R v Williams (No 2)
[2020] ACTSC 280
•12 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Williams (No 2) |
Citation: | [2020] ACTSC 280 |
Hearing Dates: | 12 October 2020 |
DecisionDate: | 12 October 2020 |
Before: | Murrell CJ |
Decision: | The offender is sentenced to 42 months’ imprisonment with a nonparole period of two years. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of good behaviour order – Resentence – Attempted robbery – Robbery – Make demand with menace – Burglary – Minor theft – Attempted minor theft – Take motor vehicle without consent – Mental health condition |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing) Act 2005 (ACT) s 7 |
Cases Cited: | Fusimalohi v The Queen [2012] ACTCA 49 R v Goodge [2019] ACTSC 297 R v Williams [2019] ACTSC 298 |
Parties: | The Queen (Crown) Jesse Dean Williams (Offender) |
Representation: | Counsel S Saikal-Skea (Crown) J Campbell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 36 of 2019 SCC 155, 156 of 2020 |
MURRELL CJ:
Introduction
On 16 October 2019, I sentenced the offender for offences of attempted robbery and aggravated robbery (committed on 30 January 2018) and taking a motor vehicle without consent (committed on 2 February 2018). I imposed a total sentence of two years and nine months’ imprisonment, suspended from 16 October 2019 on two-year good behaviour orders: R v Williams [2019] ACTSC 298.
The commission of new offences on 10 March 2020 places him in breach of the good behaviour orders imposed in relation to the offences of attempted robbery and aggravated robbery.
On 10 March 2020, the offender committed the following offences:
(a)make demand with menace, contrary to s 32(2) of the Crimes Act 1900 (ACT), (maximum penalty of 10 years’ imprisonment);
(b)burglary, contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code), (maximum penalty of 14 years’ imprisonment, a fine of $224,000 or both); and
(c)take motor vehicle without consent (a Subaru vehicle), contrary to s 318 of the Criminal Code (maximum penalty of five years’ imprisonment, a fine of $80,000 or both).
In addition, he is to be sentenced for the following related offences:
(d)minor theft (keys), contrary to s 321 of the Criminal Code (maximum penalty of six months’ imprisonment, a fine of $8,000 or both);
(e)attempted minor theft (contents of a Mazda vehicle), contrary to s 321 of the Criminal Code (by virtue of s 44 of the Criminal Code, maximum penalty of six months’ imprisonment, a fine of $8,000 or both); and
(f)drive unlicenced, contrary to s 31(1) of the Road Transport (Driver Licencing) Act 1999 (ACT) (maximum penalty of a fine of $3,200).
Pleas were entered on 24 July 2020, the 11th mention in the Magistrates Court, following an initial plea of not guilty and after the provision of a brief of evidence. The entry of the pleas followed discussions between the parties. The appropriate discount for the pleas is about 20 per cent.
The offender has been in custody since 11 March 2020, and the sentences will date from that date.
Breach offences
On the evening of 30 January 2018, the offender attended the Red Rooster fast food establishment in Wanniassa and demanded money while gesturing towards his waistband, suggesting that he had a concealed weapon. The store manager seized a metal bar and the offender departed.
Soon afterwards, the offender approached a store attendant at Coles supermarket in Wanniassa, demanding money and threatening to stab her while at the same time revealing a knife tucked into his waistband. She gave him approximately $6,000.
In sentencing the offender, I noted his lengthy involvement with the criminal justice system in NSW and the ACT. I observed that, between 2011 and 2018 in New South Wales, he had been convicted of many dishonesty offences, including break, enter, and steal and aggravated assault with intent to rob, and offences of violence, including assault occasioning actual bodily harm. He had received several short sentences of imprisonment.
For offences committed in early 2018, he was sentenced to 14 months’ imprisonment from 5 February 2018 to 4 April 2019, with a nonparole period concluding on 16 September 2018.
The offender had experienced a chaotic and dysfunctional childhood. He had experienced learning difficulties and had received little formal education. However, in the Alexander Maconochie Centre, he had, at that stage, been working towards his Year 12 Certificate.
In the decision, I discussed the offender’s substance abuse and mental health problems. He had a history of alcohol abuse from 12 years of age, but there had been periods of abstinence of up to three years. He had begun to use methylamphetamine at 17 years of age. He had attempted residential rehabilitation but had failed to complete the Hope House therapeutic rehabilitation program in Batemans Bay. In custody, he had received counselling. He had experienced drug-induced psychosis.
At that stage, the Court did not have further information about the offender’s psychotic condition. For the purpose of the sentencing proceedings for the current offences, a report was furnished by Dr Danielle Clout, a clinical psychologist.
When I sentenced the offender in October 2019, I considered that his long-standing and well-entrenched alcohol and substance abuse problems meant that he required residential rehabilitation to set him on the path to recovery.
The sentences that I imposed were suspended to enable the offender to complete the Hope House program.
For the offence of attempted robbery, the suspended period was nine months (16 October 2019 to 16 July 2020), wholly concurrent with a suspended period of 20 months relating to the offence of aggravated robbery (16 October 2019 to 16 June 2021).
In January 2020, the offender was exited from the Hope House program for non‑compliance with the program and non-payment of rent. He failed to report to the Registrar and Community Corrections in person, as required by the good behaviour orders. On 12 February 2020, I issued a summons for him to attend court to answer to the allegations of breach of good behaviour order.
Today, pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I must cancel the good behaviour orders and either impose the suspended sentences or resentence the offender for the offences. I propose to resentence the offender to allow me to take into account the period that he spent at Hope House.
In accordance with custom, the offender should, at least, receive an allowance for the period of almost three months that he spent on the Hope House program. I will allow about 50 per cent of the time spent.
As the offender was on good behaviour orders in relation to the breach matters at the time when he committed new offences on 10 March 2020, the breach of good behaviour orders is an aggravating matter associated with the new offences, which also included offences of dishonesty and violence, i.e. offences in a similar category to the offences the subject of the good behaviour orders.
New offences
Make demand with menace and minor theft
At 8:55 AM on 10 March 2020, the complainant (T) went to his work vehicle, which was located outside Zone Bowling in Greenway. He observed he offender inside the vehicle, rummaging among items on the passenger seat. He told the offender to “get out” and then grabbed the offender by the shirt and pulled him from the vehicle.
The offender turned to the complainant holding a brown leather sheath that appeared to contain a large machete, which was pointed towards the complainant at hip level. The knife remained in the sheath. The offender repeatedly demanded the keys to the vehicle, but the complainant declined. The offender ran away.
The complainant observed that a large set of silver safe keys attached to a blue lanyard was missing from the inside of the vehicle.
Attempted minor theft
At 9:05 AM that morning, while the complainant (J) was at a parking ticket machine in Greenway, he turned to observe the offender in the driver’s seat of his vehicle. He ran back to the vehicle and told the offender to “get out”. After briefly “shaping up” towards the complainant, the offender ran off.
The complainant observed a brown leather sheath containing a large knife and a set of industrial keys on a blue lanyard (belonging to the complainant T) on the ground beside the driver’s door to his vehicle.
The offender was in possession of a makeshift breaking in implement.
Burglary
A short time later, witnesses observed the offender to enter the rear garage of a residence in Greenway and unload the contents of a shopping trolley into a white Honda vehicle at the residence. He entered the vehicle and began to pull cables from it. The owner of the vehicle, who had been in the residence, exited the residence and gave chase to the offender.
She saw him enter another vehicle, but he left that vehicle when he saw her.
She followed the offender to an apartment complex. He was holding a bag from which he withdrew a hammer. He threw the hammer backwards and ran off. She picked up the hammer.
The owner of the vehicle provided a victim impact statement in which she said that she now feels less secure in the community. The incident shook her confidence. One can well imagine that that would have been the case.
Take motor vehicle without consent and unlicenced driver
The complainant (S) left his apartment complex in Greenway in his Subaru vehicle. He stopped the vehicle to place rubbish in bins, leaving it idling. The offender entered the driver’s seat and locked the doors. He drove off, narrowly avoiding a collision with a police vehicle that was in the vicinity looking for the offender in relation to the earlier matters. The offender’s driver’s licence had been cancelled on 17 September 2019.
At 2 AM on 11 March 2020, police observed the Subaru vehicle driving in Canberra and pursued it to a townhouse complex. The vehicle was recovered.
The offender was arrested at 8:30 AM on 11 March 2020. He was behaving erratically. He told police that he was suffering from mental health and drug problems. He was deemed unfit to be interviewed.
Objective seriousness
Make demand with menace
The offence of making a demand with menace was an offence of moderate seriousness. The demand was made in person (not, for example, online). The offender gestured to the victim with what appeared to be a large knife in a sheath. On the other hand, the incident was brief, it occurred in a relatively public location, and it ended when the offender ran away.
The Court was referred to a number of cases that were said to be somewhat comparable, including R v Mailau [2018] ACTSC 187, R v Howsan (No 2) [2016] ACTSC 41, and R v Goodge [2019] ACTSC 297, and also to the ACT Sentencing Database, which shows that in the period to February 2019, 56 per cent of offenders received a sentence of imprisonment, and the sentences that were imposed in such cases were generally in the range of 12 months’ to three years’ imprisonment.
Burglary
The offence of burglary was towards the lower end of the range in terms of its objective seriousness. It involved entering a garage rather than the main part of a residence. It occurred in daylight in view of members of the public and occupants of the residence, and it was associated with minimal property damage and no property was taken as the offender was disturbed.
In the ACT, sentences for burglary are often in the range of one to two years and six months’ imprisonment: Fusimalohi v The Queen [2012] ACTCA 49 at [51] (Refshauge J). Information on the Sentencing Database for the period to February 2019 is consistent.
Take motor vehicle without consent
The offence of taking a motor vehicle without consent was a serious offence of its type. The vehicle was removed from the immediate possession of its owner and in dangerous circumstances; the vehicle narrowly avoided a collision with a police vehicle.
The Sentencing Database shows that 75 per cent of persons convicted of such offences received a sentence of imprisonment, often in the range of six to 12 months’ imprisonment.
Minor theft and attempted minor theft
The minor theft involved the theft of a set of keys. The attempted minor theft involved the offender looking for something inside the complainant’s vehicle. It was associated with a “shaping up”. The offender was in possession of a makeshift breaking in implement.
All offending occurred as part of the same course of criminal conduct. It was unsophisticated, brazen, and opportunistic.
The offender reported that, at the time of the offences, he was experiencing significant psychotic symptoms. He was following command hallucinations. The psychotic symptoms had been exacerbated by drug use and sleep deprivation.
Dr Clout opined that his judgment and insight were probably severely compromised, with his judgement being further impaired by heavy substance use in the preceding week. She said that delusions would have inhibited clear thinking, caused agitation, and increased disinhibition and impulsivity as well as impacting on the offender’s capacity to appreciate the wrongfulness of his behaviour. She stated:
His offending seems best understood as a result of pre-existing psychotic symptoms (including delusions and hallucinations) and the exacerbating impact of drug use. He acknowledged that his drug use exacerbates his delusions and hallucinations and worsens his conduct problems and behavioural dysregulation. It is likely that his drug use and associated consequences (i.e. sleep deprivation) contributed to the development of command hallucinations, which appear directly related to his offending. The presence of ongoing psychotic symptoms inhibits factors such as judgement and rationality and impairs decision-making. Aggressive and impulsive behaviours are also common in individuals with paranoid schizophrenia symptoms, and they present with limited insight and poor impulse control. Comorbidity with substance abuse exacerbates impulsivity and aggression, as well as impairments in judgment and decision-making. The relationship between Mr Williams’ mental health and drug abuse is complex and multifaceted, with his mental health increasing his vulnerability to drug abuse and contributing to his use of drugs as a maladaptive coping strategy for short-term relief. His drug use then exacerbates the symptoms and impairments related to his mental health and contributes to further antisocial behaviours and criminal activity.
On the other hand, it is also clear from Dr Clout’s report that the offender has insight into the link between his drug use and psychotic symptoms and does appreciate that drug use may well exacerbate psychotic symptoms.
I accept that the offender’s mental health condition reduced his moral culpability for these offences, but to a limited extent, because he was aware that his mental health condition is negatively impacted by drug use.
Subjective features
The offender is now 26 years old.
His substantial criminal history was discussed in the earlier decision.
The pre-sentence report indicates that, since being remanded in custody in March 2020, the offender’s behaviour has been poor. He has been subjected to disciplinary action on several occasions.
As canvassed in the earlier decision, the offender’s childhood was chaotic and dysfunctional. He witnessed alcohol abuse and frequent conflict between his parents, who divorced when he was about two years old. Later, he lived with his father, who subjected him to physical abuse when he was intoxicated. From nine to 12 years of age, he lived with his mother, after spending a brief period with his grandparents.
At 13 years of age, he returned to the care of his father, who had re-partnered with a woman with whom the offender did not enjoy a good relationship. The offender’s father and new partner were unable to cope with the offender’s antisocial behaviour. After the offender spent about six months in their household, he commenced a transient lifestyle, occupying group homes, refuges, and for substantial periods, juvenile detention facilities.
During his teen years the offender was subjected to significant abuse, which he has not fully discussed with a treatment provider and for which he has not yet been treated.
Recently, the offender separated from his partner of about four years because of the offender’s drug use and criminal activity. However, he speaks to her frequently. He is very close to her children, including her youngest son, whom the offender has known for most of the child’s life.
The offender has had a troubled relationship with his mother but, of recent times, he has reconciled with her, and she has been very supportive, recently assisting him to seek out appropriate rehabilitation options. When he is released from custody, the offender hopes to reside in the ACT with his brother.
From 12 years of age, the offender abused alcohol (binge drinking to blackout) and from 17 years of age, he abused methamphetamine (which he finds reduces his paranoia and anxiety), developing a very expensive habit. He has also used a variety of other illicit substances, including cannabis and heroin. Several attempts at residential rehabilitation have failed. Within the Alexander Maconochie Centre (AMC), the offender is now receiving buprenorphine injections because of opioid dependence, and he finds that treatment to be helpful. He considers that he needs a residential rehabilitation program that is “stricter” than that at Hope House.
The offender requires a residential rehabilitation that provides a dual diagnosis service. Such programs are difficult to identify and even more difficult to find a place on. The WHOS Program would be appropriate. Recently, the offender’s mother failed to obtain a place for the offender.
When he was evicted from Hope House in January, the offender sought help for drug addiction, approaching the Drug and Alcohol Service at the Canberra Hospital on several occasions in January and February 2020. He also attempted to find a place on the Wayback Drug and Alcohol Rehabilitation Program but was rejected because of his dual diagnosis.
The offender received limited education; he was educated only to about Year 5 level. He experienced learning difficulties and continues to experience literacy problems. He was expelled from school in Year 7. In custody, he has completed courses that may assist him to find employment when he is released. However, when in the community, he experiences severe anxiety and paranoia such that he does not feel comfortable leaving his home and turns to drugs to boost his confidence, with undesirable results. While in custody he has also undertaken several wellbeing programs.
There is a significant risk of reoffending. Risk factors include illicit substance use, mental health problems, unemployment, antisocial associates, and antisocial attitudes.
In the opinion of Dr Clout, the offender meets diagnostic criteria for schizophrenia (continuous), opioid use disorder, and stimulant use disorder (amphetamine-type substance). The offender experienced developmental trauma and, according to Dr Clout, has long-standing post-traumatic stress disorder (PTSD) symptomatology.
The offender developed significant paranoia from mid to late adolescence when he lived on the streets and experienced significant violence and trauma. He also developed anger management issues in his childhood and adolescence.
The offender suffers from psychosis independently of drug use. In the AMC, the offender is receiving anti-psychotic medication which he finds to be helpful. During periods when he has been drug-free, he has remained highly anxious and paranoid and experienced difficulty leaving his house. Indeed, he feels safer in prison than in the community. The offender is at risk of being institutionalised because he finds prison to be a place of relative safety.
Unfortunately, the offender believes that “ice” tends to “briefly help” his mental state. He also appreciates that it exacerbates his psychotic symptoms.
Dr Clout recommended further assessment to determine whether the offender suffers from attention deficit hyperactivity disorder (ADHD). She said that he has difficulty concentrating, is distractible and demonstrates all the core symptoms of adult ADHD. However, she was unsure whether his symptoms were attributable to ADHD or developmental difficulties.
At 13 of her report, Dr Clout said:
He is best conceptualised as an individual with severe mental illness with a significant vulnerability to substance abuse problems, rather than as a person with a drug problem with drug induced psychotic symptoms.
She made recommendations to reduce the risk of recidivism, including that he be placed in a dual diagnosis residential facility such as the WHOS Program in Sydney. She also recommended specialised psychiatric assessment to determine the presence of co‑morbid ADHD and psychological treatment for background trauma and PTSD symptomatology.
She said that, as schizophrenia is generally a lifelong condition, the offender will require ongoing intensive psychiatric treatment when he transitions to the community, ideally after a period of residential treatment.
Other sentencing considerations
In sentencing the offender, I must have regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT). The sentencing purpose of personal deterrence is important as the offender has some insight into his conduct and the new offences were committed in breach of suspended sentences imposed for similar offending conduct.
Other sentencing purposes are of reduced significance because the offender suffers from schizophrenia and is therefore a less appropriate vehicle for sentencing purposes such as general deterrence, accountability, and denunciation.
Rehabilitation is an important consideration, although the path to rehabilitation will be a very difficult one, not least because it will involve finding a residential rehabilitation placement suitable for dual diagnosis clients, such as the WHOS Program.
It is, of course, necessary to impose the punishment that is appropriate in all the circumstances.
Sentence
In relation to the breach offences, I resentence the offender as follows.
(a)Attempted robbery—seven months and 14 days’ imprisonment, from 11 March 2020 to 24 October 2020.
(b)Robbery—18 months and 14 days’ imprisonment, from 11 March 2020 to 24 September 2021.
In relation to the new offences, I impose the following sentences.
(a)Make demand with menace—19 months’ imprisonment, from 11 October 2021 to 10 May 2023 (reduced from a starting point of two years’ imprisonment).
(b)Burglary—nine months’ imprisonment, from 11 July 2021 to 10 April 2022 (reduced from a starting point of 12 months’ imprisonment).
(c)Take motor vehicle without consent—19 months’ imprisonment, from 11 February 2022 to 10 September 2023 (reduced from a starting point of two years’ imprisonment).
(d)Minor theft—two months’ imprisonment, from 11 March 2021 to 10 May 2021.
(e)Attempted minor theft—three months’ imprisonment, from 11 April 2021 to 10 July 2021.
(f)Drive unlicenced—a fine of $300.
The total sentence is 42 months’ imprisonment, from 11 March 2020 to 10 September 2023.
I fix a nonparole period of two years’ imprisonment, expiring on 10 March 2022. At that stage, the offender will be eligible for release to parole.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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