CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - intentionally inflict grievous bodily harm - demands accompanied by threats - trafficking in a controlled drug other than cannabis - receiving stolen property - pleas of guilty

Crimes Act 1900 (ACT_)_ ss 19 and 32

Crimes (Sentencing) Act 2005 (ACT)

CX v The Queen [2017] ACTCA 37

R v Bourne [2014] ACTSC 401

R v Bourne [2015] ACTSC 181

Legal Aid ACT (Offender - Manns)

SCC 109 of 2017; SCC 130 of 2017; SCC 145 of 2017; SCC 146 of 2017; SCC 194 of 2017

1. Two offenders have appeared for sentence today. For convenience, I will refer to them by their surnames.

2. Mr Bourne has pleaded guilty to the following four charges:

(a) Intentionally inflict grievous bodily harm (CC 2017/3120), contrary to s 19 of the Crimes Act 1900 (ACT). The maximum penalty for the offence is 20 years' imprisonment.

(b) Demands accompanied by threats (XO 2017/3114), contrary to s 32 of the Crimes Act 1900 (ACT). The maximum penalty for the offence is 20 years' imprisonment.

(c) Trafficking in a controlled drug other than cannabis (CC 2016/13215), contrary to s 603(7) of the Criminal Code 2002 (ACT). The maximum penalty for the offence is a fine of $150,000 and/or 10 years' imprisonment.

(d) Receiving stolen property (CC 17/02274), contrary to s 313 of the Criminal Code 2002 (ACT). The maximum penalty for the offence is a fine of $150,000 and/or 10 years' imprisonment.

3. Mr Manns has pleaded guilty to one count of demands accompanied by threats (XO 2017/31145), contrary to s 32 of the Crimes Act 1900 (ACT). The maximum penalty for the offence is 20 years' imprisonment.

4. Mr Bourne and Mr Manns were co-offenders in respect of the charge that is common to them.

5. It is convenient for me to deal with Mr Manns first because of the approach taken by the Crown.

6. Mr Manns was born in 1998. He had a stable upbringing and has the support of his parents and three siblings. He completed Year 10 and is presently employed as a traffic controller. He does not drink too much but does have a history of using illicit drugs. His use of drugs and association with unsavoury colleagues has led to his presence in Court today.

7. Mr Manns has a criminal record which must be taken into account. He has, however, indicated a degree of remorse both in his attitude to the offences and his entry of a plea of guilty. In my view, he is entitled to a 25% discount on his sentence.

8. Mr Manns has a particular advantage by being in Court today. When he committed the offences he was essentially in the role of an apprentice, learning the awful trade of intimidation, violence and drug use. He has today heard all of the details of his co-offender and he will hear the details of the significant sentences that will be imposed on Mr Bourne.

9. Mr Manns has the advantage of the very reasonable attitude that has been taken by the Crown in this matter which has effectively led to him receiving a sentence which both the Crown and his legal representatives think is appropriate. I agree with their assessment.

10. The importance of Mr Manns' presence in Court today is that he can see the fork in the road ahead. He can take the road to rehabilitation, lawfulness and the opportunity to be a contributing member of society. Alternatively, he could complete his apprenticeship and look forward to many years in which his unlawful career will be interspersed with significant time in prison, where he will be deprived of his liberty, his ability to be with his family and his capacity to lead a decent life.

11. I think the sentence of imprisonment should be 18 months reduced from 24 months for the plea of guilty. Mr Manns has already served almost 11 months so I will suspend the balance of the sentence on conditions that will be set out below.

12. Mr Bourne was born in 1987. He does not have as extensive a criminal record as one might have expected. Nevertheless, he is no stranger to this Court. Since he was remanded in custody on 21 December 2016, he has not behaved well. He has faced disciplinary action for an assault, providing a positive drug test and possessing contraband.

13. Mr Bourne was born in Brisbane and moved to Canberra with his mother following his father's imprisonment. He was raised by his mother and stepfather. He otherwise experienced a good upbringing, although he was often in trouble for misbehaviour.

14. Mr Bourne left school after completing Year 10. He has some vocational qualifications and has been in a variety of different types of employment. He has had some difficulties with gambling. Mr Bourne has also been a frequent user of cocaine and is a member of an Outlaw Motor Cycle Gang which obviously sees criminal activity as a key part of its daily constitution.

15. Mr Bourne probably drinks too much alcohol. It seems he has been trying to address his drug problems although there has been one relapse while he has been in custody.

16. There is a character reference written by Mr Bourne's stepfather. The person described in this reference is, at a prima facie level, very different to the man capable of committing the offences for which Mr Bourne is to be sentenced. Mr Bourne is now only 30 years of age and, hopefully, the sentiments expressed by his stepfather will one day be more descriptive of Mr Bourne than a reading of the Statement of Facts and his criminal record permits.

17. Mr Bourne told the authors of the Pre-Sentence Report that he took full responsibility for his actions and recognised the impact of his behaviour on the victims. The report suggests that he has a medium to high risk of general reoffending but also notes that he has used his time in custody to address some of his criminal tendencies.

18. The offence of intentionally inflicting grievous bodily harm arose from the illicit sale of methylamphetamine ("ice"). Without going into the facts in detail, which are adequately described in the Statement of Facts, Mr Bourne smashed the hand of the victim with a sledgehammer. The victim suffered fractures in his hand which later required surgery, including the insertion of a titanium screw. The victim has continuing pain in his hand and limited movement in his middle finger. There is a possibility that his finger will need to be amputated.

19. The offences of trafficking in a controlled drug other than cannabis and making demands arose from events in early December 2016. Mr Bourne and Mr Mann attended the residence of a person they believed was dealing in drugs contrary to the interests of the Outlaw Motor Cycle Gang. They threatened the resident and extorted money from him. A larger sum of money was handed over the following day.

20. Two days later, further threats and demands were made of the same person. He reported the matter to the police who then, effectively undercover, continued to liaise with Mr Bourne. An undercover operation was then set up leading to the trafficking charge. Twenty-eight grams of MDMA was involved, making this offence of less than medium objective seriousness. I regard the offence relating to the making of demands as objectively serious.

21. The receiving stolen property charge arises from Mr Bourne dealing with a stolen motorcycle, valued at about $5,000.

22. It is apparent from the facts that Mr Bourne's criminal activities are closely linked to his membership of an Outlaw Motor Cycle Gang. It is a different gang to the one of which he was a member when he was sentenced by Burns J in 2014 (R v Bourne [2014] ACTSC 401). On that occasion, his Honour made this observation at [4]:

I note that you gave some evidence before me in the sentence hearing and it is a matter of concern to me that you continue to apparently be a member of the Rebels Motorcycle Club and that you continue to maintain connections within that organisation. It is a matter of concern because it seems to me that, if you maintain those connections, there is the risk that you may become involved in criminal offending in the future, it being notorious that members of that organisation are from time to time involved in criminal offending, such that your involvement with people who are part of that organisation leads to the risk that you may become involved in such activity.

23. Mr Bourne was reminded of the above sentiments by Penfold J, when she sentenced him for assault occasioning actual bodily harm on 27 May 2015 (R v Bourne [2015] ACTSC 181).

24. Burns J's concerns have obviously come to fruition, notwithstanding that Mr Bourne seems to have changed allegiances to a different gang. It is unfortunate that he has continued to be part of an Outlaw Motor Cycle Gang, membership of which almost demands involvement in illegal activities. It is impossible for a court to dictate to any person that he should or should not be a member of a particular gang. Even sanctions against membership cannot deter a continuation of affiliations.

25. Another concerning element regarding Mr Bourne is that, as shown in Exhibits C and D, violence is second nature to him and he engages in violent conduct with little provocation.

26. Mr Bourne has forthrightly stated that, upon his release, he intends to return to the same Outlaw Motor Cycle Gang. This is indeed unfortunate. I can understand that a club can provide comradeship and assist an interest in, for example, motorcycles. However, when that club is apparently more interested in carrying out criminal conduct than lawful and legitimate activities, membership of it is to be discouraged.

27. The courts can and must send a general message to the community and, in particular, to those persons within the community who might be contemplating membership of an Outlaw Motor Cycle Gang. They must be made aware that their descent into criminal behaviour will be swift and, when apprehended, their punishment will be severe.

28. Mr Bourne was arrested on 21 December 2016 and has been in custody since that date. This means that he has spent 433 days in custody. His sentence will be backdated to 21 December 2016.

29. One matter that is in Mr Bourne's favour is his pleas of guilty and the utilitarian value that has attended those pleas. The Crown has submitted that there should be a significant discount. I agree and will allow a discount of 25%.

30. A significant issue that arises in this case is the concurrency of sentences and accumulation. Mr Stewart, on behalf of Mr Bourne, submitted that there should be concurrency between the second and third charges because they essentially arise from the same series of facts. Mr Stewart was particularly concerned that there should not be a crushing head sentence. I agree that there should be some concurrency between the second and third charges but they are distinct offences and I think it important that the more serious offence, concerning the intimidation, be seen to at least in part stand alone. It is of course necessary to bear in mind principles of totality when sentencing. In CX v The Queen [2017] ACTCA 37 at [28] the Court of Appeal said:

Having imposed sentences that were appropriate for the individual offences, the primary judge had to accumulate the sentences to achieve a total sentence that appropriately reflected the total criminality. Questions of concurrency and accumulation are discretionary matters for a sentencing judge and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour. As questions of accumulation are intuitive, the level of transparency that can be provided by the sentencing judge is limited.

31. I also need to consider the objects and principles of sentencing generally as set out in the Crimes (Sentencing) Act 2005 (ACT). I note that there is no suggestion that there could be any sentence other than full-time imprisonment.

32. There are many cases which have comparable elements, but it is important for me to primarily have regard to the facts and circumstances of Mr Bourne's case.

33. If the sentiments included in the reference are to have any chance of success I need to give Mr Bourne the hope of a future not dictated by an overly long sentence. It is important that I do give him a chance to rehabilitate himself. At the same time I must be acutely aware of the community's abhorrence of the workings of some motorcycle clubs, the expectations of the victims of the offences and the need to make a strong statement of general deterrence.

(a) In respect of the offence of demands accompanied by threats (XO 2017/31145), the offender is sentenced to 18 months' imprisonment (reduced by 25% from 24 months) to commence on 15 April 2017 and end on 14 October 2018.

(b) The offender is to be released forthwith on condition that he enter into a Good Behaviour Order for a period of 18 months during which time he is to accept the supervision of the Director-General or its delegate, or such lesser period as the Director-General considers appropriate. It is a further condition of the Good Behaviour Order that the offender perform 50 hours of community service.

(c) [redacted for legal reasons]

(a) In respect of the offence of intentionally inflict grievous bodily harm (CC 2017/3120), the offender is sentenced to 6 years and 9 months' imprisonment (reduced by 25% from 9 years) commencing on 21 December 2016 and ending on 20 September 2023.

(b) In respect of the offence of demands accompanied by threats (XO 2017/3114), the offender is sentenced to 3 years and 9 months' imprisonment (reduced by 25% from 5 years) commencing on 21 December 2020 and ending on 20 September 2024.

(c) In respect of the offence of trafficking in a controlled drug other than cannabis (CC 2016/13215), the offender is sentenced to 1 year and 6 months' imprisonment (reduced by 25% from 2 years) commencing on 21 October 2023 and ending on 20 April 2025.

(d) In respect of the offence of receiving stolen property (CC 17/02274), the offender is sentenced to 6 months' imprisonment (reduced by 25% from 8 months) commencing on 21 February 2025 and ending on 20 August 2025.

(e) The head sentence is 8 years and 8 months' imprisonment commencing on 21 December 2016 and ending on 20 August 2025.

(f) I set a Non-Parole Period of 6 years and 3 months commencing on 21 December 2016 and ending on 20 March 2023.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.