTSC 392 each involved substantially lower sentences. However, they did so in the context of particular features warranting leniency, such as the absence of a criminal record in R v Henry and the offender having a child with a severe intellectual disability in R v Jacky.
Consideration
59. The offending in the present case was appalling. To inflict such grievous injuries upon an innocent victim who was asleep in his own home when the offending commenced is shocking. For a methamphetamine addict to do so is predictable. It is a tragedy that the offender, in his methamphetamine affected state, reacted as he did to the presence of the victim. Having regard to the offender’s criminal history, significant emphasis needs to be given to punishment, denunciation of the conduct, recognition of the harm done to the victim, protection of the community and deterrence of the offender from committing such crimes in future.
60. As with any person whose offending behaviour is driven by addiction to illicit drugs, there must be hope for the offender’s rehabilitation. Deal with the addiction and you will usually deal with the criminal behaviour. I accept the submission made on behalf of the offender that he has moderate prospects for rehabilitation. He regrets his actions, understands the impact of them and recognises the link between his drug use and the offending. He has expressed a desire to engage in long-term rehabilitation. He retains the support of his parents but they too recognise the need for him to complete a long-term program of rehabilitation.
61. However, in the circumstances of this case, the potential for rehabilitation in the community can only play a limited role in the assessment of the appropriate sentences because of the need to impose significant periods of full-time detention in order to reflect the other purposes of sentencing. To the extent that rehabilitation is to occur in the near term, it must occur, to the extent that it can, within the context of full-time detention.
62. It is clear that only substantial periods of full-time detention would be appropriate. The length of the periods of imprisonment preclude disposing of the matter by way of intensive correction order which, in any event, would not have been appropriate having regard to the matters referred to in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT).
63. In my view, the appropriate starting point, reduction on account of a plea of guilty and period of accumulation for each of the sentences are as follows:
Charge Starting point Reduced sentence Accumulation Recklessly inflict grievous bodily harm Six years and six months Five years and six months (66 months) Base sentence Aggravated burglary Four years and six months Three years and ten months (46 months) 18 months Attempt to take motor vehicle 18 months 15 months Four months Possessing prohibited firearm 12 months 10 months Two months Drive motor vehicle without consent Two years 20 months Six months Drive disqualified Six months Five months Two months Total Eight years and two months (98 months)
The drive while disqualified charge carries with it an automatic period of disqualification of 24 months: Road Transport (Driver Licencing) Act s 32(5)(b). It is open to the court to order a longer period. I will make no such order, leaving the automatic period to take effect by statute.
64. So far as the non-parole period is concerned, the offender’s age, criminal history and prospects of rehabilitation do not indicate that a non-parole period at the lower end of the usual range would be appropriate. The non-parole period will be 64 months (five years and four months), equivalent to approximately 65% of the head sentence. The sentence will be backdated to the date when the offender went into custody, namely, 5 July 2019.
65. One final observation, the dreadful offending that occurred in this case was committed because the offender had a long-term methamphetamine addiction. The offending has had catastrophic, lifelong consequences for the victim and his family. The victim was an innocent person minding his own business, asleep in his house when the offending occurred. He did nothing at all to deserve the dreadful injuries that were inflicted upon him. The costs that will be imposed upon the community as a result of this offending are enormous. There are costs that will be borne solely by the victim forever, there are the costs and lost opportunities borne by the victim’s elderly parents, there are costs which have been and will be borne by the hospital system, there are costs associated with government benefits which are likely to be payable to the victim in the future and there are costs that will be incurred by the government because of the incarceration of the offender for many years pursuant to the sentences that I am about to impose. The reality of these costs emphasises the importance of ensuring that there are available sufficient residential drug rehabilitation facilities so as to allow those who are addicted to drugs such as methamphetamine to address their addictions prior to committing crimes such as those which were committed in this case. The benefits of incurring the costs of such programs must be assessed in light of the very significant costs to the community of continuing drug addictions which only cease after offences such as those in the present case have been committed.
Orders
66. The orders of the Court are:
1. On the charge of recklessly inflicting grievous bodily harm (SCCAN2020/133) the offender is convicted and sentenced to imprisonment for five years and six months, commencing on 5 July 2019 and ending on 4 January 2025.
2. On the charge of aggravated burglary (CC2019/7589) the offender is convicted and sentenced to imprisonment for three years and ten months, commencing on 5 September 2022 and ending on 4 July 2026.
3. On the charge of attempt to take motor vehicle without consent (SCCAN2020/37) the offender is convicted and sentenced to imprisonment for 15 months, commencing on 5 August 2025 and ending on 4 November 2026.
4. On the charge of possess prohibited firearm (SCCAN2020/38) the offender is convicted and sentenced to imprisonment for 10 months, commencing on 5 March 2026 and ending on 4 January 2027.
5. On the charge of drive motor vehicle without consent (CC2019/7590) the offender is convicted and sentenced to imprisonment for 20 months, commencing on 5 November 2025 and ending on 4 July 2027.
6. On the charge of drive while disqualified (repeat offender) the offender is convicted and sentenced to imprisonment for five months, commencing on 5 April 2027 and ending on 4 September 2027.
7. The non-parole period starts on 5 July 2019 and ends on 4 November 2024.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 23 October 2020 |
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