R v Avery [2018] ACTSC 64

Crimes Act 1900 (ACT) ss 32 and 34

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

Drugs of Dependence Act 1989 (ACT) s 171

R v Musolino [2018] ACTSC 3

SCC 319 of 2017; SCC 320 of 2017

1. The offender has entered pleas of guilty to the following five offences:

(a) Unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years' imprisonment.

(b) Trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 10 years' imprisonment and/or a fine of $150,000.

(c) Demands accompanied by threats, contrary to s 32 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is 10 years' imprisonment.

(d) Unlawful possession of stolen property, contrary to s 324 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is six months' imprisonment and/or a fine of $7,500.

(e) Possession of cannabis, contrary to s 171 of the Drugs of Dependence Act 1989 (ACT). The maximum penalty for this offence is two years' imprisonment and/or a fine of $7,500.

2. The starting point is to note the maximum penalties. They give an indication of the respective seriousness of the offences.

3. The offender is entitled to a discount for his pleas of guilty. He has saved the victim from giving evidence. The pleas also have a substantial utilitarian value, saving costs and court resources. Taking all matters into account, I think the offender is entitled to a discount of approximately 35%.

4. The offender was born in 1982 in Canberra. He is one of three children and is very close to his siblings. He is also very close to his mother. He has little to no relationship with his father.

5. The offender has completed Year 12 and has obtained qualifications in powder coating and concreting. He also has a security licence. His history of employment was curtailed in 2014, following a shoulder injury. The offender has been reliant upon pain medication and received compensation payments until his claim was finalised. His dependence on medication may have played a part in his later use of illicit drugs.

6. It is of particular concern that the offender has previously been associated with an Outlaw Motorcycle Gang. He has said that he has disassociated himself from all known members. I hope that this is an accurate statement.

7. The offender has two children from a previous relationship. Prior to going into custody, he maintained regular contact with them.

8. The offender's use of cannabis is longstanding. Unfortunately, he started using harder drugs in 2017. He seems to have been able to stay away from drugs while in prison.

9. The offender has some mental health issues which were previously undiagnosed and untreated. He has received some treatment while in custody.

10. The offender has been in custody since 4 May 2017. His sentences will be backdated to this date.

11. Details of the offences are set out in the Statement of Facts. The offender acted in company with others. I have already sentenced one of his co-offenders (R v Musolino [2018] ACTSC 3).

12. The offences arose from a dispute concerning illegal drugs and cash. On 8 April 2017, at around 8:15 pm, a person thought to have been involved in taking the drugs and cash was brought to the offender's house. He was led into the residence by a number of co-offenders. The offender instructed one of his colleagues to strap the victim to a chair. He then interrogated the victim about the location of the "gear".

13. Each time the victim denied knowledge of the location, the offender, or a co-offender, struck him to the face. The victim was assaulted over about a 10 minute period. After a short interlude, the offender and co-offender continued the assault. The offender picked up a pair of scissors and approached the victim. He pushed the end of the blade into the victim's neck, piercing the skin. The chair tilted backwards and struck a wall. The offender hit the victim to the temple causing him to lose consciousness. Sometime later, the victim was released but then again told to sit in the chair, although this time he was not tied up. A towel was placed over his face. The offender said to the victim:

First thing in the morning you are going to rock up here with the papers to your car, you are going to sign it over to me. You owe me three grand on top of that.

14. After further threats were made, the victim was allowed to leave the premises. He contacted the police, which led to the execution of a search warrant at the offender's residence. The police located and seized 101 'MDMA' tablets and 154.6 grams of cannabis. The total period of confinement was about three hours.

15. The offender has taken full responsibility for his crimes and acknowledges the suffering he inflicted on the victim. He has not sought to justify his actions.

16. The offender has a minor criminal history, comprising of some offences in 2013. If he can stay away from drugs and unsatisfactory acquaintances, he probably has reasonable prospects of becoming a contributing member of society. I note he has done a number of courses in prison which hopefully indicate a path to a more responsible future.

17. Where the offences overlap, it is important that I keep in mind the manner in which I sentenced a co-offender, Musolino, so as to maintain parity in sentencing. This does not, of course, mean that the sentences imposed must be precisely the same. The offender's degree of involvement and subjective background can be taken into account.

18. In relation to the degree of involvement, when I take into account the length of confinement, its purpose, the fear instilled in the victim and the injury suffered, I think I must reach a conclusion that this offender played a greater role than Mr Musolino. I do not intend to distinguish between their subjective factors. Suffice to say, they both have subjective factors in their respective favours.

19. As fairly conceded by the Crown, there is a substantial factual overlap between the confinement offence and the making of demands. For this reason, the sentences for these offences will be largely concurrent but with a short period of accumulation to reflect the differences in the factual circumstances making up each offence.

20. It is also important that I take into account the nature of the offences, particularly the unlawful confinement offence. This was, no doubt, a terrifying experience for the victim. Extreme violence was used, including implements like scissors and elements of torture such as the placing of the towel over the victim's head. At one stage, the victim feared for his life. The offences against the victim are objectively serious.

21. Sentencing is not only a reflection of the objective seriousness of the offences. I must also take into account the purposes and principles of sentencing as set out in the Crimes (Sentencing) Act 2005 (ACT). In addition, section 10 of this Act says that offenders should not be sent to prison unless no other penalty is appropriate.

22. In this matter it was conceded that a prison sentence was appropriate. It was, however, submitted that I should proceed either by way of an Intensive Corrections Order ('ICO') or a suspended sentence. I do not think that an ICO is appropriate.

23. I think that the sentences for the offences of unlawful confinement and demands accompanied by threats should be 18 months, reduced to 12 months to reflect the discount mentioned above.

24. For the trafficking offence, the street value of the drugs involved was about $2,500. I think, after the discount, a sentence of nine months' imprisonment should be imposed. However, there needs to be a degree of accumulation to reflect the individual seriousness of the offences involving the victim.

25. The stolen property and cannabis offences are minor and will attract short periods of imprisonment which will fall within the bounds of the other sentences.

(a) In relation to the offence of unlawful confinement (CC2017/4989), the offender is sentenced to 12 months' imprisonment commencing on 4 May 2017 and ending on 3 May 2018.

(b) In relation to the offence of trafficking in a controlled drug other than cannabis (CC2017/4991), the offender is sentenced to 9 months' imprisonment commencing on 4 December 2017 and ending on 3 September 2018.

(c) In relation to the offence of demands accompanied by threats (CC2017/12545), the offender is sentenced to 12 months' imprisonment commencing on 4 June 2017 and ending on 3 June 2018.

(d) In relation to the offence of unlawful possession of stolen property (CC2017/4993), the offender is sentenced to 3 months' imprisonment commencing on 4 May 2017 and ending on 3 August 2017.

(e) In relation to the offence of possessing cannabis (CC2017/12480), the offender is sentenced to 3 months' imprisonment commencing on 4 May 2017 and ending on 3 August 2017.

(f) The total sentence is 16 months' imprisonment commencing on 4 May 2017 and ending on 3 September 2018.

(g) I set a non-parole period of 12 months commencing on 4 May 2017 and ending on 3 May 2018.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.