R v Watson
[2020] ACTSC 21
•7 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Watson |
Citation: | [2020] ACTSC 21 |
Hearing Date(s): | 29 January 2020 |
DecisionDate: | 7 February 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [98] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – offender subject to a supervised bail order at the time of the offences |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 33, 35, 63, 71 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Criminal Code 2002 (ACT) s 312 |
Cases Cited: | Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 Blundell v The Queen [2019] ACTCA 34 Butters v R [2010] NSWCCA 1 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Brooks [2008] VSCA 253 Fusimalohi v The Queen [2012] ACTCA 49 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Hogarth v The Queen [2012] VSCA 302 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Mun v R [2015] NSWCCA 234 O’Brien v The Queen [2015] ACTCA 47 R v Bandy [2018] ACTSC 261 R v BC [2019] ACTSC 233 R v Collier [2019] ACTSC 358 R v Harrison [2002] NSWCCA 79; 121 A Crim R 380 R v Lockwood [2018] ACTSC 288 R v Meyboom [2012] ACTCA 48 R v Mumberson [2011] NSWCCA 54 R v Pham [2015] HCA 39; 256 CLR 550 R v Salcedo; R v Stratton (No 3) [2018] ACTSC 305 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 Saga v Reid [2010] ACTSC 59 Thompson v The Queen [2018] ACTCA 2 Van Zwam v R [2017] NSWCCA 127 Veen v R (No 2) (1988) 164 CLR 465 White v The Queen [2016] NSWCCA 190; 216 A Crim R 302 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Joshua Watson (Offender) |
Representation: | Counsel K Lee (Crown) M Jones (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (Offender) | |
File Number(s): | SCC 166 of 2019 |
Introduction
On 26 November 2019, Mr Joshua Watson (the offender) pleaded guilty to an offence of aggravated burglary contrary to section 312 of the Criminal Code 2002 (ACT) (Criminal Code).
The charge on the indictment is that [the offender] remained in a building… as a trespasser with intent to commit theft of any property in the building in company with [the co-offenders] and at the time they had an offensive weapon with them.
The maximum penalty for aggravated burglary is imprisonment for 20 years, a fine, or both.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms Exhibit 1.
On 10 January 2019, the offender, and Sharon Ann Stott, Dean Reid, David Evans, and Norman Collier attended Oaks Estate. Ms Stott wanted to speak to Michael Goward (the victim) who resided there.
Ms Stott understood that the victim had a gun and she wanted to get it. Her co-offenders were aware of this. She had explained to them that she wanted them to get the door open. Ms Stott knew, due to their recent history, that the victim would not let her into his unit, but she believed he would let the others in.
The offenders arrived at the victim’s building at around 6:13pm. Mr Collier and the offender went to the victim’s unit and Mr Collier spoke to him through the locked screen door. The victim would not let them in and they left, returning a short time later with Mr Reid and Mr Evans. The offender pushed the doorbell and then walked away. Mr Reid spoke to the victim through the screen door and he was allowed to enter. The other men followed him in.
The victim had been holding a kitchen knife for his protection. Once inside, Mr Reid disarmed him of the knife and seized its control, pushing the victim to the floor in the process. Mr Reid then held the knife to the victim’s throat, made various threats to him and later stabbed him in the left thigh. Mr Evans began striking the victim’s right leg with an electric guitar that he had found inside the premises, breaking the victim’s leg. At some point, one of the co-offenders picked up a metal bar and hit the victim in the right leg with it.
At around 6:20pm CCTV captured Ms Stott entering the victim’s unit with her phone in her hand. At this point the victim was still on the floor of the unit with Mr Reid holding a knife to his throat. All five of the offenders continued to remain in the unit without the victim’s permission.
Once inside, Ms Stott said “Where’s the guns, I want the fucking guns!” in an aggressive manner. Mr Collier found various gun parts in the victim’s bedroom and handed them to Ms Stott. She wrapped them in a blanket.
CCTV captured all of the offenders leaving the victim’s unit at around 6:39pm. Mr Collier is seen carrying laptops, Ms Stott is seen carrying the gun parts wrapped in a blanket, and Mr Watson is carrying a steel bar. Police and ambulance services attended a short time later.
In taking the steel bar without the victim’s consent, the offender took advantage of the circumstances to commit theft. These circumstances included the presence of the co-offenders, and the presence of a knife. The offender did not have permission to remain in the victim’s unit, and he did not have permission to take the steel bar.
Victim Impact Statement
In evidence before me were three Victim Impact Statements. The Victim Impact Statement written by the victim was read onto the record by the prosecution at the sentence hearing of one of the co-offenders (T 38-40, 26.11.19) and tendered in these proceedings. The two other Victim Impact Statements were written by the victim’s partner and his daughter. They were also tendered but not read onto the record.
The extent of the impact upon the victim was made clear by the Victim Impact Statements. The tender of the Victim Impact Statement of the victim by the prosecution is important. Courts know the extremely serious effects of an offence such as this. Nevertheless, it is valuable to hear the words of the victim.
In written submissions counsel for the offender acknowledged that the Victim Impact Statement of the victim refers to the significant, long term impacts of the offences, and particularly the assaults have had on the victim. It also noted, that similarly to R v Collier [2019] ACTSC 358 (Collier), the Victim Impact Statement does not directly address the impact of the offence of aggravated burglary or the theft of the steel bar (T 19.41-47 ; 20.35-47; DWS 2.[5]).
The court acknowledges the significant impact that the offence has had and continues to have on the victim.
Objective Seriousness
Under s 312 of the Criminal Code the aggravating circumstances are either commission of the offence in company or with an offensive weapon.
Counsel for the offender
Counsel for the offender submitted that the offender’s role was the most minimal of all of the five participants, and that there was nothing in the agreed facts which would suggest the offender was the “instigator of the incident” (WS 1.[4]; T 19.15-16). It was submitted that the CCTV footage and the agreed statement of facts demonstrate that it was the other co-offenders who took the lead at various times, and that the offender took on a “following role” (T 18.33-47; 19.1-20). Counsel contrasted the objective seriousness of this offence against that which had been outlined in the sentencing remarks with respect to one of his co-offenders in Collier at [16]-[23]. Mr Collier also pleaded guilty to an aggravated burglary offence. It was submitted that in Collier the offence was found to be of mid-range, and that the item stolen by the offender in the present case “would have had less of an impact on [the victim] and was likely to have been of lesser value” (WS 2.[6]).
It was conceded by counsel for the offender that the offender did take advantage of the circumstances of violence and the victim’s serious injuries to commit the theft with which he has been charged (T 19.5-15). Counsel submitted that the value of the metal bar which was taken by the offender could be assumed to be of a lower value than the laptops which were taken by Mr Collier, while also accepting that the value of the items is “not a fundamental concern in this case” (T 20.4-7) Counsel for the offender’s ultimate submission with respect to the objective seriousness of the offending was that it was in the mid-range (T 21.30-35)
Counsel for the prosecution
Counsel for the prosecution submitted that the offences were statutorily aggravated for two reasons: the offence was committed in company (with four others); and at the time of the offence there was an offensive weapon present (PWS 1.[4]). It was submitted that in considering the ‘in company’ aspect the number of co-offenders was relevant as: “viewed from the perspective of the victim, being confronted by more than one person will have an additional element of coercion or intimidation; and viewed from the perspective of the offender, to have an associate present may embolden or reassure the offender in committing the offence” (quoting Basten J in White v The Queen (2016) A Crim R 302 at [14]).
Counsel for the prosecution submitted that the Court should take into account that “the offence occurred in the context of a home invasion, as this forms part of the circumstances of the case”. Counsel submitted that the prosecution was not suggesting that the circumstances were as serious as those in which the offender had perpetrated the violence and made threats against the victim. The prosecution submitted that the context in which the offence occurred nevertheless remained an important and relevant factor (PWS 2.[7]).
Counsel for the prosecution “effectively agreed” (T 29.20-25) with Counsel for the offender’s concession in oral submissions that the offender’s situation and Mr Collier’s were “broadly similar” (T 28.45). Counsel for the offender was “not submitting that [the offender’s] situation was such that it should tip into a lesser sentence” (T 28.43-45). Counsel for the prosecution noted that there were slight differences between that of Mr Collier and the offender, but also submitted beyond objective seriousness and into the subjective factors that there were “factors that pull the other way” which might affect how much of the sentence is to be served in the community or in custody (T 29.20-40). It was submitted that there was “an unfortunate history of non-compliance with community-based orders… listed in the pre-sentence report and there is also further non-compliance referred to by the pre-sentence report author while in custody” (T 30.4-7).
Counsel for the prosecution submitted that while the offender was not liable for the injuries inflicted on the victim, he did take advantage of the victim being in a severely injured state, which had rendered him vulnerable and helpless. It was submitted that this vulnerability allowed the offender to more easily commit the offence. The submissions acknowledged that the value of the item taken by the offender was unlikely to be very high, however it was the terrifying experience of having the offence committed in one’s home, and the violent context which was said to be a significant factor in this matter (PWS 3.[12]-[13])
Consideration
Taking all relevant matters into account I find the offences to be of mid-range.
Nevertheless, it must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]).
In this case I accept the identifying features outlined by the prosecution in regard to objective seriousness.
Subjective Circumstances
In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender. The offender is a thirty-six-year-old man and was raised in Canberra by his parents who remain married. He is the youngest of four children and described a happy childhood.
The PSR states that the offender has been married to his wife for approximately 4 years, however they have known each other for over 20 years. He described her ongoing and positive support for him. They have three boys together aged fourteen, eleven, and ten years. I note that the reference letter from Mrs Watson states they have been married for 6 years. I also note that the letter from Mrs Watson states their children’s ages as 14, 11, and 8 years old.
While Mrs Watson has visited the offender in the AMC frequently and remains supportive of him, she wants the offender to take some time to make personal improvements before she will accept him back into their family. She described the offender as an attentive and loving father when not using illicit substances. She does not want him engaging with the children while continuing to use drugs. Counsel for the offender submitted that the weekly attendance of his wife and children at the AMC has reinforced his intention “to go on the straight and narrow once he is released” (T 22.45-23-03).
The offender attained his Year 12 Certificate and then immediately entered the workforce, where he worked a variety of short-term labouring positions. He then became a stonemason and worked in that industry with a company for approximately ten years. His drug use escalated near the end of this employment at that company, which led to his employer telling him to take some time away from work to seek help with his drug use. The offender joined another stonemasonry company prior to his remand in custody and has been advised that he can have his job back once he is released.
The offender’s imprisonment has had an impact on his wife and three children. The rental accommodation where they had been living was lost, and they have since been living in a community refuge. The offender’s wife has indicated that she will not have the offender back to live with her until he has demonstrated his ability to live without using drugs. The offender has registered with ‘Throughcare’ and the PSR indicates that assistance could be provided to the offender with respect to community housing options (DWS 4.[12]-[13]). Ultimately both the offender and his wife wish to reconcile and live together again as a family.
In oral submissions counsel for the offender raised a number of objections to some of the information contained in the PSR (T 9-11). The objections were in relation to the disciplinary breaches said to have occurred while in custody, and the author of the report’s assessment of the offender’s attitude to his offending (in particular his tendency to minimise his offending), and his drug use.
The offender began consuming alcohol and cannabis in his teenage years but did so rarely in recent years. He began using methylamphetamine in 2016. The offender informed the author of the PSR that “his use of this substance slowly increased over time and acknowledged his use of the substance was ‘out of control’ in the months preceding his arrest.” Counsel for the offender submitted that it was notable that the offender’s abuse of methylamphetamine was relatively short lived for a man of his age (DWS 4.[11]). Counsel for the offender also submitted that his frank admissions with respect to his drug use immediately preceding the offence demonstrates that he was not attempting to minimise his drug use (T 14.35-45; 15.1-15). It was submitted that the offender had instructed counsel that he had been abstinent from drug use in the ten months he had been in custody at that time (T 38.19-20).
The PSR noted that while remanded at the AMC in relation to this offence the offender has been subject to disciplinary action on a number of occasions, relating to refusal to complete urinalysis as directed and other matters including possession of contraband, assaulting another detainee, refusing to obey directions from custodial staff, hiding contraband and refusing to produce it when directed to do so, and swallowing a concealed item after being directed to remove it from his mouth.
Counsel for the offender submitted that the contraband matter related to a tattoo machine which was found in the cell which he shared with another person. Because of this the contraband was attributed to both people in the cell (T 9.21-30). It was submitted that the hiding of contraband was a separate matter to the possession of the tattoo machine and was never proved despite a strip search and being placed in his own cell for two days. It was submitted that the offender does not dispute that the refusal to undergo urinalysis and to obey the directions from custodial staff (T 9-10.28-47; 1-15).
The PSR also indicates that the offender “advised that he has a wide social network of friends and acquaintances, acknowledging that many continue to use illicit substances or are otherwise involved with the criminal justice system”. Counsel for the offender submitted that the offender denies indicating this and that his comment was taken out of context. It was submitted that his association with these people related to his imprisonment and that he has no intention to continue to maintain these relationships once he is released (T 10.30-40)
Counsel for the prosecution’s submissions drew the Court’s attention to the offender’s refusal to provide a sample for urinalysis while in custody as noted in the PSR. It was submitted that the offender’s refusal to comply indicated a minimisation or “playing down” of his drug use while in the AMC (T 30.4-45). It was submitted by the prosecution that the offender’s refusal to undergo urinalysis has left his claims of abstinence within the AMC incapable of being verified as accurate (T 30.25-35). It was submitted that his history of non-compliance and his behaviour in custody are matters which should be taken into account when determining whether it is appropriate to suspend any custodial sentence imposed and for how long (T 30.37-41).
Counsel for the prosecution also tendered a PSR dated 26 September 2017 for a limited purpose. It was submitted to be relevant to the offender’s current subjective circumstances (T 6.15-20). The earlier PSR was submitted to be relevant to the protective factors (the offender’s prospects of employment and family relationships) set out in the most recent report. It was submitted that these protective factors existed when the offender was sentenced for his previous offences, but they had not been strong enough to dissuade him from breaching good behaviour orders or committing the current aggravated burglary offence (T 31.15-25).
It was submitted by counsel for the prosecution that the earlier PSR was also tendered to demonstrate the offender’s attitude to his offending. It was said to demonstrate that there is still a lack of insight into the seriousness of the offending. It was submitted that the prosecution’s concern was that “when one does not realise how serious their offending is, they are not necessarily deterred from repeating that type of offending” (T 34.14-30).
Other matters including remorse and minimisation
The PSR notes that although the offender generally agreed with the Police Statement of Facts, he minimised his own culpability and failed to display any victim empathy. When asked about how he found himself involved in the situation detailed in the statement of facts, he stated that he did not know what was going to happen at the victim’s home, or the intentions of his co-offenders. The PSR notes that throughout the interview in relation to the report the offender minimised his own actions, played down his drug use, the issues with his wife, and his own behaviour within the AMC.
Counsel for the offender submitted that the ‘Police Statement of Facts’ referred to in the PSR contained a number of assertions about the offender’s conduct which were not contained within the prosecution’s brief of evidence and had not formed part of the agreed statement of facts (T 11.1-25). Counsel for the prosecution accepted that there was no evidence in the brief which supported these assertions (T 11.29-31). It was submitted by counsel for the offender that what the PSR had characterised as minimisation was in actual fact the offender making statements which were consistent with the facts to which he had pleaded, and for that reason did not indicate minimisation (T 11.33-44).
Counsel for the prosecution did not cavil with this particular submission (T 12.40) but did rely on other factors which were said to indicate minimisation (T 12.25; T 34.23-27). Counsel submitted that the offender’s statement that he did not know what was going to happen and how it was going to unfold, placed in the context that he remained in the victim’s unit and continued to participate demonstrated minimisation and a lack of insight into his offending (T 34 35-36). In response to this submission counsel for the offender submitted that this “does not, of necessity, need to be interpreted as a minimisation, because it’s consistent with the statement of facts” (T 37 28-33).
Counsel for the offender also submitted that the author of the PSR had not asked the offender how he felt about the victim, so he was not “given any opportunity to say expressly how he felt.” It was submitted that the offender does not, and did not wish harm upon the victim (T 12.45-47; 13.1-2). It was submitted that the offender did take advantage of the violence inflicted upon the victim, however he did not foresee or inflict that violence upon him and that he does feel sorry for the victim (T 13.4-12).
The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 (Mun) at [36] ; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v R [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse. Accordingly I do not ascribe significant weight to the remorse expressed. As to minimisation, I accept that minimisation has not been established to the requisite standard in light of the question of the different statements of facts.
I note that the offender does not dispute refusing to undergo urinalysis on 28 April 2019 (T 10.10-15; 14.35-40; 30.28-35.)
Conditional Liberty
The offender was subject to a supervised bail order at the time of the offences. Further breach action was initiated within two weeks of his release to this order after he failed to attend scheduled supervision appointments. He was arrested and remanded in custody on 10 March 2019 and has remained at the AMC since that date.
R v Tran [1999] NSWCCA 109 at [15] (Wood CJ):
Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.
The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.
References
In evidence before me were two references in support of the offender, which included the following:
(a)A letter from the wife of the offender, dated 26 November 2019, which included:
My name is … I am Joshua Watson’s wife. Joshua and I have been together for 19 years and married for 6 years. Joshua and I have 3 beautiful boys together aged 14, 11, 8.
I met Joshua when we were 15 years old. Josh and I immediately bonded. Josh has suffered from depression on and off throughout our relationship.
Joshua is a talented, smart, loving, supportive, fun, happy, outgoing man. Josh has always supported myself and our 3 boys, through working as a very talented stone mason. Josh has built stone walls all over Canberra, to which we are so proud.
Joshua is an absolute loving, proud father who has always put myself and children first. Joshua and I separated in 2016 as he began using ice. In 2017 Josh was incarcerated, throughout our time at AMC, we reconciled our relationship. When Josh was arrested in March 2019 it was so devastating to myself, our three boys, but mostly himself as he felt he had let us down. I have and will continue to support Josh as I know who he is inside and I only want to see Josh live a full and happy life with me and our kids.
I believe that Josh with the support of his family he can get his life back on track and be involved in his family’s life as he was for over 10 years and be the loving hard working father.
Josh has expressed to me how deeply sorry he is for putting himself into this situation and potentially ruining his life. Josh is aware of the impact this has caused upon his family, and feels horrible he has made the choices he did. I take the children to see Josh every weekend at AMC, and each visit it breaks his heart knowing he has missed out on so much of the boys lives.
Upon Josh’s release Josh will continue to work as a stone mason and support his family once again. I am more than happy to assist [him] with driving him to and from job sites, appointments, and anywhere else he needs to go.
Joshua is an important part of our family and we will continue to support him and push for the man we know him to be, a loving father and a husband…
…
(b)A letter from the offender’s former employer dated 24 January 2020, which included:
This letter is to confirm that [the offender] has fulltime work with my company… upon his release from AMC. [The offender] has worked with myself in the past on and off for about 5 years. [The offender] has my full support with any parole / meeting etc and we are looking forward to having him back on board.
I take these references into account on sentence. I note in particular the existence of a supportive family and the availability of employment.
Criminal History
The offender has a criminal history, including convictions and periods of custody for numerous driving offences. The record includes assault occasioning actual bodily harm in 2016, and possession for supply of a drug of dependence in 2017.
It was submitted by the prosecution that the recency and frequency of the offender’s breaches of good behaviour orders was concerning and that there was “an unfortunate history of non-compliance with community-based orders” (T 20.1-5). It was submitted that the offender has been given a number of opportunities in the past to complete sentences in the community and has not been able to avail himself of them (T 34.5-15).
In written and oral submissions counsel for the offender noted that the bulk of the offender’s criminal history relates to driving offences. It was conceded that these were fairly serious driving matters (T 22.10-15). It was noted that the only offence of dishonesty on the record is from a Childrens Court matter in 2001 (T 16.5-10; DWS 2-3.[7]).
Plea of Guilty
The offender entered a plea of guilty on the first day of trial. Counsel for the offender submitted that this was the first day that the prosecution had offered the plea to this charge, and noted that in Collier the discount awarded for a plea on the same day was 10 percent (DWS 5.[14]).
Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [41]-[48].
I take into account the matters in section 35(2)(a)-(e) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). See also Blundell v The Queen [2019] ACTCA 34 (Blundell) at [17]:
Another matter that is significant in this case is that, where negotiations result in a plea, it is not relevant to consider any benefit to the offender associated with the Crown abandoning particular charges. In relation to charges that are not pursued, it must be assumed that the offender was not guilty and therefore gained no advantage by the withdrawal of the charges. In this case, there were eight such charges.
In Blundell the court also stated that the primary consideration is the utilitarian value of the plea, which largely depends on the timing of the plea at [16]:
[Toumo’ua] emphasises that the primary consideration is the utilitarian value of a plea, which largely depends on the timing of the plea. It clarifies that, if an offender accepts a belated Crown offer to proceed on fewer charges, then the offender’s acceptance of the offer is not a plea at the earliest reasonable opportunity such as would entitle the offender to a 25% discount. In other words, ‘the clock starts ticking’ when the offender is first charged, not when the Crown first makes the offer that ultimately resolves the proceedings. The position may be otherwise if, at an early stage, the offender has offered to plead on a basis that is ultimately accepted by the Crown.
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
Taking into account the authorities I will therefore allow a 10 percent discount for the plea of guilty.
Time in Custody
The offender has been in custody since 9 March 2019 until 8 September 2019 in relation to his possession for supply of drugs conviction in 2017 and his subsequent driving offences. The offender has been held in custody solely in relation to this offence since 9 September 2019.
Counsel for the prosecution and the offender both made submissions with respect to the date at which the sentence for this offence should begin. In written submissions counsel for the prosecution submitted that the sentence imposed for the aggravated burglary should be backdated to commence on 9 September 2019 [PWS 9-8.[36-37]. This position was not maintained in oral submissions, where it was conceded that some concurrency would be appropriate (T 26.1-5; 36.10-15) albeit with a significant proportion of accumulation (T 36.35-45; 37.1-5). The prosecution referred to O’Brien v The Queen [2015] ACTCA 47 at [26] with respect to the well-known and settled principles in relation to the fixing of sentences for multiple offences and the consideration of totality (T 36.20-45). In response to the prosecution’s original written submissions, counsel for the offender submitted that this position does not take into account the principles of totality (DWS 5.[16]). Counsel for the offender submitted that the Court has the discretion to order that sentences be served cumulatively or concurrently (s 71 Sentencing Act) and that it may direct that a sentence be served concurrently or consecutively, or partly concurrently or consecutively with any existing sentence (s 71(2) Sentencing Act) (DWS 5.[17]).
Counsel for the offender submitted that the Court has a discretion to backdate the sentence it will impose for this offence (s 63(1) Sentencing Act), taking into account any period for which the offender has already been held in custody for the offence (s 63(2) Sentencing Act). Counsel for the offender submitted that the offender was taken into custody in relation to this offence has been in custody in relation to that offence since that date, bail having been refused. It was submitted that his custody has also been referable to the sentence imposed by Burns J on 8 April 2019 and backdated to commence on 9 March 2019.
Counsel for the offender cited the authority of Mill v The Queen (1988) 166 CLR 59 to support the proposition that “the totality applies equally to where a person is being sentenced to more than one sentence of imprisonment in separate sentencing hearings and where the sentences are imposed in one sentencing proceeding.” (DWS 5.[19]) It was submitted that the Court is required to consider the total sentence and that sentences for offences which took place on certain dates can be served partly concurrently to ensure the totality of the sentence is appropriate (DWS 5.[19]).
The offender has spent approximately 5 months in custody from 9 September solely referable to this offence.
Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
I was referred to the comparable case of R v Lockwood [2018] ACTSC 288 (Lockwood) by both parties. Both parties acknowledged that the circumstances in Lockwood were different to the present case. Counsel for the offender submitted that in Lockwood the offender had taken part in threats of violence and participated in demanding money and property from the victim (DWS 5.[20]). It was submitted further that the subjective features in Lockwood were not present in relation to the offender in this matter (DWS 5.[20]).
Counsel for the prosecution also made submissions in relation to Lockwood, noting that there were some similarities in the factual circumstances to the present case, in that it had involved an offender being permitted to enter a victim’s house, other men then entering, and the victim then being assaulted with items of low value being taken from them (PWS 4.[14]). The prosecution conceded that Lockwood could be distinguished on the basis that, in that case, the offender had engaged in violence himself and accepted that it “may only be of limited utility” for that reason (PWS 3.[14]).
Counsel for the prosecution cited passages from DPP v Brooks [2008] VSCA 253 (Brooks) and Hogarth v The Queen [2012] VSCSA 302 (Hogarth) noting that both judgments had been referred to in R v Salcedo; R v Stratton (No 3) [2018] ACTSC 305 (Salcedo). Brooks and Hogarth both addressed the serious violation of privacy and safety associated with the invasion of a home.
Counsel for the prosecution referred to O’Brien v The Queen [2015] ACTCA 47 at [26] in which the Court of Appeal summarised the relevant principles:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
Counsel for the prosecution submitted that the most applicable of these principles to the present case was paragraph (d) in the passage quoted above (T 36.38-40).
Parity
The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:
[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).
The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32].
In evidence before me I have the sentencing remarks and criminal history of the co-offender Mr Collier. Mr Collier was sentenced to 18 months imprisonment. That sentence commenced on 2 July 2019 taking into account time served, and will end on 1 January 2021. The sentence was suspended after 6 months in custody on 1 January 2020 subject to a 12-month good behaviour order under the supervision of corrective services.
Counsel for the prosecution submitted that the offender’s role in the incident was similar to that of Mr Collier’s with the following exceptions: that Mr Collier went into the victim’s bedroom to retrieve gun parts which he then gave to Ms Stott and the value of the steel bar taken would be less than the two laptops taken by Mr Collier (PWS 3-4.[16]).
Counsel for the prosecution submitted that the different subjective factors between the two offenders would also need to be considered. The differences which the prosecution identified were the offender’s history of difficulty with respect to compliance with supervised court orders, and his disciplinary record since being remanded in custody (T 30.4-10). The prosecution also noted that the PSR had placed the offender at a “medium to high risk of general re-offending with his primary factors attributed to his illicit substance use, unstable accommodation, lack of family support and his attitude and orientation towards his offending behaviour”. It was submitted that these matters would be relevant to how the sentence imposed on the offender should be served (T 29.38-40).
In written submissions counsel for the offender submitted that whilst Mr Collier was younger than the offender, he had a more serious criminal history than the offender. In oral submissions counsel conceded that both offenders had spent time in custody, and that neither had offending on their criminal history which was similar to the offending currently before the Court. Ultimately, counsel for the offender conceded that both co-offenders were in a broadly similar position with respect to their relevant criminal histories (T 27.10-40; 28.1-15).
In sentencing the offender I take into account the principles of parity, noting the difference in ages and additionally noting the differences and similarities in the subjective circumstances of the co-offenders including the more recent non-compliance with orders by the offender.
The prosecution conceded in relation to parity that what was at issue was the question of at what point to suspend the offender’s sentence (T 32.20-40).
Statutory and Other Relevant Considerations
In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations.
On the evidence it must be said that the prospects for rehabilitation remain guarded. Nevertheless, the Court acknowledges and takes into account that the process of drug rehabilitation is not linear: R v BC [2019] ACTSC 233; Saga v Reid [2010] ACTSC 59. Counsel for the prosecution properly conceded that this was so (T 31.35-46).
In Hogan v Hinch [2011] HCA 4; 243 CLR 506 French CJ made it clear that rehabilitation is in the public interest (at [32]):
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].
The Court must take into account totality in relation to the previous sentence and total period in custody: Mill v The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic [2016] ACTCA 53 at [71]; O’Brien v The Queen ACTCA 47.
The prosecution conceded a small partial concurrence would be appropriate in the following terms (T 26.1-5; 36.45-47; 37.1-5):
Her Honour: So small partial concurrency and certainly not total concurrency, but a significant proportion of accumulation.
Prosecution: Yes, your Honour. That would be my submission.
In Lockwood at [51], I noted the following with regard to the offence of burglary:
There is a “significant range of available sentences” for burglary, though they are “generally within the range of imprisonment for from one year to two years and six months”: Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]-[32]; Millard v The Queen [2016] ACTCA 14 at [44]-[45].
The offender has pleaded guilty to the aggravated charge.
In Veen v R (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions (See also R v Bandy [2018] ACTSC 261; R v Miller [2018] ACTSC 244):
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
Members of this community are entitled to feel and remain safe in their homes and the Courts must play their part through the sentencing process to ensure that this right is vindicated: (Brooks at [22]) As I stated in Collier at [71]:
That is the case whether or not the charge is aggravated burglary or home invasion. Nevertheless, I note in that regard that the offender is charged with aggravated burglary and not home invasion as such.
I take these principles into account on sentence.
Sentence
It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him. Both the short and long-term consequences of being the victim of these offences must be acknowledged.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, and subjective matters. There is a somewhat unusual history in the sense of the offender being in a long-term stable relationship for approximately 20 years, three children, a career as a stonemason, and then a marked descent from 2016 in relation to the use of drugs.
The appropriate sentence for the offence of aggravated burglary (SCCAN 2019/3839) is 20 months reduced to 18 months on account of the discount for the plea of guilty.
For the purposes of totality discussed above the sentence will be partially concurrent.
Order
I make the following orders:
(a)I record a conviction in relation to the offence.
(b) In respect of the offence of aggravated burglary (SCCAN 2019/3839), the offender is sentenced to a term of 18 months of imprisonment, commencing on 9 July 2019 and ending on 8 January 2021.
(c)Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentence will be suspended from 9 March 2020 whereupon the offender will enter into a Good Behaviour Order for a period of 18 months and comply with his core good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), together with the following condition:
(i)To be subject on probation to the supervision of the Director-General of the ACT Corrective Services or their delegate and obey all reasonable directions of that person for that period of 18 months or such lesser period as may be deemed appropriate by the supervisor.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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