R v Wickes
[2018] ACTSC 225
•17 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wickes |
Citation: | [2018] ACTSC 225 |
Hearing Date: | 17 August 2018 |
DecisionDate: | 17 August 2018 |
Before: | Elkaim J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally causing damage to property – use an offensive weapon likely to endanger human life or cause grievous bodily harm - aggravated burglary |
Legislation Cited: | Crimes Act 1900 (ACT) s 27(3)(c) Criminal Code 2002 (ACT) ss 312 and 403(1) |
Cases Cited: | R v Lindley-Jones [2014] ACTSC 296 R v Martin [2007] VSCA 291; 20 VR 14 |
Parties: | The Queen (Crown) Benjamin John Wickes (Offender) |
Representation: | Counsel Mr D Swan (Crown) Mr S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 88 of 2018 |
ELKAIM J:
On 20 April 2018, the offender pleaded guilty in the ACT Magistrates Court to the following four charges:
(a)Damaging property (CC 2018/2415), contrary to s 403(1) of the Criminal Code 2002 (ACT). The maximum penalty for the offence is 10 years’ imprisonment and/or a fine of $150,000.
(b)Two charges of using an offensive weapon likely to endanger human life or cause grievous bodily harm (CC 2018/2416; CC 2018/2417), contrary to s 27(3)(c) of the Crimes Act 1900 (ACT). The maximum penalty for the offence is 10 years’ imprisonment.
(c)Aggravated burglary (CC 2018/3735), contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for the offence is 20 years’ imprisonment and/or a fine of $300,000.
On 15 May 2018, I referred the offender to Restorative Justice. On 15 August 2018, a letter was received from the Restorative Justice Unit stating that the “matter is not suitable to progress at this time”.
The offender was born in 1992 in Canberra. He had a stable upbringing and remains close to his parents and siblings.
The offender left school after Year 10 and then completed a plumbing apprenticeship. He worked in this occupation for eight years but then lost his licence and commenced work as a scaffolder. He worked notwithstanding a drug and alcohol dependency. He suffered a shoulder injury in 2017 which resulted in him taking five months off work.
The offender seems to have begun drinking heavily after the breakdown of a relationship when he was 21 years of age. At the same time he began using cocaine on a daily basis. A drug abuse screening test earlier this month indicated a severe level of drug related abuse requiring intensive assessment.
The offender is presently participating in the Solaris Therapeutic Community Program in the prison. He is waiting for admission to a Drug Rehabilitation Centre.
The offender has been assessed as having a medium to low risk of reoffending, primarily because of his supportive family and insight into his offending behaviour. As with so many cases of this type, his reoffending is likely to be dictated by his capacity to control his drug and alcohol intake.
The offender has a criminal record. It is fairly wide ranging in the offences that have been committed and the offender has clearly struggled to maintain his capacity to be a law-abiding citizen.
The current offences occurred in February this year. The offender went to a residence occupied by a young family. He opened a security door and smashed a number of glass panels on the main door. An occupant of the house sustained a cut to his left shin caused by flying glass. The offender sustained a number of cuts as a result of breaking in and spread his blood through the house.
The offender forced his way into the residence. In the kitchen he took hold of a large knife causing the residents to fear for their safety. He took hold of a child aged six and threatened the child’s mother with the knife. He then ran out of the front door, screaming. He was arrested a short time later.
This brief description does not encompass the absolute terror that was experienced by the family.
It is difficult to understand the motives for the offences. They are probably attributable to the influence of drugs and alcohol. Dr Furst, a forensic psychiatrist says:
His heavy and regular use of cocaine impacted on his emotional state and capacity for work, Mr Wickes feeling anxious and increasingly paranoid, to the point that he would be unable to attend work on occasions.
Dr Furst describes a psychotic episode suffered by the offender in September 2017. He says the offender’s “erratic and paranoid behaviour on 04/02/18” was a psychotic episode.
The doctor says that “Psychosis is generally considered to be a mental condition/illness that is accompanied by delusions and/or hallucinations.” He says that there is “little doubt he was suffering a substance-induced psychosis” when the offence occurred. The offender’s belief that he was being followed and was in danger led to him breaking into the house in Griffith.
The doctor concludes that:
the presence of his substance-induced psychotic disorder, which was triggered by the use of cocaine, mitigates against the seriousness of his actions, as his irrational delusional and paranoid thinking prevented him from making rational decisions and exercising self-control.
It is important to remember that whatever mitigation there may have been for the offender’s conduct, it does not mitigate the experience endured by the family.
I also note that the offender’s drug use or mental state did not afford him any defence to the charges.
What is more certain is the absolute terror that the young family experienced, in particular as the offender wielded a knife while holding a six-year-old child.
The offender has made positive efforts towards addressing his drug and alcohol problems and it is to be hoped that these efforts will continue, especially with the support of his family. His rehabilitation must play a part in my approach to his sentence. I intend to allow a shorter than usual non-parole period. It is also necessary to take into account the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also important because it says a person should not be sent to prison other than as a last resort.
At the same time I must recognise that at least the offensive weapons charges are objectively serious. They involved the use of a large knife and threats to a six-year-old child. I would describe the aggravated burglary as being of medium objective seriousness.
A family in its home is entitled to feel safe. It is true that thefts and burglaries from a home are unfortunately too common. This does not excuse them. This case has the added element of the terrifying threats.
The effects on the family are evident from the Victim Impact Statements made by the parents. The father states:
because of a decision that you made, you have shattered our family home, our family security, our family trust in our community, our family privacy and our family health and well-being. Your decision has impacted our lives - which will never be the same again.
He goes on to describe the traumatic effects on his daughter. He says:
she still will not to be in any room in the house alone. She is always scared now and comes into our room most nights. We have had to change the house around so that she has a different bedroom away from the door, but this has not really improved things. Night time is the worst. She has become withdrawn and depressive…She does not feel safe in her own home - a home that we have worked really hard to build for our family.
The statement concludes in this way:
Our lives are now damaged and, despite all the effort and cost we have gone through to clean up from your attack, our beautiful home is now filled with horrific memories and we may need to sell up and move away - placing further strain and cost on our already heavily traumatised family.
Many of the father’s statements are equally reflected in the Victim Impact Statement of his wife. She has also had to deal with the offender holding a knife to her throat while she was forced to sit on his lap. She says she has been diagnosed with Post-Traumatic Stress Disorder and has undergone months of hospitalisation for counselling. The effects have been both personal and financial.
In a measure of her personal decency and humanity the mother has this message for the offender:
Do your time in jail. Get help. Come out someone who doesn’t need drugs. Make a positive contribution to society and live a happy, long life, surrounded by love and support. You’re only young and you’ll still have your whole life ahead of you. This incident does not define you. People change.
I can only hope that the offender takes note of her exhortations.
I do however accept that he has shown considerable remorse for his actions. His letter of apology reflects this sentiment as does his willingness to participate in Restorative Justice.
The offender pleaded guilty to the offences at the earliest opportunity. There was, however, an overwhelming Crown case. I assess the discount at approximately 20%, arising from his pleas. I have said “approximately” to allow for some rounding off.
The seriousness of the offences makes imprisonment inevitable. No other submissions were made. It was suggested that an Intensive Corrections Order could be made. I disagree. In particular the provisions of s 11(1)(b) of the Crimes (Sentencing) Act 2005 (ACT) relating to the effect on a victim makes this an inappropriate path to take.
The Crown suggested that the previous psychotic episode should be treated as having been a warning to the offender of the possibility of another episode. While I agree that this is the case, I do not regard it as an aggravating factor in the sentencing process. The offender did attempt to enter rehabilitation after the first episode and that episode had not involved any violence. This is a very different case to R v Martin [2007] VSCA 291; 20 VR 14 where there had been a long history of hospital admissions following psychotic episodes.
I did gain guidance from some of the cases referred to me on behalf of the offender, in particular R v Lindley-Jones [2014] ACTSC 296, R v Minnis [2014] ACTSC 268 and R v Seears [2015] ACTSC 109.
All cases are of course different and must be judged on their particular facts. What distinguishes this case is the extensive effects upon the victims. In particular, the mother has been hospitalised for mental health treatment for Post-Traumatic Stress Disorder.
The offender has been in custody since his arrest on 4 February 2018. The sentences that I impose will be backdated to this date. All of the offences arise from the same criminal enterprise so that I think there should be a significant, but not complete, degree of concurrency.
I make the following orders:
(a)In respect of the offence of damaging property (CC 2018/2415), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months) to commence on 4 February 2018 and end on 3 November 2018.
(b)In respect of the offence of use an offensive weapon likely to endanger human life or cause grievous bodily harm (CC 2018/2416), the offender is sentenced to two years’ imprisonment (reduced from two years and six months) to commence on 4 February 2018 and end on 3 February 2020.
(c)In respect of the offence of use an offensive weapon likely to endanger human life or cause grievous bodily harm (CC 2018/2417), the offender is sentenced to two years’ imprisonment (reduced from two years and six months) to commence on 4 February 2018 and end on 3 February 2020.
(d)In respect of the offence of aggravated burglary (CC 2018/3735), the offender is sentenced to three years’ imprisonment (reduced from three years and nine months) to commence on 4 February 2019 and end on 3 February 2022.
(e)The head sentence is four years commencing on 4 February 2018 and ending on 3 February 2022.
(f)I set a non-parole period of two years to expire on 3 February 2020.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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