R v Winters (No 2); Director of Public Prosecutions v Winters
[2024] ACTSC 356
•8 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Winters (No 2); DPP v Winters |
Citation: | [2024] ACTSC 356 |
Hearing Dates: | 31 October 2023, 19 March 2024, 22 October 2024 |
Last Submission Date: | 6 November 2024 |
Decision Date: | 8 November 2024 |
Before: | Taylor J |
Decision: | See [140]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach – breach of good behaviour order by fresh offending – sentenced for new offending in Magistrates Court – remainder of suspended sentence imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – property damage – guilty plea – offences committed in custody – significant delay in prosecution – consideration of parity – disadvantaged childhood and upbringing – application of Bugmy – some prospects of rehabilitation – sentence of full-time imprisonment imposed |
Legislation Cited: | Magistrates Court Act 1930 (ACT) s 90A Criminal Code 2002 (ACT) ss 45A, 403, 404(1) Corrections Management Act 2007 (ACT) s 184 Crimes (Sentence Administration) Act 2005 (ACT) s 107 Crimes (Sentencing) Act 2005 (ACT) s 7, 10, 66(3), 70, 72 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Collier [2024] ACTSC 340 DPP v George [2024] ACTSC 37 DPP v Samuel Myers (a pseudonym) [2023] ACTSC 142 Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 Griffin v R [2018] NSWCCA 259 Henry v The Queen [2019] ACTCA 5 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Horan v O'Brien [2021] ACTSC 323 KR v The Queen [2012] NSWCCA 32 Markarian v R [2005] HCA 25; 228 CLR 357 Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Muldrock v the Queen [2011] HCA 39; 22 CLR 120 R v Beroukas [2021] ACTSC 172 R v Booth [2004] ACTCA 21 R v Chatfield [2021] ACTSC 352 R v David Keith Green [2019] NSWDC 66 R v Dawson [2022] ACTSC 64 R v Deng; Carberry v The King [2023] ACTCA 32 (Carberry; Deng) R v Denniss [2019] ACTSC 283 R v Denniss [2021] ACTSC 15 R v Donald [2013] NSWCCA 238 R v Dunn [2019] ACTSC 75 R v Howsan [2020] ACTSC 172 R v Hudson [2019] ACTSC 110 R v JW [2010] NSWCCA 49 R v Kelly (No 2) [2021] ACTSC 253 R v KI (No 3) [2021] ACTSC 297 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Millwood [2012] NSWCCA 2 R v Nguyen [2018] ACTSC 146 R v Rahman [2021] ACTSC 257 R v Snowden [2022] ACTSC 186 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Wieland [2020] ACTSC 16 R v Winters [2022] ACTSC 42 R v Wrigley [2015] ACTSC 114 R v Yeaman (No 2) [2021] ACTSC 287 Saipani v The Queen [2021] ACTCA 5 Sayer-Jones v The King [2024] NSWCCA 73 Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 Stott v The Queen [2012] ACTCA 33 Taylor v R [2014] ACTCA 9 The Queen v Newby [2022] ACTCA 20 The Queen v Rappel [2019] ACTCA 11 The Queen v Ruwhiu [2023] ACTCA 18 Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 |
Parties: | Director of Public Prosecutions ( Crown) Dylan Winters ( Offender) |
Representation: | Counsel C Daly ( DPP) J Nottle ( Offender) |
| Solicitors ACT Director of Public Prosecutions Canberra Criminal Lawyers ( Offender) | |
File Number: | SCC 272 of 2021 SCC 160 of 2023 |
TAYLOR J:
Introduction
1․On 10 November 2020, the offender, Mr Dylan Winters, was a detainee at the Alexander Maconochie Centre (AMC). The offender, along with several other detainee co-offenders, participated in what has been referred to during the proceedings as a “riot”. The riot saw the lighting of five fires throughout the North Wing Remand Unit of the AMC. The fires caused extensive damage. The offender is now before this Court to be sentenced for two offences reflecting his participation in the riot (the November 2020 offences). The offender pleaded guilty to the following charges on 28 June 2023, the second occasion he was required to appear before the ACT Magistrates Court. On that day the charges were committed to this Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT) for sentence:
(i)CAN 2518/2023 – Joint commission arson of a building, contrary to s 404(1) and by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code). The maximum penalty is 15 years of imprisonment, a fine of $240,000 or both; and
(ii)CAN 2519/2023 – Joint commission property damage, contrary to s 403 and by virtue of s 45A of the Criminal Code. The maximum penalty is 10 years of imprisonment, a fine of $160,000 or both.
Background
2․The proceedings have a protracted history which I will briefly set out. On the first occasion the sentencing proceedings for the November 2020 offences were before me (31 October 2023), the offender’s bail was continued for the purposes of his attendance at a residential rehabilitation facility and for him to be assessed for an Intensive Correction Order (ICO). This approach was supported by the prosecution. The offender’s bail was continued on this basis because at the time he presented with real prospects of rehabilitation after a long history of engagement with the criminal justice system.
3․Ultimately, the offender was unable to sustain the progress he initially demonstrated. He did not cooperate with ACT Corrective Services for the purposes of the ICO assessment and he failed to attend separate proceedings in the Magistrates Court for fresh offending. On 28 May 2024 the offender failed to attend a listing in the ACT Supreme Court and a bench warrant was issued for his arrest. The warrant was executed on 17 July 2024 and the offender was remanded in custody by the Supreme Court on 18 July 2024.
4․The fresh offending resulted in the offender breaching a good behaviour order imposed by Berman AJ in R v Winters [2022] ACTSC 42 (R v Winters) on 10 March 2022 for another arson offence also committed while the offender was in lawful custody at the AMC, in October of 2020. Accordingly, the offender must also be dealt with in these proceedings for the breach of the 10 March 2022 sentencing order.
Facts
North Wing Remand Unit discontent
5․In November 2020 there were growing tensions among some detainees in the North Wing Remand Unit (AU North) of the AMC, a unit of the AMC designed to house detainees, regarding COVID-19 related restrictions, including limits upon visitors, no-contact visits and internal lockdowns.
6․In the evening of 10 November 2020, before detainees were due to be locked-in for the evening, Correctional Officer Smith spoke to several detainees including detainee ‘DN’ about the provision of cigarettes by way of supplementary “buy-ups”. The cigarettes were not provided, creating a perception of unequal treatment amongst detainees in AU North.
7․Additionally, desserts had not been made available, leading co-offender Jett Black to yell at staff, agitating other detainees.
8․An agreement was made between some detainees to resist that evening’s lock-in. The subsequent riot was an escalation of the planned lock-in refusal.
Preparatory conduct
9․The events described below were all captured by CCTV footage.
10․Co-offender Black used white fabric to tie a door to ‘the Courtyard’ (a large outdoor common area) to an adjacent bollard. The offender joined detainee DN in the laundry and carried out several rolls of toilet paper and placed them on an appliance under the stairs in a common area known as ‘the Dayroom’. The offender placed more toilet paper rolls in the Dayroom and around the Courtyard. Co-offender George later joined the offender in placing toilet paper in the Dayroom and the Courtyard.
11․Co-offender George damaged two CCTV cameras using a long stick, while co-offender Black threw objects at the same two cameras. The offender threw a bin at the camera. Co-offender George attempted to obscure a camera by placing a towel on it.
12․DN approached the interior Courtyard entry door window and made a gesture. Shortly afterwards, the offender, and co-accused Jake Fielding and co-offender George took several plastic bags of rubbish to the Courtyard while DN threw orange peels at CCTV cameras. Co-offender Black moved part of a tennis table in the Dayroom to cover the interior Dayroom entry door, obstructing the line of sight and access through the door.
13․The offender held a black and silver lighter in one hand and a roll of toilet paper in the other. Co-accused Fielding tied a blue jumper around his face. Co-offender Black then ripped linen from the laundry into strips.
14․The offender took a cardboard box and toilet paper and took them to the external Courtyard entry door and placed it at the base of the door with the plastic bags of rubbish.
Fire 1
15․The debris at the external entry door to the Courtyard started to smoke. Co-offender George threw toilet paper on the ignited debris, causing the fire to grow larger. The offender then used the fire to set cardboard boxes alight.
16․The offender collected several bundles of blankets from the laundry and put them on Fire 1. Fire 1 caused smoke to fill the Dayroom and the area in which the Correctional Officers were based. The offender and co-offender George continued to stoke the fire.
17․The offender added another part of the tennis table to the Dayroom entry door, creating a barricade. Co-accused Fielding tied a shirt over his face.
18․The offender and co-offender George pulled the metal frame and legs from a table in the Dayroom. The offender attempted to smash the glass between the Dayroom and the area where the Correctional Officers were located with parts of the table. Co-accused Fielding also tried to break the glass with a metal object.
19․Co-accused Fielding pulled a table apart. He hit the glass in the Interview room door with a metal pole. He then hit multiple other doors and windows throughout AU North with the metal pole. The offender shattered another CCTV camera with a metal pole. Co-offender George broke another table into pieces, adding the tabletop to the barricade.
Fire 2
20․Co-accused Fielding threw rolls of toilet paper from cell 8 to the offender, who unravelled them and put them near a white cardboard box at the base of the wall connecting the laundry room to the Courtyard. The offender added further toilet paper and another box before bending over the pile. Flames and smoke started emanating, creating Fire 2.
21․The offender handed a small item to co-accused Fielding. Co-accused Fielding later dropped a small item from level 2 down to the offender.
22․The offender added clothing, boxes and part of a wooden table to Fire 2.
23․Co-offenders Norman Collier, George and Black struck at a locked fire hose reel cabinet in the Dayroom to attempt to gain entry, believing there to be an axe inside.
Fire 3
24․The offender added further linen to Fire 2, then took two burning items and placed them in the Courtyard on the opposite side of the metal fence of where Fire 2 was, creating Fire 3.
25․The offender pointed to co-accused Fielding, who was on the second floor. Co-accused Fielding took a mattress from cell 8 and threw it down to the offender, who dragged it outside and placed it on Fire 3. Flames began to enter the Dayroom through an air vent in an external wall. Co-offender George poured some water on the grate, which had no impact on the fire.
26․Co-offender George collected fabric items and threw them on a flaming mattress. Correctional Officers attempted to extinguish Fire 1 using a hose through the cracks of the internal Courtyard door.
Fire 4
27․Co-offender Black kicked doors off the cabinetry in the Programs room. He then placed them against the external door at the far end of the Courtyard. The offender dragged a mattress from cell 1 into the Courtyard and added it where co-offender Black had left the doors. Co-offender Black added further doors and clothing items to the pile.
28․The offender approached the pile, which then started to emanate smoke, creating Fire 4. Co-offender Collier added fabric items and another cabinet door to the fire.
29․Co-accused Fielding, along with several other detainees, emptied liquid onto the floor of the Dayroom. Detainee DN carried a box out of cell 2 to the Courtyard.
30․Around this time, ACT Fire and Rescue (ACTFR) arrived and were escorted to the perimeter by Correctional Officers carrying riot shields.
Fire 5
31․The offender and co-accused Fielding entered the Dayroom together. Co-accused Fielding took brown fabric from an appliance and took it outside to the Courtyard. The offender and co-offender Collier dragged mattresses from cells 3 and 1, respectively, into the Courtyard. The pair then placed the mattresses against the wall connecting the Dayroom and smoke started rising from the ground, starting Fire 5.
32․DN handed co-offender Collier a bundle of blankets and fabric, who placed them on Fire 5. The offender threw a computer monitor onto the fire.
33․The offender, with the assistance of other detainees, dragged a washing machine into the Courtyard and threw it on the fire. He then dragged a second washing machine and a fridge and placed them on Fire 5. The offender continued to add blankets and fabric items to the fire.
34․Between 9:00pm and 10:00pm, fires were also lit by unknown persons in cells 8, 14 and in the Programs room. Around 10:06pm, ACTFR and ACT Corrective Services gained entry to the Dayroom and extinguished these fires.
35․The offender was not subject to any administrative penalty from ACT Corrective Services under s 184 of the Corrections Management Act 2007 (ACT) in relation to the above conduct.
Summary of damage
36․AU North was unfit to house detainees following the riot. The estimated total cost for repairs was assessed at $1,606,605. The estimated total outlay for repairs, labour and other costs was assessed at $3,367,000.
Identification of the offender
37․At the time of the offence, 27 detainees resided in AU North, including the co-offenders. Correctional Officer Sassine reviewed CCTV footage of the riot and prepared a document comparing still images from 10 November 2020 of each of the 27 detainees against their Custodial Information System photographs. The document identified each detainee and included information about their heights, tattoos and other visible features, including what they were wearing on 10 November 2020.
38․Various Correctional Officers provided recognition evidence of the offender based on their workplace interactions.
Offender’s admissions
39․In a series of recorded phone calls from the AMC, the offender made the following relevant remarks and admissions:
(i)“they took that Jett bloke yesterday because he burnt down his cell”;
(ii)“I smashed all the cameras”;
(iii)“I lit this massive one … and chucked, like, two … dryers. Like dryers on it. A fridge”;
(iv)“I’m the one that fucking kicked the cunt off”;
(v)“Well, we just refused to get locked in and then we just trashed the whole entire unit. We set four fire – four fires went up. Um, three of the cells got burnt down. The whole exercise yard went down”; and
(vi)“… I put a fridge and two dryers in the fire and, like, bits of tables and cupboards and all that on it”.
Sentencing considerations
Nature and circumstances of the offending
40․A consideration of the nature and circumstances of the offence requires an assessment of the objective seriousness of the conduct. The maximum penalty is an indication of the seriousness of the offence (see Muldrock v the Queen [2011] HCA 39; 22 CLR 120 (Muldrock) at 133 [31]) and a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at 372 [31]. I approach this task bearing in mind that references to “low”, “mid” or “high” range may generally be unhelpful in this jurisdiction. I have approached the assessment of objective seriousness by identifying the features of the offending that inform it: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24].
41․The offence of arson is, on any view, a serious offence. The Court of Appeal in R v Booth [2004] ACTCA 21 observed at [26]:
Arson is a very serious crime and the need for deterrence must generally be given substantial weight when an offender is sentenced: Small (1980) 2 Cr App R (S) 25 at 26; R v James (1981) 27 SASR 348 at 351; and Dowell (1982) 6 A Crim R 113 at 116.
42․Justice Refshauge considered factors relevant to the assessment of the objective seriousness of the offence of arson in R v Wrigley [2015] ACTSC 114 and helpfully summarised them as follows at [34] (citations omitted):
(a)arson may be committed for many reasons;
(b)the crime might also be committed in a wide variety of circumstances;
(c)the real gravity of the offence lies in the intent with which it is committed;
(d)the crime is often difficult to detect which generally requires a deterrent sentence;
(e)nevertheless, a custodial penalty is not inevitable;
(f)the amount of damage is relevant;
(g)there is no “tariff” for the offence;
(h)as with other offences, a significantly relevant mental health issue may result in general deterrence playing a much less significant role, but does not mean, however, that imprisonment will not be appropriate even where there are mental health issues;
(i)aggravating circumstances include that the offence is committed at night, use of an accelerant, the commission of the offence for financial gain, such as insurance fraud, commission of the offence for the purpose of revenge, commission of the offence for the purpose of destruction of evidence of other crimes and the potential risk of injury to life or serious harm to persons, including fire-fighters; and
(j)the degree of pre-meditation and the deliberate nature of the offence is important.
43․R v Dawson [2022] ACTSC 64 saw McWilliam J at [41] articulate those factors relevant to an assessment of the objective seriousness of the offence of damage property. They are the motivation for the offending, the extent and value of the property and the level of inconvenience occasioned to the owner.
44․In this matter the extent of the damage was significant and extensive, as can be seen in the photographs of the AMC tendered by the prosecution. I repeat the observations I made when sentencing co-offender George (DPP v George [2024] ACTSC 37 (George)) at [43] and [45] regarding the factors relevant to the objective seriousness of the offence:
43. The entire conduct caused significant damage and presented risk to the participants themselves as well as other inmates and employees of the AMC. The damage caused considerable inconvenience to inmates and to the overall management of the prison. While there is no evidence of extensive pre-meditation or planning there is evidence of preparatory action in the immediate lead up to the commencement of the conduct, as well as conduct designed to give effect to the intention to cause chaos uninterrupted and undetected (barricading of doors, obscuring of security cameras, multiple sources of fire). There was evidence of co-operation (a typical feature of offences committed jointly) as between the co-offenders and co-accused, indicative of their shared motivation to express their dissatisfaction with prison conditions. I am not satisfied beyond reasonable doubt that the co-operation is evidence of planning or significant premeditation in relation to the offences of arson and damaging property. The agreement having been made, the participants quickly moved to give it effect.
…
45. The motivation for the offending seems to be entirely connected to a sense of frustration, perhaps even anger, felt by detainees at the conditions imposed upon them as part of the AMC’s response to the COVID-19 pandemic. I hasten to add that acknowledgement of that motivation should not be read as any endorsement of the conduct but it would be artificial to pretend that further restriction in an already restricted environment did not have a psychological and/or emotional effect upon detainees such as the offender. The conduct was an extreme, dangerous and ultimately, entirely senseless expression of detainee discontent. In my view, the conduct was very deliberately crafted to maximise the chaos of the situation. The offending is properly characterised as very serious.
45․The prosecutor conceded that the estimated cost of the damage valued at $1.2 to $3.3 million was only an estimate, and I intend to approach the value of the property damaged in the same way I did in George by noting that on any view it was extensive and represented significant inconvenience to prison staff and other detainees.
Assessment of involvement in the offending
46․A determination of the objective seriousness of an offence committed by virtue of s 45A of the Criminal Code requires consideration of both the objective seriousness of the principal offence and the nature and extent of the offender’s involvement.
47․Participation in a joint criminal enterprise results in liability for all of the acts committed by the participants in the course of carrying out the enterprise: KR v The Queen [2012] NSWCCA 32 (KR) at [19]. An assessment of liability or responsibility and moral culpability are relevant at different stages of the criminal process: KR at [20]. The moral culpability of an individual participant is assessed by reference to the specific conduct they engaged in as well as their subjective circumstances “in order to determine the appropriate degree of punishment”: KR at [22]. Thus an assessment of the objective seriousness of a joint criminal enterprise offence will have limits to the amount of differentiation amongst co-offenders: Stott v The Queen [2012] ACTCA 33 at [64], citing R v JW [2010] NSWCCA 49 with approval.
48․The offender’s involvement in the joint criminal enterprise was significant. The offender was involved in preparatory conduct, moving toilet rolls around the unit, and taking rubbish and cardboard boxes to the courtyard. He smashed two CCTV cameras over the course of the riot, damaged a table, and attempted to damage a glass wall. The offender was actively involved in starting and maintaining all the fires and appeared to direct some of the other co-offenders in the creation of the fires. The offender made admissions to various acts he engaged in and said, “I’m the one that fucking kicked the cunt off”, implying he was significantly involved in starting the riot. His involvement and role in the offending must be assessed as substantial.
Subjective circumstances
49․The material before the Court included a Pre-Sentence Report (PSR) dated 25 October 2023, and a report by Dr Patricia Jungfer. On two separate occasions an Intensive Correction Order Assessment Report (ICOAR) was ordered for the offender and he did not engage on either occasion, either failing or refusing to participate in the interviews and additionally refusing to undergo urinalysis for the purpose of the second report while in custody. The author of the incomplete ICOAR noted that “the offender has a history of failing to engage with this Service for the preparation of Court ordered pre-sentencing reports” and considered this attitude demonstrated that he was unsuitable for an ICO given the strict conditions he would need to comply with.
Pre-Sentence Report
50․The offender is now 24 years of age. He is the youngest of three children from his parents’ relationship. The offender’s parents separated when he was one years’ old, at which time his father was incarcerated. He has two half-siblings from his mother’s subsequent relationships.
51․During his childhood, the offender’s mother was a victim of domestic abuse and suffered from addiction. [Redacted].
52․The offender reported to the author of the PSR that he had regular contact with his mother and sister and irregular contact with his father, with whom he had only recently established contact.
53․The offender has been in a relationship with his current partner since July 2022. Together they have a six-month-old son. They have resided together in an ACT Housing property for the past eight months. The offender’s partner’s mother advised that her family provides pro-social support to the couple and confirmed the relationship was positive. The offender informed the author of the report that he hopes to move his family to Melbourne.
54․The offender obtained his Year 10 certificate [redacted]. He advised the author of the report that he hopes to enrol with ‘CC Cares’ or the Canberra Institute of Technology to complete Year 12. The offender reported no employment history and was unsure of his capacity to work due to sustaining a back injury in a car accident several years ago, for which he is receiving treatment with cortisol injections. The offender was in receipt of Job Seeker payments from Centrelink and has no debt. The offender reported some occasional gambling.
55․Service records indicated heavy alcohol use by the offender at 17 years of age. The offender reported to the author of the report that he had ceased alcohol use after turning 18 and being incarcerated. The offender’s illicit substance use has included cannabis, methamphetamine and heroin. The offender stated to the author of the report that he had been abstinent from all illicit substances since November 2020, though the author noted that the offender had not been subject to recent drug testing to support that claim.
56․The offender completed the Solaris Therapeutic Community rehabilitation program whilst in the AMC in 2020 and had undergone no further treatment since that time.
57․The offender advised the author of the PSR that he takes his son to swimming lessons once a week and reported his time being sufficiently occupied by his partner and son.
58․ACT Health has recorded diagnoses of Intermittent Explosive Disorder, Aggressive Conduct Disorder, a background of Post Traumatic Stress Disorder and episodes of psychosis in 2012 and 2013, as well as tetrahydrocannabinol (THC) and amphetamine use. The offender advised his mental health was currently stable and he was not taking medication. The offender advised he attended one psychological session in relation to a compensation claim [redacted], and the offender reported that he thought further psychological support would be beneficial and that he was investigating such options.
59․The offender reported to the author of the report that he is aware of the offences for which he is being sentenced and expressed his frustration at the length of time between the offending and being charged. The offender told the author the co-offenders were disgruntled and he got “caught up” in the unrest. The author considered the offender did not express any guilt or remorse but rather focused on how the court proceedings were preventing him from moving forward with his life. I observe here that this latter view is not inconsistent with the delay that has attended to this matter to which I will come.
60․The author of the report noted that the offender would be able to meet a financial penalty and would be suitable for a medium level of intervention by ACT Corrective Services under a good behaviour order. He was assessed as suitable for a Community Services work condition.
Degree of responsibility, moral culpability
61․The offender relied on a report prepared by Dr Patricia Jungfer. The report was prepared to inform a personal injury claim made by the offender [redacted]. The report [redacted] also canvassed some of the background history of the offender.
62․[Redacted].
63․The report tracked a depressing childhood experience marred by exposure to violence and abuse, disrupted accommodation, limited social supports or positive adult role models and learning difficulties.
64․The offender was found to experience significant challenges [redacted]. These challenges include anger management, difficulty developing trust, inability to sustain relationships and difficulty engaging with people in positions of authority over him, [redacted]. He has experienced feelings of worthlessness and hopelessness and engaged in suicidal ideation. He ruminates about his childhood experiences and his experiences in custody. He has experienced low mood for as long as he can recall with a particular decline over the past six to seven years.
65․The offender has anxiety in public and described having panic attacks. He reported poor concentration since he was a child. He has not ever received treated for attention deficit disorder. His trauma symptoms include flashbacks to his childhood [redacted]. It is at these times that he has to fight the urge to use drugs as they assist him to stop the intrusive thoughts of those experiences.
66․The report concluded that the offender has a “genetic vulnerability” to substance abuse and his mother has had mental health problems the nature of which were unknown. [Redacted].
67․[Redacted].
68․The abuse the offender was exposed to [redacted] appears to have only compounded the effect of his disadvantaged background which included [redacted] when he was eight years old, exposure to violence and drug use from a very young age and the use of drugs from his early teens. Dr Jungfer considered his early experiences have “accelerated a negative developmental trajectory”. The offender cannot read or write. He is dyslexic. He has never been employed. He suffers with chronic pain arising from a car accident he was involved in some years ago. In 2018, he attempted suicide while in custody. He has spent much of his adult life [redacted] in a custodial setting.
69․Dr Jungfer considered that in response to the trauma the offender has experienced, he experiences intrusive thoughts, probable dissociative reactions and psychological distress with mood swings and that he attempts to avoid distressing reminders of the abuse through substance use and thought blocking. The offender reported feelings of shame and guilt and that he has difficulty with anger and interpersonal relationships, and he experiences hypervigilance, impaired concentration and disturbance of sleep. Dr Jungfer considered that multiple traumatic incidents have contributed to his current psychiatric presentation. [Redacted].
70․The offender’s childhood is one to which the principles articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) clearly apply. By virtue of the offender’s early exposure to abuse, neglect, alcohol and drug abuse, family violence, [redacted], he is necessarily a person who will have fewer emotional resources to guide his decision making and how he conducts himself in the world: R v Millwood [2012] NSWCCA 2.
71․As Dr Jungfer observed, this has manifested in significant and various mental health challenges for the offender. I accept that the offender’s participation in the riots is, to some extent, explained by the effect his early childhood and development has had upon how he navigates decision making.
72․[Redacted].
Remorse and rehabilitation
73․The offender has demonstrated limited remorse for his conduct. The presence of remorse is a factor that influences an assessment of the potential for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 (MAK) at [41]. This influence is premised on a remorseful offender having some appreciation of the harm caused by their conduct and a consequential desire to avoid engaging in that conduct in the future. Rehabilitation is the best guarantor of community safety if it can be achieved and is in both the offender’s and the community’s interest: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. This view was the foundation for the approach initially taken to these sentencing proceedings. That is, the offender having demonstrated some progress toward rehabilitation, he was afforded the opportunity to continue that progress, it being in his and the public interest.
74․It is unfortunate that the offender was not able to take advantage of the opportunity to remain in the community and demonstrate his capacity to live a law-abiding life in circumstances where he had initially “made the best progress of his life in the community”. The material does explain to some extent the difficulty the offender experienced engaging with ACT Corrective Services processes. [Redacted].
75․It is difficult to assess the offender’s prospects of rehabilitation. He is still a young man and he has demonstrated glimmers of potential for reform, in particular in the period immediately after his release from prison and before he appeared initially for sentence. He has a very supportive and loving partner and they both have ongoing support from her family. The offender has a powerful motivator in the form of his young son with whom he has developed a strong bond. His partner detailed the commitment the offender has shown toward the responsibilities of fatherhood. A complete discharge of those responsibilities must include a commitment to moving away from conduct that draws the criminal justice system into the offender’s life.
76․The offender’s rehabilitative needs are complex. I do not consider that rehabilitation is entirely beyond him, the glimmers of potential reveal as much. He bears the psychological burdens of an awful childhood experience that was entirely out of his control. It is not possible to predict what supports might be available in the custodial environment to assist him to confront some of the psychological factors driving his criminal conduct and his reluctance to engage with ACT Corrective Services staff in the community. Undoubtedly the offender’s complex psychological needs require genuine and consistent intervention. The reality is that the parole authorities will be able to make a comprehensive assessment of the offender’s progress toward rehabilitation and the supports he will require upon his release.
Responsibility for the offending
77․The offender was significantly involved in the offending conduct. His participation was deliberate and extended across various aspects of the arson.
78․The childhood experience of the offender, as described, was one of disadvantage and deprivation. The offender’s childhood and adolescent experiences revealed in the report by Dr Jungfer laid the foundation for what has become his persistent interaction with the criminal justice system. Left largely untreated, the psychological effects of those experiences continue to plague the offender’s development and limit the skills he is able to draw upon to guide his decisions and his conduct. The offender’s childhood disadvantage explains his offending conduct to an extent and must be given “full weight” in every sentencing exercise: Bugmy at [44].
79․As the Court of Appeal observed in MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [62], citing Bugmy:
[T]he moral culpability of an offender may be reduced by a dysfunctional upbringing (for which the offender cannot be held responsible) as it may thwart the offender’s capacity to mature and thus explain their criminal behaviour.
80․Accordingly, the offender’s moral culpability is reduced to some extent, resulting in a moderation of the weight to be attributed to the sentencing purposes of general deterrence, punishment and denunciation. This is not to excuse the offender’s conduct or to remove from him all responsibility. Rather it is to acknowledge that the offender is the man he is because of the negative childhood experiences that have hindered his development. When recording the awful detail of the offender’s childhood Berman AJ observed at [14]:
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.
81․This factor also operates to influence an assessment of the need to protect the community from the offender, such is the sentencing tension described in Bugmy at [44].
Delay
82․As I observed in George at [96]-[104] and Collier at [62]-[63] there has been a substantial delay in commencing the proceedings for SCC 160 of 2023 (the AMC riot offences), the offences having been committed in 2020 and the first summons issued to the offender in 2023. I repeat my observations in George and Collier that this is a particularly egregious example of delay and one for which the prosecution was unable to offer any explanation: at [97] and [99]. The initial delay was unreasonable and extended, made all the more apparent where the prosecution made the submission that the case against the offender was “overwhelming”.
83․The matter has been further delayed since it was first set down for sentence in 2023, though this is as a direct result of the offender’s failure to engage with court ordered reports and his failure to appear at mandated court appearances.
84․Delay can be a mitigating factor in certain circumstances: see R v Donald [2013] NSWCCA 238 (Donald) at [49], citing Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 (Scook) at [31]-[34] and [59]-[64]. See also Sayer-Jones v The King [2024] NSWCCA 73 (Sayer-Jones) per N Adams J (with whom Leeming and Campbell JJ agreed).
85․As I observed in Collier at [70] a number of principles have developed from the authorities that have considered delay. I have had regard to those principles where relevant. The focus is on the effect of the delay on the offender, as the NSW Court of Criminal Appeal observed in Thorn v R [2009] NSWCCA 294; 198 A Crim R 135 at [23]:
[T]he prosecution is not to be punished for delay by a reduction in the otherwise appropriate sentence, even though it must be said that the delay in the present case is completely unacceptable. But it is the impact of the delay upon the applicant that is the most significant consideration.
86․In this matter the offender was released from the AMC at the expiration of a long period of full-time imprisonment in a state of suspense as to the result of his participation in this incident. That state of suspense continued for a substantial period. The offender was released from full-time imprisonment on 1 August 2022 with no other outstanding criminal matters. The delay in bringing the charges in relation to the November 2020 “riot” in 2023 had the consequence of drawing the offender back into a system that he was making some effort to distance himself from.
87․On the initial occasion the matter was before me for sentence, the prosecution recognised the effect of the rehabilitation that the offender had achieved in the meantime, by supporting the imposition of a period of imprisonment to be served in the community.
88․The submission advanced by the prosecution more recently was that the prejudice occasioned to the offender:
[T]ook a different form in October 2023 to what it does now. Last year, the offender was in the situation where he had served out his term of imprisonment, and had been in the community for some time prior to being summonsed. In that period, the offender had fathered a child. Now, the offender is subject to a term of imprisonment that is due to end on 31 July 2025. The offender has no days in custody solely attributable to this offending.
89․When sentenced by Berman AJ in March 2022, the offender was denied the opportunity for the November 2020 offences to be dealt with simultaneously which would have allowed for consideration of the principle of totality in those proceedings. I note here that the sentence imposed by Berman AJ was for an arson committed on 15 October 2020 when the offender was in lawful custody at the AMC.
90․I am satisfied that the significant and inexplicable delay that attended to the charges arising out of the November 2020 incident does warrant some leniency to the offender.
91․In sentencing the offender for these offences now, of course the principal of totality has application. The offences committed by the offender after the November 2020 offences are not an aggravating feature, but they are relevant to the assessment of his rehabilitative prospects. It was accepted on his behalf that the offender can no longer point to the fact of effective rehabilitation, having committed further offending as recently as June 2024.
Guilty plea
92․The offender pleaded guilty on 28 June 2023, on the second occasion the matter was before the Magistrates Court. The plea was entered at an early opportunity and has significant utilitarian value. The prosecution characterised the case against the offender as “overwhelmingly strong” invoking s 35(4) of the Crimes (Sentencing) Act which would disentitle the offender to any reduction to hi sentence that is “significant”.
93․A consideration of whether a case is overwhelmingly strong “calls for a practical assessment of the reality of the situation”. To be such a case the conclusion must be drawn that “an acquittal [would be] realistically unlikely”: The Queen v Newby [2022] ACTCA 20 (Newby) at [31]. In R v Snowden [2022] ACTSC 186 (Snowden), Mossop J suggested at [48] that a discount that reflects the utilitarian value of the plea but is not a “significant reduction” for the purposes of s 35(4), will be in the order of five per cent: see also DPP v Samuel Myers (a pseudonym) [2023] ACTSC 142. As Mossop J recognised in Snowden a determination of what is a significant reduction may “vary from case to case”: at [47].
94․In this matter the plea came three years after the incident had occurred. The case against the offender included CCTV footage from which he could be identified and admissions made by him in conversations recorded by the AMC phone system. The case also relied to some degree on the evidence of co-offenders and other inmates in circumstances where those witnesses did not provide statements to investigating officials. These were charges presented as a joint criminal enterprise among inmates. This circumstance provided a potential complication for the prosecution where the “prison code” can operate to dissuade prisoners and former prisoners from being entirely candid and frank in the evidence they give in criminal proceedings where it might risk them being labelled a “dog” or a “snitch”. The prosecution case was indeed strong, even very strong. It was not a case, in my view, “that fell into the very small class of cases” (Newby at [73]) that can be properly characterised as overwhelmingly strong.
95․Having formed that view, the offender is entitled to a reduction in the sentence I impose consistent with the significant utilitarian value of the timing of his pleas of guilty, being 25 per cent.
Parity
96․There being co-offenders for this matter, I must consider the principle of parity, described as embodying the concept of “equality before the law”: see Green v The Queen; Quinn v the Queen [2011] HCA 49; 244 CLR 462 at 472 [28].
97․In Saipani v The Queen [2021] ACTCA 5 at [56], the Court of Appeal articulated the principle in this way:
The “parity principle” is a manifestation of the fundamental principle of equality before the law. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609 (Lowe): “[I]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence…”. As
his Honour observed, however, other things are not always equal. There may, for example, be differences in degree of involvement of offenders in a joint offence, differences in their antecedents, and differences in the charges brought against them. The present case is primarily concerned with the application of the parity principle in circumstances where the appellant came to be sentenced on a more serious charge than those to which his co-offenders entered pleas of guilty.98․There were four co-offenders in this matter. Co-offender George entered pleas of guilty to one count of arson by joint commission and one count of damage property by joint commission and was sentenced by me on 22 February 2024. Co-offender Collier entered a plea of guilty to a count of arson by joint commission with the offence of damage property scheduled and taken into account. He was sentenced by me on 31 October 2024: DPP v Collier [2024] ACTSC 340 (Collier).
99․Co-offender Black entered pleas of guilty to one count of joint commission of damage property and one count of joint commission of arson and will be sentenced early next year. Co-accused Fielding has maintained pleas of not guilty and is yet to be allocated a trial date after the trial scheduled to begin on 22 July 2024 was adjourned due to difficulties associated with co-offenders giving evidence of the kind I have referred to above at [94].
100․Co-offender George was sentenced to 3 years and 10 months of imprisonment, reduced to 3 years of imprisonment in recognition of the plea of guilty for Count 1, the arson offence. For Count 2, the damage property offence, he was sentenced to 22 months of imprisonment, reduced to 1 year and 5 months of imprisonment in recognition of the plea of guilty. The effect of this sentence for George was an additional period of 12 months of imprisonment attributable to the November 2020 offences. The sentence took into account the delay in the proceedings and was crafted to provide the opportunity for supervision in the community under the terms of the existing sentence which may have been extinguished by the imposition of a longer or entirely consecutive sentence: George at [122]-[123].
101․Co-offender Collier was sentenced to 3 years and 2 months of imprisonment, reduced to 2 years, 10 months and 6 days of imprisonment in recognition of the plea of guilty, for the offence of arson. This sentence was suspended after three months and one day which will see him released from custody on the same day the existing sentence he is serving expires, meaning he was not required to spend additional time in full-time custody solely referrable to his part in the November 2020 incident. The impact of delay was a significant consideration in Collier; he had not committed any further offences since November 2020. Co-offender Collier’s involvement in the offending was substantially below that of co-offender George and the offender. Co-offender Collier had demonstrated significant effort toward rehabilitation and had spent the entire period since November 2020 continuously in full-time imprisonment.
102․Like the offender, co-offender George’s involvement was deliberate and designed to contribute to the chaos created by the unrest. Like the offender, co-offender George had an extensive criminal history and had experienced a disadvantaged and dysfunctional upbringing which had caused borderline cognitive impairment: George at [73]. I considered that both co-offenders’ experienced a childhood that required the application of Bugmy and that this operated to explain to some degree of their offending conduct. As a result, co-offender George’s moral culpability was reduced to some extent (George at [75]-[77]), as was co-offender Collier’s: Collier at [42].
103․It was accepted that there was little to distinguish the offender and co-offender George. It should be noted that when co-offender George came before me, he was sentenced solely in relation to the offences from the November 2020 incident. The offender here has an additional matter where he is in breach of a suspended sentence order that I am required to deal with.
Criminal history
104․The offender has an extensive criminal history revealing offending in the Australian Capital Territory and New South Wales. Relevantly, the offender was sentenced in this Court on 10 March 2022 for an offence of arson in the AMC. The sentence imposed was eight months of imprisonment, suspended after the offender had served four months and one day on the condition he be of good behaviour for a period of two years. The consequence of that order was the suspended portion of the sentence taking effect from 1 August 2022. The offender’s criminal history includes convictions for violent offending, drug-related offending, driving-related offending and offences of dishonesty. The offender has been sentenced to good behaviour orders, suspended periods of imprisonment and lengthy periods of full-time imprisonment.
Sentencing practice
105․As in George and Collier, the prosecution provided a detailed table of comparable sentencing outcomes: R v Winters, R v Yeaman (No 2) [2021] ACTSC 287, R v Rahman [2021] ACTSC 257 (Rahman), R v Beroukas [2021] ACTSC 172 (Beroukas), R v Denniss [2021] ACTSC 15, R v Howsan [2020] ACTSC 172 (Howsan), R v Wieland [2020] ACTSC 16, R v Denniss [2019] ACTSC 283 (Denniss (2019)), R v Hudson [2019] ACTSC 110, R v Dunn [2019] ACTSC 75, R v David Keith Green [2019] NSWDC 66, R v Nguyen [2018] ACTSC 146, Griffin v R [2018] NSWCCA 259.
106․No sentence is a precedent and sentencing outcomes do not set a lower nor an upper limit for a particular offence: Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. The consistent application of principles is a concern in every sentencing exercise.
107․In George at [89]-[95] I recorded the detail of each outcome in Winters, Rahman, Beroukas, Howsan, Hudson, Denniss (2019) and R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 (Carberry; Deng). I do not consider it necessary to recite the detail of those outcomes here, save to say I have had regard to them, bearing in mind the accepted limitations of comparable sentences.
Breach matters
108․The offender was sentenced on 10 March 2022 by Berman AJ in relation to an offence of arson committed while the offender was in lawful custody in October 2020. His Honour imposed eight months of imprisonment, suspended after serving four months, upon the offender entering a good behaviour order. The good behaviour order expired on 1 August 2024. The offender committed several offences in breach of his good behaviour order in 2023 and 2024.
109․On 24 January 2024 Magistrate Campbell recorded a finding of guilt in relation to breaching offences and committed the breach of the good behaviour order to the Supreme Court under s 107 of the Crimes (Sentence Administration) Act 2005 (ACT) (the CSA Act). The good behaviour order was breached by commission of the following offences:
(a)CC2023/3720: driving while disqualified, committed on 27 March 2023.
(b)CC2023/9360: damaging property, committed on 22 September 2023.
(c)CC2024/921: common assault, committed on 22 September 2023.
(d)CC2024/7299: failing to appear, committed on 26 March 2024.
(e)CC2024/7298: failing to appear, committed on 28 May 2024.
(f)CC2024/7295: aggravated reckless driving, committed on 17 June 2024.
110․Consequently, the offender is now serving a total term of 1 year and 17 days imprisonment, commencing on 15 July 2024 and ending on 31 July 2025, with a non-parole period of 7 months expiring on 14 February 2025.
111․Where an offender breaches a good behaviour order and the good behaviour order was part of a suspended sentence order, the Court must cancel the good behaviour order and either impose the suspended sentence imposed for the original offending or re-sentence the offender pursuant to s 110(2) of the CSA Act.
112․The expiration of the good behaviour order does not prevent action in relation to the breaching conduct. Relevantly, in R v Chatfield [2021] ACTSC 352, Refshauge AJ observed at [96]:
In this case, the Good Behaviour Order had expired; it ended on 25 November 2020. Section 116 of the Crimes (Sentence Administration) Act allows a court to act despite the expiry of the Order. This section is rather unclear. I have, in the past, expressed some reservations as to whether a court can cancel a Good Behaviour Order that is expired: R v Avis [2013] ACTSC 294 at [5]. Nevertheless, s 116 may permit such cancellation. After all, s 160(2) of the same Act seems to imply necessarily that a parole order that has expired can be cancelled. Indeed, that appears to be the position: R v Wallace (No 2) [2016] ACTSC 38 at [20].
113․As observed by Loukas-Karlsson J in R v KI (No 3) [2021] ACTSC 297 at [15]:
As recently noted by Refshauge AJ in R v Kelly (No 2) [2021] ACTSC 253 (R v Kelly (No 2)) at [15], the Court must have detailed information of the facts pertaining to the original offending that resulted in the imposition of the suspended sentence with a good behaviour order, as well as the facts of the offences that amount to the breach: see also Gyory v The Queen [2012] ACTCA 28; R v Beniamini (No 2) [2017] ACTSC 32 at [52]-[53].
114․Berman AJ described the offending for which the suspended sentence was imposed in the following way at [2]-[6]:
2. 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”.
3. 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”.
4. 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.
5. 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”.
6. 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”.
115․I have been provided with the agreed statement of facts in relation to all the offences committed in breach of the good behaviour order and I have had regard to them. The breaching offences can be summarised as follows.
CC2023/3720: driving while disqualified, committed on 27 March 2023
116․The offender was stopped by police while driving in Bruce, ACT on 27 March 2023 after overtaking another vehicle from the left-hand side. When asked for his license the offender replied, “no license”. Police enquiries revealed the offender was disqualified from driving and subject to a good behaviour order imposed in March 2022.
CC2023/9360: damaging property and CC2024/921: common assault, committed on 22 September 2023
117․While driving, the offender was involved in a minor collision with another vehicle. The driver of the second vehicle followed the offender’s vehicle with the intention of exchanging details. When both vehicles came to a stop, the offender exited his vehicle while brandishing a tyre lever. The offender ran toward the second vehicle and yelled, “get out of the fucking car”. The offender struck the victim’s vehicle with the tyre lever and smashed both the front and rear driver’s side windows. The offender yelled “you’re going to die, I’m going to kill you”. The victim contacted the police and later provided them with video footage of the incident.
CC2024/7298 and CC2024:7299: failing to appear, committed on 26 May 2024 and 28 May 2024
118․On 26 May 2024, the offender failed to attend his sentencing listing in the Magistrates Court. On 28 May 2024, the offender failed to attend his listing in the Supreme Court.
CC2024/7295: aggravated reckless driving, committed on 17 June 2024
119․The police received a report that the offender may be driving while his driver’s license was subject to disqualification. Police located the offender’s vehicle and activated their lights and sirens. The offender mounted a curb and drove away from the police. The offender’s vehicle was soon sighted and police again activated their lights and sirens. The vehicle crossed the centre lines of the road and continued driving on the wrong side. The vehicle was travelling at a high speed and was passing other vehicles. The police did not initiate a pursuit due to safety concerns. The offender was apprehended at a later date.
120․In addition to the facts of the original and breaching offences, in R v Kelly (No 2) [2021] ACTSC 253 (Kelly) Refshauge AJ at [15] considered the following factors were relevant to the question of whether to impose the suspended sentence or re-sentence:
(a) the proportion of the Good Behaviour Order served before the breach occurred.
(b) the rehabilitation achieved in the time during which the Good Behaviour Order has been served.
(c) the prospects of further rehabilitation.
(d) the relative seriousness of the offence, or offences, which constituted the breach of the Order, and, in particular, whether imposing the suspended sentence would be disproportionate to that seriousness.
(e) whether the breaching offence, or offences, is, or are, of similar conduct.
(f) whether the breach is, or breaches are, so serious as to show a disregard of the need to be of good behaviour.
(g) whether the offender has been warned of the breaches, especially if they are not breaches constituted by further offending.
(h) the offender’s level of understanding of the obligations and the terms of the Good Behaviour Order and of the consequences of the breach.
(i) the nature of judicial and community resources previously devoted to the offender.
(Citations omitted).
121․The parties agreed that the appropriate outcome in this instance was to impose the remainder of the suspended sentence: a period of 3 months and 29 days. Bearing in mind the relevant factors in Kelly, including that the first of the breaching offences occurred only seven months into a two-year order with the second occurring six months later, the nature of the breaching conduct engaged in and the cumulative effect of the breaching conduct evincing disregard for the requirement to be of good behaviour, I consider it appropriate to impose the outstanding period.
Determination
122․The purposes of sentencing are set out at s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act). Of particular significance in this sentencing exercise is the need to give effect to general and specific deterrence, punishment, denunciation and accountability. The offender experienced extensive childhood and adolescent disadvantage, such that a consideration of his moral culpability moderates to some extent the weight to be attached to general deterrence, punishment and denunciation.
123․The observations of Berman AJ in R v Winters are apposite at [28]:
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.
124․This offending represents the third occasion where the offender has committed serious offences while in lawful custody. In R v Winters [2019] ACTSC 245 Loukas-Karlsson J sentenced the offender for the assault occasioning actual bodily harm offence referred to by Berman AJ in the extract above.
125․I consider specific deterrence to be particularly relevant in circumstances where the offender has consistently demonstrated his willingness to commit offences while in lawful custody. General deterrence, notwithstanding the moderating effect of the offender’s moral culpability, remains a relevant consideration. Order and compliance in the prison environment is critical for the safety of officers and inmates. Prisoners minded to behave like the offender did in November 2020 must be deterred: Carberry; Deng at [85]-[86], see also Horan v O'Brien [2021] ACTSC 323 at [16]-[17].
126․Rehabilitation remains a relevant factor. The prosecution submission that “the new offences should inform the Court’s understanding about the offender’s rehabilitation obtained to date, and inability to comply with community-based sentences” is properly made. That said, the offender has demonstrated some capacity for compliance and is now well supported and motivated to address the personal challenges that influence his ability to engage with ACT Corrective Services. The offender will need to confront those personal challenges and find a way to manage them, to be able to successfully comply with any conditions imposed upon his eventual release into the community. The offender’s desire to be present in his young son’s life will be directly influenced by his successful engagement with the supervisory regime of parole.
127․As I observed in George, “the offending conduct was serious and dangerous”, and a period of imprisonment is the only appropriate outcome having regard to possible alternatives: s 10 of the Crimes (Sentencing) Act.
128․The offences having been committed while the offender was in lawful custody, s 72 of the Crimes Sentencing Act applies, requiring that the sentence of imprisonment I impose (the primary sentence) be served consecutively with any existing sentence. As in George, the prosecution did not seek to invoke s 72(4) of the Crimes (Sentencing) Act: see George at [115]. Section 70(1)(a)(iii) applies such that for each of the offences committed in lawful custody, the other is an “existing sentence”. The result of which is the sentences imposed for each of the November 2020 offences must be consecutive on each other and on the other existing sentence, unless an order is made pursuant to s 72(3).
129․Pursuant to s 72(3) of the Crimes (Sentencing) Act, I may direct that a primary sentence be served concurrently (or partly concurrently and partly consecutively) with an existing sentence. While there is no requirement that “special” or “exceptional” circumstances exist before making such an order, a “high degree” of departure from the statutory norm of consecutive sentences calls for a “clear and express explanation” in particular where no “good reason” for doing so is apparent: The Queen v Rappel [2019] ACTCA 11 (Rappel) at [25]. The principle of totality is not extinguished by the terms of s 72 nor does Rappel stand for it being ignored.
130․It is no longer the case that sentences imposed for offences committed while in lawful custody are excluded from the requirement to set a non-parole period if the sentence is for 1 year or longer: see the Crimes Legislation Amendment Act 2024 (ACT). The existing sentence commenced on 15 July 2024 and expires on 31 July 2025 with the non-parole period expiring on 14 February 2025. Upon the imposition of a term of imprisonment for these offences, the offender’s existing non-parole period must be cancelled pursuant to s 66(3) of the Crimes (Sentencing) Act.
131․I am mindful of the need to give effect to the relevant purposes of sentencing noting the definitive statements from the Court of Appeal in Rappel and Carberry; Deng as to the significance of general deterrence in sentencing offenders for offending committed while in lawful custody. I also bear in mind the influence of delay in these proceedings. In all the circumstances a substantial degree of concurrency is justifiable, as it was for co-offender George, as between the sentences imposed for the November 2020 offences representing as they do, a tightly connected course of conduct. A degree of concurrency is warranted as between the existing sentence, the suspended sentence to be imposed and the primary sentence. A direction pursuant to s 72(3) of the Crimes Sentencing Act giving effect to partial concurrency is necessary to avoid what would otherwise be a crushing outcome.
132․I have had regard to the need to avoid the suggestion that there has been a discount applied for multiple offences. The observation in MAK at [18] has relevance here:
[W]here an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.
133․The effect of the sentence I impose will be that the offender will be required to spend further time in full-time imprisonment arising from his participation in the November 2020 “riot”. This is, as it was for co-offender George, the just and appropriate outcome. The requirement to re-set a non-parole period can give effect to a period of supervision to support the offender to transition back into the community. Unlike co-offender George, the offender has an additional period of imprisonment that I must consider in the structure of the sentence. Given the nature and extent of the betrayal by the offender of the opportunity, extended to him by virtue of the 2022 suspended sentence order to remain in the community, it would not be appropriate for the period remaining under the suspended sentence order to be entirely concurrent with the other sentences I impose.
134․The offender has spent much of the seven years he has been an adult either subject to court orders in the community or serving sentences of full-time imprisonment. The opportunity presented to the offender by parole supervision will be his for the taking. A substantial period of parole supervision will enable the offender to take full advantage of that opportunity and fulfil the promise for rehabilitation he briefly demonstrated after his release from the AMC in 2022. If the offender can view the support provided by parole as a pathway to becoming the partner and father he aspires to be, it may assist him to avoid what has thus far been a revolving door to the AMC.
135․The principles guiding the setting of a non-parole period have been the subject of consideration in the following cases: Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 at 283-285 [61]-[66]; Taylor v R [2014] ACTCA 9 (Taylor) at [19], Henry v The Queen [2019] ACTCA 5 at [33]-[37] and The Queen v Ruwhiu [2023] ACTCA 18 (Ruwhiu) at [18] (citing Taylor with approval). I have had regard to the principles articulated therein. A non-parole period is the period that justice requires the offender to serve in custody, being the minimum period of actual incarceration required having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, protection of the community and the offender’s prospects of rehabilitation: Ruwhiu at [18]; Muldrock at 139-140 [57]. In determining the non-parole period I have carefully considered those factors as well as the need I have identified for lengthy supervision.
136․The starting point for the arson offence is 3 years and 10 months of imprisonment reduced to 2 years, 10 months and 15 days of imprisonment in recognition of the plea of guilty.
137․The starting point for the damage property offence is 22 months of imprisonment, reduced to 1 year, 4 months and 15 days of imprisonment in recognition of the plea of guilty.
138․The period of imprisonment to be imposed for the breach of the suspended sentence order is 3 months and 29 days of imprisonment.
139․Pursuant to s 72(3) I direct that the primary sentence be served partly concurrently and partly consecutively with the existing sentence.
Orders
140․The orders I make are:
(1)The offender is convicted of the offence of arson (CAN 2518/2023) and sentenced to a period of imprisonment for 2 years, 10 months and 15 days to start on 31 January 2025 and end on 14 December 2027.
(2)The offender is convicted of the offence of damage property (CAN 2519/2023) and sentenced to a period of imprisonment for 1 year, 4 months and 15 days to start on 1 October 2026 and end on 15 February 2028.
(3)I find the breach of the good behaviour order imposed for the offence of arson (CC2021/3054), proved. The good behaviour order is cancelled. The suspended portion of the sentence, being 3 months and 29 days, is imposed to start on 18 December 2027 and end on 15 April 2028.
(4)The total period of imprisonment being 3 years, 2 months and 16 days, it will commence on 31 January 2025 and end on 15 April 2028.
(5)I cancel the existing non-parole period set to expire on 14 February 2025. The non-parole period is to start on 15 July 2024 and end on 14 July 2026.
| I certify that the preceding one hundred and forty [140] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: A Turner Date: 8 November 2024 |
0
55
5