R v Thorn
[2020] ACTSC 363
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Thorn |
| Citation: | [2020] ACTSC 363 |
| Hearing Date: | 28 September 2020 |
| Decision Date: | 30 November 2020 |
| Before: | Burns J |
| Decision: | See [82]–[117] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re- sentence – breach of good behaviour order – three counts burglary – six counts theft – damaging property – riding vehicle without consent – three counts obtaining property by deception – five counts minor theft – obtaining financial advantage – resisting police – possession of stolen property – having wrong number plate on car – three counts attempted robbery – taking motor vehicle without consent – dangerous driving – two counts attempting to take motor vehicle – affray – attempted aggravated robbery – pleas of guilty – consideration of impact of schizophrenia and illicit drug use on moral culpability – guarded |
| prospects of rehabilitation | |
| Legislation Cited: | Crimes Act 1900 (ACT) s 116(3) Criminal Code 2002 (ACT) ss 308, 309, 311, 316, 318, 321, 324, 332 Road Transport (Vehicle Registration) Act 1999 (ACT) s 22 |
| Cases Cited: | R v Thorn [2016] ACTSC 217 |
| Parties: | The Queen (Crown) |
| James David Thorn (Offender) | |
| Representation: | Counsel |
| M Howe (Crown) | |
| H Snobar (28 September 2020) C Brinky (30 November 2020) (Crown) | |
| M Jones (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Commonwealth Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
| File Numbers: | SCC 24 of 2016; SCC 72 of 2020; SCC 73 of 2020; SCC 88 of 2020; SCC 89 of 2020 |
| BURNS J: |
1. James Thorn, you come before this Court to be sentenced for 32 offences committed on seven separate dates between May 2018 and May 2019. A comprehensive Statement of Facts was tendered without objection by the Crown at the sentence hearing on 28 September 2020. I will not recite that Statement in full, but I will briefly summarise each of the offences in chronological order. I will identify each of the offences by the court number allocated in the ACT Magistrates Court. I will start with the 2018 offences.
The facts
The 2018 offences
2. On 7 May 2018, you committed an offence of burglary in residential premises in Wright in the ACT. This offence is contrary to s 311 of the Criminal Code 2002 (ACT) (the Criminal Code) and carries a maximum penalty of 14 years' imprisonment, a fine of $210,000, or both. The premises were ransacked, thus, adding to the sense of invasion that would have been felt by the occupants. In any burglary in residential premises, there is a risk of confrontation with the occupants, although that risk did not eventuate on this occasion. You were identified as the offender by fingerprints located at the scene. This is the basis of charge CC2018/7984. I would assess the objective seriousness of this offence as below the mid-range.
3. In the same premises, you committed an offence of theft of an iPad box. This is the basis of charge CC2018/10152. The maximum penalty for the offence of theft, contrary to s 308 of the Criminal Code, is 10 years' imprisonment, a fine of $150,000, or both. The Statement of Facts does not set out the value of this item, but I infer it was of minimal value. This offence is at the bottom of the range of objective seriousness of offences of theft.
4. On 24 May 2018, you committed an offence of burglary at residential premises at Duffy in the ACT. Some ransacking of a bedroom occurred. Entry to the premises was obtained forcibly. You were identified as the offender by fingerprints located at the premises. This is charge CC2018/7968. I would assess this offence as being below the mid-range.
5. On 8 June 2018, you committed an offence of burglary at residential premises at Mawson in the ACT. The occupant of the premises was awoken at about 10:20 am by you attempting to gain entry to the premises through a rear door. The occupant confronted you while you were still outside the rear door. You had previously forcibly entered a gym room attached to the garage of those premises and removed certain electrical goods which you dropped when you were confronted by the occupant. This is the basis of charge CC2018/11749, the charge of burglary. In assessing the objective seriousness of this offence, I take into account that the premises were residential premises and that there was a confrontation with an occupant. I would assess this offence as also below the mid-range of such offences.
6. You also entered a plea of guilty to charge CC2019/3932 arising out of this incident, a charge of damaging property. This relates to damage occasioned to the door frame of the rear door of the premises. This offence of damaging property, contrary to s 116(3) of the Crimes Act 1900 (ACT) (the Crimes Act), carries a maximum penalty of two years' imprisonment, a fine of 50 penalty units, or both. I would assess this offence as in the lower range of such offences.
7. On 27 June 2018, you committed an offence of riding in a motor vehicle without consent, being charge CC2018/8344, and an offence of theft, being CC2018/14803. At about 3:45 pm you were a passenger in a stolen Hyundai van which stopped beside another car at traffic lights in Phillip, ACT. You got out of the van and opened the door
of the victim’s car and took a cardigan and a wallet belonging to the female driver of
the car, who I will refer to as KN. She took hold of the cardigan to try to stop you, but
you pulled it away from her. You then got back into the van and it sped away.8. The cardigan was valued at $15.00 and the wallet, which contained an ACT driver's licence and an assortment of cards, was valued at $50.00. I would assess the objective seriousness of the offence of riding in a motor vehicle without consent as below the mid-range, and that of the offence of theft as in the lower range of such offences. While the offence of theft involved property of no great value, it was brazen and involved a direct confrontation with the victim which was likely to have instilled a sense of violation of privacy in her.
9. A short time later, at about 4:03 pm, you entered the Woolworths supermarket at Weston Creek. You used KN's Commonwealth Bank debit card, using PayWave, to purchase food items to the value of $10.39. This transaction was captured on Closed Circuit Television (CCTV). Police later recognised you to be the offender. This is the basis of a charge of obtaining property by deception (CC2019/5044), contrary to s 324 of the Criminal Code. This offence carries a maximum penalty of 10 years' imprisonment, a fine of $150,000, or both. I would assess the objective seriousness of this offence as towards the bottom of the range of such offences.
10. At about 4:30 pm on 27 June 2018, whilst still a passenger in the stolen Hyundai, you exited that vehicle in the car park of the McDonald's at Weston Creek, opened the door of an adjacent vehicle occupied by a female, who I will refer to as BU, and stole a black lunch box from the front passenger seat. You ran back to and entered the van which then accelerated away. The lunch box was valued at $20.00. This is the basis of charge CC2018/8342, a charge of theft. This was also a brazen offence involving a direct confrontation with the victim. The value of the property stolen was not great. I assess this offence as in the lower range of such offences.
11. About two hours later, at about 6:30 pm, you were again the passenger in the stolen Hyundai when it entered the Lakeside Leisure Centre car park in Greenway. You, again, exited the van and approached a car driven by a female, who I will refer to as IS. You opened the front passenger door and grabbed her handbag. IS grabbed the shoulder strap of the bag and a struggle ensued as she tried to pull the handbag from your grip. Due to the force you exerted IS felt a sharp pain in her right hand, forcing her to let go of the bag. You then ran back to the van and got in the front passenger side before the van drove away. This is the basis of charge CC2018/14804, a charge of theft. The handbag contained a small black and white wallet and assorted cards to the value of $300.00. This charge, of course, is not one of robbery, but it is relevant in assessing the objective seriousness of the offence to observe that there was a direct confrontation with the victim. I would assess this offence as in the mid-range of such offences.
12. Immediately after the theft of the wallet from IS, the stolen van in which you were a passenger entered a car park at South Point shopping centre in Greenway. A short time later you approached the customer service counter at Coles supermarket and purchased cigarettes to the value of $65.90 using IS's credit card. Minutes later you returned to the customer service counter at Coles and purchased further cigarettes and an Optus SIM card to the total value of $95.90 using another credit card belonging to IS. Minutes later you approached the customer service counter at Woolworths supermarket and purchased cigarettes and other items to the value of $72.15 using another credit card stolen from IS. All of these transactions were captured by CCTV and police recognised you as the offender. This is the basis of charge CC2019/5043, a charge of obtaining property by deception.
13. This is a rolled-up charge encompassing three separate transactions. The value of the property obtained was not particularly significant. I would assess this offence as in the upper end of the lower range of such offences.
14. You were arrested by police on 28 June 2018. All of the offences which occurred in 2018 were committed in breach of a suspended sentence order imposed by Refshauge J in this Court in July 2016.
15. As I understand it, you were held in custody after you were arrested for the 2018 offences. You entered pleas of guilty to the 2018 offences on 3 April 2019. You were granted bail on 4 April 2019 to facilitate an Intensive Correction Order Assessment. Unfortunately, you used the opportunity given to you by being released on bail to commit further serious criminal offences.
The 2019 offences
16. At about 3:00 pm on 11 May 2019, a female, who I will refer to as IC, was putting her infant child into her car on Market Street, Belconnen, ACT. While doing so she placed her handbag on the roof of the car. A blue coloured Mazda 3 sedan stopped next to her vehicle. You were the driver of the Mazda and there was a female passenger. You got out of the Mazda and pretended to look for something behind IC's car. While IC was not looking you stole her handbag and its contents from the top of her car. You got back into the Mazda and drove away. This is the basis of charge CC2020/2926, a charge of minor theft, contrary to s 321 of the Criminal Code.
17. In assessing the objective seriousness of this offence, I take into account the fact that the victim was vulnerable because she was caring for a young child. There is no evidence before me of the value of the property stolen. I would assess the objective seriousness of this offence as towards the upper end of the lower range of such offences.
18. At about 3:44 pm that day a female, who I will refer to as BD, was stationary in her vehicle at the intersection of Belconnen Way and Eastern Valley Way in Belconnen. You opened the front passenger door of the car and placed your arm into her vehicle, followed by your whole chest and torso. BD grabbed her son by the leg and held him to the seat as you rummaged through her car with your right hand. You were muttering to yourself and making strange noises. BD threw a milkshake at you hitting you on the right side of your head. You took a black coloured gym bag belonging to BD's son containing several unique pieces of gymnastic equipment. You then ran away and got into the driver's seat of a blue Mazda and drove away from the location. This is the basis of charge CC2020/2925, a charge of minor theft.
19. You have not been charged with a more serious offence such as robbery but it is, nevertheless, relevant, in assessing the objective seriousness of the offence, that it was a brazen offence involving you entering, at least partially, the vehicle occupied by the victim and her child. There is no evidence of the value of the items stolen. One would expect they were of some value to the victim's child at least. I would assess this offence as in the mid-range of such offences.
20. At about 3:50 pm on the same day, a female, I will refer to as XY, was on Cameron Avenue, Belconnen, walking towards her residence carrying a shopping bag containing some bread and apples and a paper bag containing a book. As she was walking, she saw a blue Mazda sedan stopped on the side of the road ahead of her. You were outside the Mazda and you approached her before quickly grabbing the shopping bag held by her, as well as attempting to take the book in the paper bag. XY held on to the book which caused the bag to rip open and allowed XY to retain the book in her hands.
21. After the bag broke you went back to the Mazda and got into the front passenger seat before the car drove away. A female was driving the car. This is the basis of charge CC2020/2928, a charge of minor theft. This offence was a brazen one, also involving a direct confrontation with the victim. I would also assess this offence as in the mid- range of such offences.
22. At about 4:15 pm the same day, a female that I will refer to as KT, was driving her car and stopped at the intersection of Wentworth Avenue and Eastlake Parade, Kingston, ACT. You opened the passenger door and stole her purse containing an assortment of cards and about $400.00 in cash. KT attempted to stop you, but you pulled away from her. She saw you get into a blue Mazda which then sped off through a red light. This is the basis of charge CC2020/2924, a charge of minor theft. This was also a brazen offence involving a direct confrontation with the victim. I would also assess this offence as in the mid-range of such offences.
23. At about 4:20 pm that day a car, driven by a person who I will refer to as DI, was stopped at the intersection of Giles Street and Wentworth Avenue in Kingston. At this time the blue Mazda stopped next to his vehicle and you got out and entered his car. You stole a vehicle log book. I infer that this was an item of minimal value. This is the basis of charge CC2020/2927, a charge of minor theft. This was also a brazen offence involving a direct confrontation with the victim. I infer that the value of the item taken was minimal. I would assess the objective seriousness of this offence as in the lower range of such offences.
24. At about 4:21 pm that afternoon, you attended the 7-Eleven Petrol Station on Canberra Avenue at Fyshwick and used a credit card you had taken from KS earlier that afternoon to purchase cigarettes and food via PayWave. Moments later you attended the BP petrol station located on Ipswich Street, Fyshwick, and used the same card to purchase petrol, cigarettes and food via payWave. The total value of both transactions was $445.40.
25. This is the basis of charge CC2019/8739, a charge of obtaining a financial advantage, contrary to s 332 of the Criminal Code. This offence carries a maximum penalty of 10 years' imprisonment, a fine of 1,000 penalty units or both. I would assess the objective seriousness of this offence as in the lower range of such offences.
26. At about 4:37 pm that day, police observed the blue Mazda parked at a petrol bowser at the BP Service Station and saw you putting petrol in the vehicle. Checks on the vehicle's registration plate revealed those plates did not match the vehicle and had been reported as stolen earlier that day. Police began to drive into the petrol station.
27. You saw police and got into the driver's seat of the vehicle. Police parked their car in front of the blue Mazda, got out of their car and walked towards the blue Mazda. They called on you to stop the vehicle and get out. You put the Mazda into motion and revved the engine loudly as it moved towards the police. Police drew their firearms and pointed them at you. You continued to attempt to drive away before one of the police opened the driver's door and attempted to remove the keys. You began striking the left arm of the police officer while trying to put the vehicle in gear. Another police officer took hold of the front of your jumper and informed you that you were under arrest and told you to
stop the car. You shouted, “Okay. Okay. Okay,” and raised your hands above your
head while you pulled away from the police officer into the rear of the car.
28. At this time, the blue Mazda was still running and rolling downhill towards Ipswich Street. You pulled free of police and were subsequently exposed to Oleoresin Capsicum (OC) spray. You exited the vehicle via the rear driver's side passenger door and fled on foot across Ipswich Street and the Monaro Highway causing vehicles to brake heavily and to swerve to avoid a collision. Police stopped the blue Mazda and arrested the female occupant seated in the front passenger seat.
29. These facts are the basis of charge CC2019/5465, a charge of resisting police; CC2019/5467, a charge of possession of stolen property; and, CC2019/8740, a charge of having a wrong number plate on a car.
30. The charge of resisting police, contrary to s 316 of the Criminal Code, carries a maximum penalty of two years' imprisonment, a fine of 200 penalty units, or both. The charge of possession of stolen property, contrary to s 324 of the Criminal Code, carries a maximum penalty of six months' imprisonment, a fine of 50 penalty units, or both. The charge of having a wrong number plate on a car, contrary to s 22 of the Road Transport (Vehicle Registration) Act 1999 (ACT), carries a maximum penalty of 20 penalty units. I would assess the objective gravity of the offence of resisting police as in the mid-range of such offences.
31. At about 8:00 am on 17 May 2019 you attempted to steal a motor vehicle in the car park of offices in Tuggeranong, ACT. The driver of the vehicle was still in the car at the time and you opened the driver's door and grabbed the victim by the neck and attempted to pull him from the car. The struggle lasted for approximately 30 seconds before you fell backwards on to the road. The victim closed the car door and drove away. This is the basis of charge CC2019/5676, a charge of attempted robbery, contrary to s 309 of the Criminal Code. This offence carries a maximum penalty of 14 years' imprisonment, a fine of 1,400 penalty units, or both.
32. Were it not for you falling on to the road during the struggle with the victim, it is highly likely that you would have succeeded in carrying out the substantive offence of robbery. I would assess this offence as in the mid-range of such offences.
33. As the victim of the offence of attempted robbery drove away, a female, who I will refer to as DX, drove her motor vehicle into the entrance of the same car park. You
approached her car and opened the driver's door and said, “[y]ou have four seconds to get out of the car”, and you began counting down from four. DX felt threatened and
scared and attempted to remove her keys before getting out of the car. You told her to leave the keys and you entered the driver's seat of the car, closed the door and drove away.
34. This is the basis of charge CC2020/3423, a charge of taking a motor vehicle without consent, contrary to s 318(1) of the Criminal Code. This carries a maximum penalty of five years' imprisonment, a fine of 500 penalty units, or both. In assessing the objective seriousness of this offence, I take into account that there was a direct confrontation with the owner of the vehicle for the purpose of you taking it without her consent. I would assess this offence as in the mid-range of such offences.
35. At about 7:20 pm that day, a male who I will refer to as HE, stopped his motor vehicle at the intersection of Hindmarsh Drive and Streeton Drive at Weston in the ACT. You opened the front passenger door of his car and grabbed his backpack which was sitting on the front passenger seat. The backpack contained several items including a black
Huawei phone and the victim's wallet containing his MasterCard. You said, “sorry”,
before entering a vehicle that was stopped in the next lane before that vehicle then drove away. This is the basis of charge CC2019/6635, a charge of theft. This was also a brazen offence involving a confrontation with the owner. I would assess this offence as in the lower range of such offences.
36. Later that evening you used HE's credit card to purchase two packets of cigarettes to the value of $89.90 from the Coles Express service station in Wanniassa. This is the basis of charge CC2019/6636, a charge of obtaining property by deception. I would assess this offence as in the lower range of such offences.
37. At about 11:15 am on Saturday, 18 May 2019, you drove DX's car on Boddington Crescent at Kambah on the wrong side of the road. You drove the car across the median strip before pulling in front of another vehicle causing it to brake. The front left tyre of the vehicle you were driving had burst. You waved your arms indicating the other vehicle should drive past, but when it began to do so you swerved your vehicle towards the other car causing it to brake again.
38. You then drove along Boddington Crescent at high speed swerving between vehicles. During this time you, again, crossed on to the wrong side of the road over the median strip. You crossed back on to the correct side of the road before you drove through a red light, across Drakeford Drive into Marconi Crescent. You then stopped in the bus lane in front of the Caltex service station but the car continued to roll forward before coming to a stop in front of the bus stop. These facts are the basis of charge CC2019/5677, a charge of dangerous driving. I would assess this offence as in the mid-range of such offences.
39. You then got out of the car and ran towards a woman, who I will refer to as DC. She was standing next to her vehicle which was parked next to a petrol bowser within the service station. DC's infant granddaughter was seated in the back of the car. You told DC to give you her keys. She attempted to run from you, but you chased her for a short period before grabbing her. You tried to remove the keys from her hands. You released her and attempted to open the driver's side of her vehicle. DC tried to stop you and the two of you continued to struggle close to the driver's door. These facts are the basis of charge CC2019/5679, a charge of attempted robbery.
40. This was a particularly brazen offence involving a female victim. There was actual physical contact with the victim. You did not desist when the victim resisted you. Were it not for her resistance, it is highly likely that you would have committed the substantive offence of robbery. I would assess this offence as in the mid-range of such offences.
41. Nearby bystanders ran towards you and told you to let go of DC. You released her and approached another car which had just driven into the service station and you unsuccessfully attempted to open it. You then ran towards another motor vehicle which was stopped at the petrol bowser close to DC's vehicle. You opened the driver's side door and grabbed at the driver, who I will refer to as TQ. You attempted to pull TQ from his car. He kicked you and you released your grip and ran away from the vehicle. This is the basis of charge CC2019/5683, a charge of attempted robbery.
42. At this time DC's two young children were seated in the back seat of the car. This was also a particularly brazen offence involving actual physical contact with the victim. Were it not for his resistance, it is highly likely that you would have committed the offence of robbery. I would assess this offence as in the mid-range of such offences.
43. You then ran across the service station and approached a woman, who I will refer to as JK, who was seated in her car. You attempted to open the driver's door, but you were unsuccessful. You held on to the door handle and told JK that if she did not open the door you would break the window. This is the basis of charge CC2020/3424, a charge of attempting to take a motor vehicle. JK drove her vehicle away from you and then you turned and ran towards Bells Dry Cleaners, which is situated within a small building on the same allotment as the service station.
44. As with the other offences on this day, this was a brazen offence. It involved a confrontation with the victim. Were it not for the victim driving away from you, it is highly likely that you would have committed the offence of taking the motor vehicle without her consent.
45. You approached the front door of the dry cleaners, but you found it to be locked. You then ran around the building and entered a side glass door. You searched around the till before picking up a black coloured iPhone case belonging to a member of staff. This is the basis of charge CC2019/5682, a charge of theft. I assess the objective seriousness of this offence as in the lower range of such offences.
46. You also picked up a silver coloured pair of scissors. You left the dry cleaners holding the scissors in your right hand. You walked towards a female, who I will refer to as BH, who was standing next to the driver's door of her car. You looked at her and yelled,
”[g]ive me your keys”. She refused to hand over her keys.
47. This is the basis of charge CC2020/3426, a charge of attempting to take a motor vehicle. This, again, was a brazen offence involving direct confrontation with the victim. Were it not for the victim's resistance to your demands, it is highly likely that you would have committed the offence of taking her motor vehicle without her consent.
48. You then pointed the scissors towards a group of people as you walked back towards
the service station. You were pacing around and yelling, “[d]o you want a piece of me?”
This is the basis of charge CC2019/6634, a charge of affray. Bearing in mind the short period over which this conduct occurred, I assess the objective seriousness of this offence as in the lower range of such offences.
49. You then ran towards JK who was still seated within her vehicle and, again, attempted to open the driver's door. JK drove away from you. You walked to the front sliding doors of the service station, but you were unable to enter as the doors had been locked by staff. You then ran from the service station and re-entered the vehicle in which you had arrived, that is DX's car. You drove that vehicle across Marconi Crescent and entered the car park at Kambah shops. You got out of the vehicle before it stopped and the vehicle continued to roll through the car park before it collided with a parked vehicle.
50. You approached a female, who I will refer to as ES, who was seated in her car. You
opened her door and said, “[g]et the fuck out of your car or I will stab you”. You lifted
your shirt and stated that you had a knife. ES could not see a knife, but she got out of the car as she was terrified. You grabbed her handbag from her hands as she exited
the vehicle. You began searching through her handbag asking, “[w]here are the keys?”.
This is the basis of charge CC2020/3425, a charge of attempted aggravated robbery.
51. You got into the car and ES locked the car with you inside. You attempted to escape the vehicle by kicking and punching the windows. This, again, was a brazen offence involving a threat of actual violence to a female victim. Were it not for the quick thinking of the victim, I have no doubt that you would have committed the offence of aggravated robbery. I would assess this offence as in the mid-range of such offences.
52. Police arrived and removed you from ES's car. You struggled as you were taken to the
ground and handcuffed. You were highly erratic and yelling, “[w]ho are you?” at police.
Police searched you and found a red coloured multitool pocket knife on you.
Moral culpability
53. It was submitted on your behalf that your moral culpability for these offences is reduced because you suffer from mental disorders or impairments. It is, therefore, necessary to consider the evidence relating to these issues. A number of medical reports were provided to the Court at the sentence hearing addressing your history of mental illness and dysfunction.
54. The first report is dated 30 June 2016 and was provided by Dr Bree Wyeth, a Consultant Psychiatrist. Clearly this report was prepared for earlier proceedings in this Court. Dr Wyeth stated that you appear to have a long history of repeated offending and a history of substance abuse from your early teenage years. You were assessed as having a psychotic illness and possibly a mood disorder. Dr Wyeth noted that there was an established link between psychotic illness and violent offending, but no evidence of a link between such illness and crimes of dishonesty.
55. A report dated 3 June 2019 was provided by Dr Richard Furst, a Forensic Psychiatrist. Dr Furst had access to the AFP Statement of Facts, extensive medical records relating to your mental health, as well as sentencing remarks by Refshauge J from 2016. Dr Furst stated that you meet the criteria for diagnosis of the following psychiatric illnesses or disorders: schizophrenia, substance use disorder involving opiate dependence and methylamphetamine abuse, personality disorder with antisocial and borderline traits, and traumatic epilepsy arising from head injuries sustained in 2017 and 2018.
56. Dr Furst noted that your schizophrenic illness has been longstanding and has been exacerbated and maintained by non-compliance with antipsychotic medication and by the effects of your chronic drug use. Dr Furst stated that it appears that you relapsed into using drugs, especially heroin, in the weeks prior to your arrest in June 2018 and that the 2018 offences were committed in an effort to support your heroin addiction. He notes that pain and headaches from which you suffered at that time may also have contributed to your use of heroin. Dr Furst said that there was little doubt that you were aware that your actions were wrong.
57. It is significant that Dr Furst regarded your long-term addiction to drugs as being a maladaptive means of coping with severe childhood abuse and neglect and a means of coping with the symptoms of chronic schizophrenia. Dr Furst opined that you are likely to remain functionally impaired by your schizophrenic illness over future years and institutionalised. He stated that you have limited insight into your illness and treatment needs, and that you have serious addiction illness, personality deficits and trauma issues underlying your mental illness and addictions. These factors suggest that you will require long-term assertive psychiatric follow-up and other interventions. You are at high risk of further relapses of your schizophrenic illness if you are not adequately treated.
58. A Forensic Mental Health Report dated 2 August 2019 from Dr John Kasinathan, a Senior Consultant Forensic Psychiatrist, was also provided. You told Dr Kasinathan that you denied using illicit drugs at the time of the 2018 offences. I am satisfied that this was not true. With regard to the offences of 18 May 2019 he said that you believed
that “winged people were chasing [you]” and you thought that your “wife was at risk”.
You said that you know that it was not real and you had a seizure or a fit.
59. Dr Kasinathan noted that such an explanation for your conduct was not consistent with the nature of your criminal offending prior to 18 May 2019, which appeared to be goal directed. He expressed the opinion that you were not suffering from a mental illness at the time that he saw you and that previously diagnosed Schizoaffective Disorder or Amphetamine-Induced Psychotic Disorder appeared to be in remission since 2015. He did not believe that a sentence of imprisonment would be more onerous for you because of any mental health condition.
60. Finally, a report dated 29 January 2020 from Dr Sally McSwiggan was tendered. Dr McSwiggan interviewed you on 16 December 2019 and had access to ACT medical records from 2006 to 2019, an earlier neuropsychological report dated 19 February 2019, a copy of the AFP Statement of Facts and a copy of the report of Dr Furst.
61. Dr McSwiggan undertook a comprehensive review of the material. She stated that you have an established diagnosis of Schizophrenia and a Substance Use Disorder which was currently being treated by methadone. She believed that your use of illicit substances likely exacerbated your psychotic illness. She questioned the diagnosis of Post-Traumatic Epilepsy and considered that your mild variable executive dysfunction is more typical of prolonged drug and alcohol abuse, in addition to the cognitive impairment associated with chronic psychotic illness.
62. Dr McSwiggan noted your report of experiencing psychotic phenomena on 18 May 2019. She did not have a record of the result of any blood tests undertaken at that time and was, therefore, unable to say whether there was any exacerbation of your schizophrenic illness by reason of ingestion of illicit drugs. Without the appropriate toxicology, the role of drug induced psychosis could not be eliminated. She said that schizophrenia or psychosis of any duration does not represent a known symptom of brain injuries or seizure disorders.
63. Dr McSwiggan stated that your mild dysexecutive symptoms more likely than not contribute, in some part, towards your impulsive behaviour. She considered it unlikely that you suffered a seizure on 18 May 2019 which exacerbated your psychosis.
64. She noted that your substantial custodial history puts you at risk of becoming institutionalised, and that your use of illicit substances may be better controlled in a custodial setting given your consistent use of medication in such an environment. She believed that your mental illness would likely make you more vulnerable within the general custodial setting at times.
65. In that regard I note, though, on 20 September 2018 you were the subject of an assault involving boiling water by another inmate at the AMC. There is, however, no clear indication that this assault was in any way connected with your underlying mental illness.
Consideration
66. I observe that there is significant evidence before me that your childhood was marred by abuse and neglect. You were the subject of violence from time to time. You commenced illicit drug use at an early age. Your father also suffered from schizophrenia. I have no doubt that the effects of your childhood and your genetics have contributed to the onset of your psychotic illness. In turn, your history and your psychotic illness contributed to your commencement of illicit drug use at an early age.
67. I am satisfied that some reduction of your moral culpability for these offences is justified because of your mental illness and its effect upon your ability to make rational judgements about your behaviour.
68. It is difficult to determine to what extent you were suffering psychotic symptoms on 18 May 2019. Some aspects of your behaviour, as demonstrated in the CCTV footage of those offences, are suggestive of some form of mental dysfunction. On the other hand, at least some of the offending on that day appears to have been goal directed. For example, in the dry cleaners you searched around the till area suggesting that you were looking for money.
69. In any event, I am satisfied that the connection between your mental illness, your drug addiction and your offending is such that there should be some reduction in your moral culpability, whether you were suffering psychotic symptoms on 18 May 2019 or not. For this reason, there should also be a moderation of both general and specific deterrence as sentencing considerations.
70. I accept that you suffer from seizures brought on by mild traumatic brain injuries but the evidence does not support the proposition that your seizures or brain injuries directly contributed to the commission of any of these offences.
Subjective features
71. Three Pre-Sentence Reports were prepared for the sentence hearing. The first such report was dated 28 March 2019. That Report notes your disadvantaged childhood and your commencement of drug abuse at an early age. It further notes that you commenced operation of a landscaping business prior to being remanded in custody in June 2018. That Report notes that you were subject to drug testing in the Alexander Maconochie Centre (AMC) on two occasions, each test being positive for methamphetamine.
72. The second Report is dated 15 June 2020. That Report states that you had demonstrated poor behaviour whilst in custody. It also noted that you have been in a relationship for approximately two and a half years and you intended on residing with your partner and daughter when you are in the community. Your partner verified that you would be able to reside with her and your daughter, but she reported concerns relating to your brain injury and how this impacted your decision-making. She believed that you would benefit from abstaining from illicit drugs. The Report also refers to your history of drug abuse and mental illness.
73. You claim to have no recollection of the offences before the Court and attributed the offending to a serious head injury and being under the influence of heroin. You were assessed as a medium to high risk of general re-offending.
74. The third Report is dated 23 September 2020. This Report notes that you are 32 years old and that you continue to claim to have no recollection of the offences before the Court. You continue to be assessed as a high risk of general re-offending, whilst acknowledging that it is positive that you have the support of your partner who is a prosocial influence.
75. While it is heartening to note that you have prosocial influences in your life, your prospects for rehabilitation must still be regarded as guarded, based upon your criminal history and your history of drug abuse. Undoubtedly your prospects for rehabilitation would be greatly enhanced by addressing your drug addiction and by consistently accepting treatment for your mental health conditions.
76. I take into account the letter dated 2 April 2019 from your partner which speaks of the efforts that you made in 2018 to avoid contact with former associates to lead a prosocial life with her and to commence your own business. She refers to your ongoing seizures and the effects that your traumatic brain injuries have had upon your life. She clearly continues to provide you with support. I note that she has attempted to maintain contact with you in the AMC, but this has not always been easy or practical because of COVID-19 restrictions. I will take into account in sentencing you that your ability to have contact with your partner and your daughter will be restricted for that reason.
77. You have a very significant criminal history which disentitles you to any leniency in the present proceedings. On 13 July 2016 you were sentenced to terms of imprisonment totalling three years by Refshauge J on Commonwealth offences of dishonesty: R v Thorn [2016] ACTSC 217. That sentence commenced on 9 December 2015 and was to expire on 8 December 2018. You were released on 12 July 2017 by way of a Commonwealth recognizance release order to be of good behaviour for a period of two years. You breached that order by committing the offences for which you are now before the Court.
78. A period of 1 year, 4 months and 27 days remains to be served of that sentence. As at 28 September 2020, you had spent 781 days in custody awaiting sentence so that the sentences I impose will commence on 9 August 2018.
79. Regarding the offences of 7 and 24 May 2018 and those of 8 June 2018, I will reduce the otherwise appropriate sentences by approximately 10 per cent to reflect your pleas of guilty.
80. With regard to the offences of 27 June 2018 and 11 May 2019, I will reduce the otherwise appropriate sentences by approximately 20 per cent because of your pleas of guilty.
81. With regard to the offences of 17 and 18 May 2019, I will reduce the otherwise appropriate sentences by approximately 25 per cent because of your pleas of guilty.
Sentence
82. I record a conviction for the offence of burglary on 7 May 2018 (CC2018/7984). You are, therefore, in breach of the orders made by Refshauge J on 12 July 2017. I revoke the Commonwealth Recognizance Release Order and order that you be imprisoned for that part of the sentence that was suspended by his Honour, being a period of 1 year, 4 months and 27 days. That sentence will commence on 9 August 2018 and expire on 4 January 2020.
83. I decline to make a further Recognizance Release Order as immediately after the expiration of the sentence you will be serving sentences of imprisonment for the ACT offences of 2018 and 2019.
84. For the offence of burglary which occurred on 7 May 2018, you are sentenced to one year and nine months' imprisonment, commencing on 9 August 2019 and expiring on 8 May 2021. I have reduced this from two years' imprisonment because of your plea of guilty.
85. On the associated charge of theft, being charge CC2018/10152, you are convicted and sentenced to two months' imprisonment, commencing on 9 August 2019 and expiring on 8 October 2019, reduced from three months because of your plea of guilty.
86. On charge CC2018/7968, a charge of burglary on 8 June 2018, you are convicted and sentenced to one year and nine months' imprisonment, which I have reduced from two years because of your plea of guilty. That sentence will commence on 9 February 2020 and expire on 8 November 2021.
87. On charge CC2018/11749, a charge of burglary on 8 June 2018, you are convicted and sentenced to one year and nine months' imprisonment, which I have reduced from two years because of your plea of guilty. That sentence will commence on 9 August 2020 and expire on 8 May 2022.
88. On the associated charge of damaging property, CC2019/3932, you are convicted and sentenced to three months' imprisonment, which I have reduced from four months because of your plea of guilty. That sentence will commence on 9 August 2020 and expire on 8 November 2020.
89. On charge CC2018/8344, a charge of riding in a motor vehicle without consent on 27 June 2018, you are convicted and sentenced to five months' imprisonment, which I have reduced from six months because of your plea of guilty. That sentence will commence on 9 February 2022 and expire on 8 July 2022.
90. On charge CC2018/8342, a charge of theft on 27 June 2018, you are convicted and sentenced to five months' imprisonment, reduced from six months because of your plea of guilty. That sentence will commence on 9 March 2022 and expire on 8 August 2022.
91. On charge CC2018/14803, a charge of theft on 27 June 2018, you are convicted and sentenced to five months' imprisonment, reduced from six months because of your plea of guilty. That sentence will commence on 9 April 2022 and expire on 8 September 2022.
92. On charge CC2018/14804, a charge of theft on 27 June 2018, you are convicted and sentenced to five months' imprisonment, reduced from six months because of your plea of guilty. That sentence will commence on 9 May 2022 and expire on 8 October 2022.
93. On charge CC2019/5044, a charge of obtaining property by deception, I record a conviction and you are sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 September 2022 and expire on 8 November 2022.
94. On charge CC2019/5043, a charge of obtaining property by deception, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 September 2022 and expire on 8 November 2022.
95. On charge CC2020/2926, a charge of minor theft, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 October 2022 and expire on 8 December 2022.
96. On charge CC2020/2925, a charge of minor theft, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 November 2022 and expire on 8 January 2023.
97. On charge CC2020/2924, a further charge of minor theft, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 December 2022 and expire on 8 February 2023.
98. On charge CC2020/2927, a further charge of minor theft, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 January 2023 and expire on 8 March 2023.
99. On charge CC2020/2928, a further charge of minor theft, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 February 2023 and expire on 8 April 2023.
100. On charge CC2019/5465, a charge of resisting, you are convicted and sentenced to four months' imprisonment, reduced from five months because of your plea of guilty. That sentence will commence on 9 March 2023 and expire on 8 July 2023.
101. On charge CC2019/8739, a charge of obtaining a financial advantage, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 June 2023 and expire on 8 August 2023.
102. On charge CC2019/5467, a charge of possession of a stolen number plate, you are convicted and sentenced to 14 days' imprisonment, reduced from 21 days because of your plea of guilty. That sentence will commence on 9 June 2023 and expire on 22 June 2023.
103. On charge CC2019/8740, a charge of having a wrong number plate on a vehicle, you are convicted and there will be a Good Behaviour Order for a period of 30 days commencing on 18 November 2020. There will be no conditions other than the core conditions.
104. On charge CC2019/5676, a charge of attempted robbery, you are convicted and sentenced to 15 months' imprisonment, reduced from 20 months because of your plea of guilty. That sentence will commence on 9 July 2023 and expire on 8 October 2024.
105. On charge CC2020/3423, a charge of taking a motor vehicle without consent, you are convicted and sentenced to six months' imprisonment, reduced from eight months because of your plea of guilty. That sentence will commence on 9 May 2024 and expire on 8 November 2024.
106. On charge CC2019/6635, a charge of theft, you are convicted and sentenced to five months' imprisonment, reduced from seven months because of your plea of guilty. That sentence will commence on 9 May 2024 and expire on 8 October 2024.
107. On charge CC2019/6636, a charge of obtaining property by deception, you are convicted and sentenced to two months' imprisonment, reduced from three months because of your plea of guilty. That sentence will commence on 9 May 2024 and expire on 8 July 2024.
108. On charge CC2019/5677, a charge of dangerous driving as a repeat offender, you are convicted and sentenced to five months' imprisonment, reduced from six months because of your plea of guilty. That sentence will commence on 9 August 2023 and expire on 8 January 2024. You will be disqualified from holding or obtaining a licence for a period of 12 months.
109. On charge CC2019/5679, a charge of attempted robbery, you are convicted and sentenced to 15 months' imprisonment, reduced from 20 months because of your plea of guilty. That sentence will commence on 9 September 2023 and expire on 8 December 2024.
110. On charge CC2019/5683, a charge of attempted robbery, you are convicted and sentenced to 15 months' imprisonment, reduced from 20 months because of your plea of guilty. That sentence will commence on 9 October 2023 and expire on 8 January 2025.
111. On charge CC2019/5682, a charge of theft, you are convicted and sentenced to one
month’s imprisonment, reduced from two months because of your plea of guilty. That
sentence will commence on 9 October 2023 and expire on 8 November 2023.
112. On charge CC2019/6634, a charge of affray, you are convicted and sentenced to three months' imprisonment, reduced from four months because of your plea of guilty. That sentence will commence on 9 October 2024 and expire on 8 January 2025.
113. On charge CC2020/3426, a charge of attempting to take a motor vehicle without consent, you are convicted and sentenced to three months' imprisonment, reduced from four months because of your plea of guilty. That sentence will commence on 9 October 2024 and expire on 8 January 2025.
114. On charge CC2020/3424, a charge of attempting to take a motor vehicle without consent, you are convicted and sentenced to three months' imprisonment, reduced from four months because of your plea of guilty. That sentence will commence on 9 November 2024 and expire on 8 February 2025.
115. On charge CC2020/3425, a charge of attempted aggravated robbery, you are convicted and sentenced to 18 months' imprisonment, reduced from two years because of your plea of guilty. That sentence will commence on 9 March 2024 and expire on 8 September 2025.
116. The effect of the sentences which I have imposed is as follows:
• you are liable to serve a term of 1 year, 4 months and 27 days' imprisonment from 9 August 2018 until 4 January 2020, which is the period of custody that remained to be served on the orders made by Refshauge J on 12 July 2017; and • you are liable to serve an aggregate term of six years and one month imprisonment for the 2018 and 2019 offences, commencing on 9 August 2019 and expiring on 8 September 2025. 117. I will set a non-parole period commencing on 9 August 2019 and expiring on 8 March 2023.
I certify that the preceding one hundred and seventeen [117] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.
Associate:
Date:
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