Robb v Uren
[2019] ACTSC 312
•27 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Robb v Uren |
Citation: | [2019] ACTSC 312 |
Hearing Date: | 27 August 2019 |
DecisionDate: | 27 August 2019 |
ReasonsDate: | 15 November 2019 |
Before: | Burns J |
Decision: | See [4] and [26] |
Catchwords: | CRIMINAL LAW – Magistrates Court Appeal – appeal from sentence imposed by the Magistrate – whether the Magistrate erred in imposing a non-association order – consideration of s 23 of the Crimes (Sentencing) ACT 2005 (ACT) |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 21, 22, 23, 24 |
Cases Cited: | R v Pishdari & Ors [2018] SASFC 94 |
Parties: | Zachary John Robb (Appellant) Alexandra Frances Uren (Respondent) |
Representation: | Counsel L Vozella (Appellant) J Hiscox (Respondent) |
| Solicitors Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 34 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Lawton Date of Decision: 13 June 2019 Case Title: Uren v Robb Court File Number: CC2018/13040 |
BURNS J
The appellant, Zachary John Robb, was charged on 4 November 2018 in the Magistrates Court with a charge in the following terms:
The he, in the Australian Capital Territory, on 17 February 2018, did assault Nigel Sparkes and thereby occasioned to him actual bodily harm.
The bench sheet in the Magistrates Court setting out the terms of the charge stated that the offence alleged was “in contravention of s 24 (by virtue of s 45A ACT Criminal Code 2002) of the ACT Crimes Act 1900”. This in essence alleges that the offence was committed jointly with another offender, identified in the prosecution Statement of Facts as Sofeso Tu’uta Katoa.
After initially pleading not guilty to the charge, on 3 April 2019 a legal practitioner, on behalf of the appellant, entered a plea of guilty and the matter was further adjourned to 13 June 2019 for sentence. On that day, a Magistrate recorded a conviction and sentenced the appellant to five months’ imprisonment, which was wholly suspended upon the appellant undertaking to comply with a Good Behaviour Order for 12 months from 13 June 2019. The Magistrate also made an order under s 23 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) prohibiting the appellant from communicating with 35 named individuals and from “attending” three addresses set out in the order. For convenience I will refer to these orders collectively as “the non-association order”.
The appellant appealed from the sentence imposed by the Magistrate, citing numerous grounds. The appeal ultimately focussed on the making of the non-association order. On 27 August 2019 I upheld the appeal to the extent that I set aside the non-association order and said that I would give reasons for doing so at a later date. These are those reasons.
The facts
A Statement of Facts was tendered without objection in the proceeding before the Magistrate. Insofar as the Statement of Facts referred to the circumstances of the offence, it stated:
·on 16 February 2018 at about 7 pm, the victim attended the Hellenic Club in Phillip with his partner and some family members. At the club, the victim ran into a person, EF, with whom he spent some time talking;
·shortly after midnight on 17 February 2018, the victim and EF attended the male toilets in the club. Another man, DD, was inside the toilets standing near the sinks. The victim began using a urinal while EF went into a cubicle;
·at about this time, two males and a female entered the male toilets. One of the males was the appellant and the other was his co-offender Sofeso Tu’uta Katoa. Both the victim and DD complained about the presence of the female in the male toilet. She replied, “Fuck you, I can go where I like” and proceeded to enter a cubicle. DD responded “I don’t give a shit who you are lady, you are not allowed in these toilets”. Both DD and the victim said that if the males and the female did not leave the male toilet, security would be called. The victim knocked on the cubicle door and told the female to get out of the toilet. DD left the toilet;
·at this time Katoa punched the victim to the side of his face, causing him to fall down. The appellant then punched the victim to the face;
·by this time EF had left the toilets to call security. A few minutes later EF and DD re-entered the toilets and found the victim unconscious on the floor. The appellant, Katoa and the female had left the toilets;
·the victim was later treated at hospital for injuries; and
·police investigations identified the appellant and Katoa as the offenders.
The proceedings before the Magistrate
The appellant was represented by a legal practitioner. The Statement of Facts, a criminal history and a Pre-Sentence Report were tendered without objection. A statement by Senior Constable Dale Ohlmus of the Australian Federal Police was also tendered by the prosecutor without objection. In that statement, Senior Constable Ohlmus stated that he became aware in January or February 2018 that the appellant was “associating” with Katoa, who was described as the Sergeant-at-Arms of the ACT Comanchero Outlaw Motor Cycle Gang (Comanchero OMCG). Senior Constable Ohlmus then referred in some detail to his dealing with Katoa and his knowledge of the ethos of the Comanchero OMCG. He then stated that the appellant had “maintained his association” with Katoa and other Comanchero members throughout 2018. The appellant was identified in three photographs depicting Comanchero OMCG members or supporters. Because of the clothing worn by the appellant in two of these photographs, Senior Constable Ohlmus formed the belief that he is now a member of the Comanchero OMCG.
The purpose for which this evidence was led was apparently to suggest to the Magistrate that as a member or associate of a motor cycle gang, the appellant was a person of bad character and accordingly not entitled to leniency, and is a person with limited prospects for rehabilitation. In that regard, the prosecutor drew the Magistrate’s attention to the decision of the Full Court of the Supreme Court of South Australia in R v Pishdari & Ors [2018] SASFC 94, and in particular to the judgment of Nicholson J who said, at [21]-[25]:
As far as the issues of rehabilitation prospects and scope for leniency generally are concerned, I make the following further observations.
Where an offender is a member, nominee or even an associate of an OMCG, in the case of the latter where the person has some form of regular or ongoing association, the fact that the person may have limited criminal antecedents will need to be considered in that context.
Typically, when sentencing an offender, the extent and nature of their prior criminal record will be of assistance in assessing their character and propensities for the purpose of determining matters such as: whether leniency might be justified; the extent to which personal deterrence is to be a consideration; and prosects of rehabilitation. Each of the appellants, with the exception of Mitchell and Mackay, had relatively few serious criminal antecedents and this remains a factor in their favour. However, the fact that a person is a member, nominee or, depending on the circumstances, an associate of an OMCG may of itself support a conclusion that he or she is of bad character with poor prospects for rehabilitation and an enhanced need for personal deterrence and notwithstanding an otherwise moderate or good prior criminal record.
The fact that a person is prepared to associate themselves with and participate in the ethos and activities of an OMCG says much about their character. It is common knowledge that many members of OMCGs see themselves as operating outside the law with a preparedness to participate in serious criminal offending, including acts of extreme violence. The fact that a person is prepared to participate in or be involved with such an organisation shows that person to be of very bad character, relevant to the sentencing considerations earlier identified. Each of the appellants in this matter, including those with relatively limited prior criminal records, had a sufficiently extensive association with the Nomads for this reasoning to apply.
Of course, the prior criminal record of a person who is in some way involved with an OMCG still must be carefully assessed. It remains relevant for both good or ill.
I observe that the above comments by Nicholson J were made in the context of identifying relevant sentencing considerations with regard to an offence of participating in a criminal organisation contrary to s 83E(1) of the Criminal Law Consolidation Act 1935 (SA), an offence that has no equivalent in the ACT. In the proceeding before the Magistrate, and in the present appeal it was not suggested that the principles stated by Nicholson J did not apply in sentencing the appellant for the offence of assault occasioning actual bodily harm.
It was not disputed in the proceeding before the Magistrate that the appellant was a member of the Comanchero OMCG. His counsel submitted that this fact did not, of itself, establish bad character and poor prospects of rehabilitation.
The Magistrate was informed that the co-offender, Katoa, had been convicted and sentenced to four months’ imprisonment, wholly suspended. I presume that was with regard to a similar offence to that with which the appellant was charged.
Neither in the sentence proceeding with regard to Katoa nor in that with regard to the appellant did the prosecution seek a non-association order. As a consequence no such order was made in the matter of Katoa.
In the course of the sentence hearing before the Magistrate, his Honour, apparently in the middle of the appellant’s counsel’s address, had the following exchange with counsel:
HIS HONOUR: Who are the two gentlemen sitting up at the back of the court.
MR WILLIAMSON: That’s the president of the Comanchero and the road captain.
HIS HONOUR: Any reason why they’re here?
THE DEFENDANT: Good friends of mine supporting me.
MR SHELTON: Your Honour, in relation to the next submission, just of parity. Outlined - - -
HIS HONOUR: Can the two gentlemen at the back of the court, leave the court. I just find it curious that they chose to sit one side there and one side there.
The proceeding before the Magistrate was being conducted in open court, and any member of the public was entitled to attend and observe the proceeding, subject to the necessity to maintain order and appropriate security in the courtroom. It may be that the Magistrate was concerned about security, because of his apparent concern as to how these two people had positioned themselves in the courtroom, but it is unclear why his Honour directed those persons to leave. The appellant’s counsel then continued his submissions. At the end of counsel’s submissions the following exchange took place:
HIS HONOUR: Thank you, Mr Shelton. Mr Williamson, is there any power for me to make a non-association order? Under - - -
MR WILLIAMSON: Your Honour, there is but - - -
HIS HONOUR: As I understand it, this is an offence, isn’t it? A relevant offence involves the - - -
MR WILLIAMSON: Yes.
HIS HONOUR: - - - use of harm.
MR WILLIAMSON: Yes, it is.
HIS HONOUR: It’s one that – well, looking at section 23 of the Crime Sentencing Act, I presume that your police officer can give me a list of names but for a start, I’d like the names of the sergeant-in-arms and president.
MR WILLIAMSON: If I could just have a moment. If your Honour pleases. If your Honour was to indulge the prosecution and give us five minutes, the detectives here could give your Honour a full list of the Comanchero membership.
After a short adjournment, the prosecutor produced a list of names of people he said were “patched members” or people known to be associates of the Comanchero OMCG in the ACT. It was at this point that the prosecutor sought a non-association order. After some discussion with the prosecutor about the terms of the order sought, the Magistrate asked the appellant’s counsel for submissions. The appellant’s counsel stated that the appellant did not recognise many of the names on the list, but 12 of those whose names appeared on the list worked for the same construction company who employed the appellant, with the consequence that the appellant’s employment would likely be terminated if the non-association order was made in the terms sought by the prosecution. The prosecutor made some suggestion that the appellant may not be an employee of that company, but in fact self-employed.
It is not clear how the Magistrate dealt with the apparent dispute about the appellant’s employment, and the potential effect of a non-association order on that employment; the Magistrate made no mention of that issue in his sentencing remarks. The Magistrate made appropriate reference to the facts and relevant sentencing principles, but with regard to the non-association order he simply said:
At my suggestion the prosecution has proffered a list of known associates or known members of the Comanchero outlaw motorcycle gang and three addresses in Canberra where those gang members are known to associate.
It seems to me, noting the behaviour of those members of that gang, today, by sitting in court and indeed the attitude of the offender, noting that they were friends here to support him, that I can have little confidence that he would, of his own volition, choose not to associate with those members of that outlaw motorcycle gang.
The Magistrate then imposed sentence, including the non-association order.
Non-association orders
The availability of non-association orders in sentencing for criminal offences is found within Part 3.4 of the Sentencing Act. The relevant provisions are set out below:
21 Definitions—pt 3.4
In this Act:
non-association order means an order prohibiting an offender
from—
(a)being with a named person, or attempting to be with the person; or
(b)being with a named person or communicating in any way (including electronically) with the person, or attempting to be with the person or to communicate in any way (including electronically) with the person.
place restriction order means an order prohibiting an offender from
being in, or within a stated distance of, a named place or area or
attempting to be in, or within the stated distance, of the place or area.
22 Application—pt 3.4
This part applies if a court makes either of the following orders for an offender
in relation to an offence:
(a)an intensive correction order;
(b)a good behaviour order.
23 Non-association and place restriction orders—when may be made
(1)The court may make a non-association order or place restriction order for the offender if—
(a) the offence is a relevant offence; and
(b) the court is satisfied that it is necessary and reasonable to make the order for 1 or more of the following purposes:
(i)preventing the offender from harassing anyone or endangering the safety or welfare of anyone;
(ii)preventing the offender from committing further offences (including a relevant offence);
(iii)assisting the offender to manage things that may make the offender more likely to commit further offences (including a relevant offence) if not managed.
NoteSee s 133I for an additional consideration that applies in sentencing a young offender.
(2)The restriction imposed on the offender by a non-association order or place restriction order, and the period of the order, must not be unreasonably disproportionate to the purpose for which the order is made.
(3)To remove any doubt, this section is additional to the court’s other powers under this Act or any other territory law.
(4)In this section:
harm—see the Criminal Code, dictionary.
personal violence offence means—
(a) an offence that involves causing harm, or threatening to cause harm, to anyone; or
(b) a family violence offence.
relevant offence means—
(a) an offence against the Criminal Code, part 4.1 (Property damage offences) that is punishable by imprisonment for 5 years or more; or
(b) an offence against the Criminal Code, chapter 6 (Serious drug offences); or
(c) an offence against the Criminal Code, chapter 7 (Administration of justice offences) that is punishable by imprisonment for 5 years or more; or
(d) an offence against the Firearms Act 1996 that is punishable by imprisonment for 20 years or more; or
(e) an offence against the Crimes Act 1900, section 114B (Money laundering); or
(f) a personal violence offence; or
(g) an offence prescribed by regulation.
24 Non-association and place restriction orders—maximum period
(1) A non-association order or place restriction order—
(a) must be for a period not longer than—
(i)if the order is made with an intensive correction order— 24 months; or
(ii)in any other case—12 months; and
(b) must state when it starts and the period for which it operates.
(2) To remove any doubt, the period of a non-association order or place restriction order is not limited by the term of any other sentence imposed for the offence for which the order is made.
The statutory preconditions to the making of a non-association order in relation to an offence are:
(a) the court must make an Intensive Correction Order or a Good Behaviour Order;
(b) the offence must be a relevant offence;
(c) the court is satisfied that it is necessary and reasonable to make the order for one or more of the purposes set out in s 23(1)(b).
The purpose for which an order can be made, as set out in s 23(1)(b), are expressed in particularly broad language. A literal reading of s 23(1) would give to a court a wide discretion to make a non-association order for a relevant offence so long as the court was satisfied that it was “necessary and reasonable” to make the order for one of the purposes set out in s 23(1)(b). In particular, the section does not in its terms, require any connection be demonstrated between the circumstances of the offence and the decision to make the order, or the terms of the order. The further limit on the making of a non-association order found in s 23(2) is that the restriction imposed by the order must not be “unreasonably disproportionate” to the purpose for which the order was made.
It may reasonably be inferred that the purpose of the order was to prevent further offending, and to help the appellant manage his association with the Comanchero OMCG, which was likely to lead to further offending if not managed.
Unlike a number of other jurisdictions, the ACT does not have consorting laws. In fact, s 15(2) of the Human Rights Act 2004 (ACT) (HRA) guarantees the right to freedom of association. This guarantee is subject “only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society”: s 28(1) HRA.
So far as possible to do so consistently with its purpose, a Territory law (such as the relevant provisions of the Sentencing Act) must be interpreted in a way that is compatible with human rights: s 30 HRA. The effect of s 30 of the HRA is to enjoin the courts to interpret the provisions of s 23 of the Sentencing Act in such a way as to achieve consistency with the right to freedom of association to the extent that it is possible to do so. This, in turn, means that whether it is “necessary and reasonable” to make an order, and in determining whether the order is not “unreasonably disproportionate” to the purpose for which the order was made, a judicial officer must take into account the necessity to interpret s 23 of the Sentencing Act in such a way as to preserve the right of freedom of association. In other words, the apparently broad discretion given by s 23 to make an order is narrowed by the necessity to interpret the provision consistently with the right to freedom of association guaranteed by the HRA.
In most cases this will mean that there will need to be a demonstrable and substantial connection between the particular offence for which the offender is being punished and the making of, and terms of, any non-association order. Without such connection, the making of an order could not be reasonable or necessary, bearing in mind the provisions of the HRA.
In the present case it was not alleged that the appellant was engaged in any activity connected to his membership of the Comanchero OMCG at the time he committed this offence. It was not alleged that the appellant and Katoa were wearing clothing which identified them as members of Comanchero OMCG. The appellant and Katoa were at the club with family, and not with regard to any event associated with the Comanchero OMCG.
It is true that both the appellant and Katoa were members of the Comanchero OMCG. In that narrow sense it may be said that there was a connection between the offence and the appellant’s association with the Comanchero OMCG, but that connection is tenuous; it certainly cannot be described as causal. There was no evidence that the appellant and Katoa had jointly participated in other criminal offending, and the circumstance of the present offence establish that it was spontaneous and situational.
I was satisfied that the Magistrate had erred by finding that it was reasonable and necessary to make the order in the circumstances, and for that reason I upheld the appeal and set aside the non-association order.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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