Stephen v The Queen
[2021] ACTCA 42
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Stephen v The Queen |
Citation: | [2021] ACTCA 42 |
Hearing Date: | 10 November 2021 |
DecisionDate: | 17 December 2021 |
Before: | Elkaim ACJ, Loukas-Karlsson, and Banks-Smith JJ |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – APPEAL – JURISDICTION – PRACTICE AND PROCEDURE – appeal against sentence – specific error concerning criminal history – error conceded by prosecution – appeal allowed – re-sentence |
Cases Cited: | Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 House v The King (1936) 55 CLR 499 |
Parties: | Joshua Robert Stephen (Appellant) The Queen (Respondent) |
Representation: | Counsel J Cooper ( Appellant) R Christensen SC with N Deakes ( Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 41 of 2020 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 15 October 2020 Case Title: R v Stephen Citation: [2020] ACTSC 283 Court File Numbers: SCC 1 of 2020 SCC 2 of 2020 |
THE COURT:
On 15 October 2020, Justice Mossop (the primary judge) sentenced the appellant to a total term of imprisonment of 8 years and 2 months, with a non-parole period of 5 years and 4 months (R v Stephen [2020] ACTSC 283).
The sentencing arose from 6 offences. The most serious offence, and the one attracting the largest sentence, was recklessly inflicting grievous bodily harm, for which a sentence of 5 years and 6 months was imposed. The next most serious was aggravated burglary which attracted a sentence of 3 years and 10 months.
The remaining sentences included attempting to take a motor vehicle (15 months), possessing a prohibited firearm (10 months), driving a motor vehicle without consent (20 months) and driving while disqualified (5 months).
Each sentence was reduced by 15 per cent to reflect a discount arising from the guilty pleas.
The total term was derived through a mixture of accumulation and concurrency. It was accepted that all of the offences arose from a single incident that occurred in the early hours of 30 June 2019 and which is described in the primary judgement from [5].
Ultimately, the non-parole period was approximately 65 per cent of the overall sentence.
Error
There were two grounds of appeal regarding the sentence:
· First, that there was an error concerning the appellant’s criminal record.
· Second, that the overall sentence was manifestly excessive.
It is important to note that the second complaint is only a product of the first. In other words, the sentence was manifestly excessive because it was, if only in part, derived from the first complaint.
The appellant has a significant criminal record which the primary judge appropriately took into account. However, the primary judge also took into account that there was a previous conviction of intentionally causing grievous bodily harm. In fact, there was no such conviction.
As seen above, it was for the similar offence of recklessly inflicting grievous bodily harm that the appellant received the longest sentence.
The primary judge made the following comments in the course of his reasons:
At [49]: The offender has an extensive criminal history in the ACT dating back to 2002, including offences of a similar type to the current charges. He has convictions for numerous driving offences including negligent driving and aggravated furious, reckless or dangerous driving, drug possession offences, obstructing and resisting public officials, attempting to escape arrest or lawful custody, providing a false name or address, theft and minor theft, damaging property, possession of stolen property, aggravated burglary, common assault, assault occasioning actual bodily harm and intentionally inflicting grievous bodily harm. He has been given numerous sentences involving full-time detention, including significant sentences for aggravated burglary in the past.
At [51]:He is, unfortunately, not entitled to any leniency based on his record.
At [59]:…Having regard to the offender’s criminal history, significant emphasis needs to be given to punishment, denunciation of the conduct, recognition of the harm done to the victim, protection of the community and deterrence of the offender from committing such crimes in the future.
It is apparent from the above comments that the primary judge viewed the offender’s criminal history as not only denying him any element of leniency, but also emphasising the need for the other purposes of punishment.
The prosecution’s response was to both acknowledge the error and concede, correctly, that it produced a need to re-sentence the offender.
Uncontroversially, the prosecution submitted that the resentencing exercise was to be undertaken as a “separate and independent exercise of discretion” in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell v The Queen).
The prosecution continued that, in the exercise of this independent discretion, the Court would reach a conclusion that “no other sentence is warranted in law”.
The appellant’s approach to re-sentencing is that the removal of the error creates a different picture of the appellant’s criminal history to the extent that a substantially lesser sentence would result. The appellant did not suggest any additional factors to be taken into account which were not placed before the primary judge.
The appellant submitted that the ‘new’ sentence should reflect three matters:
(a) A lesser sentence for the recklessly inflicting grievous bodily harm offence.
(b) There should be a greater degree of concurrency between the grievous bodily harm and burglary offences respectively.
(c) The ratio of the non-parole period to the overall sentence should be adjusted to reflect enhanced chances of rehabilitation, consistent with the change to the criminal record influencing the prospects of rehabilitation.
In respect of rehabilitation, the appellant suggested seven matters which might be seen as indicating a better chance of rehabilitation. These were that the appellant:
(a) did not receive a gaol term until this he was 30 years of age (he is now 36);
(b) had pro-social elements in his background, in particular his membership of the Junior Raiders rugby league team;
(c) had experienced two serious head injuries;
(d) had lost his best friend in a motor vehicle accident, having a significant effect upon him;
(e) had expressed an intention to participate in residential rehabilitation;
(f) had the support of his parents.
The appellant’s subjective circumstances are set out from [36]-[48] of the primary judgment:
The offender is currently 36 years old. He has Aboriginal heritage through his father but has never engaged with Aboriginal culture. He is currently single but noted to the author of the pre-sentence report that at the time of the offences he was in a relationship and the couple were co-dependent drug users. He has three children from previous long-term relationships, both of which involved drug use.
As a child he was treated with Ritalin for symptoms of ADHD. He rode motorcycles and played rugby league, both at an elite level.
As a young adult he witnessed a horrific accident, involving multiple fatalities including his best friend. His parents record their impression that, from this point, his life spiralled out of control. He has suffered head injuries as a result of being assaulted, which have left him with memory problems.
He was homeless at the time of the offences and reported that he had been couch surfing for a number of months prior to entering custody. He has no post-release accommodation, although he stated an intention to secure a bed at a residential rehabilitation facility. His family would provide accommodation on the condition that he had completed residential rehabilitation. The author of the pre-sentence report found that the offender appeared genuine in his plans for residential rehabilitation, although noted that he was yet to submit an application. Case notes available to the author of the pre-sentence report indicated that he has commenced discussions with his Sentence Management Officer to obtain documents to review suitable rehabilitation options.
His parents continue to support him, although he acknowledged his contact with them is sporadic due to his illicit substance use. His mother confirmed her support and her desire for him to lead a lawful life.
He was last employed in 2013. He worked as a machine operator but his substance abuse interfered with his ability to maintain employment. He expressed a desire to return to work following his recovery. He is currently employed in the bakery at the Alexander Maconochie Centre.
The offender reported that he commenced using methamphetamine at 22 years of age. He described his use as “recreational” in his twenties and noted that it became problematic from the age of 30, when he began intravenous use. From this time, until his incarceration, he used one gram daily. He also used cannabis simultaneously and would consume cannabis when withdrawing from methamphetamine.
He expressed a desire to address his substance abuse issues and acknowledged that the seriousness of the current offences highlighted the degree to which his drug abuse impacted upon his behaviour. He expressed his desperation in wanting to cease his drug use and told the author of the pre-sentence report “I am scared I will do worse if I stay on drugs”. He denied any drug use since these offences.
He reported that when in the community he did not participate in organised prosocial activities. He stated he intends to join local sporting groups following his release and recovery.
The offender reported a history of depression and anxiety. He is currently prescribed antidepressant medication which he maintained inconsistently due to his illicit substance use. He said he is currently complying with his medication regime and is taking antidepressants and antipsychotic medication. He noted a history of paranoid thinking which he attributes to his methamphetamine use. An ACT Health Summary dated 22 September 2020 confirmed a diagnosis of unspecific nonorganic psychosis in 2016. He reported that his current mental state is stable, but he does still experience paranoid thinking at times.
He agreed with the Statement of Facts. He expressed guilt and shame for his offending behaviour and claimed he frequently reflects on his actions and how they would have impacted upon the victim and his family. The author of the pre-sentence report noted that whilst the offender did express regret for his offending, he also attempted to shift partial responsibility onto his partner at the time, stating that she encouraged him to commit the offences. He acknowledged that his drug use was a fundamental factor in his offending. His parents say of him:
Josh is a good person and needs help with his drug addiction before he can get back to the person he used to be. Joshua understands what he has done and the pain and suffering that he has caused innocent people, and the charges that he faces and knows that he needs to spend a length of time in prison. On release, Joshua wants to be able to be admitted to a long term Rehabilitation Facility so that he can get the help he needs and then to leave Canberra and join his children in [Queensland].
The author of the pre-sentence report assessed the offender as having a medium to high risk of general reoffending. His primary criminogenic risks are his significant substance abuse history and homelessness. It was noted that should he successfully complete a 12‑month residential rehabilitation then his risk would likely reduce.
He has a poor history of compliance with good behaviour, bail and parole orders. He was assessed as suitable for a good behaviour order and a community service work condition. He is identified as not being suitable for an intensive correction order due to having no approved accommodation.
The Court adopts those paragraphs.
Re-sentencing
In light of the significant error concerning the criminal record, it is appropriate to re-sentence. Once a specific error of the kind identified in House v The King (1936) 55 CLR 499 has been established, as here, it is the duty of a Court of Appeal to exercise the discretion afresh taking into account the purposes of sentencing and any other Act or rule of law: Kentwell v The Queen at [42] citing Spigelman CJ in Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 (Baxter v The Queen) at [19] with approval. This Court must exercise its independent discretion and determine whether the sentence is appropriate for the offender and the offences: Kentwell v The Queen at [42]; Thammavongsa v The Queen [2015] NSWCCA 107; 251 A Crim R 342 at [4], [44]; see also Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205.
We conclude, taking into account all relevant matters as set out earlier at [18] and [19], that a lesser sentence is appropriate. The Court accepts the appellant’s submissions that the new sentence should reflect three matters: (1) a lesser sentence for the recklessly inflicting grievous bodily harm offence; (2) a greater degree of concurrency between the grievous bodily harm and burglary offences respectively; and (3) that the ratio of the non-parole period to the overall sentence should be adjusted to reflect the further prospects of rehabilitation, consistent with the correct criminal record. The Court will sentence accordingly.
The overall sentence will be reduced by 3 months and the non-parole period will be 60 per cent of the overall sentence (see graph attached as Annexure A). The appellant, therefore, will now be eligible for parole seven months earlier than the original sentence.
Orders
The orders of the Court are:
1) The appeal is allowed.
2) The sentence imposed by the sentencing judge on 15 October 2020 is set aside and the appellant is resentenced as follows:
a) SCCAN2020/133 – recklessly inflicting grievous bodily harm – 4 years and 9 months’ imprisonment, from 5 July 2019 to 4 April 2024;
b) CC2019/7589 – aggravated burglary – 3 years and 10 months’ imprisonment, from 5 June 2022 to 4 April 2026;
c) SCCAN2020/37 – attempt to take motor vehicle without consent – 15 months’ imprisonment, from 5 May 2025 to 4 August 2026;
d) SCCAN2020/38 – possess prohibited firearm – 10 months’ imprisonment, from 5 December 2025 to 4 October 2026;
e) CC2019/7590 – drive motor vehicle without consent – 20 months’ imprisonment, from 5 August 2025 to 4 April 2027;
f) Drive while disqualified (repeat offender) – 5 months’ imprisonment, from 5 January 2027 to 4 June 2027.
3) The total head sentence is therefore 7 years and 11 months’ imprisonment, from 5 July 2019 to 4 June 2027.
4) The non-parole period is 4 years and 9 months’, from 5 July 2019 to 4 April 2024.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 17 December 2021 |
0
6
0