The Queen v Peter Baldini
[2013] ACTSC 281
•12 November 2013
THE QUEEN v PETER BALDINI
[2013] ACTSC 281 (12 November 2013)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – Aggravated burglary – Assault occasioning actual bodily harm – No matter of principle
Bail Act 1992 (ACT)
Crimes Act 1900 (ACT), s 24
Crimes (Sentencing) Act 2005 (ACT), s 7, Pt 4.2
Criminal Code 2002 (ACT), s 31
Hogan v Hinch (2011) 243 CLR 506
Muldrock v The Queen (2011) 244 CLR 120
R v Gordon (1994) 71 A Crim R 459
R v Mears (1998) 101 A Crim R 329
EX TEMPORE JUDGMENT
No. SCC 127 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 November 2013
IN THE SUPREME COURT OF THE )
) No. SCC 271 of 2013
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
PETER BALDINI
ORDER
Judge: Refshauge J
Date: 12 November 2013
Place: Canberra
THE COURT NOTES THAT:
Peter Baldini is not serving, or liable to serve, a term of imprisonment for an offence other than the offences for which he is to be sentenced.
It has considered the Pre-Sentence Report about Peter Baldini and the other evidence adduced on sentence.
It is satisfied that Peter Baldini should be given an opportunity to address his criminal behaviour and the risk factors that have contributed to that behaviour before he be sentenced for the current offences.
It is satisfied that Peter Baldini may be released on bail under the Bail Act 1992 (ACT).
AND THE COURT ORDERS THAT:
Peter Baldini be convicted of aggravated burglary committed on 20 July 2012.
Peter Baldini be convicted of assault occasioning actual bodily harm on 20 July 2012.
Peter Baldini not be sentenced for these offences at this time.
Peter Baldini appear at 9:30 am on 1 May 2014 to be sentenced for these offences.
Peter Baldini be granted bail to appear at 9:30 am on 1 May 2014 with the following conditions:
(a) that he be subject to the supervision of the Director General or her delegate and obey all reasonable directions of the person delegated to supervise him, especially as to alcohol and other drug issues, including treatment and counselling and to addressing any anger management issues;
(b) that he attend, on or before 15 November 2013, at the offices of the Court Alcohol and Drug Assessment Service (CADAS) 1 Moore Street, Canberra City to be assessed for and engaged in suitable treatment for drug use.
(c) that he abstain from the use of illicit drugs.
The Director General prepare a Pre-Sentence Report, under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT), for the Court on 1 May 2014 to update the report of 7 November 2013, and to report on Mr Baldini’s compliance with the bail conditions.
CADAS prepare a report for the Court on 1 May 2014 to report on Mr Baldini’s alcohol and drug use and the steps Mr Baldini has taken to address those issues, with any recommendation as to options for further treatment or counselling.
Violence in our community is a great social evil and the legislature sets serious maximum penalties for violent offences which, of course, the courts must respect. In addressing the purposes of sentencing, set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT), courts must recognise that punishment and deterrence play an important part, even though rehabilitation must not be ignored. As French CJ said in Hogan v Hinch (2011) 243 CLR 506 at 537; [32], “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”.
Peter Baldini has pleaded guilty to an offence of aggravated burglary and an offence of assault occasioning actual bodily harm.
Aggravated burglary is an offence under s 312 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 2000 penalty units (that is, at the time a fine of $220,000) or imprisonment for 20 years, or both.
Assault occasioning actual bodily harm is an offence under s 24 of the Crimes Act 1900 (ACT), and attracts a maximum penalty of five years imprisonment.
Thus, aggravated burglary is an extremely serious offence, but both are serious offences which often result in imprisonment. The courts have consistently said that the maximum penalty for a statutory offence is an indication of the relative seriousness of the offence. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].
THE FACTS
The offence occurred on 20 July 2012, when Mr Baldini and two co-offenders agreed to visit the victim’s residence and search his apartment for drugs. They agreed to wear clothing to conceal their identities. Mr Baldini and one of his co-offenders wore T-shirts over their faces to hide their identities. At about 9:00 pm they went to the victim’s apartment and one of the co-offenders knocked on the door and identified himself. The victim opened the door and Mr Baldini and one of the co-offenders rushed at him, pushing him backwards into his apartment. The victim was pushed against a wall and Mr Baldini and the co-offender held him against the wall while the co-offender hit him around the head with his fists a number of times.
The second co-offender who had brought a bag began searching the apartment. The victim was then pulled by Mr Baldini and the co-offender from the hallway into the lounge and Mr Baldini held him in a head lock, while punching him in the face and neck with his fists. The first co-offender also punched the victim. The victim began to bleed from his face and mouth. The second co-offender located some paracetamol tablets and some prescription tablets, which he placed with a packet of cigarettes into the bag he was carrying, but then told the other two that he had not found anything and they should leave. They then left from the victim’s apartment, though they were seen by a neighbour.
Later Mr Baldini had a shower and changed his clothes. The victim was taken to Canberra Hospital where he was treated for a fractured nose and a large bruise to his left eye and forehead. One of the co-offenders has pleaded guilty to aggravated robbery and is to be sentenced on 22 November 2013. The other has yet to be committed to this Court.
SUBJECTIVE CIRCUMSTANCES
Education, employment and relationship history
Mr Baldini is twenty-one years old, the youngest of four children born to his parents. His parents separated when he was an infant and he remained with his mother, but he had a good upbringing and his mother provided for him well. Although he has had minimal contact with his father, he has a good relationship with his mother and older siblings.
He completed education to Year 10 level and left home when he was sixteen, after his mother moved to New South Wales. He remained living in Canberra, but now lives with his sister in Yass.
He has been employed in the sound and lighting industry, but ceased to be employed as a result of the current offences. He currently, however, has been re-employed and is working in Canberra.
Use of alcohol and illicit substances
Mr Baldini started drinking alcohol when he was fifteen, but his use is entirely social. He has, however, a conviction for driving with the prescribed concentration of alcohol.
Mr Baldini started using cannabis when he was fifteen. This progressed to daily use making up to fifty cones a day, but he says that he stopped using cannabis about eight months ago.
Mr Baldini started using ice when he was nineteen and that use also escalated to daily use. He also claimed to have stopped using ice about eight months ago. Mr Baldini says that, at the time of the offence, he was under the influence of drugs.
He did not know the victim, but just went along with his co-offenders. He described his actions as stupid and violent and took responsibility for them. He says he now recognises the impact of his behaviour on the victim and his family, as well as the community. He has expressed a desire to address his alcohol and other drug issues, and anger management issues through professional help.
The author of the helpful Pre-Sentence Report assessed Mr Baldini as follows:
Mr Baldini is a young man who appears to have benefited from a supportive upbringing, despite his parents separation in his infant years. It would appear that the offender continues to enjoy a close and supportive relationship with his mother and older siblings.
Mr Baldini admitted to being under the influence of illicit drugs during the commissioning of the offences. However, he did not attempt to use this as an excuse for his offending behaviour. The offender appeared forthright in accepting responsibility for his actions. He would benefit from professional help to address his [alcohol and other drugs] and anger management issues.
PROCEEDINGS
Mr Baldini was arrested on 1 August 2013 and it is not entirely clear why it took over twelve months to identify him and proceed against him. He remained in the watch house overnight, appeared on 2 August 2013 in the Magistrates Court and was granted bail to appear on 22 August 2013. On that day he pleaded guilty and was committed for sentence to this Court. He adhered to his plea of guilty when he appeared before me today. Apart from the day on which he was arrested, he has not spent any time in custody.
THE OFFENCES
The offences are serious, as I have noted above, and, in each case, serious instances of the offences.
Aggravated burglary is the most serious of the offences of dishonesty. This was in every sense a home invasion. The number of offenders, the suddenness of the entry, the viciousness of the violence, the lateness of the hour and the vulnerability of the victim all elevate the seriousness of the offences.
In R v Mears (1998) 101 A Crim R 329 at 335, Wright J said:
I regard so called “home invasions” as a particularly serious type of offence. Such criminal conduct undermines the feeling of security that most members of the community expect to enjoy in their home environment. The violent intrusion of strong young men, whether alone or in a group, into a family dwelling in the middle of the night, or, indeed, at any other time, must be a terrifying experience for the householder and his or her family. Such crimes constitute criminal conduct of the utmost gravity and must be met with firm and resolute punishment by the Court, particularly if serious injury has resulted from the attack.
This is very much the situation here. Mr Baldini says that the incident occurred because he and his co-offenders had been goaded into undertaking the offences, so as to “prove themselves” to some others who were not involved in the offence. Mr Baldini was, at the time, heavily using ice and cannabis, as I have noted above (at [13]-[14]). The offences were aggravated by the planning of them by the offenders and, of course, the seriousness of the injuries suffered by the victim. It was, indeed, as pointed out quite appropriately by Ms Clarke for the Crown, a cowardly attack from which the victim had no opportunity to protect himself.
OTHER MATTERS
Effect on the victim
I did not have a victim impact statement though I can accept, as must be the case, that there were serious consequences for the victim; pain and suffering, fear and psychological trauma, as well as the physical injuries that have been referred to above. I do not have, however, any information to suggest that there were any particular long term consequences for the victim.
References for Mr Baldini
I had two references from a long term friend and the employer of Mr Baldini. He has shown community commitment assisting a single parent with her gardening. He is described as “very friendly, enthusiastic, polite”.
His employer describes him as “a hard working reliable young man”. His employer says that people enjoy working with him and that they respect him for the hard work and effort he puts in every day. Both referees state that he is remorseful and recognises that he made a wrong decision.
CONSIDERATION
Mr Baldini pleaded guilty at a very early stage in the proceedings and he is entitled to have that taken into account, providing a significant discount to the sentence.
The offence was, however, as I have said, a serious one. It must have been very frightening for the victim to be confronted with three men hiding their identity, though he may have known one of them. To then have been severely beaten in his own home would have been a very frightening experience. Objectively, the offences are very serious, which requires general deterrence to play a part in sentencing.
I take into account Mr Baldini’s subjective circumstances, as I have set them out above. Although he has one traffic offence on his record, it is a relatively minor offence of a difference type and it seems to me that he is, for all intents and purposes, a first offender. That is important because his remorse and insight, which I accept as genuine, are very likely to ensure that he will not re-offend.
I note that Mr Baldini has been assessed as suitable for a community service work condition to a good behaviour order and is suitable for periodic detention, for which he has signed the relevant undertaking. The offences are, however, ones which ordinarily would attract a term of imprisonment.
Mr Baldini is a young man, however, twenty at the time of the offences and although over the age of eighteen years, has not yet reached an age of maturity where some consideration for his youth cannot be given. As Hunt CJ at CL pointed out in R v Gordon (1994) 71 A Crim R 459 at 469, his youth, even though he is not under the age of eighteen years, is not to be disregarded in the sentencing process.
I take into account Mr Baldini’s preparedness to undertake rehabilitation and that he has stated that he has abstained from the use of illicit drugs for eight months, a period that pre-dates his arrest by some months. It seems, to me, that it is desirable that he makes some progress with addressing his alcohol and other drug issues and anger management, and that this would be a basis on which substantial leniency could be offered to him.
Nevertheless, in R v Mears, Wright J said (at 335):
There is frequently an almost insoluble tension created for a sentencing judge between the need to denounce serious criminal conduct by imposing condign punishment and the natural inclination to acknowledge past good behaviour and to assist an individual to overcome his [or her] criminal propensities by tailoring a more lenient sentence and thus softening the penal blow. When such a situation arises, a choice must be made. Some crimes are so series and involve such an affront to peaceful community coexistence and security that a custodial sentence combining the joint purposes of retribution and general deterrence is plainly called for. Serious crimes of violence nearly always fall into this category, and causing grievous bodily harm is obviously a very serious crime of that type. If such an offence is coupled with aggravated burglary where the aggravating factor or joint participation is further compounded by entry into a dwelling house for the very purpose of inflicting substantial violence on an elderly and vulnerable person, it is beyond argument that a substantial custodial sentence is demanded.
While those circumstances are not precisely on point here, that tension is one that is very readily apparent to me in this case. I have given anxious thought to how I should sentence Mr Baldini.
It was submitted by Mr M O’Brien, who ably appeared for Mr Baldini, that I should give Mr Baldini an opportunity to show that his reform is genuine and lasting by making a deferred sentence order. Ms Clarke did not demur from such a proposal. That accords with my own thinking. I shall do so.
Mr Baldini, please stand.
1. I convict you of aggravated burglary on 20 July 2012.
2. I convict you of assault occasioning actual bodily harm on 20 July 2012.
3. I have decided not to sentence you for these offences at this time.
4. I note that you are not serving or liable to serve a term of imprisonment for an offence other than the offences for which I am to sentence you.
5. I have considered the Pre-Sentence Report tendered in these proceedings.
6. I consider that you should be given an opportunity to address your criminal behaviour and the factors that have contributed to that offending behaviour before I sentence you for these offences.
7. I am satisfied that I may release you under the Bail Act 1992 (ACT).
8. Accordingly, I order that you appear before me at 9:30 am, on 1 May 2014, to be sentenced for these offences.
9. I release you on bail to appear at 9:30 am on 1 May 2014 with the following conditions:
(a) that you be subject to the supervision of the Director General, or her delegate, and obey all reasonable directions of the person delegated to supervise you, especially as to alcohol and other drug issues, including treatment and counselling and to addressing any anger management issues;
(b) that you attend, on or before 15 November 2013, at the offices of the Court Alcohol and Drug Assessment Service (CADAS) 1 Moore Street, Canberra City to be assessed for and engaged in suitable treatment for drug use.
(c) That you abstain from the use of illicit drugs.
10. I order the Director General to prepare a Pre-Sentence Report under Pt 4.2 of the Crimes (Sentencing) Act for the court on 1 May 2014 to update the report of 7 November 2013, and to report on your compliance with the bail conditions.
11. I request that CADAS prepare a report for the Court on 1 May 2014 to report on your alcohol and drug use and the steps you have taken to address those issues, with any recommendation as to options for further treatment or counselling.
12. I state that if you comply with the order and the bail conditions, I am likely to sentence you to imprisonment for between two years and thirty months, but that a period of between three and six months be served by periodic detention and the balance suspended with a two year good behaviour order.
13. I state that if you do not comply with the order and the bail conditions, I am likely to sentence you to imprisonment for between two years and thirty months, to be served by full time custody with a non-parole period.
[His Honour then spoke directly to Mr Baldini]
Mr Baldini, that is the formal order I have made. I need to explain it to you briefly, although Mr O’Brien will be well able to and will explain it to you in detail. What I have said is I am not sentencing you now; I am giving you a chance to show that the efforts you have made to date are genuine efforts and they are durable; that they will last. I have, therefore, given you six months to show that to me, but I have put a structure around that.
The elements of the structure of the deferred sentence order are, first, that you are under supervision of an officer of Corrective Services and they can make directions to you to undertake alcohol and drug counselling. I think it is likely that relapse prevention at least would be useful counselling for you to undertake and to identify if there are anger management issues. If it is not just ice making you angry and difficult, if there are anger management issues, they can also be addressed.
There is a specialist service, CADAS, the Court Alcohol and Drug Assessment Service, and I have asked that you go there. That is at the ACT Government Health building, 1 Moore Street, Canberra City and they will prepare a report also, but they will talk to you about alcohol and drug counselling and they will get you into any appropriate counselling that is suitable for you.
I have directed that you abstain from the use of illicit drugs. Usually that order is abstain from alcohol and illicit drugs. Alcohol does not seem to be a problem, it is a legal drug and I am not going to stop you from using that, but you must remember that you are on a short leash. This is terrible example of a serious crime. You are on a tightrope and you have got to keep your eye on the ball, which is keeping clean, working hard, keeping out of trouble.
If you breach any of those conditions you can be brought back as a breach of bail before me and I can cancel the order and I can sentence you then.
I am obliged, in a deferred sentence order, to say what I am likely to do in general terms. I am not binding myself absolutely, but you are entitled to know what I am likely to do. These offences are very serious offences and I have made crystal clear in what I have said. That means that I think they are worth between two years and two years and six months in jail.
I am not going to send you to jail now, and I am not going to send you to jail then if you behave yourself. But I do think that they are so serious that some period of periodic detention is appropriate and that depends on how well you do and what the result is between three and six months. If, however, you do not take this opportunity and you blow it, then something between two years and two years and six months in full time custody with a non-parole period would be what is appropriate.
This is your opportunity. Everything suggests to me you will take this opportunity. You will use it to show me that I do not need to put you in jail and that your entry into the criminal calendar has been a huge mistake. And even though it is at a really high level, it is behind you now.
If you have show me that, I will come to the party and I will give you substantial leniency, to which I think you can be entitled. You may be seated.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge
Associate:
Date: 2 April 2014
Counsel for the prosecution: Ms A Clarke
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Mr M O’Brien
Solicitor for the defendant: Legal Aid (ACT)
Date of hearing: 12 November 2013
Date of judgment: 12 November 2013
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