Roberts v Wright

[2024] ACTSC 154

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Roberts v Wright

Citation:

[2024] ACTSC 154

Hearing Date:

16 May 2024

Decision Date:

17 May 2024

Before:

Mossop J

Decision:

1.   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Appeal from ACT Magistrates Court – attempt to escape Alexander Maconochie Centre by rappelling out of cell window using bed sheets tied together – aggregate sentence of 12 months for failure to answer bail, attempt to escape from lawful custody, obstructing a Territory public official (minor offence), obstructing a Territory public official and unlawful possession of stolen property – grounds of appeal asserted that sentences imposed were manifestly excessive – other grounds raised in submissions asserting error on the part of the magistrate – grounds of appeal not established – appeal dismissed

Legislation Cited: 

Bail Act 1992 (ACT), s 49(1)

Crimes Act 1900 (ACT), s 160

Crimes (Sentencing) Act 2005 (ACT), s 35

Criminal Code 2002 (ACT), ss 44, 324, 361, 363

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Ledson v Taylor [2010] ACTSC 42; 239 FLR 184

R v Verdins [2007] VSCA 102; 16 VR 269

Parties: 

Guy Roberts ( Appellant)

Jack Wright ( Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

E Roff ( Respondent)

Solicitors

Self-represented ( Appellant)

Director of Public Prosecutions ( Respondent)

File Number:

SCA 59 of 2023

Decision Under Appeal:

Court/Tribunal:              ACT Magistrates Court

Before:  Special Magistrate Hopkins

Date of Decision:          22 September 2023

Case Title:  Wright v Roberts

Court File Number:       AM 3740 of 2021

MOSSOP J:  

Introduction

1․Guy Roberts has appealed against five sentences imposed by a special magistrate (the magistrate) on 22 September 2023.

2․The sentences were as follows:

(a)on a charge of failure to answer bail after giving an undertaking to appear before the court, contrary to s 49(1) of the Bail Act 1992 (ACT) (CAN 12092/2022): three months’ imprisonment from 25 August 2023 until 24 November 2023;

(b)on a charge of attempt to escape from lawful custody, contrary to s 160 of the Crimes Act 1900 (ACT) by virtue of s 44 of the Criminal Code 2002 (ACT) (CAN 5404/2022): 10 months’ imprisonment from 25 September 2023 until 24 July 2024;

(c)on a charge of obstructing a Territory public official (minor offence), contrary to s 363(1) of the Criminal Code (CAN 5405/2022); a sentence of imprisonment of one month from 25 July 2024 until 24 August 2024;

(d)on a charge of obstructing a Territory public official, contrary to s 361(1) of the Criminal Code (CAN 11888/2021): a sentence to the rising of the court; and

(e)on a charge of unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code (CAN 9150/2022): a sentence to the rising of the court.

3․In relation to the first three of these sentences, where there was more than a nominal sentence of imprisonment imposed, the maximum penalty, starting point and degree of cumulation are shown in the following table:

Charge	Maximum sentence	Starting point	Sentence	Cumulation
Failure to appear	2 years	4 months	3 months	3 months
Attempt to escape	5 years	11 months	10 months	8 months
Obstruct Territory public official (minor offence)	6 months	5 weeks	1 month	1 month
Aggregate	12 months

Grounds of appeal

4․The grounds of appeal are:

(a)the individual sentences are manifestly excessive; and

(b)the aggregate sentence is manifestly excessive.

Appellant’s submissions

5․The appellant’s written submissions were very limited. They were:

1.Solicitor did not adhere to my explicit instruction

Instructed that video recording of my false arrest be submitted to the court but did not.

2.Instructed that I give my own testimony but did not.

Attempted Escape charges were laid a year after the fact.

3.I pleaded guilty as early as possible but did not receive [25 percent].

Did 9 months segregation after attempted escape.

4.Circle sentencing Elders withdraw from case stating that it had become [too] difficult and were very upset however I was sentenced by the same judge which is prejudicial.

5.[Psychologist’s] report stated my brain injury and its connection with my behaviour however was not taken into account.

6.Bugmy act was not taken into account.

I was not back dated full time.

[Also] like to show comparative sentence Jessey Scoot 6 months.. Kane McDowell 16 months [concurrent]…

6․While points 5 and 6 and the comparative sentence issue can be treated as particulars of the manifest excess grounds of appeal, the other matters appear to be assertions of specific error not within the scope of the grounds of appeal.

7․In oral submissions, the appellant placed particular reliance upon:

(a)the fact that his sentence was not backdated in a way that allowed it to overlap with previous sentences imposed in the Magistrates Court for five counts of using a carriage service to menace or harass;

(b)the fact that his co-offender, Mr George George, received a sentence of nine months’ imprisonment, as distinct from the 10 months received by the appellant; and

(c)that he had available to him a bed at the Oolong House rehabilitation facility and wished to participate in a residential rehabilitation program.

8․So far as this last point is concerned, he tendered a letter from Oolong House which inferentially disclosed the availability of a place for him. This was admitted on the basis that regard would be had to it in the event that the appeal was successful and a resentence was necessary.

Facts

9․The sentencing before the magistrate proceeded on the basis of three Agreed Statements of Facts which set out the facts in relation to each charge or series of charges. By way of brief summary, the facts were as follows.

10․The failure to appear offence was committed on 25 November 2022. The appellant had been granted day bail on 24 November 2022 to attend his mother’s funeral. He was required to present at the Supreme Court at 4:30pm on Friday, 25 November 2022. He made an impulsive decision not to return and did not attend court. He was ultimately arrested on 6 December 2022 at his home.

11․The attempt to escape from lawful custody charge related to an attempt to escape from the Alexander Maconochie Centre (AMC), which occurred on 19 March 2022.

12․An unknown person rode a motorbike close to the southern external perimeter fence of the AMC and attempted to throw a bag over the external perimeter fence. This was subsequently found to contain a reciprocating saw, a rope and a towel. Mr Roberts and his cellmate, Mr George, broke out of their cell by using a metal stool to strike the cell window. They then used bed sheets that were tied together to rappel down from the first‑floor window to the ground. They were subsequently apprehended by corrections officers.

13․The obstructing a Territory public official (minor offence) charge arises from the apprehension of the appellant by corrections officers after he had escaped from his cell. The appellant did not cease his attempt to escape of his own accord. Corrections officers sprayed him with capsicum spray. He dropped to the ground but tucked his hands underneath his body and refused to remove them. After handcuffs were applied, he continued to yell and resist. He was escorted to decontamination. However, he was yelling abuse and dropped into a squat position before rapidly jumping back up. He was told to stop this but continued on several occasions.

14․The second obstructing a Territory public official charge occurred earlier, on 13 December 2021. A warrant had been issued for his arrest. He was approached by police. He was told to lie on the ground. He did not. The magistrate said, “It’s clear from the video that you were not presenting in a threatening way in any way. You were seated, effectively, or squatting, with legs down on the ground. You were confronted with weapons or a taser and demands were made for you to get on the ground.” The resistance comprised not getting on the ground and some tensing of muscles and resisting.

15․The unlawful possession of stolen property charge relates to possession of a key to a high-value stolen BMW on 16 September 2022.

The magistrate’s decision

16․The reasons of the magistrate extend over 14 pages of transcript. The magistrate recited the facts and some conclusions as to the gravity of the offending. He referred to the appellant’s criminal history, describing it as a “sad history” and as a significant and relevant criminal history which disentitled the appellant to leniency. He recorded that the appellant had been in and out of custodial settings since a very early age, “pretty much throughout life”.

17․He accepted the prosecution submission that there was an overwhelmingly strong prosecution case on the charge of attempt to escape. As a consequence, any reduction on account of the plea of guilty on the charge of attempt to escape needed to be consistent with s 35(4) of the Crimes (Sentencing) Act 2005 (ACT).

18․He then referred, in considerable detail, to the subjective circumstances of the appellant, relying upon a report of Vanessa Edwige, a psychologist. He said that the report described experiences which “very few people could comprehend and which are devastating to read”. It included very early exposure to alcohol and drug use by both his parents and extreme family violence from his father towards his mother which resulted in fractures, operations, and other damage to his mother. It recorded that he had early recollections of an attempt by his father to throw his mother into a fire. It referred, in detail, to the separation of his parents and being taken into care and abused in various care homes. It recorded that he has been in and out of custodial settings since the age of 11. It recorded his history of drug abuse commencing from the age of 10. It recorded the appellant’s history of mental health problems, including those arising from a car accident involving a fractured skull at the age of eight, complex developmental trauma, Post‑Traumatic Stress Disorder, a mild neurocognitive disorder, Stimulant Use Disorder, nerve and back damage, type 2 diabetes, ADHD, bipolar, Antisocial Personality Disorder and a significant history of self-harm. The magistrate recorded this as “a devastating story”.

19․The magistrate made specific reference to the issue of parity, having regard to the sentence imposed upon the co-offender, Mr George. That was a sentence of nine months, reduced from 10 months on account of a plea of guilty. The magistrate analysed the differences in the charges faced by the two men, the differences in their criminal histories and the differences in their subjective circumstances.

20․The magistrate made reference to the decision in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and accepted that childhood experience and trauma reduced the appellant’s moral culpability for the offending. However, he recognised that the attempt to escape involved “clear planning and premeditation as opposed to impulsivity”. He noted the need for general deterrence of attempts to escape. He also recognised that the history of trauma means that it is more difficult for the appellant to be rehabilitated and this creates “increased danger to the community”.

21․He turned to consider what he referred to as the Verdins principles (R v Verdins [2007] VSCA 102; 16 VR 269). He accepted that the issue of disadvantage was mixed with the appellant’s mental impairment, and that there was a reduction in moral culpability as a consequence. The magistrate also accepted that, as a result of the appellant’s history, “going back to prison is a nightmare for you” and that it would weigh more heavily upon him because of his history of incarceration and his mental impairment.

Consideration

Manifest excess

22․A ground of appeal asserting that a sentence is manifestly excessive asserts that, even if it does not appear from the judge’s or magistrate’s reasons how a particular result was reached, having regard to the facts, the outcome reached is unreasonable or plainly unjust. This involves a high threshold for appellate intervention. That is because in sentencing there is no single correct sentence and regard must be paid to the wide discretion that exists in fixing the sentence. The appeal court’s task is not to decide whether it would have exercised its discretion differently. It is only to decide whether the sentence is so great as to indicate that what occurred did not involve a lawful exercise of the discretion to determine the sentence.

23․The grounds of appeal in the present case raise the length of the individual sentences as well as the aggregate sentence. I will first address the contention that the individual sentences are manifestly excessive.

24․There could be no complaint about those sentences which were simply to the rising of the court, namely the obstructing a Territory public official charge arising from his earlier arrest and the sentence for unlawful possession of stolen property. A sentence to the rising of the court is a sentence of imprisonment, but it only operates until the court adjourns: Ledson v Taylor [2010] ACTSC 42; 239 FLR 184 at [56]. Both of the sentences until the rising of the court were very lenient sentences and obviously not manifestly excessive.

25․The three sentences which required more than nominal periods in custody were each very moderate sentences.

26․The sentence on the attempt to escape was a very lenient one. In part, that was affected by the requirement for parity with the co-offender, Mr George. The maximum penalty and the circumstances of the attempt to escape made both specific and general deterrence extremely important sentencing considerations. In that context, the sentence imposed was a very lenient one and could not be characterised as being manifestly excessive. The difference in sentence when compared with Mr George had a proper foundation, most significantly that the attempt to escape charge in the appellant’s case involved the whole of the conduct involved in the attempt, including breaking out of the cell, whereas in Mr George’s case there was a separate charge of damaging property relating to breaking out of the cell. In relation to that separate charge, Mr George received an additional sentence of nine months’ imprisonment, of which five months was cumulative upon the sentence for the attempt to escape.

27․The obstructing a Territory public official (minor offence) charge arising out of his apprehension after the attempt to escape was charged pursuant to the minor offence provision in s 363 of the Criminal Code, rather than the usual provision in s 361. This was of significant benefit to the appellant because it substantially reduced the maximum available penalty and hence the yardstick by which the appropriate sentence was to be judged. The sentence actually imposed of one month was a moderate one, but one which appropriately reflected the relationship between the objective circumstances of the offence, the subjective circumstances of the appellant and the maximum penalty. It was certainly not manifestly excessive.

28․The remaining charge was the charge of failure to appear. The maximum penalty for that was two years’ imprisonment. The starting point was four months’ imprisonment and the sentence actually imposed was three months. The offending involved a deliberate decision not to return to court after having been granted an indulgence in the form of a grant of bail for a particular compassionate purpose. The sentence was a moderate and proportionate one that appropriately reflected the objective and subjective circumstances of the offence and the appellant.

29․As a consequence, none of the sentences imposed were manifestly excessive.

30․The manner in which they were made cumulative upon each other does not render them manifestly excessive. Rather, having regard to the four different series for which the appellant was to be sentenced, the outcome of an aggregate sentence of 12 months’ imprisonment for a person with the appellant’s criminal history was a very lenient one. It reflected the need for parity with the sentence imposed on Mr George and the magistrate’s careful and sympathetic assessment of the appellant’s circumstances. The outcome of the sentencing exercise was not one which gave rise to an aggregate sentence so severe that it could be inferred that the sentencing exercise had miscarried in some way.

Other issues

31․The grounds of appeal have been addressed above. None of the other matters raised in the appellant’s written submissions demonstrate manifest excess or any specific error on the part of the magistrate which might have been the subject of a ground of appeal. However, for completeness, I will address each matter below.

Video recording of false arrest

32․The appellant explained that this was a video of an arrest on another occasion when he was arrested for an alleged breach of bail and then subsequently released when it was discovered that he had not been in breach of bail. Given that it was unrelated to any of the circumstances which gave rise to the charges before the magistrate, it is unlikely to have been relevant to the sentencing. If it was indirectly relevant to offer some explanation for the appellant’s conduct on the charged occasion when he was arrested, the admission of the evidence is unlikely to have been of any significance, having regard to:

(a)the conclusion of the magistrate that he could “well see from [the appellant’s] perspective that this was an example of ongoing persecution and victimisation” and that the offence was “not a resist arrest which is of significant seriousness”; and

(b)the lenient sentence to the rising of the court that was imposed.

Instructions that he give his own testimony

33․It is not clear precisely what evidence the appellant says he would have given if he was called to give evidence on oath. Insofar as it relates to the factual circumstances surrounding the arrest the subject of the video recording just referred to, for the reasons given, that could not have given rise to a miscarriage of justice. Insofar as it may have related to something else, the appellant was, at the conclusion of submissions before the magistrate, permitted to make a statement to the court.  That statement related to the departure of the Elders, his back surgery, his goals in life, his desire to do “Drug Court” (a reference to the Drug and Alcohol Sentencing List), his desire to rehabilitate himself, his desire to have all his charges dealt with at one time, and the fact that he did nine months in segregation following his attempt to escape. There was no objection to the admissibility of this unsworn statement.

34․The evidence is inadequate to establish that there was any miscarriage of justice as a result of the absence of evidence on oath from the appellant at the hearing before the magistrate.

Delay in charging

35․The attempt to escape offence occurred on 19 March 2022. The charge was laid on 20 July 2022. The matter was first before the Magistrates Court on 31 August 2022. There was no relevant delay. It is true that the matter was only finally before the magistrate on 17 August 2023 and then again on 22 September 2023, but the length of time that the matter took to be finalised was affected by the need for a disputed facts hearing to take place before a different magistrate.

Discount for guilty plea

36․The reductions on account of the pleas of guilty were as follows:

(a)failure to appear: 25 percent;

(b)attempt to escape: nine percent; and

(c)obstructing a Territory public official (minor offence): 20 percent.

37․The reason that the attempt to escape charge received a lesser reduction than the other offences reflected the operation of s 35(4) of the Crimes (Sentencing) Act. That precluded any significant reduction in circumstances where the prosecution case was overwhelmingly strong. The magistrate accepted that the prosecution case was overwhelmingly strong. In that context, the reduction of nine percent must be considered, if it is within the permissible scope of s 35(4), to be at the high end of the available range of reductions. The reason for the distinction between the reductions on the other charges appears to be that on the charge of failure to appear, a plea of guilty was entered on the fifth mention of the matter on 27 February 2023, prior to any plea of not guilty. In contrast, on the obstructing a Territory public official charge, the appellant initially pleaded not guilty and a brief of evidence was prepared, but he subsequently entered a plea of guilty on 13 February 2023 on the eighth mention. In those circumstances, the reduction on account of the pleas of guilty represented a completely orthodox exercise of the discretion available under s 35.

Nine-month segregation

38․In his unsworn statement to the magistrate, the appellant did make reference to doing “nine months straight for the escape, in segregation”. Other details of the circumstances of his detention during that period were not provided. The magistrate made some reference to the appellant having spent “long periods … in solitary confinement and segregation”.

39․No specific error is disclosed in the manner in which the magistrate dealt with this statement on the part of the appellant. If the periods of segregation were solely attributable to his escape attempt, that would not demonstrate that the lenient sentence of 10 months’ imprisonment was manifestly excessive.

Circle sentencing

40․The complaint in relation to the departure of the circle sentencing Elders arises from the proposition that the sentencing commenced with the Elders present but, as a result of an “incident” shortly after the commencement of the hearing, the Elders determined that this was not a matter where it would be appropriate that they continue to advise the magistrate.

41․Precisely why that occurred is not clear on the transcript. However, what is clear is that after the matter could not proceed by way of circle sentencing, the magistrate offered to list the matter either before himself or before a different magistrate and counsel appearing for the appellant indicated that it should be listed before the magistrate himself. In those circumstances, having expressly consented to the matter proceeding before the magistrate, there could be no complaint arising out of the decision of the magistrate to list the matter before himself and then to hear and determine the proceedings.

Brain injury

42․Insofar as the appellant contended that the magistrate had failed to take into account his brain injury and its connection with his behaviour, the magistrate made specific reference to the car accident at the age of eight, the appellant’s mild neurocognitive disorder and the fact that those conditions, along with other listed mental health conditions, continue to have “a significant impact on [the appellant’s] emotional regulation, … decision-making and … judgment”.

Bugmy

43․The appellant appears to contend that the decision in Bugmy was not taken into account. As pointed out earlier in these reasons, that is not reflected in the reasons given by the magistrate, which made specific reference to the decision, specifically concluding that “childhood experience and trauma reduced [the appellant’s] moral culpability for the offending”.

Backdating

44․Insofar as there is a complaint about backdating, the sentence was backdated so that it commenced immediately after an earlier sentence to which the appellant was subject. Those were, in fact, five concurrent sentences imposed for using a carriage service to menace, harass or offend which were imposed by a different magistrate in July 2023 and ran from 25 May 2023 until 24 August 2023. Given that the earlier sentence was for unrelated offending, there was no necessity as part of the magistrate’s discretionary exercise to make the new sentences concurrent in any way with the earlier ones. It would have been open to the magistrate, had he considered it to be necessary for the purposes of totality, to introduce an element of concurrency between the sentences that he imposed and the earlier imposed sentences, but that was a discretionary decision available to him and, having regard to the leniency of the sentences that he imposed, no error is demonstrated by the fact that he did not.

Comparative sentences

45․The two sentences that were referred to by the appellant appear to be sentences for attempts made by other individuals to escape from lawful custody. The appellant has not provided any information about the objective circumstances of that offending or the subjective circumstances of those offenders. The sentences were sentences of 16 months and six months. The respondent has not been able to obtain further details of the reasons for those sentences. Both were dealt with in the Magistrates Court. There are no published sentencing remarks for either matter. The transcripts have not been obtained. It cannot be said that the two sentences indicate a pattern of sentencing inconsistent with the sentence imposed on the appellant. They do not support a contention that the sentence imposed on the attempt to escape charge was manifestly excessive.

Conclusion

46․None of the matters raised by the appellant demonstrate that any of the sentences imposed were manifestly excessive or that the aggregate sentence imposed was manifestly excessive. None of the additional arguments raised in the appellant’s submissions demonstrate any other error on the part of the magistrate or any miscarriage of justice that might warrant an amendment of the grounds of appeal so that it could be addressed.

Order

47․The order of the Court is:

1.The appeal is dismissed.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 3 June 2024