R v Warne; R v M C-N (No 2)
[2022] ACTSC 128
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Warne; R v M C-N (No 2) |
Citation: | [2022] ACTSC 128 |
Hearing Date: | 31 May 2022 |
DecisionDate: | 1 June 2022 |
Before: | Walmsley AJ |
Decision: | See [75] – [76] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary – damaging property – theft – offenders found guilty at jury trial – co-offender pleaded guilty before trial – further offences committed while on bail for trial offences – aggravated robbery – drive motor vehicle without consent – serious offences but offenders’ role significantly less than co-offender – powerful subjective cases – sentences of imprisonment the only appropriate outcome – sentences of imprisonment imposed – good behaviour order for period of suspended sentence – reparation order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 12, 13, 19, 133G Criminal Code 2002 (ACT), ss 310, 318 |
Cases Cited: | Bugmy v R [2013] HCA 37; 249 CLR 571 |
Parties: | The Queen (Crown) Alexander Warne (Offender) M C-N (Offender) |
Representation: | Counsel D Swan (Crown) J Pappas (Alexander Warne) J Sabharwal and J Cooper (M C-N) |
| Solicitors ACT Director of Public Prosecutions (Crown) Hugo Law Group (Alexander Warne) Tim Sharman Solicitors and Aboriginal Legal Service NSW/ACT (M C-N) | |
File Numbers: | SCC 246 of 2020 SCC 298 of 2020 SCC 75 of 2022 |
WALMSLEY AJ:
Introduction
Both offenders appear for sentence. Both were tried by jury in late February and found guilty by a jury on 3rd March 2022.
The jury found both offenders guilty of counts 1 and 2 on the indictment dated 11 March 2021. Mr C-N was also found guilty on the third count, and Mr Warne was found not guilty on count 3.
Count 1 averred they each entered or remained in a building, namely [REDACTED] as trespassers, with an intent to commit an offence involving causing damage to property and which was punishable by imprisonment for five years or longer, in company with one another and an unknown person and at the time they had offensive weapons with them. The offence carries a maximum sentence of 20 years or a fine of up to $300,000 or both.
Count 2 averred they caused damage to property belonging to someone else, namely Jacqueline Brown, intending to cause damage or being reckless about causing damage to that property or any other property belonging to someone else. The maximum sentence for the offence is 10 years imprisonment or $150,000 or both.
Count 3 averred the dishonest appropriation of property, namely a white Xbox One S gaming console and a glass smoking implement, belonging to Jacqueline Brown, with the intention of permanently depriving her of the property.
Mr C-N is also to be sentenced for two offences committed while on bail for the trial offences. The first was an aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT), with a maximum penalty of 25 years’ imprisonment or $400,000 or both, and the second was driving a motor vehicle without consent contrary to s 318 of the Criminal Code, for which the maximum penalty is five years’ imprisonment or $80,000 or both. A reparation order is sought for costs incurred by the victim of those offences.
Facts
The short facts of the two offences Mr C-N committed while on bail for the trial offences were that on 22 May 2021, the offender and two others approached Mr Adam Kille and a friend who were sitting in Mr Kille’s Jeep Wrangler. The offender produced a knife and demanded the keys and told them to leave the vehicle. They left. The offender drove off in the vehicle. The next day the vehicle was damaged when it collided with a cement bus stop.
Not only was Mr C-N on bail but the trial offences put him in breach of bonds with two suspended sentences. On 9 June 2020, Elkaim J had suspended a 12 months’ sentence for an attempted aggravated robbery provided the offender enter a good behaviour bond. On 6 July 2020 in the Magistrates Court, he had been sentenced for aid or abet an aggravated robbery and had a two-month sentence suspended on entering a good behaviour bond.
As appears below, I have set aside each bond and imposed the original sentences. Some time had passed between the date of the respective bonds (eight months on the 12 months long suspended sentence, a much shorter time for the other) and the date each bond was breached by the trial offences, but I have applied a high degree of concurrency with the trial offences.
Trial facts
The trial matters concern what must for the victims have been an extremely frightening home invasion. On 3 September 2020 each of these offenders, with two other people, one of whom was Mr Andy, the other whose name is not known, went to the victims’ home. The occupant, Ms Jacqueline Brown, was at home with her two children, aged one and seven years. She was in the kitchen when she heard a repeated smashing noise at the front door. She looked down the hallway and saw four people standing near her front door, three of whom were holding either a stick or a baseball bat. The glass panel beside the front door had been smashed. One of the intruders wore a face covering.
As is clear from their verdicts, the jury found beyond reasonable doubt that Mr Warne and Mr C-N had been two of the intruders. A significant Crown witness was the said Mr Andy, who had been the first one of the group to enter the house. He later pleaded guilty and as appears below, he received a significant reduction for his assistance.
When the men broke in, Ms Brown told her elder child to run out the back. Ms Brown took hold of her younger child and she also ran outside.
The intruders screamed abuse and damaged property, including walls, a tv and a toilet seat. Food was removed from the refrigerator and thrown about the kitchen floor. The trial photographs show a great deal of damage throughout the house.
Some of the intruders followed Ms Brown out the back of her house. One of them threw a stick at her.
The intruders then left. As they did so, one of them stole an Xbox gaming console and a glass bong.
CCTV cameras at Mr Andy’s home in the Queanbeyan suburb of Karabar showed Mr Andy with Mr C-N and another person, arriving at Mr Andy’s home 40 minutes after the offending. Two baseball bats and a hammer were removed from the car.
Police later seized the baseball bats and hammer. DNA on a baseball bat matched that of Mr Andy.
Mr Andy gave evidence to the jury from which I conclude he was the principal instigator of the trial offences.
The background to the offending was, I conclude, that the night before these events Ms Brown’s boyfriend Mr Buckley, had had a few drinks and decided he would drive to the home of Kirstie Gardiner, with whom Mr Warne was in a relationship and warn her off hurting Ms Brown, with whom Ms Gardiner had recently been in a relationship. He did this at midnight. Ms Gardiner had a number of children living with her. Mr Buckley had a Bowie knife with him. He knocked on the door and asked if Ms Gardiner was available. People in the house started yelling. He yelled from the front door “Stay away from my family or else”. Then he drove off in his ute.
Mr Buckley’s conduct that night caused offence and alarm in the Gardiner household.
Mr Andy, who was or regarded himself as a brother-in-law to Ms Gardiner, was told about the offending conduct which he understood to have included threats to her children. He decided to engage in a show of force by going to Ms Brown’s home, where he believed Mr Buckley was staying.
He selected some accompanying implements, being the hammer and several baseball bats, and placed them in his car.
Mr C-N, [REDACTED], lived nearby. Just after he took off from home Mr Andy noticed Mr C-N walking along and asked him to come along with him.
Mr Andy drove first to Kirstie Gardiner’s home in the Canberra suburb of Taylor. Mr Warne was present. Mr Andy had the view Mr Warne was somewhat cowardly since he had not tried to avenge the wrong.
Shortly before the trial, Mr Andy told the Director of Public Prosecutions that shortly before he set off to visit Ms Brown’s home that day his partner had told him “Kirstie and the kids have just had their lives threatened and Alex [meaning Mr Warne] just stood there like a bitch.”
Mr Andy, who was in the witness box for quite a while, is a bellicose and intimidating man. He is older and larger than Mr Warne. He persuaded him to accompany him on the raid. He told the jury that he did not believe in getting police involved in this type of matter.
Although ultimately Mr Warne made a decision to go with him, I am satisfied Mr Andy was the instigator of the invasion and put heavy persuasion on Mr Warne to go with him. Further, Mr Warne joined the group late, just before they left to go to Ms Brown’s home.
I find that Mr Warne accompanied Mr Andy when the group arrived, and entered the house after Mr Andy, and that he later threw a stick at Ms Brown. At trial, identification was the issue in Mr Warne’s case. But Ms Brown had had a short relationship with Mr Warne shortly before the trial. She was very firm in her evidence which I am satisfied the jury accepted, that he was one of the intruders.
I find Mr Warne’s role was significantly less than that of Mr Andy.
As for Mr C-N I find his role was also significantly less than that of Mr Andy although he did carry and use a baseball bat to damage property. Though I find, as counsel for the offender, Mr Sabharwal, submitted, he really had no interest other than to follow [REDACTED] along.
Victim impact statements
The Crown read two victim impact statements yesterday.
The first was one from Ms Brown, whose home was invaded and damaged by the group led by Mr Andy. Her statement gives a moving account of the impact caused by the shocking invasion of her home and the resultant after effects of it on her life and her psyche.
Also in evidence was a victim impact statement from Mr Kille, the victim of Mr C-N’s aggravated robbery and car theft. He described the extremely frightening events when his car was stolen from him at knife point, and his dismay on later learning the vehicle had been extensively damaged.
I have taken the respective statements into account in accordance with the relevant principles.
Objective seriousness
The two offences for which Mr Warne was found guilty were serious examples of those offences. However, his joining of the group was spontaneous after significant persuasion by Mr Andy, and it was Mr Andy brought the weapons and the car. Mr Andy had made a trip from Queanbeyan, a considerably greater distance than the few hundred meters Mr Warne travelled. The presence of the children increased Ms Brown’s vulnerability. The victim impact statement speaks for the impact on Ms Brown. Mr Warne’s role was significantly less than that of Mr Andy.
As for Mr C-N all three offences he committed were also serious. However, I find he also was influenced by Mr Andy [REDACTED]. His role was also much less than that of Mr Andy. He joined spontaneously and there is no evidence he took part in any planning. Nor, unlike Mr Andy, did he have any axe to grind. He was, as the Crown put it in his opening to the jury, a misguided teenage boy, just along for the ride. As to count 3, the property was of low value and I am satisfied that the theft was an impulsive act.
As to the two offences Mr C-N committed on 22 May 2021, they were also significant examples of those offences, the value of the vehicle being particularly significant.
Subjective circumstances
Both offenders have powerful subjective cases. Counsel for both conceded, however, that only a term of imprisonment was an appropriate outcome.
Mr Warne
Mr Warne is aged 33. He has a number of matters on his ACT and New South Wales criminal records, but none since 2013. His record permits some, though not much, leniency.
Mr Warne has served two periods of custody for these matters, the trial matters. As of yesterday, when I heard sentencing submissions, he had served 166 days. I have backdated his sentence to 16 December 2021 by reference to that period.
In evidence was a pre-sentence report as part of the Crown documents. Also in evidence was a report his solicitors obtained, from Dr Cristian Torres, clinical psychologist.
There was no objection to either document and the contents are in general consistent with each other. I am satisfied the history obtained from Mr Warne is true.
It is clear from those reports that Mr Warne has suffered very significantly throughout his life due to the circumstances of his birth. He is Aboriginal. He was adopted at six weeks and had loving and caring adoptive parents. But he discovered at 18 that he was the product of an incestuous relationship. It is hard to understand how anyone could not have struggled to adjust to such information.
His adoptive mother died when he was 22 but he is still close to his adoptive father. He had other struggles when young, including bullying when in primary school.
He did not complete the Higher School Certificate exams but at times has considered he should study law as a mature age student. Dr Torres finds that a reasonable ambition.
He set up a business five years ago with a garden franchise and this was successful, even with the struggles of COVID-19.
He told Dr Torres that when he was in Marlow Cottage, [REDACTED].
He has a lengthy history of mental health issues including with depression and anxiety. He is taking anti-depressants at the moment. He feels he needs psychological support. He has had cognitive behavioural therapy with some improvement. He began using cannabis at 18 and used it a lot thereafter.
He continues to deny he committed these offences. That denial does cast a shadow on his rehabilitation prospects but he is an unusual man.
Dr Torres does not think he has post-traumatic stress disorder. However, he thinks he has suffered a major depressive disorder in the past. He says his current mental state includes mild symptoms of depression which do not rise to the level of a clinical depressive episode. He thinks he has symptoms consistent with a borderline personality disorder which he thinks would explain long standing problems with interpersonal and intimate relationships.
Discovering he was a child of incest at 18, Dr Torres says, would have had a significant impact on his sense of self.
Dr Torres says the offender also meets the diagnostic criteria for cannabis use disorder and that when he committed the offences he was likely suffering cannabis use disorder.
Dr Torrres says the offender would benefit from clinical intervention including working with a suitable clinician.
In evidence was a number of letters from highly educated members of the community who speak extremely well of him. They show, I am satisfied, that these offences were not characteristic.
According to the pre-sentence report, he is employed in custody. The authors say he has been assessed as of low medium risk of reoffending. They describe mental health counselling he might benefit from. He has also been assessed as suitable for community service.
Although he denies the offences, still I find he has reasonably good prospects of rehabilitation. He is obviously intelligent and has goals which I consider are realistic based on what I have read.
The Crown emphasised the s 7 of the Crimes (Sentencing) Act 2005 (ACT) matters, such as protecting the community, denunciation, recognising harm, and submitted no term other than fulltime imprisonment would be appropriate. In particular, since this had been raised by Mr Pappas for Mr Warne, the offending was too serious for any term of imprisonment to be served by way of intensive correction order even if otherwise qualifying. The Crown also emphasised general and specific deterrence. All of these factors I have taken into account.
Mr C-N
Under s 133G of the Crimes (Sentencing) Act, I have concluded no penalty other than imprisonment is appropriate. And because he was under 18 at the time of the trial offences, I cannot impose a non-parole order for offences committed when he was under 18.
Mr C-N is aged 19. [REDACTED].
In evidence was a psychological report from Vanessa Edwige. It shows the offender has a sad history of neglect, growing up in violence, observing his mother throw knives at his father, and later stabbing his father. As a child, he was often left with people he did not know when his mother was at her most troubled, He would sleep with a knife next to his pillow in case someone touched him. His father would also be in and out of gaol when he was young. He went into care at 11. His father, who died in 2019, was part of the Stolen Generation.
The offender started smoking marijuana at 12.
He experienced considerable racism at school. His impoverished upbringing had a causal relationship with his current state, according to Ms Edwige.
She also says he meets the criteria for unspecified trauma and stressor related disorder and would have at the time of his offending.
Further, she concludes his conduct is a direct result of the childhood trauma.
In evidence were significant testimonials including from a former fellow prisoner who runs a successful Canberra business and will employ him when he is again in the community.
He has some family support which bodes well for his otherwise questionable rehabilitation prospects. His counsel told me he accepts responsibility for his offending.
I find the principles set out in Bugmy v R [2013] HCA 37; 249 CLR 571 are engaged in this case. His moral culpability is accordingly reduced and he is a less suitable vehicle for general deterrence.
As to the aggravated robbery and driving offence to which he pleaded guilty at an early stage, he is entitled to a 25 percent deduction.
He has served 117 days in custody for these charges and 161 for time served after his arrest for the robbery on 23 May 2021. As of 1 June 2022, he will have served a total of 279 days in custody for outstanding matters and I have backdated his sentences to 26 August 2021 to give credit for that time.
Parity
Mr Andy pleaded guilty to the three offences for which Mr C-N was found guilty and provided assistance to the Crown in the trial of Mr C‑N and Mr Warne.
Before he agreed to give evidence for the Crown, Mr Andy was given indicative sentences by Murrrel CJ as her Honour then was, as follows. On count 1, a starting point of 33 months, reduced for the plea of guilty to 28 months. On count 2, a starting point of 22 months, reduced for the plea of guilty to 15 months. On count 3, one month.
After the trial, he was sentenced with regard for his assistance. The description of his role before her Honour seemed somewhat at odds with his role as evidenced at the trial. However, credit for his assistance was provided by a partial suspension of sentence. By dint of some concurrency and accumulation the total period of imprisonment imposed was two years and six months.
Mr Andy’s criminal history was far more significant than that of Mr C‑N and significantly more extensive than for Mr Warne. He was 38 at the time of the offending and his record included a significant history of violence, especially domestic violence. He was on a community corrections order at the time of this offending and he offended again after the trial offences. But there was evidence before her Honour that he is an Aboriginal man who suffered profound childhood disadvantage and was subjected to [REDACTED] and childhood exposure to drug use.
Orders
In relation to Mr Warne, the orders of the Court are:
1.As to count 1, the offender is convicted and sentenced to a term of imprisonment of two years to date from 16 December 2021 to 15 December 2023.
2.As to count 2, the offender is sentenced to a term of imprisonment of one year to date from 16 June 2023 to 15 June 2024.
3.The total sentence is two years and six months.
4.I set a non-parole period of 15 months to date from 16 December 2021 to 15 March 2023.
In relation to Mr C-N, the orders of the Court are:
1.I cancel the good behaviour order imposed on CH2020/494 and sentence the offender to a term of 12 months’ imprisonment to date from 26 August 2021 to 25 August 2022.
2.I cancel the good behaviour bond imposed on CH2019/903 and sentence the offender to a term of two months’ imprisonment to date from 26 August 2021 to 25 October 2021.
3.In relation to the aggravated robbery and car offence which occurred on 22 May 2021 (CC2022/351), the offender is convicted and sentenced to a term of imprisonment of two years to date from 26 February 2022 to 25 February 2024.
4.In relation to the drive motor vehicle without consent (CC2022/352), the offender is convicted and sentenced to a term of imprisonment of six months to date from 26 August 2023 to 25 February 2024.
5.In relation to count 1 on the indictment, the offender is convicted and sentenced to a term of imprisonment of 20 months to date from 26 July 2023 to 25 March 2025.
6.In relation to count 2 on the indictment, the offender is convicted and sentenced to a term of imprisonment of nine months to date from 26 June 2024 to 25 March 2025.
7.In relation to count 3 on the indictment, the offender is convicted and sentenced to a term of imprisonment of one month to date from 26 February 2023 to 25 March 2025.
8.The total sentence is 3 years and 7 months, from 26 August 2021 to 25 March 2025.
9.Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), I make a suspended sentence order suspending the sentence on 25 August 2023 after the offender has served two years.
10.Pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT), I make a good behaviour order for the period during which the sentence is suspended. As part of the good behaviour order, I impose a supervision condition whereby the offender must comply with all reasonable requirements of the Director‑General for the period of the suspended sentence.
11.Under s 19 of the Crimes (Sentencing) Act 2005 (ACT), I make a reparation order that the offender pay into court $320 for locksmith services incurred by Mr Kille.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Walmsley. Associate: Date: 2 June 2022 |
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