R v Brown [2017] ACTSC 284

[2017] ACTSC 284

See [48] to [53] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - damage property - arson - whether offences premeditated - offence committed out of anger after parole revoked - delay in dealing with offences caused largely by offender absconding to Queensland - some delay caused by authorities - danger created by arson requires general deterrence - punishment may not have useful deterrent effect on offender but deterrent element nevertheless appropriate - family responsibilities not a get-out-of-gaol-free card - offender diagnosed with Intermittent Explosive Disorder and Anti-Social Personality with psychotic traits - no clear plans for offender's further rehabilitation.

Crimes (Sentence Administration) Act 2005 (ACT), s 149

Crimes (Sentencing) Act 2005 (ACT), ss 63, 71, 72

Hanel v Shoemark [2011] ACTCA 16

R v Brymer [2016] ACTSC 194

R v DM (No 2) [2016] ACTSC 385

R v Eluga [2016] ACTSC 304

R v Hart [2016] ACTSC 16

R v Raeyers [2014] ACTSC 134

R v Wrigley [2015] ACTSC 114

Wronski v Raue [2012] ACTSC 87

SCC 260 of 2016; SCC 261 of 2016; SCC 244 of 2017

1. Rhys Brown has pleaded guilty to three offences, as follows:

(a) one offence of damaging property, arising under s 403(1) of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 10 years imprisonment; and

(b) two offences of arson, arising under s 404(1) of the Criminal Code and carrying a maximum penalty including imprisonment for 15 years.

2. A further offence of obstructing a Territory public official was transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT) for sentencing, and for the purpose of s 68D(2) of the Supreme Court Act, I note that it would have been in the interests of justice to deal with that offence in these proceedings. However, before me, the Crown indicated that it had no evidence to offer, and accordingly I dismiss that charge.

3. Mr Brown was last released on parole on 21 June 2017; his parole period currently expires on 11 January 2018. That parole relates to a sentence of 3 years and 7 months imprisonment for attempted aggravated robbery and two offences of damaging Commonwealth property, imposed on 19 September 2010 and originally to be served from 9 June 2010 until 8 January 2014, and also to a sentence imposed earlier this year for an offence committed in 2013. Mr Brown has been released on parole several times under the sentence for the 2010 offences and subsequently reimprisoned for breaches of parole conditions.

4. The incident from which the current charges arose took place on 27 November 2012.

5. On 26 June 2012, Mr Brown had been released on parole in respect of the 2010 sentences already mentioned. He failed to comply with his parole conditions and was called to a meeting with the Sentence Administration Board (SAB). He became agitated during the meeting, and when he was taken outside to allow the SAB to deliberate, he made threats about what would happen if he were remanded in custody.

6. When Mr Brown returned to the meeting room and was told he was to return to custody, he again became agitated, shouted abuse at the SAB members, and was taken to the Magistrates Court cells. On the way, he kicked a door with such force that the latches broke free and the door was damaged.

7. Shortly afterwards, Mr Brown was secured in a cell. Over the next hour or so, he produced tobacco from his groin area, and a cigarette lighter which had apparently been secreted in his rectum. He refused to surrender the lighter to Corrective Services officers, and soon afterwards, stood on a bench and held the lit cigarette lighter against the ceiling for around two minutes, then watched the ceiling flame for a few minutes before turning his attention to scorching the cell door padding. Corrective Services officers entered the cell, extinguished the fire and removed Mr Brown, but did not manage to retrieve the lighter.

8. Mr Brown was taken to another cell, where he used the lighter to scorch the perspex cover of the security camera lens so that the camera view was completed obstructed. Again, Corrective Services officers removed Mr Brown and used the fire extinguisher in the cell. A strip search attempt to retrieve the lighter which Mr Brown had placed "in the area of his buttocks" was unsuccessful, but in due course Mr Brown settled down and was returned to the Alexander Maconochie Centre (AMC).

9. Mr Brown later said that he had "flipped out" and had been in "another zone".

10. On 27 August 2013, nine months after those offences, which I will refer to as the current offences, were committed, Mr Brown was charged with them.

11. I am told that the delay in charging Mr Brown resulted from delay in obtaining a valuation needed by the authorities in order to determine whether Mr Brown should be charged with the more or less serious version of the property damage offence; the less serious of the two offences applied at the time to damage to property not exceeding a specified value, although it currently applies to damage to a value not exceeding a specified amount (see Hanel v Shoemark [2011] ACTCA 16). In the end, it seems no valuation was obtained and the charge was laid under the more serious provision, which did not require the property or the damage to be valued).

12. By the time the charges were laid in August 2013, Mr Brown had again been released on parole. He was charged with a family violence offence on 11 September 2013 but it seems that, before his next appearance in the Magistrates Court, he absconded to Queensland, where he remained until he was extradited to the ACT on 13 September 2016.

13. In the case of R v Hart [2016] ACTSC 16, Refshauge J noted that delay in finalising a matter may provide some grounds for leniency, although less so when it is caused by the offender, especially by absconding, but that where the offender has used the time to rehabilitate him or herself, that must also be taken in to account. There is unfortunately no particular indication of rehabilitation in this case.

14. On 25 January 2017, Mr Brown was sentenced by Magistrate Cook for a property damage offence committed in September 2013, and a failure to appear in relation to that charge. I understand the property damage offence was in a domestic relationship context.

15. Shortly after Mr Brown first came before me in July this year, he was charged in the Magistrates Court for family violence offences, which I understand he intends to defend, and he has been in custody ever since.

16. I note also that Mr Brown appears to have been in custody in Queensland for four months during the period between when he absconded to Queensland and when he was extradited from there. That period was 22 February 2016 to 22 June 2016, being the non-parole period of a 20-month sentence for aggravated robbery.

17. Mr Brown has spent considerable periods in custody since being charged with these offences, but none of that custody has been solely in respect of these charges. I shall have more to say in due course about how I propose to deal with the current offences in the context of Mr Brown having spent substantial other time in custody in the last five years.

18. Mr Brown pleaded not guilty to the current charges in the Magistrates Court and was committed to this Court for trial. The trial was set down for 3 July 2017 but on 12 April 2017, after the fifth Supreme Court mention, Mr Brown pleaded guilty before this Court. The guilty plea had been indicated a week earlier. This is a fairly late plea and was entered in the face of a strong Crown case, but it had some utilitarian value, as well as suggesting a degree of remorse, and will be recognised with a modest plea of guilty discount.

19. As well as the statement of facts, the following material is in evidence before me:

(a) the criminal history;

(b) a pre-sentence report dated 23 June 2017;

(c) a transcript of sentencing proceedings in the Magistrates Court on 25 January 2017;

(d) information from Corrective Services about Mr Brown's parole history dated 20 July 2017;

(e) two diagrams summarising Mr Brown's recent custodial history;

(f) photographs of the damage to the cells;

(g) a transcript of Mr Brown's taped record of interview of 27 November 2017, that is the day of the offences; and

(h) a DVD containing CCTV camera footage showing the two offences in the cells;

all of which was tendered by the prosecution. As well, the defence tendered:

(i) a letter from Relationships Australia listing five counselling appointments attended by Mr Brown between May and July 2017;

(j) a letter from Directions ACT reporting Mr Brown's attendance on 7 July 2017 for assessment regarding his substance abuse; and

(k) a doctor's certificate dated 31 August 2017 recording that Mr Brown's partner is in the early weeks of pregnancy.

20. In considering the objective seriousness of these offences, I have had regard to the following matters.

21. The offences were committed after Mr Brown's parole had been cancelled and he was therefore back in custody.

22. Given the threats made by Mr Brown when he attended the parole hearing, and the secretion of the lighter in his body, it is possible that Mr Brown had planned an incident of the kind that eventuated, although it is also possible that he simply wanted access to a lighter more generally in the event that his parole was cancelled and he was returned to custody.

23. The CCTV footage of the incidents indicates that the lining of the cell concerned was not particularly flammable, and took some minutes to show signs of catching fire, although flames were visible for a brief period before Corrective Services officers extinguished the flames. The fact that the fire did not start or spread quickly is no particular consolation, given that even materials that do not burn readily may release dangerous gases, which may be particularly dangerous in confined spaces such as underground cells. It is also relevant that a fire such as Mr Brown began may endanger not just Mr Brown himself, but others who are constrained in terms of escaping the danger, whether fellow prisoners or Corrective Services officers .

24. Mr Brown might have assumed that he was being monitored and that accordingly, his behaviour would have little more than nuisance value, but this is hardly a matter of mitigation.

25. The offences were apparently committed out of Mr Brown's anger about having his parole revoked.

26. Mr Brown told the pre-sentence report author that he accepted responsibility for the current offences and acknowledged the impact of his behaviour on others. The presentence report author suggests that Mr Brown has matured to some extent and now has a different attitude to the 2012 offending that I am dealing with, that is the current offences.

27. The possibility that Mr Brown has matured may be, to some extent, called into question by the fact that, as mentioned, he was arrested on new charges again involving family violence on 31 July 2017, less than a week after this sentencing hearing began although, as also mentioned, I understand that those charges are to be contested, so no conclusion should be drawn from them for present purposes.

28. The damage property offence is of fairly low-level seriousness. The two arson offences are somewhere above low-level seriousness.

29. I have also had regard in this sentencing to Mr Brown's subjective circumstances.

30. Mr Brown is now 26 years old, but was 21 when the current offences were committed. His criminal history in the ACT when he committed these offences was lengthy and included offences of robbery, damage property (7 such offences), knife possession, and 2 assault occasioning actual bodily harms. He also has a record in Queensland, where he has been dealt with for offences committed since the offences with which I am dealing, being an aggravated robbery and several other relatively minor offences, including wilful damage. In New South Wales, Mr Brown has been dealt with for various minor offences, including graffiti of trains.

31. Mr Brown was born in Canberra. His parents separated when he was one year old, and his family moved frequently due to his step-father's employment. There were disciplinary issues between Mr Brown and his step-father, and he was asked to leave the family home when he was 13. He currently has good relationships with his parents and three siblings, all of whom live in Queensland.

32. Mr Brown has a partner and a two-year-old child with whom he has been living in Queensland, and who apparently relocated to Canberra after he was released on parole most recently. This is said to be a supportive relationship, and he is hoping to resume living with his family in Queensland when he is released.

33. As noted, Mr Brown's partner was, at the end of August, reported to be seven weeks pregnant to Mr Brown. There is also the older child. However, the difficulties that are an inevitable result of a parent being incarcerated do not entitle such a parent to offend on the assumption that family responsibilities amount to a get-out-of-gaol-free card.

34. Mr Brown completed Year 8, and has attempted apprenticeships as a chef and a panel beater; he has also done labouring and road maintenance works. He had sought work in the AMC.

35. Mr Brown has used methylamphetamine and cannabis over time, but claims not to have used methylamphetamine for some years. His recent level of cannabis use is assessed by the pre-sentence report author as requiring intervention.

36. Mr Brown has been diagnosed with Intermittent Explosive Disorder and Anti-Social Personality with psychotic traits. He has in the past been medicated for mental health issues, and as mentioned, has recently seen a psychologist several times. He has also completed an anger management program, and according to the pre-sentence report author accepts that he needs to continue to work on his decision-making approach.

37. It is not clear that the current offences were attributable to alcohol or drug use. When interviewed later in the afternoon of the offences, Mr Brown was initially evasive but finally asserted that he had not recently used alcohol or drugs or taken any medication.

38. Thus, the causes of Mr Brown's offending, both the current offences and others, are not particularly clear, although it is probably reasonable to assume that they involve a combination of personality factors and substance abuse, the significance of each factor varying from incident to incident.

39. No clear plans for Mr Brown's further rehabilitation, or even clear ideas about what might be required to achieve such rehabilitation, have been put before me. The most that can be said is that Mr Brown may be coming to the realisation that something needs to be done.

40. Since being charged with these offences, Mr Brown has served around three years in custody in respect of the 2010 sentence of 3 years and 7 months. It would, in my view, be appropriate to sentence for the 2012 offences now on the assumption that if he had been dealt with for those offences in a more timely way, he would have been given the benefit of some degree of concurrency with the 2010 sentence (although of course I note that the "general rule" of concurrency set out in s 71 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) is overridden by s 72 of that Act in respect of sentences for offences committed in custody). Much of the delay in dealing with this matter was in fact caused by Mr Brown's absconding to Queensland shortly after being charged with these offences, but having regard to the explanation for the delay in charging him, I consider that the delay requires some concession in sentencing.

41. I note in this context the matters of R v Eluga [2016] ACTSC 304, in which I rejected the proposition that time serving an earlier sentence could not be taken in to account for backdating under s 63 of the Sentencing Act, and Wronski v Raue [2012] ACTSC 87 in which I considered the backdating provisions of the Sentencing Act in more detail.

42. In the context of sentencing for arson offences, counsel drew my attention to the matter of R v Wrigley [2015] ACTSC 114 in which Refshauge J at [34] set out a series of principles for sentencing for arson offences, of which the following are relevant in this case:

(a) the gravity of the offence lies in the intent with which it is committed;

(b) the damage caused is relevant, but not necessarily a measure of the culpability of the offender;

(c) the deliberate nature of the offence is important; and

(d) the potential risk of death or serious injury to people, including firefighters, may be an aggravating factor.

43. Mention was made of the matter of R v Raeyers [2014] ACTSC 134 in which Refshauge J sentenced Mr Raeyers, for setting fire to bedding in his cell at the AMC, to 12 months imprisonment reduced from 18 months for his plea of guilty (a very generous discount). In doing so, his Honour noted that it is an aggravating factor for an arson that it is committed in custody.

44. The prosecutor also quoted my comment in the matter of R v DM (No 2) [2016] ACTSC 385 at [18], that:

Arson is always a serious matter, especially because of the capacity of a fire to escape the control of the person who has started it and to cause damage far exceeding anything contemplated by the arsonist.

45. I note too the matter of R v Brymer [2016] ACTSC 194, in which I sentenced an offender to 9 months imprisonment, fully suspended, for using a crème brulée torch to burn (or perhaps more accurately, to scorch) a strip of carpet under a door that had been locked against him during an argument with his girlfriend, as well as to burn marks on the door lock and latch.

46. The dangers created by any arson, especially arson in a confined space, make it an offence requiring general deterrence. It is by no means clear that the threat of punishment has any useful deterrent effect on Mr Brown, but this does not mean that his sentence should not include a deterrent element.

47. Finally, before I actually sentence Mr Brown, I should explain that I have worked out the dates I shall specify by accounting for all periods since the offences were committed in 2012 during which Mr Brown has been in custody, being periods that were only being set against one other set of sentences; that totals 431 days, and gives a backdating date of 16 July 2016.

48. Mr Brown, please stand. I record convictions on one charge of damage property and two charges of arson.

49. I note at this point that, as far as I am aware, your parole order that took effect on 21 June 2017 is still in force, and that it has not been automatically cancelled under s 149 of the Crimes (Sentence Administration) Act 2005 (ACT) because the offences I am sentencing you for were not committed while a parole order was in force but very shortly after it had been cancelled. This of course means that none of the time you have spent in custody since 1 August 2017 has been set against the 2010 sentence.

50. I now sentence you to imprisonment as follows:

(a) for the damage property offence - to 8 months, reduced from 9 months for your guilty plea;

(b) for the first arson offence - to 16 months, reduced from 18 months; and

(c) for the second arson offence - to 11 months, reduced from 12 months.

51. The sentences are to run so as to give a total sentence of 20 months; the dates are as follows:

(a) damage property, from 16 July 2016 to 15 March 2017 (so that is finished with);

(b) the first arson, from 16 September 2016 to 15 January 2018; and

(c) the second arson, from 16 April 2017 to 15 March 2018.

52. The total sentence of 20 months imprisonment that I am imposing would accordingly expire on 15 March 2018, just over two months after the current expiry date for the 2010 and 2013 sentences. As far as I can make out, the sentence I am imposing will be the only sentence currently being served, although if you are in the future found guilty and sentenced on the 2017 charges, the most recent ones, it may be that some of the time since you were remanded in custody on 1 August in respect of those charges will also be set against those new sentences. It is not clear that if you are convicted on the 2017 charges and your parole on the 2010 sentence is cancelled, any of the time you have spent in custody since August 2017, would, or indeed could, be set against the outstanding part of the 2010 sentence.

53. Given that you still have time to be served, one way or another, on the 2010 sentence and the second 2013 sentence, I consider it would complicate matters unduly to suspend the sentence I have just imposed, so instead I shall set a non-parole period for that new 20 month sentence, being 15 months, to run from 16 July 2016 until 15 October 2017. That is, you will be eligible to be released on parole, on my sentence, in just under a month (15 October 2017).

54. If you expect to remain remanded in custody on the Magistrates Court charges, you might decide to get on with serving more of the sentence that I have just imposed, rather than spending time in custody which might not be set against any other sentence if you are acquitted on the 2017 charges.

55. As I have already said, Mr Brown, apart from the sentence I have just imposed, you have nearly seven months still outstanding on the 2010 sentences, and if you are found guilty on the 2017 offences, you may have a further period to serve. If you have a serious defence to the 2017 charges, then of course you must defend those charges, but I suggest that you might have a careful discussion with Mr Davies about those charges, because if you don't have a serious defence to them, then it might be in your interests to enter early pleas of guilty, if that will maximise the scope for serving the sentences for the 2010, 2012 and if relevant, the 2017 offences, largely or entirely concurrently. I can't guarantee how any of that will work, especially not the 2017 charges, but I really think you and Mr Davies ought to have a serious chat about timings.

56. If you have any other questions about the orders I have just made, please ask the court officials or Mr Davies.

I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.