R v Wyatt (No 2)
[2017] ACTSC 151
•16 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wyatt (No 2) |
Citation: | [2017] ACTSC 151 |
Hearing Date(s): | 26 April 2017; 5 May 2017; 25 May 2017; 16 June 2017 |
DecisionDate: | 16 June 2017 |
ReasonsDate: | 26 June 2017 |
Before: | ROBINSON AJ |
Decision: | See [44] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – drug possession – fireworks explosion indoors – difficult beginning to life – disquieting fact that ice is available in Alexander Maconochie Centre – impressed by honesty of offender and sincerity in wishing to live a better and productive life – bail granted to undertake residential rehabilitation. |
Legislation Cited: | Crimes Act 1900 (ACT) s 309 Crimes (Sentencing) Act 2005 (ACT) ss 33(1)(l); 35(1)(w); 36(3) |
Cases Cited: | CMB v Attorney General [2015] HCA 9; 256 CLR 346 Nasser v R [2017] NSWCCA 104 |
Parties: | The Queen (Crown) Scott Wyatt (Offender) |
Representation: | Counsel Mr M Thomas (Crown) Ms K Marson (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 42 of 2017; SCC 43 of 2017 |
ROBINSON AJ
Scott Wyatt, the offender, has pleaded guilty to two counts of causing damage to a building by explosive. He also asks that the Court deal with the summary offence of possess a drug of dependence, namely methylamphetamine.
The maximum penalty for the offence of cause damage to a building by explosive is 15 years imprisonment.
The maximum penalty for the offence of possess a drug of dependence is two years imprisonment.
In accordance with Markarian v R [2005] HCA 25; 228 CLR 357 at [30]-[31], I take note of these maximum penalties
Facts
In R v Wyatt [2017] ACTSC 87 I heard an application by the offender that the two current explosion offences be referred for restorative justice. In the course of that application I had cause to consider the facts presented to me. I also further considered some of the subjective matters concerning the offender. In what follows, I will draw upon what I wrote on that occasion and supplement it with additional material tendered on this sentencing application.
On Sunday 13 February 2011, the Meche Nightclub on Northbourne Avenue was open and trading. A number of patrons were in attendance. At about 1.30 am, there was a large explosion which occurred in the men’s toilet cubicles inside those premises. As a report from the crime scene investigator notes, when fireworks are exploded indoors the blast pressure is confined, increasing the effects of that blast pressure on its surroundings until the pressure is expended or vented to the atmosphere. A victim impact statement tendered at the hearing clearly showed this effect.
The nightclub was evacuated. Police and the fire brigade attended to assist distressed patrons and investigate the explosion, as did the Bomb Response Team. There was significant damage to the property and no doubt trading losses eventuated.
Later that same night, at about 3.45 am, a second explosion occurred at the ICBM Nightclub which was also trading at that time. Those premises adjoin the Meche Nightclub on Northbourne Avenue. Again, there was significant property damage and trading losses. Police, including the Bomb Response Team, attended to the patrons and investigated the explosion.
At ICBM, police spoke to Mr Scott Wyatt, who complained of ringing in his ears and feeling dizzy. He was transported to hospital for treatment.
At about 4.00 am, police attended the Calvary Hospital and arrested Mr Wyatt, who was subjected to a number of forensic procedures and later participated in a record of interview. In that interview, he denied any involvement in the Meche and ICBM Nightclub incidents.
Mr Wyatt was released from police custody.
In November 2011, police made further inquiries concerning Mr Wyatt and executed search warrants. No charges were laid even though it appeared that there was a fair body of evidence, which it is not necessary to detail, pointing to his involvement in the explosions.
On 13 January 2017, Mr Wyatt attended Gungahlin Police Station where he expressed a desire to speak to police about the Meche Nightclub. He told police that he had recently met the Lord and wanted to confess. He was taken to an interview room where he produced a substance, which he said was “ice”, and a capped syringe.
Mr Wyatt then participated in a record of interview during which he admitted causing the explosions at the Meche and ICBM Nightclubs and stated to police-
(a)He had 2 fireworks and took them into the toilets at ICBM and Meche Nightclubs
(b)He stole the fireworks from his friend as he was going to sell them
(c)The bouncers at Meche had bashed him and he wanted retaliation against them
(d)(At Meche) He went into the centre male toilets where he lit the firework and threw it underneath the divider wall into another cubicle
(e)After leaving the toilet he went to the bar and had another drink
(f)He was evacuated from the nightclub, he was asking other patrons what was going on
(g)Once evacuated he went to ICBM
(h)He only decided 5 minutes before the incident that he was going to light up the fireworks
(i)They were stored at home but he took them into town to sell them
(j)He took them inside the nightclub in his pants
(k)Once inside ICBM he went to the male toilets at the rear of the venue
(l)He lit the fireworks but it exploded
(m)He blew up his face when it exploded
(n)He was thrown to the ground, it stunned him, burnt him and blinded him
(o)He was taken to the hospital for the night
(p)He was interviewed by Police, he lied throughout the interview
(q)After the interview he was released by Police
(r)His intention wasn’t to harm life but to damage the building
At the police station on 13 January 2017, the offender pulled from his pocket and showed police a small clear clip seal bag containing a clear crystalline substance (which the offender said was “Ice”) and a capped syringe. These items were seized by police and led to the possession offence.
Before continuing the narrative, I interpolate here to record that the objective seriousness of the two explosion offences, assessed without reference to matters personal to the offender, is by no means minor. On the contrary, the force of the two blasts and the fact that persons were known to the offender to be in close proximity to those blasts demonstrate a recklessness to the possibility of critical injury to persons. Whilst it is property damage which is an element of the offence rather than injury to persons, the cases demonstrate the question of public safety is not divorced from a consideration of the objective seriousness of the offence. See, for example, Nasser v R [2017] NSWCCA 104.
Mr Wyatt was then arrested and charged with the current offences. Since his arrest on 13 January 2017, Mr Wyatt has been in custody at the Alexander Maconochie Centre (‘AMC’).
On 19 January 2017, Dr Renate Mundl made a report to the Court under s 309 of the Crimes Act 1900 (ACT). The report was made for the purposes of emergency detention under the Mental Health Act 2015 (ACT). That report said in part:
Reasons for Referral
[Mr Wyatt] was referred to our hospital following his self-presentation to the police to confess about a crime he had committed in 2011 because “the spirit of the lord told him to attend so he will be safe etc”.
Presenting Symptoms / Treatment / Outcome 3
[Mr Wyatt] was admitted to the Mental Health Short Stay unit for the purpose of providing urgently needed mental health treatment under the Mental Health Act for an acute psychotic episode. He also admitted to IV ICE use and his urine drug screening was still positive for amphetamine 2 days later. He also had a fractured [r]ight arm due to a self-inflicted injury (“practicing martial arts after having taken ICE”).
With treatment and enforced abstinence from illegal substances he has improved significantly over the period of a few days. Although he continues to talk about believing in God and God having told him to present to the police in order to be free beside some other subtle low grade psychotic beliefs, no psychotic behaviour has been observed on the ward over the last few days. He is well organised, appropriately responsive to other co-patients, his fluid and food intake is appropriate and he enjoyed watching TV without any non-verbal signs suggestive of psychotic thinking or behaviour. His conversation has become more rational and he has not shown any signs of aggression. He is happy to continue with the current medication and be followed up by the mental health service.
Pleas of Guilty
On 24 February 2017, the offender pleaded guilty in the Magistrates Court to the two counts of cause damage to building by explosion and drug possession and was committed for sentence to the Supreme Court. These pleas will entitle the offender to a discount which I will deal with below.
Criminal Record
The offender is now 31 years old. He has an extensive criminal record. It revolves around drugs and alcohol taken up by the offender from an early age.
Subjective Considerations
The offender’s background can be taken from the Pre-Sentence Report. He was removed from the care of his parents by Child Services and put in foster care. He apparently ran away from this foster care each time he was placed and he stated that he felt foster care was a jail at the time. The offender stated he was a problem child and was drinking, smoking and taking drugs from a young age. The offender left school part way through Year 7. He claimed that he started consuming alcohol at eight years of age and by 13 years of age he was a regular consumer. This became continuous heavy and problematic. The offender claimed he commenced smoking cannabis at 12 years of age until abstinence from that drug at 16 years of age. He started taking ecstasy first at 12 years of age. He took up amphetamines at the age of 13 and progressed to methylamphetamines. He has also tried heroin.
Under the heading of “Opinion” the author of the Pre-Sentence Report states-
Mr Wyatt is a 31-year-old man who appears to be significantly affected by periods of psychosis in conjunction with frequent and heavy consumption of illicit substances and alcohol. Mr Wyatt appeared to not recognise the extent of his mental health concerns and identified he only seeks assistance for these concerns in a custodial environment. Overall, Mr Wyatt appears genuinely motivated to make amends for his actions and indicated he would be compliant with sentencing outcomes.
A report from the ACT Alcohol and Drug Assessment Service was also tendered. This report noted the offender’s physical and mental history. The author described the offender as-
Mr Wyatt is a 31-year-old man who was polite and cooperative throughout the assessment. He appeared to be open in his responses during the interview. He presented with insight and awareness regarding the harms and dangers of his drug use. He acknowledged that although he would like to achieve abstinence from illicit drug use, he continues to “dabble” in illicit amphetamine use. Mr Wyatt reflected an awareness of potential difficulties and triggers for his substance use and to reflect an awareness of his current circumstances and difficulties.
Under the heading “Assessment Outcome” the author stated-
Mr Wyatt presented as an adult male with a history of problematic alcohol and illicit drug use. He was initiated into substance use at a very young age and has described drug use as a way of coping with childhood abuse and trauma that he was subjected to. Mr Wyatt said that he was in fact removed from his family by Child Protective Services due to abuse by his stepfather.
Mr Wyatt has described that becoming a Christian about five years ago has dramatically “changed my life” and supported him to become a “better person” and has assisted him to try to live a life “true to Christian values”. This has reportedly motivated him to come forward to Police and to engage with treatment.
Mr Wyatt is willing to engage with the CADAS program. It is the opinion of CADAS that residential treatment is an appropriate intervention for him and CADAS will assist him to enter residential AOD treatment. As noted, residential treatment options are available both within custody and the community.
The Offender’s Evidence
Counsel for the offender at first declined to call the offender to give evidence before me. I suggested to her that I would like to hear from the offender. I said that I would like to hear from him what he is going to do for the rest of his life. After taking further instructions, the offender was called to give evidence.
The offender informed the Court that he had found God and that he now wished to help people. He credited God with motivating him to learn how to read and that he wanted eventually to pursue a diploma in screen and media which he had previously started.
As is referred to above, the offender‘s two explosion counts have been referred to restorative justice. Tendered in evidence was a progress update on that issue which merely stated that the very first steps in the process were being undertaken.
The offender was asked in the witness box-
What is your intention in terms of engaging with restorative justice?---
My intentions are to apologise for what I did because I did something that is not of my nature no more – and for me to hold it for so long destroyed me – and I want to tell them that my (indistinct) thoughts is about their wellbeing – and their wellbeing is my most important thing - where I, in myself, care about them – and they don’t even know that I did, once I became a Christian in my later years. So I want to fix up what I did wrong and then even, hopefully, become one of their friends.
The offender gave evidence that whilst at the AMC he had engaged in several programs aiming to deal with his illicit substance intake. He was very well motivated in recognising and seeking help for this problem. I then asked him about whether he was still taking drugs at the AMC.
HIS HONOUR: And whilst you’ve been at AMC - - -?---Yes.
- - - have you been drug free or have you had some drugs?---Your Honour, I’ll tell you the honest truth - - -
Yes. I want to know the honest truth?---And the honest truth is yes, I have.
Well, looking back on that, was that a smart move, to have drugs while you’re there?---It’s not. It’s not a very smart move at all, but that’s why I do know I need help. That’s why I have pressed forward to help myself to become a better man and that’s why I need rehab - because I can’t do it by myself. If you can’t do it by myself you might as well ask for help – and if you don’t ask you can’t receive. So I might as well try everything I have to even benefit myself so I can help others.
Are you getting better at it or is it just the same?---Yes. No. I’m getting better. I’m getting better. I’m getting stronger.
(Later, in cross-examination, the offender gave evidence of taking drugs in AMC on five occasions. This period must be between 13 January and 5 May 2017.)
The offender returned to the topic of needing support in another answer-
The support that I need – sometimes I am – I act strong, but I’m not. That’s why I’m seeking all the help I can get, from everyone and everything. The word keeps me strong, by me studying, to heal myself from the time that I had been lost – and it has been gradually getting a lot better for me.
Ellis
It will be remembered that in R v Ellis (1986) 6 NSWLR 603 (‘Ellis’) Street CJ set out a sentencing court’s response where a disclosure of an offence was made by a volunteer. At 604-
This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given.
When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.
I find that, on the balance of probabilities, that having regard to the passage of time between the explosions in February 2011 and the voluntary disclosure by the offender in January 2017 and the fact that there is no evidence of further investigation of the offences from November 2011 onwards, that but for his voluntary confession to police, the offender would not have ever been charged with the two explosion offences.
In the ACT sentencing regime embodied in the Crimes (Sentencing) Act 2005 (ACT) (‘Crimes (Sentencing) Act’), the Ellis discount is encompassed in s 35(1)(w). Here, it is powerful evidence of remorse and I will take that into account. It does not however, attract a separate discount.
It also is encompassed in assistance to law enforcement authorities in s 33(1)(l). (See the reasoning in CMB v Attorney General [2015] HCA 9; 256 CLR 346 at [72]. That later sub-section directs attention to s 36 of the Crimes (Sentencing) Act.
In accordance with s 36(3) of the Crimes (Sentencing) Act, I propose to allow a further discount of 15% for assistance to law enforcement authorities. I do so whilst allowing a discount of 25% for the early pleas of guilty. The combined discount will therefore be 40%.
Disposition
I was impressed by both the honesty of the offender and his sincerity in wishing to live a better and productive life. Through no fault of his own he had had a very difficult beginning to that life. It has not been helped by his later actions when he was able and should have taken responsibility for determining his own future.
I am not oblivious to the proposition that ice is a severely addictive drug and that no matter how hard an addict will want to and try to break free from it, for one reason or another, there will be a return to its dictates. That may be so in this case but we do not know that yet. The description of the state of the offender given by Dr Mundl in [18] above and the drug taking in AMC point in the direction of failure.
Nevertheless, I believe that an unusual course could be followed here. I will allow the offender to be released on bail to attend a residential course at an institution such as Karralika for an initial period of the order of 8 weeks. Those bail conditions will be on terms that he travel directly to the institution from AMC.
The purpose of giving the offender this opportunity is for him to demonstrate his capacity to adhere to an intensive rehabilitation regime. If he is unable or unwilling to do so then that fact can be taken into account in determining the final disposition of his case.
There are probably three possible outcomes. First, the offender may fail to comply with the strict conditions pertaining to his residence at Karralika and be rejected from the course. If that is the case he will be promptly returned to AMC. Second, the offender completes the initial period at Karralika but is not assessed as suitable for the much longer rehabilitation residential course. Third, the offender completes the initial period and is assessed as suitable for the longer rehabilitation course.
Which of these three possible outcomes comes to pass is, to an extent, in the control of the offender.
If the offender completes the initial period of eight weeks, then the matter will be brought back to Court for further determination of the final disposition of the case. If the offender fails to complete the initial period of eight weeks then the offender’s bail will be revoked and he will be returned to AMC. Thereafter, in that eventuality, the matter will be relisted to complete the final disposition.
It will be apparent that I have made findings and observations related to the sentencing of this offender. Unless I am persuaded that I have erred in any of these matters, the offender can assume that he will be sentenced on the basis of them. There are, of course, further findings to be made. Primarily, these will relate to the prospects of rehabilitation. Those findings could have a large impact upon the final disposition of the matter.
By way of an observation, it is a disquieting fact that ice is available in AMC. This is not the first time that evidence of drugs being consumed in AMC has been given before me. I make no comment about the way that the persons in charge of AMC are dealing with this problem. It must be difficult. However, it needs to be noted that a collateral benefit of a drug addicted person not being admitted to bail is accordingly lost. Depending upon the time spent after “bail refusal” and what the addicted person makes of it, the loss of the chance to have abstinence enforced upon an offender (who may truly desire that result as well) is a substantial one. Ultimately not only the offender, but the community suffers this loss.
By reason of the above factors, on 16 June 2017 I granted bail to the offender, now that a bed has become available, so that he might travel by escort directly to Karralika from AMC for a period of about 8 weeks to undertake a residential rehabilitation course.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 26 June 2017 |
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