R v Wright; R v Edgerton
[2021] ACTSC 12
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wright; R v Edgerton |
Citation: | [2021] ACTSC 12 |
Hearing Date: | 2 February 2021 |
DecisionDate: | 2 February 2021 |
Before: | Murrell CJ |
Decision: | Wright sentenced to two years’ imprisonment, to be served by way of intensive correction in the community. Edgerton received an indicative sentence of 18 months’ imprisonment, to be fully suspended if he continues rehabilitation in the community. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Intentionally inflict grievous bodily harm – Joint commission – Parity |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 36 Crimes Act 1900 (ACT) ss 19, 20 |
Cases Cited: | Jovanovic v The Queen [2015] ACTCA 29 R v Barron [2020] ACTSC 281 Subasic v Williams [2018] ACTSC 207 |
Parties: | The Queen ( Crown) Jennie Louise Wright ( Offender) Brandon Ashley Edgerton ( Offender) |
Representation: | Counsel M Howe ( Crown) B Morrisroe ( Offender Wright) J Robertson ( Offender Edgerton) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Boxall Legal ( Offender Wright) JDR Law ( Offender Edgerton) | |
File Numbers: | SCC 138, 187 of 2020 |
MURRELL CJ:
Introduction
Each offender pleaded guilty to the offence that, on 24 February 2020, they intentionally inflicted grievous bodily harm on the complainant, contrary to s 19 of the Crimes Act 1900 (ACT) (Crimes Act).
The maximum penalty for the offence is 20 years' imprisonment.
Ms Wright has spent 132 days in custody solely referrable to the offence, from her arrest on 15 March 2020 until 24 July 2020 when she was granted bail.
On 24 July 2020, Ms Wright entered a plea of guilty in the Supreme Court after the matter had been committed for trial but before all committal documentation had been filed. The plea was entered in the context of a strong prosecution case. Mr Edgerton had provided a detailed version of events to police, the complainant had identified Mr Barron as the attacker, and recorded telephone conversations revealed Ms Wright's participation in the offence. The appropriate discount is about 20 per cent.
Mr Edgerton has spent no time in custody in relation to this matter.
He entered a plea of guilty at the earliest opportunity and would ordinarily receive a discount of 25 per cent for the early plea. In addition, as the Crown accepted, he is entitled to a discount under s 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for his assistance to the authorities in providing a full account of events.
Facts
In January 2020, Ms Wright ended a seven-year relationship with the complainant. Soon afterwards, she commenced a relationship with Mr Barron. Ms Wright continued to live at the Kaleen residence where she had formerly lived with the complainant.
Although Mr Edgerton had no blood relationship with Ms Wright, he regarded her as his mother.
During February 2020, including on 23 February 2020, the complainant and Ms Wright exchanged acrimonious text messages, including (on the part of the complainant) offensive messages in relation to Mr Barron.
On the evening of 23 February 2020 and in the early hours of the following day, Ms Wright, Mr Barron and Mr Edgerton made a plan to assault the complainant on 24 February, as he was to collect his belongings from the Kaleen residence on that day.
Mr Barron ensured that he had access to a metal trolley pole.
On the morning of 24 February 2020, Ms Wright communicated with the complainant via text message to confirm the time at which he would collect his belongings.
The CCTV security system at the property was disconnected.
During the morning, Ms Wright spoke by telephone with her son, and told him that the complainant would be “going on a long holiday”.
Shortly before the incident, Ms Wright told Mr Egerton that he was to assist the complainant to carry a trash pack frame for the purpose of facilitating the attack.
At about 12.25 PM on 24 February 2020, the complainant arrived at the property and walked through to the backyard, where he saw Ms Wright, Mr Barron and Mr Edgerton. The complainant began to load his property onto a utility vehicle.
Mr Edgerton offered to help the complainant move the trash pack frame. As they were moving the frame towards the vehicle, the complainant heard someone call his name. He turned and saw Mr Barron approaching him, holding the metal shopping trolley pole. The pole was between 1.5 and 2 feet in length, with a diameter of 2 or 3 centimetres.
Mr Barron swung the pole at the complainant, striking him on the left cheekbone and eye socket. The complainant felt pain and staggered backwards. Mr Barron struck the complainant a two more times over the head. After he the second strike, the complainant fell to the ground. Mr Barron continued to strike the complainant on the arm, leg and back. The complainant began to bleed profusely.
Mr Barron then allowed the complainant to stand up, and Mr Edgerton continued to assist the complainant to carry the frame to the front of the house.
Mr Barron told the complainant to “fuck off and don’t come back”.
The complainant managed to drive home. His grandmother conveyed him to the Calvary Hospital, where the following injuries were observed:
(a)a chipped and bleeding tooth;
(b)four deep lacerations to the scalp and face—his skull visible at the base of a laceration over the left eyebrow—which were closed with medical sutures;
(c)an undisplaced left orbital roof fracture;
(d)a comminuted fracture of left zygomatic arch;
(e)a fracture of left infratemporal wall of the left maxillary antrum; and
(f)a fracture to the head of right fifth metacarpal bone for which a plaster cast was applied.
At about 4 PM on 24 February 2020, Ms Wright spoke to her son on the phone. She said that Mr Barron may not be able to visit the following week as somebody had tripped over and hurt themselves and would blame Mr Barron for it. Ms Wright said, “it is called karma”. During the telephone call, she laughed frequently.
On 10 March 2020, in a series of text messages between Ms Wright and Mr Barron, the couple spoke of exculpating Mr Barron and implicating Mr Edgerton as the assailant.
On 11 March 2020, Ms Wright told a friend of Mr Barron that he needed an alibi, as he had told police he was seeing another girl at the time of the offending. Ms Wright asked the friend to find a woman who would provide an alibi.
On 13 March 2020, Mr Barron told one of his sons that they needed to find a woman who would provide an alibi for his whereabouts on the day of the offence.
Ms Wright was arrested on 15 March 2020.
Victim impact
After the initial attendance at the Calvary Hospital, the complainant attended the Calvary Hospital as an outpatient for monitoring and treatment of his facial and eye injuries and for physiotherapy on his right hand.
Dr Thomas reported that the complainant would have scarring to his scalp and face, reduced movement in the smallest finger of the right hand, and it was possible that he would acquire facial asymmetry and experience ongoing pain and discomfort and ongoing psychological sequelae. Dr Thomas reported that head trauma can cause temporary or permanent brain injury and can increase the risk of neurological disease later in life.
The complainant did not wish to provide a victim impact statement.
There is no evidence that the possibilities identified by Dr Thomas have materialised.
Objective seriousness
The objective seriousness of the offence committed by each offender is to be assessed by reference to the culpability of the offender and the degree of bodily harm that was occasioned.
Moral culpability
In relation to Ms Wright, the objective seriousness of the offence is informed by the following matters affecting moral culpability:
(a)The offence was a joint offence;
(b)The motive for the attack was retribution connected with the recent relationship between Ms Wright and the complainant;
(c)The offence was planned on the day before it occurred;
(d)The participants ensured that the complainant would attend the house and the CCTV was disconnected, although it is not known by whom;
(e)The complainant was defenceless and vulnerable when the attack commenced because he was carrying the trash pack frame;
(f)A weapon, a metal trolley pole, was used by Mr Barron; and
(g)The complainant was struck on numerous occasions, including three strikes to the head, a particularly vulnerable area, with the pole and strikes to various parts of the body while the complainant was on the ground and defenceless. However, there is no evidence that the offenders knew that Mr Barron would strike the complainant in particular areas, or numerous times.
Given Mr Barron's role as the assailant who wielded the metal bar and who was directly responsible for the complainant's injuries, his culpability is greater than that of the offenders.
Although Ms Wright did not strike any blows, her role in planning the offence and ensuring the complainant's attendance at the house renders her significantly culpable.
Mr Edgerton's role was a lesser one. He was present during the planning and was told by Ms Wright to assist the complainant to facilitate the attack. He was nearby at the time of the assault.
Mr Edgerton stated that he did not actively engage in the planning process and, on the morning of the incident, he told the co-offenders that he did not wish to participate. No doubt, he would have been influenced by the fact that Ms Wright was, in effect, his surrogate mother. Further, he was a young man who had been raised in an environment where recourse to violence was commonplace and an accepted means of resolving disputes.
Grievous bodily harm
Although the injuries did not require surgery and most are not permanent, because of their nature and number, they do sit within the spectrum of injuries amounting to grievous bodily harm (albeit not at the more serious end of the spectrum). The injuries included three facial fractures and four deep lacerations to the scalp. It was fortunate that the assault on the complainant's head did not lead to more serious injuries.
Subjective features
Ms Wright
Ms Wright is 44 years old. She has no criminal record.
After being placed on bail on 24 July 2020, Ms Wright had contact with Corrective Services and her compliance was satisfactory.
Ms Wright was born in England. As a child, she witnessed domestic violence perpetrated by her biological father against her mother. In 1989, she came to Australia with her mother and stepfather. Her mother had a psychiatric condition. Ms Wright is estranged from both parents.
Ms Wright completed Year 12 and then worked consistently in various hospitality and retail positions until 2009, when she began to receive a carer's allowance in relation to one of her daughters, who is developmentally delayed. She continues to receive Centrelink benefits.
In early 2020, Ms Wright commenced a relationship with Mr Barron. I understand that the relationship is continuing, which is a cause for concern.
She told the authors of the pre‑sentence report that she used methamphetamine for two weeks in January 2020 but stopped because she did not enjoy it. However, in September 2020, two drug tests returned a positive result for amphetamines. Ms Wright attributed these results to a medication that she was taking for an eye condition—an explanation that I do not readily accept. Urinalysis tests conducted in November 2020 and January 2021 returned negative results, which is a cause for optimism.
Ms Wright told the author of the ICO assessment report that she has a drug driving charge before the Magistrates Court that is listed for sentence on 19 February 2021.
Ms Wright has had intermittent contact with mental health services. While in custody, she made two attempts to self‑harm, in May and June 2020. She overdosed on prescription medication on 3 October 2020, requiring hospitalisation. Her general practitioner said that, when Ms Wright was in custody, her mental health deteriorated significantly.
Dr Kasinathan considered that Ms Wright suffers from a chronic persistent depressive disorder (dysthymia), which should be treated to minimise the impact on her parenting and, presumably, also for her own benefit. She requires psychological therapy every fortnight for the next two years and should attend monthly GP review. Ideally, she would be treated with cognitive behavioural therapy and anti-depressant medication and would attend appropriate parenting programs. Such treatment would assist her to provide her children with a consistent, stable, and safe home environment.
Ms Wright's general practitioner said that she experienced retinal vein thrombosis while in custody. With appropriate treatment, she has largely recovered.
When interviewed for the purposes of the pre‑sentence report, Ms Wright claimed a lack of awareness that the offence was occurring. She accepted no responsibility for the offence. However, more recently, she wrote a letter to the Court in which she stated that, when she saw photographs of the complainant's injuries, it mortified her, as she had been the victim of domestic violence. She expressed remorse for her actions and the effect that they had had on the complainant.
Ms Wright was assessed as at medium risk of general re-offending. Her primary risk factors were identified as antisocial associations, mental health, and illicit substance use.
It is clear that she does require ongoing mental health support. However, I am more optimistic about her prospects of rehabilitation. She attained 44 years of age without any criminal history, and that speaks to her capacity to live a law‑abiding life.
Ms Wright has eight children. One of the children has mental health problems, suffering from dyslexia, attention deficit hyperactivity disorder (ADHD), and social and behavioural problems.
The father of six of the children was an alcoholic who emotionally abused Ms Wright and physically abused her children. From 2009, in Queensland, the children were identified as at risk of emotional harm and neglect because they were being raised in a chaotic and disruptive environment.
In 2013, Ms Wright and five of the children sought refuge in crisis accommodation for women and children escaping domestic violence.
In January 2017, Ms Wright's partner died in a motor vehicle accident in Queensland. Despite their turbulent relationship, his death was very shocking to Ms Wright.
Currently, Ms Wright’s youngest children reside in Queensland with Ms Wright's mother, pending the outcome of the sentencing proceedings. They will return to her if she is not incarcerated. One resides at the Bimberi Youth Justice Centre. Others resided with Ms Wright in an ACT Housing property. Before Ms Wright was granted bail, the oldest child was caring for his siblings with the support of Barnardos Australia. An outreach family support worker with Barnardos expressed concern that one of the four children was in Year 12, and it was difficulty for the oldest boy to assume responsibility for the other children, ensuring that they were properly fed and attended school.
Ms Wright's government housing (and her children's home) may be lost if she is taken into custody.
The Court received a reference from a friend of Ms Wright, who described her as kind, generous and supportive.
The author of the ICO assessment report assessed her as suitable for an intensive correction order.
Mr Edgerton
Mr Edgerton was 21 years old at the time of the offence.
He has a limited criminal history. For offences of burglary and act of indecency committed in October 2018, in September 2019, the ACT Magistrates Court sentenced him to concurrent intensive correction orders (ICOs) requiring that he perform community service work. After fluctuating compliance, he completed the orders successfully in September 2020. In December 2019 in New South Wales, he was sentenced to an 18-month good behaviour order with community service for a stalking offence. That order is being supervised by ACT Corrections. Compliance fluctuated but improved over recent times. The order expires in June 2021.
In early 2020, Mr Edgerton ceased taking medication for mental health problems and, on 5 February 2020, he had a mental health breakdown. At about that time, he experienced a relationship breakdown and resorted to drug use as a coping strategy. The current offence occurred on 24 February 2020, at a time when Mr Edgerton was suffering mental difficulties.
In March and April 2020, Mr Edgerton failed to attend community work and psychological sessions, although he maintained contact with Community Corrections. By May, he had lapsed into methamphetamine use. In August 2020, the Sentence Administration Board found that he was unable to comply with the ICO because of physical and mental health problems, but subsequently he was permitted to complete the ICO. It is an aggravating feature that the subject offence was committed while Mr Edgerton was on conditional liberty.
Mr Edgerton had a difficult childhood involving periods of abuse and neglect that led to foster placements. His parents separated when he was young, and his father died when he was 15 years old. During the periods when he lived with his mother, he was subjected to beatings and abuse. Reportedly, he was physically abused by foster parents. He himself engaged in physical fights with family members.
After a period of homelessness in his adolescence, Mr Edgerton was invited to live with Ms Wright and her family. Currently, he has little contact with his biological family, many of whom are incarcerated.
In early 2020, Mr Edgerton separated [redacted].
He has re-partnered with a supportive partner who is described as a relatively positive influence. Otherwise, he has little familial support. He resides with his partner and her family in Sydney. His partner is pregnant and expecting a baby in late July.
Mr Edgerton struggled at school with poor concentration. He was diagnosed as suffering from ADHD and placed on Ritalin.
He left school in Year 11 and says that he would like to obtain his Year 12 certificate. He has worked for short periods in unskilled work but has held no employment for the past two years.
In December 2017, he had a serious car accident.
Since childhood, he has experienced anger, flashbacks, and sleep disturbance.
From late adolescence, he abused alcohol and cannabis. By 16 years of age, he used cannabis daily, and by 17 years of age, he drank alcohol daily. He has had periods of abstinence but has used alcohol and cannabis almost daily since 2018. While on an ICO, his use fluctuated, but on several occasions, he tested positive for cannabis and/or methamphetamine.
Since 16 June 2020, all urinalysis tests have been negative for illicit substances, but the offender has said that he wishes to resume cannabis use upon completion of the ICO.
Mr Edgerton has been diagnosed with dysthymia, an unspecified anxiety disorder and cluster B personality traits. He told the authors of the pre-sentence report that he has been diagnosed with ADHD and obsessive-compulsive disorder and is on the autism spectrum. He has a history of self-harm and suicidal ideation, including recently, while serving the ICO. In May 2020, he presented to the Canberra Hospital with suicidal ideation and was admitted for two days. He has been diagnosed by Dr Bonner as suffering from severe borderline personality disorder and severe post-traumatic stress disorder (related to the fact that he was assaulted while on remand in custody). Dr Bonner described Mr Edgerton as having “fairly severe symptoms and disability”.
Mr Edgerton's mental health difficulties precluded him from being accepted to the “Pathfinder” treatment program. He was asked to attend counselling sessions, but little was achieved because he failed to attend.
He suffers from back pain, recurrent shoulder, hip and knee problems, and possibly from head injuries experienced during sporting activities, in fights, and in the motor vehicle accident to which I referred.
According to Dr Clout, psychologist, Mr Edgerton presents a complex clinical picture. He suffers from borderline personality disorder, which she described as a prominent feature, post-traumatic stress disorder, substance abuse, and possibly ADHD. She said that he should be further evaluated in relation to the possibility that he suffers from ADHD. She noted that the borderline personality disorder and post-traumatic stress disorder had a reported onset in adolescence. She said that his conditions affect his emotional regulation, behavioural control, and cognitive processes, including concentration, judgment, and decision making. She said that maladaptive coping strategies included withdrawal, avoidance, and dissociation.
Dr Clout considered that Mr Edgerton requires intensive drug rehabilitation, preferably in a residential program.
It is apparent that Mr Edgerton continues to experience the impact of childhood neglect and abuse. The Crown accepted that the impact of such childhood disadvantage did not diminish with the passage of time. The authors of the pre-sentence report noted that Mr Edgerton displayed some victim empathy and had expressed surprise at the ferocity of the assault. However, they described his insight as “minimal”, which is perhaps a pessimistic view of the situation.
The early entry of the plea and provision of assistance to the authorities was consistent with remorse and it seems to me that he has shown victim empathy. He has also indicated a willingness to engage in restorative justice.
The Court was provided with an intensive correction order assessment report. The offender was deemed not suitable for an intensive correction order, as his primary residence is in Sydney. Mr Edgerton wishes to remain in Sydney to support his pregnant partner and continue to pursue a positive lifestyle.
Mr Edgerton furnished a character reference from his partner's father. He stated that, since Mr Edgerton had moved to Sydney, he had made a conscious effort to change his life. He had ceased contact with his old friends, had not consumed any illicit substances, and had begun to play cricket again. He was optimistic that, if given the chance, Mr Edgerton would become a respected law-abiding citizen.
Comparable cases
The Crown referred to the following cases as comparable sentences.
In Jovanovic v The Queen [2015] ACTCA 29, the offender stabbed the complainant five or six times to the side of the back in an attack at the bus interchange. The complainant suffered a punctured lung and severed intercostal artery. The offender had a criminal history, but there were no recent offences of violence. Following a trial by jury, he was sentenced to 10 years and 9 months’ imprisonment. On appeal, the Court of Appeal found that the sentence, while “undoubtedly stern”, was not manifestly excessive.
In R v Rappel [2019] ACTCA 11, when in company, the offender assaulted two complainants inside the Alexander Maconachie Centre. No weapon was used. One complainant suffered fractured ribs, a punctured lung, and fractures to the eye socket. The other suffered cuts resulting in scarring. The offender was serving a lengthy sentence of imprisonment for several offences, including murder. On appeal, the sentences were increased to five years’ imprisonment (from 18 months’ imprisonment) for the more serious assault and to two years and six months’ imprisonment (from six months’ imprisonment) for the less serious assault.
In R v Bourne; R v Manns [2018] ACTSC 35, the offender Bourne smashed the complainant’s hand with a sledgehammer, causing multiple fractures that required surgery and the insertion of a titanium screw. The offence occurred in the context of the sale of illicit drugs. The offender had a significant criminal history, including for violent offending. The sentence was reduced from nine years’ imprisonment for the plea of guilty to six years and nine months’ imprisonment.
In R v Chevalier [2018] ACTSC 236 (Chevalier), during an aggravated robbery, the offender stabbed the complainant in the back when the complainant attempted to flee. The complainant suffered a penetrating chest injury to the left upper back. The offender had a significant criminal history, including offences of violence. Following a trial by jury, he was sentenced to five years’ imprisonment.
R v Po’oi [2018] ACTSC 364 related to the same incident as Chevalier. The offender was not present at the time of the stabbing but was convicted by virtue of joint commission. He had a significant criminal history. He was sentenced to three years’ imprisonment.
The offender in R v Torbert [2015] ACTSC 331 approached the complainant from behind and struck him with a machete to the back of his leg, severing the complainant’s Achilles tendon. The offender unsuccessfully attempted a further strike on the complainant. In protecting himself, the complainant suffered cuts to his fingers that caused ligament damage. The offender had a substantial criminal history for minor offences. The offender was charged with an offence under s 20 of the Crimes Act and was sentenced to five years and three months’ imprisonment (reduced from seven years’ imprisonment for the plea of guilty).
In R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305, during the course of an aggravated burglary, there was a struggle between the complainant and the offenders. A shot was fired, striking the complainant in the left arm. He required surgery and ongoing physiotherapy. Both offenders had significant criminal histories and were found guilty following a trial. For the offence of intentionally inflicting grievous bodily harm, each was sentenced to four years’ imprisonment.
The defence referred to R v Kemppainen; R v Rose [2020] ACTSC 69 and R v Kemppainen(No 2) [2020] ACTSC 159. The offenders, who were in a relationship, were involved in an altercation with another couple at a motor park. The offender Rose grabbed the woman by the hair, while the offender Kemppainen retrieved a baseball bat and hit the man forcefully on the arm, breaking it. I assessed the offence as objectively serious. I sentenced the offender Kemppainen to a three-year intensive correction order, noting that the discount for the plea of guilty was taken into account in relation to the manner in which the sentence would be served.
The defence also referred to the case of R v Sikoulabot [2018] ACTSC 217, in which the 19-year-old offender was charged with an offence against s 20 of the Crimes Act. The offender engaged in a fight outside a nightclub. He struck the complainant several times, kicked him in the head, and struck the back of his head with his fist. He then kicked him in the jaw, knocking the complainant unconscious before leaving. After applying a discount of 25 per cent for the plea of guilty, Loukas-Karlsson J sentenced the offender to 24 months’ imprisonment, to be served by way of intensive correction order.
For the period to February 2019, limited sentencing statistics are available and those that are available indicate a broad range of sentences. The 80 per cent range is from about two and a half years’ to six years’ imprisonment. I am well aware of the limitations of sentencing statistics, but they can be useful as a yardstick against which to measure proposed sentences.
Other sentencing considerations
Other considerations
In sentencing the offenders, I am required to take into account the factors in s 33 of the Sentencing Act, insofar as they are known and relevant. I have referred to most of the relevant factors above.
I am satisfied that, in the case of both offenders, the only appropriate sentence is one of imprisonment. The real issue is the manner in which the sentence of imprisonment should be served in each case.
In relation to Ms Wright, the Crown submitted that the objective seriousness of the offence and the absence of obvious criminogenic risk factors meant that the purposes of sentencing may be best reflected by imposing a further custodial term.
Ms Wright relied on s 33(1)(o) of the Sentencing Act, which was discussed in R v UG [2020] ACTCA 8 at [52]–[60], where the Court suggested that, absent circumstances out of the ordinary, there was no requirement that the effect of a sentence on family be taken into account. While this may be true in other jurisdictions, I doubt that the words of s 33(1)(o) support such a limitation.
In any event, I am satisfied that, in the present case, there are exceptional circumstances. Ms Wright is the sole adult caregiver for four children, one of whom is significantly disabled, and in her absence an intolerable burden may be placed upon another of the children, and the children may lose their home.
In relation to Ms Wright, the sentencing purposes of punishment, general deterrence, denunciation, accountability, and recognition of harm to the complainant are important.
I accept that the need to adequately punish an offender and deter like-minded people from committing similar offences may leave little, if any, scope for leniency, while at the same time imposing adequate punishment: Subasic v Williams [2018] ACTSC 207 at [39].
However, as Ms Wright has spent some time in full-time imprisonment, has good prospects of rehabilitation, and imprisonment will severely impact upon her children, and taking into account the other relevant objective and subjective features, I am prepared to impose a sentence that is served in the community.
The Crown submitted that a sentence of full-time imprisonment was appropriate in the case of Mr Edgerton, who had committed the offence while subject to conditional liberty. The Crown submitted that a fully suspended sentence would not be appropriate, at least if such a sentence was imposed today.
In relation to Mr Edgerton, relevant sentencing purposes include punishment, specific deterrence, general deterrence, accountability, denunciation, and recognition of harm to the complainant. As he is a young man with a limited criminal history and many problems that contribute to his risk of recidivism, who is currently embarked on a path of rehabilitation, rehabilitation is a very prominent sentencing purpose. He is entitled to a significant discount that takes into account both the plea of guilty and the provision of assistance to the authorities.
Parity
On 12 October 2020, from a starting point of five years' imprisonment, I sentenced the co-offender Mr Barron to imprisonment for three years and nine months, from 1 November 2020 to 31 July 2024: R v Barron [2020] ACTSC 281.
The principle of parity is part of the broader rule that equal justice requires that like cases be treated alike. In the case of co-offenders, differences in the offences charged, the offenders' roles in the offences and the offenders' subjective circumstances often support different sentencing outcomes: see R v Saipani (No 2) [2020] ACTSC 228.
In this case, as discussed above, the offenders played different roles.
Further, Mr Barron had a significant criminal record and was on conditional liberty at the time of the offence. Ms Wright has no criminal history. Mr Edgerton is a young man with a limited criminal history (albeit that he was on conditional liberty at the time of the offence) and he remains affected by significant childhood disadvantage.
It is also important to consider parity as between Ms Wright and Mr Edgerton. Both advanced strong subjective circumstances. Ms Wright's role and responsibility for the offence was greater, but Mr Edgerton has a criminal history and he was on conditional liberty at the time of the offence. His youth, childhood disadvantage, and good rehabilitation prospects are very important, and he is entitled to a greater discount on sentence.
I have considered imposing a sentence that required Mr Edgerton to serve a period in full-time imprisonment, but I believe that such a sentence would be highly disruptive to his rehabilitation. Further, he would appear to be at particular risk in custody. At the very least, his mental stability would be challenged as a result of past occurrences in custody.
An intensive corrections order or referral to the drug and alcohol sentencing list would be appropriate. However, as Mr Edgerton resides in Sydney and his rehabilitation may be contingent on him continuing to reside in his present circumstances, it may be counterproductive to impose an ICO or DASL order.
Consequently, the only reasonable option is to proceed by way of a deferred or suspended sentence.
Having canvassed the matter with the parties, I have decided to indicate the sentence that I am minded to impose on Mr Edgerton as a suspended sentence, but defer the imposition of that sentence for a significant period to allow Mr Edgerton to demonstrate that he is capable of continuing rehabilitation in the community.
I consider that a deferral for a period of at least six months is appropriate to provide a realistic picture of whether Mr Edgerton can maintain rehabilitation in the community. However, I do not propose to adjourn the proceedings for the full six months. It is important for the Court to continue to supervise of Mr Edgerton's rehabilitation. Consequently, in the first instance, I will adjourn for a period of about two months.
Sentences
Wright
I convict Ms Wright.
Having regard to the period already served in custody, the starting point for Ms Wright’s sentence is 30 months' imprisonment. I allow a 20 per cent deduction for the plea of guilty. She is sentenced to two years' imprisonment, from 2 February 2021 to 1 February 2023.
I have received and considered an intensive correction order assessment report and I am satisfied that she is suitable for the imposition of such an order. I order that the sentence be served by intensive correction in the community.
Edgerton
I indicate that the appropriate sentence is a sentence with a starting point of 27 months' imprisonment less about 33 per cent as a combined discount for the early plea of guilty and assistance to the authorities.
Consequently, I indicate a sentence of 18 months' imprisonment, which will be fully suspended if, over the period of court supervision, the offender continues to demonstrate rehabilitation in the community.
I will adjourn the proceedings to Wednesday, 14 April 2021 at 9:30 AM.
Sentencing proceedings on 25 August 2021
Mr Edgerton’s sentencing proceedings have been adjourned on multiple occasions to provide the Court with the opportunity to oversee Mr Edgerton’s rehabilitation.
I am satisfied that Mr Edgerton has demonstrated satisfactory rehabilitation while in the community. He has engaged with ACT Community Corrections or their delegates as directed, though the COVID-19 pandemic has limited his ability to attend in person or engage in other activities in the community.
I impose the sentence I indicated on 2 February 2021, namely 18 months’ imprisonment, from 25 August 2021 to 24 February 2023, to be suspended forthwith.
I impose a good behaviour order for a period of 18 months, from 25 August 2021 to 24 February 2023, with the core conditions and the following additional condition:
(a)To submit to the supervision of ACT Community Corrections or any organisations nominated by ACT Community Corrections for as long as they deem necessary not exceeding the period of the good behaviour order.
Given the COVID-19 pandemic, it was not possible for Mr Edgerton to appear in person. Accordingly, he gave an undertaking before the Court to comply to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period of the order.
| I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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Amendments
25 August 2021 Paragraphs 119 to 123 are added. Heading above Paragraph 119 added to read “Sentencing proceedings on 25 August 2021”.
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