R v Winters
[2022] ACTSC 42
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Winters |
Citation: | [2022] ACTSC 42 |
Hearing Dates: | 10 March 2022 |
DecisionDate: | 10 March 2022 |
Before: | Berman AJ |
Decision: | See [40] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – offence committed while in custody – significant subjective circumstances |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 31, 64, 72 |
Cases Cited | Biddle v Gatherer [2021] ACTSC 236; 17 FLR 328 |
Parties: | The Queen (Crown) Dylan Winters (Offender) |
Representation: | Counsel S Bargwanna (Crown) S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Numbers: | SCC 272 of 2021 |
Berman AJ:
The offender in this matter, Dylan Winters, is serving a sentence of imprisonment imposed upon him in 2019 for offences of aggravated robbery and assault occasioning actual bodily harm: see R v Winters [2019] ACTSC 245. That sentence expires on 31 March 2022 so ordinarily he would be released in three weeks’ time. Unfortunately however, whilst serving that sentence Mr Winters committed two further offences.
Facts
Mr Winters was serving his sentence at the Alexander Maconochie Centre (AMC). On 15 October 2020 he was housed in Cell 11 in the management unit within that prison. Mr Winters’ classification had been reviewed and a decision had been made that he would be relocated from the management unit to a general population unit within the prison. A corrections officer told Mr Winters what was going to happen. Mr Winters replied that he would not be safe in a general population and then said that “…I’m going to have to do what I need to do to stay in management”.
Shortly after this conversation Mr Winters was secured in his cell. He asked to speak to the corrections officer, with whom had spoken earlier and when she attended he told her “if you send me down there, I’m going to get a blade and I’m going to slash up”. After the officer left, he got his property box, put toilet rolls inside it, and then placed it against the main door to his cell before setting the box alight using a lighter. About this time, when Mr Winters was told that the middle door to his external yard was to be closed, Mr Winter said “I’m sorry chief, nothing against you but I have to do it, and it is what it is”.
Corrections officers noticed flames in Mr Winters’ cell. He moved into his external yard and shut the middle door between the cell, where the fire was, and the yard. Two corrections officers then put out the fire with the use of a hose. They are to be commended for their actions which no doubt played an important part in preventing the fire spreading, with an associated risk of injury, or perhaps even death, to other inmates or corrections officers.
A green lighter was discovered in Cell 11 which Mr Winters admitted he had used to light the fire in his cell. Mr Winters also said “I told you I can’t move to a mains yard, I had to do this”.
While he was in the external yard of Cell 11, Mr Winters picked up a piece of wood using it to cause holes in the fascia board above the door to the cell. He then used another piece of wood to smash a light fitting and over the next hour he used the wood, and a broom head, to enlarge the hole in the fascia board. Mr Winters admitted what he had done telling an officer “It took me ages to smash that”.
The cost of repairing the damage caused by the fire was $24,227.48. The cost of repairing the damage to the light fitting and fascia board was $1,202.52.
As a result of what he did, I must now sentence Mr Winters for one count of arson, an offence contrary to s 404(1) of the Criminal Code2002 (ACT). That of course relates to Mr Winters’ actions in setting fire to the material in his cell. The maximum penalty for that offence is imprisonment for 15 years. He pleaded guilty on 3 March 2022, after being committed for trial but before any trial date had been set and before a Criminal Case Conference. It was thus entered at an early stage of the proceedings and so the sentence I impose upon him will be 20% less than it would otherwise have been. Mr Winters also asks that I take into account an offence of damaging property, an offence against s 403(1) of the Criminal Code, for which the maximum penalty is 10 years imprisonment. That relates to the damage caused with the wood and broom head whilst in his external yard.
In R v Beroukas [2021] ACTSC 172, McWilliam AJ helpfully set out a number of factors which assist in determining the objective gravity of an offence of arson. Those include, the extent of the damage caused, the potential risk of injury to other people, possible spread of the fire, the offender's motive, and the degree of planning and pre-meditation. At [8] her Honour notes that it is an aggravating factor that the offence was committed within a prison.
Relate facts to those factors
The damage from the fire was confined to the interior of Cell 11 but it was nevertheless substantial. The potential risk to others is obvious and it must have been an alarming experience for those who had no easy way of escaping if the fire had spread beyond Mr Winters’ cell. It was Mr Winters’ intention to disrupt the legitimate manner in which the prison authorities had decided to classify him and to thwart his movement into the general prison population. His actions were clearly premeditated and intentional.
These factors demonstrate that this was an offence of some seriousness. It was calculated by Mr Winters to interfere with the proper running of the prison where he was housed and he apparently thought little of the consequences for others if the fire had spread. I do however take into account that it seems that he was genuinely afraid for his own safety if he was moved into the general prison population. This was not a case where his desire to remain in the management unit was based on mere personal preference.
Subjective features
Mr Winters has a criminal history of considerable length with a number of serious offences on it. As well as the offences which led to him being in custody on 15 October 2020, Mr Winters has committed offences of violence, robbery, burglary, theft and driving offences in the past.
There was no specific evidence tendered regarding Mr Winters subjective features, Mr MacLachlan relying primarily on the material summarised by Loukas-Karlsson J when sentencing Mr Winters in 2019. Given that he has been in custody since that date, not a lot has changed.
Mr Winters’ background is a profoundly sad one. It is easily qualifies as one where the principles to be found in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 are of application. His early life explains where he is today. When courts talk about the concept of moral culpability they mean the extent to which the decision of a person to commit a crime is a matter of fully informed personal choice. And in examining that idea, the exposure of a child to undesirable influences and illegal behaviour by adults, particularly parents, is relevant. Not all of us are brought up in households where good behaviour and adherence to legal obligations are modelled. Not all of us are exposed to drug use before we are even teenagers. Few of us are separated from our siblings, and are the victims of physical assaults while a child. But Mr Winters had all these things happen to him, and more.
Mr Winters is the youngest of three children born to his parents. His parents separated when he was only one year old, after his father sexually assaulted his mother and was jailed as a result. His mother used drugs and was physically abusive towards him and his siblings. He and his siblings were removed from the family home when he was nine, but unfortunately he was separated from his siblings and was placed without them with a number of foster families and in youth refuges. In one foster family he was physically abused and witnessed another person in care being sexually abused.
The majority of his friends and acquaintances are involved in criminal activity. He began using drugs at a young age, he was only 11 years old when he commenced using cannabis before progressing to methyl amphetamine use at 12 years of age.
He has been diagnosed with intermittent explosive disorder, aggressive conduct disorder, and has a background of post-traumatic stress disorder. He is on medication for depression.
Since being sentenced in 2019 he has completed drug and alcohol programs in custody. Upon his release he plans to move to Melbourne to live with his sister. His mother has already moved to Melbourne. She has been diagnosed with lung cancer and Mr Winters is understandably keen to spend time with her.
Legislation concerning offences in lawful custody
There are some statutory provisions concerning sentences for offences committed whilst in lawful custody. It is to these I now turn.
Mr Winters is being sentenced for an offence which he committed whilst in lawful custody. Section 64(2) of the Crimes (Sentencing) Act 2005 (ACT) provides that a sentence of imprisonment imposed for his offence is “an excluded sentence of imprisonment”. Thus part 5.2 of the Act which deals with non-parole periods is of no application and so the sentence I impose on Mr Winters must be one which does not allow him any release on parole.
Presumably the legislature thought that all offences committed while in lawful custody were of such seriousness that no leniency should be shown to the offender, such as by the grant of a period of eligibility for parole. That is a political decision for the legislature to make. I will however, later explain why the absence of a period on parole may cause harm to the community by making it more likely that an offender will commit more crimes.
Also relevant to this sentencing exercise is s 72 of the Crimes (Sentencing) Act. That section also applies to offences committed while the offender is in lawful custody and provides that, unless a direction is given to the contrary, the sentence for that offence must be served consecutively with the offender’s existing sentence of imprisonment.
Regard must also be had to s 118(2) of the Crimes (Sentence Administration) Act 2005 (ACT) which relevantly provides that:
“…if the offender is also serving a sentence of imprisonment for which a non-parole period has not been set (the excluded sentence) and the non-parole period for the other sentence has ended, the offender’s parole eligibility date is the date the excluded sentence ends.”
As a consequence of the interrelationship between these provisions, any sentence of imprisonment I impose upon Mr Winter:
(a) must be served consecutively with the sentence he is currently serving unless I direct otherwise,
(b) must not allow for the possibility of Mr Winters to be released on parole, and
(c) will mean that Mr Winters must serve the entirety of the aggregate sentence in custody.
The effect of these provisions has been unappreciated until relatively recently. They were first drawn to the attention of this court in Biddle v Gatherer [2021] ACTSC 236; 17 FLR 328. Since then, a number of sentences have been imposed for offences committed in lawful custody, see R v Gordon [2021] ACTSC 283, R v Forrest (No 2) [2021] ACTSC 259, and Horan v O’Brien [2021] ACTSC 323. These cases have been of assistance to me in determining how to approach this matter in light of the provisions I have referred to, although I note that in one of these cases there were a large number of offences, only one of which occurred in custody, in another there has been an appeal, and in the third counsel for Mr Winters suggests that there may be problems with s 31(2) of the Crimes (Sentencing) Act.
I have also been assisted by a table of cases involving arson offences committed whilst in custody. There is a surprising number of such cases. Of course no two cases are alike but I have been able to make appropriate allowance for the differences between the cases in the table and the present matter in determining the appropriate sentence to impose upon Mr Winter.
General and personal deterrence
There is a need for general deterrence to be taken into account when imposing sentence for offences of this kind. Arson is a serious crime and wherever it occurs deterrence must generally be given substantial weight, see R v Booth [2004] ACTCA 21 at [26]. Lighting a fire in a prison causes damage and financial loss, in this case around $25,000, but of course more importantly it presents a significant risk to the safety of other prisoners and those responsible for them.
Personal deterrence also has a part to play. The assault occasioning actual bodily harm offence for which Mr Winters was sentenced in 2019 also occurred when he was in lawful custody. And what motivated Mr Winters to set fire to his cell was as a protest at being moved between classifications. Mr Winters needs to understand that appropriate classification of prisoners is essential to the safe management of the prison and while he may be unhappy or even apprehensive at being reclassified, it is not for him to attempt to thwart or protest this happening.
Consecutive or concurrent sentence
A question arises as to whether any sentence of imprisonment I impose upon Mr Winters should be partly concurrent with the sentence he is currently serving, or entirely consecutive. At the risk of repetition, I repeat that unless I make a specific direction, the sentence must be served consecutively.
The purpose of s 72 was discussed by the Court of Appeal in R v Rappel [2019] ACTCA 11 at [24]. There the Court said that the purpose of s 72 is to ensure that, ordinarily, no leniency is to be afforded to those who offend while in custody, and that a departure from the “sentencing norm” of accumulation should not lightly be countenanced. If a judge is to depart from the statutory norm then why the discretion has been exercised in that manner should be made clear so that all concerned understand the reasons for the departure.
The principle of totality is of long-standing and has been consistently applied in this jurisdiction, see for example NC v The Queen [2017] ACTCA 31. The principal is not to be ignored despite the default statutory position being that Mr Winters’ sentences are to be served consecutively. It is notable that there is no statutory requirement for “special circumstances” or “exceptional circumstances” before I am able to direct concurrency or partial concurrency. There is no such threshold to the circumstances which are such to justify departure from the norm of total accumulation. Had the legislature wished to make full or partial concurrency a rare outcome it would have required such a threshold. Further, had the legislature wished to exclude the principle of totality from being of application in cases of this kind it could clearly have said so. But it has not. Nothing in s 72 or R v Rappel prevents the principle of totality being taken into account in an appropriate case.
Ordinarily, the principle of totality is taken into account by partially accumulating sentences, which would require that I make a direction to that effect. However there is something of a wrinkle which needs to be considered. That wrinkle arises from s 31(2) of the Crimes (Sentencing) Act. As a result Mr McLaughlin asks me not to backdate the sentence I will shortly impose because of the effect of that section. And the Crown prosecutor asks me not to backdate the sentence because of s 72. In the face of the similar submissions about whether I should impose a cumulative sentence, albeit for different reasons, the sentence I will impose on Mr Winters will be entirely cumulative and date from 1 April 2022.
But that is not to say that I will ignore the principle of totality. That principle is not only given effect to by backdating sentences. It may also be given effect to by reducing the sentence. That is the way I have taken into account the principle of totality in this case. The sentence will be shorter than I would have otherwise imposed, because it comes at the end of a significant period of custody including a period in which Mr Winters was denied parole because of, amongst other matters, the commission of this offence.
Need for supervision upon release from custody
I turn now to the issue regarding the inability to impose a sentence containing a period of eligibility for parole. As I have mentioned, probably more than once, that is what s 64 of the Crimes (Sentencing) Act requires. Unless some other order is made, that would mean that Mr Winters is released back into the community without the benefit of him being supervised and subject to conditions. To put matters frankly, the absence of a period of conditional liberty where he is supervised by the correctional authorities makes it more likely that he will commit further offences. The main purpose of sentencing an offender is to protect the community from further harm. A parole period assists the offender’s rehabilitation so as to reduce the risk that he or she will commit further offences, and ensures the offender’s return to custody if conditions of parole are breached. The protection of the community is thus harder to achieve where a period of parole is absent, particularly where an offender is released after the expiry of a substantial sentence.
There are however, other sentencing options which I am able to use in an attempt to achieve the same objectives that parole is designed to achieve. In particular the option of suspending a sentence, either completely or partially, is open to me. A partially suspended sentence will ensure that the offender is punished for his offence, will assist in deterring other prisoners who may be tempted to set fire to materials in their cells, will help to maintaining good order and discipline within the prison system, and will also allow for a period during which Mr Winters may be released from custody on conditions.
What I have just said is consistent with the views expressed by Mossop J in Horan v O’Brien, where although he was speaking about s 72, his Honour refers to the desirability of courts structuring sentences in a way which permits a period of supervision in the community.
The sentence
Mr McLaughlin concedes that a sentence of imprisonment is required, but asks that it be immediately suspended. Of course this would mean that Mr Winters serves no further time in custody referrable to this offence. Mr MacLachlan submits that this is an appropriate outcome given his client’s custodial history. Mr Winters became eligible to be released on parole on 1 December 2020, but parole was refused. Although there were other factors, it appears that the commission of the offence which I must sentence Mr Winters was taken into account in the decision to deny him parole. Thus, says Mr McLaughlin, he has already been punished for setting fire to his cell.
There is much to this submission, but in my view Mr Winters must spend more time in custody. The commission of this offence was but one of the factors which has led to him remaining in custody after becoming eligible for parole and although that was a significant period of time, I am not of the view that the various purposes of sentencing, in particular the need for general and personal deterrence, would be satisfied by a fully suspended sentence of imprisonment. I should specifically say, however, that were it not for the commission of this offence being a factor in his parole being refused, the effect of my sentence would have been that he would spend longer in custody referrable to this offence then the period I will shortly announce.
Reparation
A reparation order is sought by the Crown. I have a discretion whether or not to make that order. I am not going to do so. Given Mr Winters’ personal circumstances I cannot see the utility in making the order, and there is every possibility that it may hinder his rehabilitation. A similar view was taken by Mossop J in R v Denniss [2019] ACTSC 283. I also take into account that this is not a case where one individual has suffered the loss.
Orders
The sentence I impose is, for those reasons, as follows:
(a) The offender is sentenced to imprisonment for 8 months, reduced from 10 months because of his plea of guilty, to commence on 1 April 2022.
(b) The sentence is suspended from 1 August 2022 upon the offender entering a Good Behaviour Order of 2 years on the core conditions.
(c) I decline to make an order for reparation.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |
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