R v Yuen
[2019] ACTSC 70
•20 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Yuen |
Citation: | [2019] ACTSC 70 |
Hearing Dates: | 1 August 2018, 10 December 2018 and 6 February 2019 |
DecisionDate: | 20 March 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [77]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – extra curial punishment – offence committed in custody – plea of guilty |
Legislation Cited: | Corrections Management Act 2007 (ACT) Part 9 Crimes Act 1900 (ACT) s 20 Crimes (Sentencing Procedure) Act (1999) (NSW) s 22 |
Cases Cited: | Alameddine v R [2006] NSWCCA 317 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Miles v The Queen [2014] ACTCA 41 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Ainsworth [2003] QCA 468;1 Qd R 679 R v Amosa [2015] ACTSC 34 R v Azar [2004] NSWSC 797 York v The Queen [2005] HCA 60; 225 CLR 466 |
Parties: | The Queen (Crown) Kai Edgar Yuen (Offender) |
Representation: | Counsel Ms K McCann (Crown) Mr T Warwick (Offender) |
| Solicitors ACT DPP (Crown) | |
File Number: | SCC107 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 7 May 2018, Kai Edgar Yuen (the offender) pleaded guilty to an offence of recklessly inflicting grievous bodily harm contrary to section 20 of the Crimes Act 1900 (ACT).
The maximum penalty for the offence is 13 years of imprisonment.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown tender bundle.
In short summary, at about 8:52 am on 21 November 2017, the offender and another prisoner at the Alexander Machonichie Centre (AMC) went to the offender’s cell room, where they started to fight. The offender armed himself with a small sharp-edged weapon. The incident then spilled out onto the catwalk outside the offender’s cell. As a result of the offence, the victim suffered a number of laceration injuries, including the following:
(a)two ‘lacerations’ to the nasal bridge;
(b)a ‘laceration’ to the right cheek, measuring approximately 8 cms in length;
(c)a ‘laceration’ involving the right lower eyelid;
(d)a ‘laceration’ to the left anterior chest, extending approximately 3 cms to the dermis;
(e)a ‘laceration’ to the left lower quadrant of the abdomen/flank, measuring approximately 19 cms length, down to subcutaneous tissue;
(f)a curved ‘laceration’ to the left mid-flank area, measuring approximately 6 cms in length;
(g)a v-shaped ‘laceration’ to the left hip area, measuring approximately 9 cms and 16 cms in length; down to subcutaneous tissue;
(h)a linear ‘laceration’ to the left lateral (outer) thigh, measuring approximately 16 cms in length, down to subcutaneous tissue;
(i)a deep ‘laceration’ that extends from the left lateral (outer) knee to posterolateral (rear/outer) thigh that passes through the fascia lata and the vastus lateralis (approximately 30% depth);
(j)a laceration overlying the left triceps area, measuring approximately 5 cms in length;
(k)a ‘laceration’ over the left elbow area; and
(l)two ‘lacerations’ on the left arm, measuring approximately 2-3 cms in length, extending down into the dermis.
Evidence
The following material is before me in relation to the offender:
(a)A Crown Tender Bundle (Exhibit 1), including:
(i)the Agreed Statement of Facts;
(ii)the offender’s criminal history;
(iii)a pre-sentence report (PSR) dated 30 July 2018;
(iv)seven photographs of the victim’s injuries;
(v)the victim’s medical discharge summary dated 22 November 2017;
(vi)an Expert Report of Dr A. Jane Van Diemen dated 24 July 2018 relating to the victim’s injuries;
(vii)CCTV footage of the offence; and
(viii)Sentence Remarks of Penfold J dated 31 May 2013 (R v Yuen (unreported, Penfold J, 31 May 2013, SC 188 of 2012; SCC 109 of 2011));
(b)Psychological Assessment of Mr Kai Yuen under the hand of Dr Tram Dinh, dated 21 November 2018 (Exhibit 2);
(c)Progress notes from Canberra Hospital for the offender (Exhibit 3);
(d)Letters from:
(i)Arthur Huggins (Manager of AMC CP Education and Training) dated 31 July 2018, which notes the offender has “better than average” core skills, has enrolled in a university based Tertiary Preparation Program and intends to gain entry into and complete an undergraduate degree by distance; and
(ii)Amy Rugendyke (Psychologist) and Daniella Posavec (Occupational Therapist), dated 10 October 2016 (Exhibit 4) regarding the offender’s participation in the ‘Group Schema Therapy: Mode Awareness and Management Program’ of which the offender was said to be a “valued member”;
(e)Certificates received by the offender at the AMC (20 in total) (Exhibit 5);
(f)A handwritten letter from the offender addressed to the Court (Exhibit 6); and
(g)An academic transcript of the offender and a letter dated 1 February 2019 from the AMC Education Department (Exhibit 7), which notes the offender has received High Distinctions in the subjects of Communicating at University A, Study Management and Preparatory Mathematics.
Objective Seriousness
The key matters for consideration for an offence of this type are the culpability of the offender’s conduct, the degree of violence used, and the nature and seriousness of the grievous bodily harm.
Counsel for the offender submitted that the offender’s moral culpability for the offence is reduced by the fact that the victim precipitated the confrontation and that both men, at times, were voluntarily engaging in a fight. Counsel submitted that, at times, the victim was aggressive, and at other times, the offender was aggressive. It was submitted that, at the time of the offence, the offender had recently sustained an injury to his right hand, as a consequence of which the offender felt less capable of defending himself. Counsel for the offender submitted that the offender believed he was acting in self-defence, although his actions were excessive.
In relation to the nature and seriousness of the injuries, the prosecution submitted that although the injuries were able to be treated and not “at the upper end of the spectrum of seriousness”, they were nonetheless serious, involving wounds which penetrated deep into the skin tissue and muscle. The report of Dr Van Diemen, included in the Crown Tender Bundle, indicates the potential for scarring and long lasting sequalae.
In relation to the degree of violence, the prosecution noted the offender struck the victim a number of times with a sharp weapon implement. Even though the nature of the weapon was unclear, the prosecution submitted it could be inferred from the injuries that it was capable of inflicting significant harm. The prosecution submitted that the use of a weapon makes the offending more objectively serious.
10. The prosecution conceded that the offence could not be described as an “unprovoked attack or a random gratuitous act of violence perpetrated by the offender” and that the offending involved aspects of excessive self-defence. The prosecution submitted that the offender kept the weapon concealed for some time prior to the altercation.
11. Having regard to those matters, the prosecution submitted that the offence was towards a mid-range of objective seriousness.
12. The key matters to be considered when assessing the objective seriousness of offences of this type are the culpability of the offender’s conduct, the degree of violence used, and the nature and seriousness of the grievous bodily harm sustained by the victim: see R v Hidic [2017] ACTSC 307; R v Myles [2017] ACTSC 194; R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34; R v Bandy [2018] ACTSC 261.
13. I find the offence to be of below mid-range of objective seriousness taking into account the relevant matters as set out above.
14. It must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful in this jurisdiction. As has previously been expressed in this jurisdiction, “it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]). The identifying features of this offence include, in particular, the significant injuries, the use of the weapon and the excessive self-defence element of the offence.
Subjective Circumstances
15. The offender is a 34 year old man, the third of four children to his parents’ union. The author of the PSR indicates that he appears to have a supportive relationship with his family, most of whom are in Melbourne.
16. The offender experienced racist bullying as a child, including physical assaults, and responded in a violent manner to stop the taunting behaviour of others. His violent behaviour at school continued during his schooling years, resulting in a number of suspensions, but the offender successfully completed Year 12 and an electrical apprenticeship. The offender has previously worked as a qualified electrician, including as a supervisor, and has had a number of jobs whilst incarcerated, including most recently as a kitchen cleaner. The offender is currently engaged in a Tertiary Preparation program through a Queensland university.
17. The offender reported regular alcohol use since the age of 12, but claimed no previous alcohol-related issues. The offender reported a history of cannabis use commencing from age 11, as well as methamphetamine, MDMA, and other “party drugs” from the age of 18 on a recreational basis. However, the offender reported using methamphetamine on a daily basis in the last six months of 2008. While in custody, the offender has returned negative urinalysis samples on a number of occasions, and refused to provide samples on other occasions. He has returned positive samples for methadone on 3 July 2017 and a positive result for morphine on 30 January 2015. The offender has previously requested to be placed on the methadone program due to opioid use in custody, but has been denied due to not meeting ACT Health’s criteria.
18. The offender has been in custody since he was arrested and charged with murder on 11 August 2010.
19. The PSR indicates that the offender has been subject to over 20 disciplines or officer’s warnings between January 2013 and July 2018, including as a result of the offender assaulting another detainee or threatening violence towards a nurse or custodial officer. The offender was charged with a violent offence in 2012 whilst on remand at the AMC, and prior to being sentenced for the charge of murder. The offender has been placed into segregated accommodation a number of times as a result of his history.
20. The PSR concludes with the following opinion:
Mr Yuen is a 33 year old man who experienced racist bullying during his formative years. He stated that as a child he learnt that violence could be a means to solve his problems and this appears to have continued throughout his life. The offender has a history of committing violent offences from a young age, and also possessing firearms throughout his life.
Mr Yuen is currently housed in the Alexander Maconochie Centre and has spent a large proportion of that time in segregation. His current sentence is due to expire in October 2038, with his non parole period ending October 2030, when he will be 46 years of age. Since being incarcerated, Mr Yuen has now been charged with two violent offences against other detainees. Additionally, he has been subject to a number of disciplines and officers’ warnings for fighting and abusive behaviour towards custodial staff.
It is acknowledged that Mr Yuen does not always appear to seek conflict; however, when it does present, the offender typically does engage. This has resulted in significant and serious assaults against other people. It is recommended that Mr Yuen work with custodial staff, including case managers and program facilitators to learn and practice ways to engage in pro-social ways to manage the various individuals who are detained in the Alexander Maconochie Centre. This service believes that re completing the VIP may be of benefit to Mr Yuen.
21. I have also had regard to the psychological report prepared by Dr Dinh which includes the following:
The respondent’s interest in and motivation for treatment is typical of individuals being seen in treatment settings, and he appears more motivated for treatment than adults who are not being seen in a therapeutic setting. His responses suggest an acknowledgement of important problems and the perception of a need for help in dealing with these problems. He reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. However, the nature of some of these problems suggests that treatment would be fairly challenging, with a difficult treatment process and the probability of reversals.
22. No Verdins submissions were made on behalf of the offender (R v Verdins [2007] VSCA 102; 169 A Crim R 581).
Remorse
23. The PSR notes that the offender was reluctant to talk about the offence for fear of being labelled a “dog” or a “snitch”. The psychological report and the offender’s letter to the Court indicated that the offender is remorseful. The prosecution conceded that the offender had taken responsibility for his actions through his plea of guilty, and, while noting that a plea is not necessarily indicative of remorse (Miles v The Queen [2014] ACTCA 41 at [40]) conceded that some remorse had been expressed in the offender’s letter to the Court.
24. I take the remorse expressed into account on sentence.
References and certificates
25. In evidence before me were a number of certificates, as well as letters from service providers at the AMC in support of the offender, including:
(a)A letter from Mr Arthur Huggins, Manager, AMC CP Education & Training, dated 31 July 2018 regarding the offender’s participation in educational courses at the AMC;
(b)A letter from Amy Rugendyke, Psychologist, and Daniella Posavec, Occupational Therapist, dated 10 October 2016, regarding the offender’s completion of the ‘Group Schema Therapy: Mode Awareness and Management Program’ at the AMC;
(c)A letter given to the offender upon completion of a ‘violent offenders program’ (undated);
(d)A certificate for the offender’s completion of the ‘First Steps Program’, an alcohol and other drugs program, dated 18 October 2010;
(e)A certificate for the offender’s completion of the ‘AVP Basic Workshop in Nonviolent Conflict Resolution’ on the days 22nd, 23rd and 24th of January 2011;
(f)A certificate for the offender’s attainment of competencies as part of a Certificate II in Hairdressing dated 23 February 2011;
(g)A certificate for the offender’s completion of the ‘First Steps Program’, an alcohol and other drugs program, dated 12 December 2011;
(h)A certificate for the offender’s completion of the Certificate III in Fitness dated 20 December 2012;
(i)A certificate for the offender’s completion of the Certificate IV in Fitness dated 20 December 2012;
(j)A certificate for the offender’s completion of the ‘First Steps to Anger Management Program’ dated 15 January 2015;
(k)A certificate for the offender’s completion of the ‘Kairos Short Course #3 of Christian Instruction’ (undated);
(l)A certificate for the offender’s completion of the ‘Scheme Therapy: Mode Awareness and Management Program’ dated 10 October 2016; and
(m)Ten certificates for completion of the: ‘Exploring Change’, ‘Introduction’, ‘Life Pathways’, ‘Offence Process’, ‘Pro-social Thinking’, ‘Managing Emotion’, ‘Victim Awareness’, ‘Substance Use and Violence’, ‘Self Management’ and ‘Interpersonal Relationships’ modules of the Violence Intervention Program and a certificate of completion of that program for the period of 21 February 2017 to 15 September 2017.
26. I take these references and certificates into account on sentence.
Criminal History
27. The offender has a significant criminal history. The offender is serving a term of imprisonment for murder and a term of imprisonment for inflicting grievous bodily harm on another detainee at the AMC whilst on remand in 2012. Both of these matters involved the offender arming himself with a weapon. The offender was also sentenced to a term of imprisonment by Burns J in 2011 for two offences of possessing a prohibited weapon and two offences of recklessly threatening to inflict grievous bodily harm: see R v Yuen (unreported, Supreme Court of the ACT, Burns J, 18 August 2011).
28. The prosecution submitted that the offender’s criminal history, which includes personal violence involving the use of a weapon, is of particular relevance on sentencing and warrants a more severe sentence in the circumstances.
29. The prosecution submitted that the sentiments expressed in Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen (No 2)) and Lang v The Queen [2013] NSWCCA 29 (Lang) that a “continuing attitude of disobedience of the law” (Veen (No 2) at 477) is indicated by the offence and the criminal history, which may indicate that a “more severe penalty is warranted” in light of the sentencing purposes of “retribution, deterrence and protection of the society” (Lang at [36]).
30. Relevantly, in Veen (No 2), Mason CJ and Brennan, Dawson and Toohey JJ stated at 477:
[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
31. In this case, I have had regard to the offender’s criminal record as a factor that I take into account in determining the sentence. It is clear on the authorities that no offender can be punished twice, in the sense of imposing a fresh penalty for a past offence.
.
Plea of Guilty
32. The offender entered a plea of guilty on the third mention in the Magistrates Court following negotiations between the parties.
33. Counsel for the offender submitted that the plea of guilty was entered at an early stage. In respect of the Crown’s case, it was noted by counsel for the offender that the victim did not co-operate with authorities.
34. The prosecution conceded that the offender was entitled to a discount for the early plea. However, noting the offence was captured on CCTV, it was submitted the case against the offender was “a particularly strong one” and also observed there was evidence before the Court indicating that the complainant was not armed.
35. A submission as to discount percentage was not made by either the prosecution or counsel for the offender.
36. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act (1999) (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4 in relation to the utilitarian value of pleas of guilty in commonwealth matters.
37. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47] noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
38. In Cranfield v The Queen [2018] ACTCA 3, the Court of Appeal recently considered the discount applicable where there has been a plea of guilty. It was stated at [37]-[38] that:
37. The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]:
The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
38. The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski.
39. In my discretion, taking into account the authorities, I will allow a 25% discount for the plea of guilty as it was entered in the Magistrates Court.
Time in Custody
40. The offender has been a sentenced prisoner at the AMC since 11 October 2010 and is serving a sentence of 28 years of imprisonment for murder and intentionally inflicting grievous bodily harm.
Cases
41. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
42. I was referred by the prosecution to my judgment in R v Bandy [2018] ACTSC 261, where at [77]-[99] I considered a number recent sentences relating to the offence currently before me: see R v Kepaoa [2017] ACTSC 414; R v Sikoulabot [2018] ACTSC 217; R v LT [2017] ACTSC 343 [a sentence of two years and three months imprisonment, fully suspended with a good behaviour order]; R v Burgess [2017] ACTSC 249 [a sentence of three years and one month imprisonment]; R v Pallier [2017] ACTSC 112 [a sentence of 27 months imprisonment]; R v McBride [2017] ACTSC 102 [a sentence of three years imprisonment]; R v Carmody (No 3) [2017] ACTSC 60 [a sentence of two years and five months imprisonment, suspended for three years]; R v Rappel [2017] ACTSC 38 [a sentence of two years and 11 months imprisonment]; R v Beniamini (No 2) [2017] ACTSC 32 [a sentence of two years imprisonment]; R v Smith [2016] ACTSC 330 [a sentence of two years imprisonment, fully suspended with a good behaviour order]; R v Seretin [2016] ACTSC 45 [a sentence of four years imprisonment]; R v Williams [2015] ACTSC 406 [a sentence of three years imprisonment]; R v Neish (Unreported, Refshauge J, 24 May 2013) [a sentence of two years imprisonment, to be served by periodic detention for three months, and suspended thereafter]; R v Pumpa [2014] ACTSC 223 [a sentence of two years and eight months of imprisonment, served as 12 months of periodic detention and suspended thereafter]; R v Laipato (unreported Nield AJ, 16 September 2010) [a sentence of three years imprisonment]; R v RC (Unreported, Burns J, 19 October 2012) [a sentence of six years imprisonment]; R v Cranfield [2017] ACTSC 171 [a sentence of three years, seven months and five days imprisonment]; R v Bartlett [2016] ACTSC 390 [a sentence of three years and six months imprisonment to be served by way of ICO and a community service] and R v Rehinberger [2016] ACTSC 14 [a sentence of 18 months imprisonment, full suspended with a good behaviour order].
43. Having regard to the differing objective circumstances of these cases and the varied circumstances of the offenders, no clear pattern emerges from these sentences other than that the offence is treated very seriously by the courts.
Rehabilitation
44. In Justice Penfold’s sentencing remarks (R v Yuen (unreported, Supreme Court of the ACT, Penfold J, 31 May 2013)), her Honour stated the following:
Mr Yuen, in the letters you wrote to the court you have made repeated references to your determination to rehabilitate yourself, regain some self-respect, and fit yourself to rejoin the community at some stage knowing that you will never again be a danger to anyone. I suspect that it would be all too easy, however, for you to abandon those plans and instead become a real prison hard-man. I urge you, however, to hold to your goals, take advantage of all the rehabilitation help you will be offered in prison, and perhaps even develop instead a role as a mentor to younger prisoners who are at risk of making the same mistakes as you have. Your non-parole period has been set to make your rehabilitation ambitions seem worthwhile and realistic. Of course, you would also be well aware that there is no guarantee of parole being granted if you do behave badly in prison, and in particular, if you commit further offences in prison, you will likely find that your sentence is simply further and further extended.
45. The prosecution submitted that the sentences of imprisonment have so far failed to deter the offender from violent offending, and have had “no reformative impact which such sentences might have sought to achieve.” The prosecution submitted that while the offender should be given credit for completing numerous courses while in custody, none of these courses have deterred or prevented the offender from further violent offending. The prosecution submitted that, having regard to the offender’s history and his conduct in custody, his prospects for rehabilitation “must be regarded as extremely poor”, and he must be “regarded as someone who presents as a risk to the community”. The prosecution submitted that rehabilitation was of less importance than the sentencing purposes of personal deterrence, punishment and protection of the community.
46. Counsel for the offender drew the Court’s attention to the fact that the offender is undertaking studies within the AMC and has also requested to repeat the Violent Offenders Program and the Schema Program. In her oral submissions on sentencing, counsel for the offender also noted the offender had, at that time, maintained employment for a period of 12 months within the AMC and was motivated to stay out of segregation within the AMC in order to maintain greater access to education and programs.
47. It must be said that the prospects of rehabilitation are guarded. Nevertheless, prospects for rehabilitation are present, having regard to the university studies and employment the offender is currently undertaking. The prosecution conceded during submissions (T 12.24, 6 February 2019) that the offender’s behaviour had remained satisfactory since mid-2018 with no custodial incidents reported.
Extra Curial Punishment
48. Counsel for the offender submitted that the offender has been subject to “administrative segregation, for the purpose of the good order and management of the AMC”, which has had a significant adverse effect on the offender. The offender was placed in segregated accommodation for approximately eight months between 21 November 2017 and 18 July 2018 and has spent approximately 3 years and 6 months in segregated accommodation since his arrival at the AMC in 2010. Counsel for the offender referred to a letter written to the Court by the offender stating his time in gaol has “been quite difficult for me to cope with at times” followed by references to his time in segregation and a subsequent period of restricted confinement. Counsel for the offender submitted that the time spent in segregation and in restricted confinement at the AMC should be considered as extra-curial punishment.
49. Counsel for the offender referred to a number of authorities which have considered the concept of extra-curial punishment to illustrate that the requisite nature and circumstances of any ‘loss or detriment’ said to constitute the punishment are broad: see Alameddine v R [2006] NSWCCA 317; R v Azar [2004] NSWSC 797; R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 (Daetz); R v Hannigan [2009] QCA 40; 193 A Crim R 399; R v Hook [2006] QCA 458; R v Howcher [2004] NSWCCA 179; 146 A Crim R 371; R v Noble and Verheyden [1996] 1 Qd R 239; R v O’Connor [2014] NSWCCA 53; 239 A Crim R 487; R v Sharpe [2006] NSWCCA 255; Silvano v R [2008] NSWCCA 118; 184 A Crim R 593; R v Webb [2004] NSWCCA 330; 149 A Crim R 167. This was submitted to include changes to the legal status of an offender imposed for the purpose of protection of public welfare: see Einfeld v R [2003] NSWSC 447; 198 ALR 400.
50. The prosecution submitted that the Court should draw a distinction based on the nature of the segregation and, accordingly, under which provision of the Corrections Management Act 2007 (ACT) (CM Act) it is imposed. It was submitted that Part 9.2 of the CM Act is “not for the purposes of punishment, but rather to ensure the security and safety of the detainee, or other detainees”. The prosecution submitted that the counsel for the offender’s submission regarding the administrative nature of the segregation and the information contained in the PSR (referred to at [19] above] “clearly demonstrates” the segregation of the offender was under Part 9.2 of the CM Act. The prosecution submitted segregation imposed under Part 9.2 cannot amount to extra-curial punishment as contemplated by Daetz.
51. Counsel for the offender conceded that the segregation was carried out pursuant to Part 9 of the CM Act but maintained that the segregation kept its punitive nature.
52. It was further submitted by the prosecution, by reference to the authorities considering the potential mitigating effect of “protective custody” on sentence, that in those cases, while it is generally a relevant consideration on sentence, the weight to be afforded to it will depend upon all the circumstances, see: R v Mostyn [2004] NSWCCA 97; 145 A Crim 304; Clinton v R [2009] NSWCCA 276; Geddes v The Queen [2012] NSWCCA 94; Carroll v The Queen [2011] VSCA 150; R v Patison [2003] NSWCCA 171; 143 A Crim R 118; Western Australia v O’Kane [2011] WASCA 24 . Moreover, the prosecution submitted it must be established that offender’s circumstances are significantly more burdensome than would otherwise be in place, see: York v The Queen [2005] HCA 60; 225 CLR 466; R v Males [2007] VSCA 302. The prosecution submitted that this was not made out on the balance of probabilities with respect to the offender.
53. In Daetz, James J (with whom Hulme J and Tobias JA agreed) stated the following at [62]:
I have concluded from this examination of the authorities cited to the Court and … that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.
54. On sentence I have regard to segregation as extra-curial punishment on only a limited basis in this case. I do not ascribe significant weight to this factor having regard to the limited state of the evidence on this question.
Totality
55. I was referred by the prosecution to R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 where I outlined a number of relevant principles relating to totality as follows:
125. In R v MMK [2006] NSWCCA 272; 164 A Crim R 481 (MMK) at [11] it was underlined that the principle of totality was related to the principle of proportionality. The task of the court is to ensure that the overall sentence is neither too harsh and therefore crushing nor too lenient. Relevantly, McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 308, stated:
The Court…adjust[s] the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
126. In R v MAK [2006] NSWCCA 381; 167 A Crim R 159 (MAK) at [18], the court stated the totality principle must be applied without suggesting that a discount is given for multiple offences:
A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112].
127. The Court in MMK at [13] made clear “the discretion is generally circumscribed by a proper application of the principle of totality”. The court emphasised in relation to concurrency and accumulation that:
It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616.
128. In Pearce v The Queen (1998) 194 CLR 610 (Pearce), McHugh, Hayne and Callinan JJ stated at [45]:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
129. Importantly, an offender should not be punished twice for common elements between offences: Pearce per McHugh, Hayne and Callinan JJ at [40]. I take this into account in dealing with offences arising from the same episode.
130. The court in MAK discussed two matters that fall under the rubric of totality. The first is that:
The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of the sentence.
131. The court at [16] quoted R v Clinch (1994) 72 A Crim R 301 at 306-307 where Malcolm CJ stated that “a sentence of five years is more than five times as severe as a sentence of one year”: see also Gore at [42], where the following was stated:
Another key feature of sentencing which demonstrates the inappropriateness of the “proportionate-to-maximum sentence” approach needs to be borne in mind. That is, that the severity of a sentence does not increase in a linear proportion with its length.
132. The second matter in MAK at [17] is that in applying the totality principle, a court should avoid imposing a “crushing sentence”: see also Elson at [113].
133. The question of the totality and existing sentences of imprisonment must also be addressed. The totality principle is applied where an offender is serving an existing sentence, and is sentenced by a second court: Mill at 66; Choi v R [2007] NSWCCA 150 at [157]. In this case, I propose to commence the sentences in a way that takes into account the pre-existing sentences.
56. In GS v R [2016] NSWCCA 266 at [79]-[80], the Court stated the following:
79. In R v Katon [2008] NSWCCA 228 at [31] McClellan CJ at CL (Hislop and Hoeben J agreeing) accepted that where there are a series of offences, with different victims, there is a special need to ensure that concurrency does not have the consequence that the overall sentence is inadequate. A similar point was made by Johnson J in R v Knight (2005) 155 A Crim R 252; [2005] NSWCCA 253 at [112]:
It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM at [70]; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at [34]. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37].
80. The Crown correctly emphasised that a high degree of concurrency between sentences will not be appropriate where such a sentence would fail to recognise the discrete nature of the subsequent offences and the harm done to the victims of those offences, referring to Cahyadi at [27]; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]; Nelson v R [2016] NSWCCA 130 at [28]. The present case falls into that category
57. As the offender is serving an existing sentence of imprisonment, the question of totality and existing sentences of imprisonment must be addressed: Choi v R [2007] NSWCCA 150 at [157].
58. Section 72 of the Sentencing Act requires that the sentence that the Court determines is appropriate be served consecutively with the existing sentence of imprisonment, unless the Court makes a direction pursuant to s 72(3) of the Sentencing Act. This permits the Court to make a direction that the sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
59. The prosecution submitted that in this matter it is important that the Court recognise the separate offending involved and that a fully concurrent sentence would not reflect the individual criminality involved nor reflect the purposes of adequate punishment. The prosecution submitted that the objective seriousness of the offending and the relevant purposes of sentencing would be reflected in a fully cumulative sentence.
60. Counsel for the offender submitted that any extension to the head sentence or non-parole period will have a significant and arguably “crushing” impact”. Counsel submitted that in this case, a direction under s 72 is appropriate, and the present sentence should be served concurrently, or at least partly concurrently with the existing sentence.
Non-Parole Period
61. Section 66 of the Sentencing Act requires the Court to cancel the non-parole period for the existing sentence and set a new non-parole period. The offender’s current non-parole period expires on 10 October 2030.
62. The prosecution submitted that the following factors were relevant to the setting of the non-parole period in this case:
(a)the offender is in his 8th year of custody of his 20 year non-parole period and has committed two serious acts of violence on fellow inmates;
(b)the offender has been subject to numerous disciplinary actions for acts of violence, threats of violence and abuse in the time he has been in custody;
(c)despite the offender’s completion of a number of programs, the offender has continued to engage in violent behaviours, and there has been no meaningful demonstration of his rehabilitation to date;
(d)the offender is a violent person and, having regard to his lack of rehabilitation efforts, remains a danger to the community; and
(e)the offender has been given sentences of imprisonment in the past, none of which have had a deterrent or reformative impact upon him; as such, denunciation and protection of the community are highly relevant.
63. The prosecution submitted an increase in the non-parole period would be appropriate to reflect the purposes of sentencing and the gravity of the offending.
64. Counsel for the offender conceded that any new non-parole period could not end earlier than the existing non-parole period. Nevertheless, it was submitted that the impact on the offender of any further time in incarceration would be significant in light of the already substantial period of time imposed by the existing sentence.
Statutory and Other Considerations
65. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
66. The offence took place while the offender was in custody at the Alexander MaconochieCentre. The fact that the offence occurred in custody is a relevant sentencing consideration in relation to deterrence.
67. In R v Jeremiah [2016] NSWCCA 241, the Court at [9] stated the following in relation to offences committed in prison:
[T]he sentence must effect sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated by the courts: R v Fyffe [2002] NSWSC 751 at [33]; R v Hoskins [2004] NSWCCA 236 at [62] – [63]; R v Windle [2012] NSWCCA 222 at [56].
See also the cases of R v Ainsworth [2003] QCA 468; 1 Qd R 679; Byron v Earley (1992) 64 A Crim R 140; De Castres v The Queen [2011] VSCA 377; 33 VR 493; R v Devries [2005] VSCA 95.
68. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation and recognition of harm to the victim are important sentencing considerations.
69. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Given the circumstances of the offending, it is obvious that there can be no alternative to a sentence of imprisonment.
70. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
71. Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
72. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].
73. Finally, in Veen (No 2), the High Court emphasised that the guideposts that are the purpose of sentencing sometimes point in different directions (at 476):
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
Sentence
74. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact. Both the short and long-term consequences of being the victim of this offence must be acknowledged.
75. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, the subjective matters and totality.
76. The appropriate sentence for the offence of recklessly inflicting grievous bodily harm is four years of imprisonment reduced to three years on account of the discount for the plea of guilty of 25%.The sentence will incorporate both concurrency and accumulation, pursuant to s 72(3) of the Sentencing Act.
Order
77. I make the following orders:
(a)I record a conviction in relation to the offence.
(b)In respect of the offence of recklessly inflicting grievous bodily harm (CC18/6170), the offender is sentenced to a term of three years of imprisonment, commencing on 10 October 2037 and ending on 9 October 2040.
(c)I set a new non-parole period to expire on 10 October 2031, that being a period of 21 years from the date on which the initial non-parole period commenced (11 October 2010).
| I certify that the preceding [77] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 20 March 2019 |
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Amendments
| 22 March 2019 | Insert, at the conclusion of the paragraph, “, pursuant to s 72(3) of the Sentencing Act.” | Paragraph: [76] |
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