R v Chevalier [2018] ACTSC 236

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - range of offences - aggravated robbery - assault occasioning actual bodily harm - inflicting actual bodily harm - intentionally inflicting grievous bodily harm - found guilty by jury after trial - findings of fact - joint enterprise - objective seriousness - second series of offences - attempted burglary - recklessly threatening to kill - possession of a knife - plea of guilty - conditional liberty - subjective features

Supreme Court Act 1933 (ACT) s 68E

SCC 10 of 2017; SCC 11 of 2017; SCC 4 of 2018; SCC 5 of 2018

1. Manoa Chevalier, you appear before me today for sentence with respect to a range of offences. First, there are those charges found on Supreme Court file SCC 10 of 2017 comprising one charge of aggravated robbery (CC2016/11675), one charge of assault occasioning actual bodily harm (CC2016/11676), one charge of inflicting actual bodily harm (XO2017/31043) and one charge of intentionally inflicting grievous bodily harm (XO2017/31045).

2. You were found guilty of these charges by a jury after trial on 22 November 2017. All of these offences occurred on 26 September 2016.

3. With regard to the offence of aggravated robbery, I am satisfied there were two circumstances of statutory aggravation demonstrated by the evidence. You were in company and you were also armed with an offensive weapon being a knife. The maximum penalty for this offence is 25 years' imprisonment and/or 2500 penalty units.

4. The maximum penalties for the offences of assault occasioning actual bodily harm and inflicting actual bodily harm are five years' imprisonment.

5. The maximum penalty for the offence of intentionally inflicting grievous bodily harm is 20 years' imprisonment.

6. The second series of offences which are before me for sentence are found on Supreme Court file SCC 4 of 2018 and comprise one offence of attempted burglary (CC17/11214) and one offence of recklessly threatening to kill (CC17/11215). In addition, there is a further charge of possession of a knife (CC17/11212) which was transferred to this Court from the Magistrates Court pursuant to s 68E of the Supreme Court Act 1933 (ACT). All of these offences occurred on 10 October 2017.

7. The maximum penalty for the offence of attempted burglary is 14 years' imprisonment and/or 1400 penalty units. The maximum penalty for the offence of recklessly threatening to kill is 10 years' imprisonment. The maximum penalty of possession of a knife in a public place is six months' imprisonment or 10 penalty units.

8. The following is a summary of my findings of fact relating to the offences of 26 September 2016 and in respect of which you were convicted by the jury. At about 5 am on 26 September 2016 you and your co-offender attended the victim's flat in Hawker. You were armed with a knife and your co-offender was armed with a sledge hammer. You believed that the victim, Adrian Johnson, was in possession of drugs and/or money and you and your co-offender were party to a joint enterprise the object of which was to rob the victim of any drugs or money which he possessed.

9. The victim was asleep in the lounge room of the unit when you and your

co-offender gained entry through the front door. The victim woke up to find you and your co-offender in the lounge room demanding drugs and money. He told you that he did not have any and fearing he would be assaulted he offered you his keycard so that he said you could withdraw his pension money from his account. He gave his keycard and his PIN number to your co-offender. The victim was clearly acting under duress when he gave up his keycard and PIN number.

10. At about this time, you and your co-offender also searched the belongings of the victim and your co-offender took an iPhone. The victim in fact knew that his keycard would not work and that your co-offender would not be able to obtain any money.

11. Your co-offender left with the keycard at that time admonishing you to leave the victim alone until he returned. He left the sledgehammer in the unit next to the lounge on which the victim was seated.

12. Once your co-offender had left, there was a scuffle between you and the victim in which you punched the victim to the mouth a couple of times. The victim grabbed the wrist of the hand in which you were holding the knife and you pulled away, cutting the victim's hand in the process. You then took possession of the sledgehammer and raised it above your head as if you were going to hit him. Throughout this the victim was seated on the lounge. The victim then pushed you and ran from the unit. He attempted to run down the stairs to the ground floor but tripped and fell onto a landing. You caught up with him immediately. The victim made it back to his feet at which time you stabbed him in the back with the knife. By this time, your co-offender had returned and you ran to the car he was driving and the two of you left.

13. Police and ambulance attended and the victim was transported to hospital. At hospital it was observed that he had the following injuries: penetrating chest injury to the left upper back, a left haemothorax, a left pneumothorax, a wound to his left shoulder, a wound to his right upper arm, a wound to his right hand, and a wound to his right facial cheek.

14. A medical report prepared by a forensic medical officer with regard to the wound sustained by the victim noted that stab wounds that penetrate the chest wall can cause damage to underlying vital structures such as the heart, lungs or major blood vessels. Damage to these vital structures can result in significant morbidity and death. The penetrating chest injuries sustained by the victim were very serious and without immediate specialist intervention may have resulted in death. The victim underwent a number of procedures in hospital before discharging himself on 2 October 2016. Fortunately it appears the victim has not suffered any significant, permanent disability as a result of being stabbed but that is really a matter of good fortune.

15. In the course of your trial, you gave evidence to the effect that the injuries sustained by the victim were the result of you defending yourself from an attack by him or accidentally inflicted by the victim himself. Unsurprisingly, the jury rejected this version of events.

16. For the purpose of clarity, I make it clear that the aggravated robbery charge relates to the taking of the keycard and phone and the statutory circumstances of aggravation were that you were in company and that your co-offender and you were armed with offensive weapons, in your case being a knife.

17. The charge of assault occasioning actual bodily harm relates to you punching the victim to the face in the unit causing an injury to his lip. The charge of inflicting actual bodily harm relates to the cut to the victim's hand as a result of the scuffle over the knife and the charge of intentionally inflicting grievous bodily harm relates to you stabbing the victim to his back.

18. In determining the objective seriousness of these offences I take into account that they occurred in or about the residence of the victim and as a result of you going there in company and armed in order to rob him. The aggravated robbery offence itself did not involve any actual violence by you or your co-offender but the presence of the two of you, armed as you were, was no doubt intended to be menacing and to make the victim fear for his safety.

19. The value of the property which was taken was not considerable. The injuries sustained by victim as a result of the offences of assault occasioning actual bodily harm and inflicting actual bodily harm were not serious. The injury inflicted on the victim by the offence of intentionally inflicting grievous bodily harm was serious and potentially life-threatening.

20. Your action in stabbing the victim in the back was particularly gratuitous as the victim was unarmed and was attempting to escape. In addition, the infliction of this injury could not have assisted in your objective of obtaining drugs and money. The area of the victim's body which was the subject of your attack was adjacent to important organs such as the victim's lung and heart. I regard this offence of intentionally inflicting grievous bodily harm as particularly serious and in the mid-range of such offences.

21. I will now turn to the offences of 10 October 2017. At about 5 pm on that date, you walked into the backyard of a residence in Bruce and walked onto the rear deck. There were two female occupants of the house at that time. One of those occupants became aware of your presence because her dog was barking loudly at the rear sliding door. When she went to investigate, she saw you with your face and hands pressed up against the sliding door looking into the house. You were wearing a black ski mask over your face, a black T-shirt and fawn-coloured shorts. The female screamed and called out to the other female and both of them began to bang on the glass and yell at you to leave. Nevertheless, you remained on the back deck. A short time later you began walking towards the stairs at the rear of the deck. One of the females opened the sliding door so she could take a photo of you. You turned and said, "You're dead" and launched yourself towards her at speed. The victim felt an immediate sense of fear and ran inside and locked the sliding door. She told you she would call the police to which you replied, "Fuck off."

22. Police located you shortly after at a nearby oval and requested that you provide identification. You took a small silver folding knife out of your pocket and threw it on the ground before producing you wallet and identification. You told police, "It was just a prank, I was just pretending to be a serial killer. My mate dared me." You told the police you had the knife for protection.

23. By your plea of guilty to the charge of attempted burglary, you accept your purpose for entering onto the property in question was to attempt to enter the residence for the purpose of finding items to steal. Your victims, two females, within the residence were vulnerable. You attended at that residence at a time when it was likely that somebody would be home. Upon becoming aware of the female residents, you did not withdraw but instead ultimately threatened one of them. I accept that the threat to kill offence was spontaneous.

24. At the time you committed the offences on 10 October 2017 you were on conditional liberty. You were granted bail on 10 August 2017 with respect to the 26 September 2016 offences, to reside at Oolong House and remain in the residential rehabilitation program at that institution.

25. It was a condition of your bail that if you were discharged from that program you were to report to the police within 24 hours. You were discharged from Oolong House on 21 August 2017 due to testing positive for the use of amphetamines. You did not report to police following your discharge as was required by your bail. It is clear that you immediately returned to the use of illicit drugs.

26. You entered pleas of guilty to the offences of 10 October 2017 on 1 November 2017 in the Magistrates Court and you were committed for sentence on 15 January 2018.

27. You have a significant criminal history which disentitles you to any leniency with respect to these offences. You are heavily recorded for offences of dishonesty but you also have some offences of violence on your history.

28. A Pre-Sentence Report dated 8 January 2018 was prepared with respect

to the offences of 10 October 2017. A further Pre-Sentence Report dated 2 February 2018 was prepared with regard to the offences of 26 September 2016.

29. You were born in Fiji and adopted at the age of three years. You describe a stable and supportive childhood provided by both of your adoptive parents who moved to Canberra when you were 11 years old. You continue to maintain supportive relationships with both your parents and your sister.

30. You are a single man with no dependents. You were educated to and completed year 9. You commenced an apprenticeship as a chef but completed only 14 months of the fouryear program. You were in receipt of unemployment benefits before you were remanded in custody.

31. You have a long history of polysubstance abuse. You commenced using cannabis and methamphetamine when you were 16 years old. On 31 July 2017, you successfully completed the Solaris program in the Alexander Maconochie Centre before being released on bail on 10 August 2017 to attend Oolong House. As I said, you only remained at that institution for approximately 10 days before you were discharged after testing positive to illicit drugs.

32. You told the author of the reports that you have been diagnosed with schizophrenia and this was verified by ACT mental health records. You have been in contact with ACT Mental Health since 2004 and you have been prescribed antipsychotic medication and managed at a clinical level. You stated that your illicit drug-use adversely impacted your ability to maintain regular prescribed medication. You have been receiving monthly depot injections since being remanded in custody on 11 October 2017.

33. I note that in 2011 you were diagnosed with a brain tumour which was surgically removed. You are apparently required to take medication to prevent further growth of that tumour.

34. The author of the reports noted you accepted responsibility for your offending behaviour with regard to the offences of 10 October 2017 and you acknowledge the impact of your actions on your victims. You claim to have accepted the verdicts with respect to the offences of 26 September 2016 but you continue to minimise your actions and blame the victim. The authors of the reports noted that until you adequately address your illicit druguse, mental health issues and antisocial attitudes, you continue to present as a risk to other members of the community.

35. I take into account the contents of the CADAS Report dated 21 February 2018 which reinforces the information in the Pre-Sentence reports concerning your problematic and longstanding drug addiction. You told the authors of this report that you 'wanted to have another go' at rehabilitation and that you had applied for re-entry to Oolong House. It was the opinion of the authors of the CADAS report that residential treatment may be effective for you and that such treatment programs are available both in the community and in the custodial environment.

36. You entered early pleas of guilty to the offences of 10 October 2017 which I am satisfied indicates some remorse and also had a significant utilitarian value. I will reduce the otherwise appropriate sentence for these offences by 25 per cent to reflect your pleas.

37. You maintained pleas of not guilty with regard to the offences of 26 September 2016, which was your right, but you are not entitled to any reduction in sentence that would have accompanied pleas of guilty. You have demonstrated little remorse for those offences.

38. You are no longer a particularly young man. The weight that is commonly given to rehabilitation in sentencing young offenders should no longer be afforded to you. It is particularly concerning that the offences of 26 September 2016 occurred shortly after you were released from prison and demonstrated an escalation in violent conduct beyond your previous offending.

39. Your criminal conduct is primarily driven by your use of and desire for illicit drugs. You have been given opportunities in the past to address this issue but you have not demonstrated any sustained commitment to changing your lifestyle.

40. You professed a desire to rehabilitate to the authors of the Pre-Sentence report and also to the authors of the CADAS report but it is difficult to give much weight to those statements. As late as August 2017 you were permitted to attend residential rehabilitation at Oolong House but you almost immediately returned to drug-use and serious crime.

41. You have conceded you continue to use methamphetamine after you were remanded in custody for these offences. I acknowledge you continue to have the support of your adoptive parents which is a positive factor. Nevertheless, your rehabilitation prospects at the present time cannot be said to be good.

42. The sentences which I pass must be designed to deter you and others from similar criminal offending. Deterrence, punishment and protection of the community are the predominant sentencing considerations with respect to these offences.

43. Nothing less than immediate terms of imprisonment will be adequate to address the requirements of sentencing with respect to these matters. The evidence before me does not support any connection between these offences and any underlying mental illness from which you may suffer. The evidence also does not support that any mental or physical conditions from which you may suffer cannot be adequately treated in custody or make any custodial sentence more onerous.

44. A degree of concurrency of sentences with regard to offences occurring on the same day is appropriate. In addition, considerations of totality call for some concurrency of sentences imposed for sentences occurring on different dates.

45. With regard to the offence of intentionally inflicting grievous bodily harm on 26 September 2016 (XO2017/31045), I record a conviction and you are sentenced to five years' imprisonment commencing on 14 December 2016 and expiring on 13 December 2021.

46. With regard to the offence of aggravated robbery on the same date (CC2016/11675), I record a conviction and you are sentenced to three years' imprisonment commencing on 14 December 2019 and expiring on 13 December 2022.

47. With regard to the offence of assault occasioning actual bodily harm on the same date (CC2016/11676), you are convicted and sentenced to four months' imprisonment commencing on 14 December 2019 and expiring on 13 April 2020.

48. With regard to the offence of inflicting actual bodily harm on the same date (XO2017/31043), you are convicted and sentenced to 12 months' imprisonment commencing on 14 December 2019 and expiring on 13 December 2020.

49. With regard to the offence of attempted burglary on 10 October 2017 (CC17/11214), you are convicted and sentenced to two years and six months' imprisonment, which I have reduced from three years to reflect your plea of guilty, commencing on 14 June 2022 and expiring on 13 December 2024.

50. With regard to the offence of making a threat to kill (CC17/11215), you are convicted and sentenced to nine months' imprisonment, which I have reduced from 12 months in order to reflect your plea of guilty, commencing on 14 May 2024 and expiring on 13 February 2025.

51. With regard to the offence of possession of a knife in a public place (CC17/11212), you

are convicted and sentenced to 21 days' imprisonment commencing on 14 June 2022 and expiring on 4 July 2022. I have reduced that from one month's imprisonment in order to reflect your plea of guilty.

52. The aggregate sentence of imprisonment that I have imposed is therefore one of eight years and two months, commencing on 14 December 2016 and expiring on 13 February 2025.

53. I set a non-parole period of five years commencing on 14 December 2016 and expiring on 13 December 2021.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.