R v Cajina [2021] ACTSC 353

[2021] ACTSC 353

Supreme Court of the ACT|2021-11-09|Before: Refshauge AJ

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Court

Supreme Court of the ACT

Decision date

2021-11-09

Before

Refshauge AJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – threatening to inflict grievous
bodily harm – damaging property – possessing a knife without
reasonable excuse – possessing a weapon with intent

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – threatening to inflict grievousbodily harm – damaging property – possessing a knife withoutreasonable excuse – possessing a weapon with intent– rehabilitation– imprisonment – Good Behaviour Order

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Cajina

Citation: [2021] ACTSC 353

Hearing Date: 5 November 2021

Decision Date: 9 November 2021

Before: Refshauge AJ

Decision: 1. Jairo Saul Cajina be convicted of threatening to inflict grievous bodily harm and sentenced to six months imprisonment, to commence on 2 August 2021.

Jairo Saul Cajina be convicted of damaging property and sentenced to two months imprisonment, to commence on 2 January 2022.
Jairo Saul Cajina be convicted of possessing a knife without reasonable excuse and sentenced to three months imprisonment, to commence on 2 January 2022.
Jairo Saul Cajina be convicted of possessing a weapon with intent and sentenced to three months imprisonment, to commence on 2 February 2022.
The sentence of imprisonment be suspended from 9 November 2021 for 18 months.
Jairo Saul Cajina be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months, from 9 November 2021 until 8 May 2023, with the following conditions:

a. A probation condition that Jairo Saul Cajina be under the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the Order, or such lesser period that the person supervising him considers appropriate, and that he obey all reasonable directions of the person supervising him;

Most of these problems are, of course, created by circumstances or from the family or social situation in which the offenders have found themselves. As noted by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 594-5; [43], “a background of that kind may compromise the person’s capacity to mature and to learn from experience”. The background in that case was of “a household in which alcohol abuse and violence were commonplace” (at 584; [12]).
Such effects are not limited to being caused by those two factors. Others, such as social exclusion, often a consequence of poverty, homelessness, unemployment, lack of access to services, mental illness and intellectual disability, can all lead to the same consequences: Kentwell v The Queen (No 2) [2015] NSWCCA 96 at [89]-[93]. In addition, trauma can be a potent factor involved, as the evidence shows in this case, and, may be surmised to be, civil disorder and war. Of course, not every challenge faced by children and youth reach to such levels, but where they do so, it is always relevant to sentencing.
Now appearing for sentence is Jairo Saul Cajina, who has pleaded guilty to offences of threatening to inflict grievous bodily harm, damaging property, possessing an offensive weapon and possessing a knife in a public place.
On sentencing, the Crown tendered, without objection, its Crown Tender Bundle. It contained the relevant committal and transfer documents. The Crown, however, proceeded by way of Indictment, containing two indictable charges. The Tender Bundle also contained an Agreed Statement of Facts and Mr Cajina’s Criminal History.
The Crown Tender Bundle also contained a Drug and Alcohol Treatment Assessment dated 28 October 2021 prepared by ACT Corrective Services and a Drug and Alcohol List Suitability Assessment dated 27 October 2021 prepared by Mental Health, Justice Health and Alcohol Drug Services which were Drug and Alcohol Suitability Assessments (Suitability Assessments) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Further included was an Intensive Correction Order Assessment Report under s 46C of the Sentencing Act. No objection was taken to the content of these documents. The Crown also tendered, without objection, a USB containing video taken from CCTV at the premises where the offences were committed and from a phone of one of the victims. It was played to the Court.
While the Suitability Assessments were prepared because of Mr Cajina’s original application that a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act be made, he withdrew his consent to the making of such an Order at the sentencing. Both parties agreed, however, that the contents of those Reports could be taken into account on sentence.
Mr Cajina, through his counsel Mr T Taylor, tendered without objection three references and a Report of Ms Leesa Morris, Forensic Psychologist. The contents of none of these documents were challenged, subject to an issue in Ms Morris’ Report, which is considered below.
No oral evidence was given. Both Mr D Swan, counsel for the Crown, and Mr R Baldeo of counsel for Mr Cajina but who could not appear in person at sentence, provided comprehensive, very relevant and exceedingly helpful written submissions. The Crown and Mr Taylor supplemented these with valuable oral submissions, engaging in a targeted and useful way with the Court’s questions.
From all this material, the following findings are made.

On 21 July 2020, Mr Cajina drove to premises at Watson, ACT. He was, at the time, carrying a small silver axe, about the size of a tomahawk, from what could be seen on the video. He went to the front door and knocked. One of the two women present in the house went to the front door. She recognised Mr Cajina as they had attended school together and she had known him since that time.
Mr Cajina requested to speak to a person not known to the people at the house and who was not there. Mr Cajina was told so, but refused to accept the explanation. It was clear from what could be seen on the video played in Court that Mr Cajina was apparently quite agitated, unable to stand still and shifting from foot to foot.
He was told to leave the premises, but instead began to abuse the women present. Unfortunately, the video as played did not have sound, but it appeared that Mr Cajina was speaking forcefully.
Instead of leaving, Mr Cajina went around the side of the house, climbed over the side fence and went to the back door which he struck with the axe he was carrying, causing marks in the wooden door. He also struck the brickwork of the house and a window, though it did not appear to break, so far as could be seen, and no evidence was given to that effect. These attacks did not show extreme aggression, but perhaps frustration rather than an attempt to enter.
Mr Cajina then returned to the front door and attempted to open the screen door by pulling the handle, but could not do so. He struck the door with the axe, causing marks on it, but was not able to gain access to the premises. He made a number of threats to the women, namely, “I have a ‘sawn-off’ in my car”, “you’re fucking dead” and that one of the women was “going to get bashed to death”.
Mr Cajina then turned and walked away, striking the letterbox and causing it to fall over, but it is not clear on the evidence whether there was other damage to it. He went to a motor vehicle in front of the residence. There were two people in the car, a man and his aunt. The man later told police that Mr Cajina had earlier telephoned him and asked him to pick him up and drive him to the address in Watson.
The whole episode, as recorded on the various videos, took six and a half minutes.
These were the facts on which the offences of threatening to inflict grievous bodily harm, damaging property and possession of an offensive weapon with intent to use it to commit an offence of actual or threatened violence was based.
The three people then left in the motor vehicle and drove to Kanangra Court in Reid, ACT. On arrival, the car was intercepted by police. On seeing the police officers, Mr Cajina got out of the car and walked to a black Holden parked nearby. A woman was in the vehicle and she saw Mr Cajina open the door and put the axe behind the driver’s seat.
The owner gave police permission to seize the axe from the vehicle.
Mr Cajina was arrested and searched. Police found an axe sheath in his left-side jacket pocket and a silver boxcutter. This led to the further charge of possessing a knife in a public place without reasonable excuse.

To impose, as is required, a just and adequate sentence requires the sentencing court to synthesise a range of factors, some of which point in different directions. Many are set out in s 33(1) of the Sentencing Act and s 33(1)(a) is the nature and circumstances of the offence.
Basic to the process is the legislation creating to the offence. In the first place, it identifies the nature of the offence by the description which sets out the primary elements of the offence. Secondly, it sets the maximum penalty of the offence. This, the High Court has pointed out on many occasions, is a very important consideration. That is because it is the legislative mandate. In addition, however, it is the legislature’s assessment of the relative seriousness of the offence and allows a comparison between the worst, though not worst conceivable, version of the offence and the instant case. Finally, it acts as a yardstick as to the seriousness of the offence when balanced with all the other factors.
In addition, the courts have, over time, identified the particular matters that can constitute the aggravating or mitigating features which help identify the way in which the sentence will actually accurately reflect the seriousness of the offence.
These are the matters now to be addressed.
Making a threat to inflict grievous bodily harm is an offence against s 31 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of five years imprisonment. It is, thus, a serious offence, but not the most serious and with the same maximum penalty as offences such as dishonestly taking a motor vehicle without the owner’s consent, making a false statement in a statutory declaration and assault occasioning actual bodily harm: R v Wilkins [2015] ACTSC 145 at [8].
The threat must be made where the offender intends that, or is reckless as to whether or not, the other person would fear that the threat would be carried out. The threat must be made without lawful excuse and in circumstances in which a reasonable person would fear that the threat would be carried out. Grievous bodily harm means really serious injury, usually something in the nature of damage to the structure of the body more than the experience of pain: R v Shevlin [2013] ACTSC 88 at [30]-[31].
Matters that will ordinarily aggravate the offence will include whether the threat is made directly to and in the presence of the victim, such as when standing directly in front of or over the victim, where the threat can easily be actually carried out then and there (R v Catanzariti [2014] ACTSC 333 at [27]), or where the threat is to inflict the harm with a firearm and where the threat is made in the victim’s home (Hudson v The Queen [2020] ACTCA 46 at [36]). Clearly, the actual presence of a weapon is an aggravating feature, as is premeditation or planning.
In this case, Mr Cajina had a small axe with him, but the reference in the threat was to a shotgun, though he did not have that with him. The victims were protected to a degree by the fact that they were in the house into which Mr Cajina could not enter, despite trying, including with the axe. It is not clear whether it was the home of either of the occupants. It appears that at least one of them was likely to be resident there. He desisted after a relatively short time, though it was not just an outburst, which is often the case with such offences, but he did walk around the house and return to the front door, where he made the threats. He then left.
There was a limited degree of premeditation, given that Mr Cajina arranged for the lift to the premises and took the axe with him. The demeanour of Mr Cajina seems likely to have made the victims more fearful, a relevant issue: see, for example, Barton v Armstrong [1969] 2 NSWR 451 at 455. It was not the most serious version of the offence, but not a trivial one by any means, and needs to be treated seriously, given, especially, his attacks on the house.
Damaging property is made an offence by s 403(1) of the Criminal Code 2002 (ACT) which prescribes a maximum penalty of 10 years imprisonment, a fine of $160,000 or both. It is, thus, a more serious offence.
It does, however, cover a very wide range of circumstances. The most important issue is the actual damage done, especially the cost it causes, either by diminution in value of the damaged item or its repair. The circumstances under which the offence is committed is also relevant: see R v Carmody [2016] ACTSC 382 at [69]-[70].
Unfortunately, there was no direct evidence of the cost of the damage caused. It was described as “causing marks in the wood” of the back door and “caused marks in mesh screen” of the front door. No evidence was available as to any damage the brickwork or the window, which was also struck. As noted above (at [36]), there was quite limited premeditation and, perhaps, less as the damaging property offence seems to have been a response to the rejection of Mr Cajina’s earlier request, rather than intended by him when he went to the premises. There was no evidence of any repairs required. The damage was suggested in Mr Baldeo’s submission to have been minor, and there was no challenge to that description by the Crown.
Section 381 of the Crimes Act makes the possession of an offensive weapon with intent to use it to commit an offence of actual or threatened violence a criminal offence and provides for a maximum penalty of one years imprisonment, a fine of $2,000 or both. The nature and circumstances of the possession needs to be considered: Dzundza v Calatzis [2016] ACTSC 171 at [19].
The actual use of the weapon, the axe, on the house, though, would have been frightening to the occupants and was an aggravating feature: R v Blundell [2017] ACTSC 128 at [24].
There is clearly some significant overlap between the criminality of this offence and the more serious offences in that they were all in part committed with the axe.
Finally, the possession of a knife in a public place without a reasonable excuse is prohibited by s 382 of the Crimes Act, which legislates a maximum penalty of six months imprisonment, a fine of $1,600 or both.
Despite the relatively modest maximum penalty, the courts have always found that possession and use of knives is serious. As noted in R v Griggs [1999] ACTSC 22 at [41], a knife is “always ‘loaded’”. A knife represents a threat to public safety: Cajina v Narsey [2016] ACTSC 10 at [15].
It is relevant, however, that there was no attempt by Mr Cajina to use it and there is no evidence on which it can be found that he intended to do so, especially as he had the axe with him. See Law v Ilievski [2016] ACTSC 291 at [125].

A relevant consideration that a court sentencing an offender must, under s 33(1)(m)-(p) of the Sentencing Act, take into account are the personal circumstances of the offender, which will now be considered.
Mr Cajina was born 41 years ago in Nicaragua, the youngest of three sons to his parents, who were both teachers. At the time, the country was involved in a civil war and his father was involved. He was imprisoned as a political prisoner, was shot, losing his left lung, and eventually had to flee the country. Hence, Mr Cajina recalls that his father was not always around.
The experience was significant. Mr Cajina experienced poverty, at times without even having toilet paper. Mr Cajina also became desensitised to weapons, recalling that, with his brothers, he would play with assault rifles he found in the cupboard.
The family left Nicaragua in 1989 and came via Costa Rica to Australia. This experience of migrating as refugees is described by Mr Cajina’s father as being “very difficult for Jairo and I think it has impacted him throughout his life”.
His father was very strict, perhaps even harsh, meting out physical punishments, though Mr Cajina now accepts that this was intended out of love for his children. It did mean, however, that Mr Cajina did not like going home.
Mr Cajina’s father also abused alcohol, which led to family violence in the home. Despite this feature becoming part of his background, Mr Cajina described his childhood as quite normal.
He has, however, established a new relationship with his father and it is said that he “now looks up to his father”, ringing his parents regularly from the Alexander Maconochie Centre. Further, while he distanced himself from them while using drugs, he has re-established a relationship with his elder brothers and is trying to repair the relationship. This is also a relevant and positive sign.
He completed Year 10 at school and commenced Year 11, but left after a few weeks. He went fruit picking, but left due to an incident created by one of the group with whom he had gone there. He gained some employment as a fencing contractor for a few months and then as a glazier for a few months. He does not appear to have worked since about age 25.
He has some early relationships, but the first serious one began when he was 23 years old. His partner and he, however, were both users of illicit drugs and committed crimes. The relationship ended “a couple of years ago”. His current relationship appears more stable and began about two years ago. A daughter was born in February 2021 and Mr Cajina appears devoted to her. It appears to have motivated him to look at his life and how he needs to address his current behaviour.
He has shown great acts of kindness to his mother-in-law, allowing her access to the child in substitution for his visits, caused by the pandemic-related restrictions. The child, however, has been the subject of emergency action by Child Youth and Protection Services and is now cared for by her maternal grandmother as a result of parental illicit drug use, family violence and mental health. Mr Cajina’s partner, however, in her reference stated that, for the child’s sake, she is, “trying to stop [her] drug use… [and has] quit smoking and [is] on the methadone program”. She says that she and Mr Cajina, “both want to stay clean” and to give the child, “the best possible chance in life”.
Mr Cajina has a good relationship with his mother-in-law. This is, to some extent, confirmed by Mr Cajina’s mother-in-law, who acknowledges Mr Cajina’s “challenging life” but sees him “trying to make positive changes”, including “doing a course whilst in gaol about relationships”, and hearing him tell her daughter “about how becoming a father is a chance for him to life his life differently”.
This change has also been referred to by Mr Cajina’s father, who noted that since Mr Cajina’s “new relationship and new baby daughter, Jairo has changed... he is acting differently. He has become more mature, more responsible” and “promised [his father] that he is going to give up drugs”. While this is helpful, it is noted that the current offences appear to have been committed during the currency of this relationship. His partner, in her reference, however, also says that she has “already witnessed really big changes”.
Mr Cajina has a very long and complex drug history. He has used a wide range of licit and illicit drugs. He commenced drinking alcohol when he was about 13, binge drinking from about age 15 to 17. He has since moderated his consumption, drinking about once a fortnight and not to intoxication. He started smoking tobacco about a year earlier and still smokes about 10 to 15 “roll-your-own” cigarettes a day.
His use of illicit drugs began along with his alcohol use when he first used cannabis at age 13, increasing to daily use by age 16, though he has more recently, from 2020, reduced his use to a few “joints” once a month.
He was introduced to methylamphetamine at about age 17 and used it regularly, up to three points daily, though on and off more lately. He last used it on 31 May 2021. Alongside his methylamphetamine use was a regular use of heroin, which he first used when he was also 17 years old, but he became a regular user from age 18. He last used also on 31 May 2021.
Mr Cajina also used psychedelic drugs in his 20s, has occasionally used cocaine, used MDMA/ecstasy sporadically and amphetamine for a few years from around 17 years of age to about his early 20s.
He has had some, mostly ineffective, attempts at drug rehabilitation. He has been at rehabilitation agencies, the Peppers, the Glen and the Calvary Riverina Drug and Alcohol Centre in Wagga Wagga, but not for long enough in any of them to gain much benefit. He has competed the Solaris Therapeutic Community Program (as to which, see R v JM [2014] ACTSC 380 at [26]) in 2013-14 while in custody. He did not graduate formally because he was found to have used illicit drugs before doing so, an indication of how such programs do not guarantee that there will not be any relapse. He is, however, currently engaged in pharmacotherapy with prescribed Buvidal medication.
Mr Cajina has suffered some significant past injuries. At age 18, he broke his foot and had pins inserted. He was bashed and thrown from the top-storey window of a building (the evidence did not say how many storeys the building had) and suffered head and spinal injuries, leading to six weeks in hospital. The attack on his head was with a machete, which rather suggested that he should have been aware of how frightening would have been his threatening use of the axe to the victims of his current offences. The evidence did not make clear what continuing disabilities, if any, he suffers from this traumatic episode, though there is a reference to that in Ms Morris’ Report. He does, however, suffer from asthma.
His mental health has been somewhat problematic. He has experienced low mood, anxiety and depression at times. He was prescribed medication for his depression five or six years ago. Ms Morris has identified that he likely meets the criteria for Post- Traumatic Stress Disorder in part from his refugee experiences, including distressing memories of “mates getting shot and killed”.
He has been assessed as at a moderate to high risk of re-offending.
When he returns to the community, he plans to live with his partner. That has been assessed as unsuitable for an Intensive Correction Order because of family violence disputes, mental health issues and illicit drug use. He is eligible for a new government residence, but is required to submit an application before release. His father says that he and his wife “want to do anything we can to help and support him”. Whether that would allow him to reside at their home is uncertain.
Mr Cajina has a long, depressing and distressing Criminal History. [Redacted for legal reasons].
When he became an adult, he started committing more serious offences, the first being an offence of damaging property and soon after, a burglary and theft. In all, he has 59 offences on his criminal record. The most common recurring offence is the possession of a knife. There are 11 such offences in his record and 3 of possessing a weapon.
He is clearly affected by his early experiences of war and desensitised to weapons. He says that he is fearful that “someone might get at me”, whether while in custody or not. That does not justify such an offence.
He has also some dishonesty offences on his record, three convictions for burglary, four for theft, one for attempted theft, one for possessing stolen property, one for obtaining property by deception, and seven for minor theft.
Worryingly, he has a history of violence offences, thus he has seven convictions for common assault, one for making a threat to kill and one for affray. He has one prior conviction for damaging property.
There are some drug possession and drug driving offences, as would be expected, and some other driving offences.
He was first sentenced to imprisonment in 2000, when he was sentenced to a term of periodic detention for at theft offence, but he breached that order and was sentenced to 13 weeks full-time custody. Since then, he has been sentenced to number of periods of imprisonment, totalling at least eight and a half years and perhaps more with various breaches of Good Behaviour Orders and Parole Orders.
It is a sad situation and, hopefully, Mr Cajina is not so set into a drug- and crime-affected lifestyle that the newfound commitment to reform is too late. It is entirely unsurprising that ACT Corrective Services has assessed him as at high risk of re-offending and that Ms Morris, with whom it appears ACT Corrective Services agrees, accepts that he would need moderate to high levels of intervention to reduce his risk of recidivism.

Section 33(1)(za) of the Sentencing Act requires a court sentencing an offender to have regard to current sentencing practice. Some of that has been considered above where the various particular aggravating and mitigating factors are identified.
The collective wisdom of judges, however, who sentence and consider sentencing appeals is also relevant and this can be identified from comparable sentences which can be considered. As the High Court said in R v Pham [2015] HCA 39; 256 CLR 550 at 560; [29], comparable cases “illustrate (although not define) the possible range of sentences available”.
The parties made reference to three decisions involving the offence of threatening to inflict grievous bodily harm. I shall consider each briefly.
In R v McHenry [2020] ACTSC 254, Mr McHenry telephoned the victim, telling her that he would “gut her like a pig”’ and then went to her residence, where she was alone and vulnerable, firmly held a knife to her neck and threatened, again, to “gut her like a pig”. He had a “not insubstantial” criminal history, though it was “suggestive of longstanding alcohol and drug issues”. He had a childhood marred by his father’s alcoholism and violence. He had some long-standing mental health issues, but not linked to the subject offending. The sentencing remarks did not record Mr McHenry’s age. His plea was not an early one. He was sentenced to 21 months imprisonment, but suspended on the day of sentence for a little over a year with a Good Behaviour Order. It was a more serious offence than that committed by Mr Cajina, but the subjective circumstances were not entirely dissimilar.
In R v Hudson [2019] ACTSC 110, Mr Hudson, who was 26 years old, was convicted of 11 offences, including of threatening to inflict grievous bodily harm. Mr Hudson committed the offence while subject to a Good Behaviour Order, which the offending breached. Mr Hudson made a threat by telephone to a man, accompanied by a threat to endanger him, the subject of one of the charges. He then drove to the home of a woman and told her that he “was told [the man] was here. I’ve got a gun in the car. I’m going to put a bullet in him if he is here”. The woman, based on earlier observations, believed he had a gun. It was a threat described as “of high objective seriousness” (at [47]).
Mr Hudson had a long criminal record, including possession of knives and other weapons and violence, though not very serious offences. He had a good employment history, but had been diagnosed with a personality disorder and emotional dysfunction. He used alcohol in his teenage years and used illicit drugs, but appears not to have been dependent on them. He was sentenced to four months imprisonment. This was a similar offence to that committed by Mr Cajina, though with the exception that it was committed in a family violence context, which made it more serious. Mr Hudson had perhaps less negative subjective circumstances.
It is noted that Mr Hudson appealed against the severity of his sentence, and the Court of Appeal in Hudson v The Queen [2020] ACTCA 46 upheld the appeal, but the sentence for this charge was not disturbed, though the overall non-parole period was reduced.
In R v Saulala; R v Saulala [2016] ACTSC 48, the two offenders, who were brothers, were at a nightclub when an altercation arose, apparently when the victim was bumped by one of the offenders on the dance floor. A fight then continued, with the victim escalating it. Security guards moved those involved outside, but hostilities continued. One of the brothers ran at the victim with a beer bottle that he had smashed, saying “I’ll kill you” or “I’ll get you”. This was the threat.
The offender was 29 years old, with a supportive family. He was married with a stepson and his young nephew residing with the family. He used alcohol moderately and expressed shame at the crime. There was no reference to any criminal history. He was employed full time. He was sentenced to a 12 month Good Behaviour Order. It was a somewhat more serious offence, but the offender had more positive subjective circumstances.

Counsel for Mr Cajina submitted that Mr Cajina’s Post-Traumatic Stress Disorder is relevant in accordance with the principles articulated by the Victorian Court of Appeal in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32], following a consideration of a number of other cases. The approach has been adopted in this jurisdiction: Walmsley v The Queen [2014] ACTCA 24; 253 A Crim R 441 at 448–9; [40].
An offender’s mental health may reduce his or her moral culpability, moderate general deterrence, moderate specific deterrence or affect the kind of sentence to be imposed because of the effect in the light of the mental health issues.
It is, however, not enough to assert the mental health issue. There must be some connection between the mental health issue and the offender’s moral culpability and the need for general or specific deterrence. See Director of Public Prosecutions (Vic) v O’Neill [2015] VSCA 325; 47 VR 395 at 414–5; [74], adopted in this territory in R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 at 74; [91].
The evidence about Mr Cajina’s mental health comes from a number of sources, thus, the Drug and Alcohol Sentencing List Suitability Assessment reported that Mr Cajina recalled taking medication for depression and being prescribed medication when incarcerated. It also reported the Forensic Mental Health Services initial screening (Eligibility Assessment, as to which see R v McHughes [2021] ACTSC 92 at [6]) stated that he “did not present with symptoms of acute or pervasive symptoms of major mental illness… that would prevent him from participating in further DASL screening”.
Ms Morris, however, prepared a detailed Psychological Report after a two hour interview with Mr Cajina and, it appears, psychological testing. This was the principal direct source of evidence about Mr Cajina’s mental health. She was not cross-examined about the Report.
Ms Morris, in her Psychological Report, states that Mr Cajina “would likely meet the criteria for… Post-traumatic Stress Disorder”. While that articulation is somewhat coy, perhaps because Ms Morris is a psychologist and not a psychiatrist, it is clear from the whole of the Report that this is the diagnosis that she actually made, as will become clear below.
Later in the Report, Ms Morris wrote in her “conclusions and recommendations”:

This is an example, too, of the overlapping of the purposes of sentencing mentioned in Veen v The Queen (No 2), referred to above. Protection may also be affected by depriving Mr Cajina of his liberty for a time, but it is only for a time. As noted above, however, another purpose of sentencing is the rehabilitation of the offender, which will protect the community more extensively and more certainly.
It is necessary, however, to make Mr Cajina accountable for his actions, both as a purpose but also in aid of deterrence, to denounce his conduct.
An important purpose is also to recognise the harm done to the victims. Regrettably, there was no Victim Impact Statement from either victim. Nevertheless, the Court can, but only in general terms, appreciate that harm. The events must have been very frightening when a man, clearly agitated, attends your house with an axe, albeit a relatively small one. That he was unable to gain entry and appears to have caused little damage may have moderated the ongoing distress. There was no evidence of what, if any, ongoing trauma either victim has suffered, though it will not have diminished immediately. That harm must be reflected and recognised in the sentence.
Mr Cajina did plead guilty to the charges of possessing a knife and possessing an offensive weapon at a relatively early stage in the Magistrates Court. The plea of guilty to the charge of damaging property was at a late stage, after the Criminal Case Conference. The charge of threatening to inflict grievous bodily harm was preferred after the Case Conference and the plea was at the earliest opportunity, namely, when that charge was preferred first in the Indictment. It was a result of the negotiations of the Criminal Case Conference when the more serious charges were discontinued. That attracts a significant discount, though the Crown case was quite a strong one: s 35 of the Sentencing Act. The sentences to be imposed will be discounted for the utilitarian value that the pleas have provided in the way indicated.
A matter of seriousness, however, is that Mr Cajina was on bail at the time of the commission of these offences. That requires the sentence to be more severe: Auld v The Queen [2013] ACTCA 21 at [9]. That the conditional liberty was by way of bail still breaches the trust permitted to an offender to be in the community and not in custody: see Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at 13; [59].
Mr Cajina has been in custody since he was arrested for these offences, subject to some bail granted earlier this year. He first went into custody on 21 July 2020. For part of that time, however, he was serving a sentence of imprisonment, though that had been imposed later. Mr Baldeo submitted that some of these periods should be regarded as pre-sentence custody. I respectfully disagree.
When bail is refused for a number of offences, a period of time in custody can be taken into account as pre-sentence custody for any (or all cumulatively) of them, though it cannot be taken into account on more than one occasion. Where, however, bail is refused because an offender is already in custody as a sentenced prisoner, that period cannot properly be taken into account as Pre-Sentence Custody. It may, however, be relevant to sentence when the Court considers totality, an important consideration in assessing what is just and adequate for a total sentence.
In this case, Mr Cajina was first remanded in custody on 21 July 2020. He remained in custody until 14 January 2021. From 21 July 2020 to 20 October 2020, however, he was a serving prisoner. Thus, for this sentence, the period from 20 October 2020 to 14 January 2021 should be taken into account, namely 86 days, as Pre-Sentence Custody. He was then arrested for further offences on 31 May 2021 and, although refused bail also on these offences, this period of custody was later taken into account in sentencing him to prison for five months from 29 May 2021 to 28 October 2021. He remained in custody thereafter, however, from 28 October 2021 to today, a total of 13 days. Thus, the total period of Pre-Sentence Custody relevant to these offences is 99 days. That period will be taken into account in the usual way, by backdating the start of the sentence.
Mr Cajina’s background is also relevant. He was brought up in a household where alcohol abuse and family violence occurred. It was a time of war in his country where weapons were normalised. This disadvantage has clearly led to him failing to mature and learn from experience (Bugmy v The Queen at 594–5; [43]) which is clearly evident in Mr Cajina and his makeup. Ms Morris referred to the history of trauma as impairing Mr Cajina’s rational judgment and decision making. This moderates his moral culpability.
It is noted, too, that, while Mr Cajina has made several attempts at drug rehabilitation, none has been effective. A number of Good Behaviour Orders made in 2015, 2017 and 2018 have required him to attend counselling, especially in relation to drug and alcohol use. Mr Cajina has breached all of them, though the precise terms of the breaches are not in evidence. This does not give much confidence that rehabilitation is likely to be achievable.
Ms Morris does suggest, however, that his prospects for rehabilitation will be “vastly improved” with “sufficient supports through substance use and psychological intervention, and open discussion with [Children and Youth Protection Services]”. An important difference in the present situation is the birth of his daughter and the strongly expressed intention of his partner to rehabilitate.
It is clear that having children has been a significant matter for him. Thus, it was a matter that featured heavily in his earlier, long-time relationship, though his partner suffered some miscarriages. Mr Cajina is also at an age when anecdotal evidence suggests drug users can appreciate the need to cease the destructive lifestyle that they have been living.
This does seem to offer the circumstances which would provide at least a chance to see if further rehabilitation might actually work. How that is to be achieved is difficult. Ms Morris strongly recommended a residential drug rehabilitation program, but the Karralika Therapeutic Community program is not available for Mr Cajina. Nevertheless, the opportunity should, if possible, be included in the sentence.
A matter of concern is the frequency with which Mr Cajina has been convicted of possessing a knife in a public place without a reasonable excuse. This is clearly a part of his expressed fear that he may be attacked. There is little evidence, despite some early offences of violence, that he has used the knife that he has possessed. There is no evidence of its use or even its production during these events. His fears do not appear to be rationally based. That may be grounded in his experience of the uncertainties and continuing threats while living through a war.
It does, however, need to be impressed upon him that, in this community, that is not an acceptable way of conducting himself. While the actual possession in this case was at the lower end of offending, a more severe sentence is hence required.
The nature and circumstances of the offences will be taken into account as earlier described when setting out the facts and describing the offences. The personal circumstances and antecedents of Mr Cajina will also be taken into account as also described. The harm done to the victims, though the evidence of this is quite limited, will be taken into account and also, in a quite limited way, the losses that have been suffered.
Mr Cajina has taken responsibility for his offending behaviour, and his expressions of remorse, a matter described in Fusimalohi v The Queen [2012] ACTCA 49 at [28]-[34], were significant, though without much reference to the victims or empathy for them nor addressing their situation. Mr Cajina’s wish to engage in some rehabilitation must also be taken into account.
Nevertheless, in all the circumstances, no other sentence but a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
There are, of course, multiple offences. As the High Court requires, a proper sentence must be imposed on each, and the length of each sentence must be considered carefully to ensure that it is just and adequate and also to ensure that Mr Cajina is not punished twice for the same culpability. That has been done here.
Whether the sentences should be partly or wholly concurrent must be considered because, for example, they are part of the same course of conduct or contain common elements. That is particularly relevant here, as the weapon possessed was used to cause the damage and to reinforce the threat and these three offences were part of the same event. The length of the total term of the sentence arrived at has then been considered to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive but will leave open the realistic prospect of reform and maintain the hope that Mr Cajina can take an effective part in the community and realise his aims when he is released.
This may result in what is seen by some as leniency, in that some sentences are made concurrent, but, while the total criminality of Mr Cajina is an important factor that must be given full weight, his wish to be a father to his child and his growing, but still limited, awareness of the need for rehabilitation is also important, as is the circumstances of his early childhood disadvantage and his mental health. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr Cajina’s subjective circumstances and the value of his reform to both the community, his daughter and himself.

Mr Cajina, you may be seated.
The question is how the sentence is to be served. Mr Cajina has withdrawn his consent to the making of a Drug and Alcohol Treatment Order. In any event, none of the sentences reach the required threshold for such an order.
I have carefully read the professionally prepared and comprehensive Intensive Correction Order Assessment Report. It recommends that Mr Cajina is unsuitable for such an Order. Mr Taylor did not seem to press that option further. It was unclear whether it was being pursued.
It is clear that any attempts at rehabilitation to which such an Order would be directed would take a long time. An Intensive Correction Order, however, can only be for the length of the sentence, which, from today, will only be a few months. While Mr Cajina may continue thereafter with rehabilitation programs already commenced, I am not sure that this is likely in the present circumstances. I do feel that Mr Cajina needs significant external motivation.
I also accept that the reasons for the recommendation that he is not suitable have some force. I observe that these appear to be precisely the issues that need to be addressed and addressed intensively if Mr Cajina is to achieve a life free of drug dependency and crime.
The period of imprisonment is too short for a non-parole period to be made and a parole order to be the means for Mr Cajina’s further rehabilitation.
Further, for Mr Cajina to serve out the rest of the sentence in prison and to be released into the community would be the least likely means of providing any achievable protection to the community. He would not have been required to undertake any of the necessary rehabilitative efforts needed to address his moderate to high criminogenic needs and, on the basis of earlier efforts, further incarceration is unlikely to deter him.
Accordingly, I consider that a suspension of part of the sentence with a lengthy Good Behaviour Order is the best of the not entirely attractive options. Past experience does not inspire a great deal of confidence, but there are some changed circumstances which give rational cause for hope.

Mr Cajina, you have heard what I have said and it has been a lot of words and some of it you have probably ignored, but you have been subject to enough Good Behaviour Orders to know what they mean. This is probably your last chance, but I have identified some changes in your circumstances that may mean that this might work. Obviously, you are hugely committed to your daughter. You were really frustrated on Friday when you were unable to see your daughter. I hope that that is a motivation that will make you see that where you have been is not where you want to be.
If you want to be a role model for your daughter, then you have got to get your act together. You have got to address your drug problem, and you have got to get psychological help to deal with the problems that you have experienced in what has been a pretty difficult life. Support like that is necessary. If your motivation is to be a father, then hopefully it will stand you in good stead through the tough times that this will impose. I cannot make a Drug and Alcohol Treatment Order where I can supervise you, and I cannot supervise you on a Good Behaviour Order. I can only act when you breach it.
Instead, I have taken the perhaps unusual step of bringing you back in January to find out how it is going and hopefully encourage you and see if there are some things I can do to support your rehabilitation. That is the best I can do. You have got to do the rest. You have shown in the past that you cannot do that. You have got a father, mother-in-law and a partner who are standing by you. You have now got to step up and say that “these people are the people I owe a solemn duty to really work on getting my act together”.
If that commitment and the commitment to your daughter cannot do it, then you are facing the revolving door in and out of jail for the rest of your life. You are old enough now to be able to see what a wasted life you have had. That is not all your fault, there were circumstances often beyond your control. Turning it around is in your hands. I have given you that opportunity, I hope that you have the strength to do it. You can now show your father, your partner, your mother-in-law and your daughter that you have the strength and the commitment to do that.
If you do not, you will be breached. The Good Behaviour Order is for 18 months. That is quite a long period. You are not necessarily under supervision for all that period, particularly if you are going well, but, certainly, if you breach by further offending, you will be back here.
It is going to be tough and being tough means that you need to look at where there are other supports for you, including your family. You have come to recognise that your father meant well, even though he was difficult to deal with. You have worked on the relationship with your brothers. They can help you. There is your partner. There is your mother-in-law. There are your counsellors, whom Corrective Services will direct you to see. That is the best I can do.
It is a bad offence. You deserve to go to jail, but you have been in jail. If you can show the community that you can turn from this lifestyle, then that is the right sentence for you. If not, you will be back in jail, and you will be sure that if you come back before me with no effort made by 21 January, no progress made, then I can cancel the order and put you back into custody.

R v Cajina [2021] ACTSC 353

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