Crimes (Sentencing) Act 2005 (ACT) s 7

Magistrates Court Act 1930 (ACT) s 90B

R v Stott (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 6 September 2011)

Legal Aid ACT (First Offender)

Legal Aid ACT (Second Offender)

1. On 26 March 2014 the offenders pleaded guilty to a number of offences. Although the matters were fixed for trial only a week later, the indictment filed on 26 March 2014 differed significantly from the original indictment of 14 November 2013. The pleas were entered in the face of a very strong Crown case and close to the trial date, but given the significant differences in the indictments and the fact that there were discussions prior to 26 March, the appropriate discount for the pleas of guilty is approximately 15%. I will apply this discount to the sentences for the principal offences.

2. The matters to which Mr Dalton pleaded guilty were one count of forcible confinement, one count of obtaining property by deception (a total sum of $1,140), and one count of attempting to obtain property by deception (a total sum of $1,500). The matters to which Mr Fleet pleaded guilty were one count of forcible confinement and one count of taking a motor vehicle without consent. In addition, pursuant to s 90B of the Magistrates Court Act 1930 (ACT), I am to deal with Mr Fleet for four additional matters: dangerous driving; fail to stop for the police; unlicensed driving; and possession of a prohibited substance.

3. In relation to each matter, other than the s 90B matters, the maximum available penalty is 10 years' imprisonment. In relation to the dangerous driving matter, the maximum available penalty is one year imprisonment. Fines are available for the s 90B matters.

4. Each offender has been in custody since his arrest for these matters on 19 June 2013. Subsequently, Mr Dalton was sentenced for earlier offences. The sentences for the earlier offences expired on 5 October 2013. Consequently, the sentences that I impose for these matters will commence on 6 October 2013. I will take into account the overall picture of imprisonment when setting the non-parole date.

5. Mr Fleet had been released on parole on 28 May 2013. His parole was revoked after he was arrested for these matters. Parole would have been revoked in any event, because he had failed to commence a residential rehabilitation program that he was required to undertake. As a consequence of the revocation of parole, he is serving a sentence that expires on 20 August 2014. As parole was revoked for reasons independent of the commission of these offences, but that the sentences that I will impose mean that he will lose the opportunity to apply for release to parole in respect of those matters, I select the date of 20 January 2014 as the commencement date for the sentences that I will impose.

6. At about 4.45 am on 18 June 2013, the victim received a message from his former partner, asking him to attend a unit in Braddon (the premises) to pick her up. At 6.30 am, the victim arrived at the premises in a vehicle belonging to a Mr Ainsworth. When he arrived, the offenders were present. The offenders are friends. The victim's expartner, Ms Face, is also the ex-wife of Mr Dalton. It is alleged that she had resumed a relationship with Mr Dalton.

7. At the time, there was an ongoing custody battle concerning the Face/Dalton children, and the victim was involved in that custody battle. In any event, when the victim arrived at the premises he gave his car keys to Ms Face so that she could place her bags in the car. Mr Dalton then said, "Where are the keys?" The victim attempted to walk out of the unit, as that statement made him uncomfortable. His passage was blocked by Mr Dalton, who instructed him to sit down, threatening him that "the only way out is over the balcony".

8. Mr Dalton threw the victim onto a couch and held him down. Mr Fleet made a number of threats, such as "You'd look good with a cut across your face," "If it was me, it would be all over by now" and "Glenn doesn't want to hear this about his kids coming from you" (referring to the custody dispute).

9. Shortly afterwards, Mr Dalton informed the victim, "We're going for a drive. Stay in between Eddy and me." The victim was escorted by Mr Dalton and Mr Fleet to a vehicle. Ms Face drove the vehicle to the suburb of Ainslie.

10. Mr Fleet exited the vehicle, entered a residence at Ainslie, returned with a bag of Xanax pills and gave five pills to the victim. He instructed the victim, "Make sure you swallow them; don't spit them out." The victim did so, as he believed that failure to do so would result in injury.

11. The vehicle then travelled to Manuka. During the course of the journey, Mr Dalton demanded the victim's PIN numbers for two bank accounts. He told the victim that the PIN numbers must be correct, "Or else."

12. The victim provided the PIN numbers. Soon after that, the victim's vision became blurry. He began to feel very drowsy as a result of consuming the Xanax pills. The victim's next recollection is waking up about 24 hours later, on 19 June 2013, when police arrived at the premises.

13. After he obtained the victim's PIN code, Mr Dalton, made five successful attempts to withdraw cash and five unsuccessful attempts. That conduct is the subject of two charges against Mr Dalton.

14. The day after the victim was detained, on 19 June 2013 at about 7:30 am, police attended the premises in Braddon following a report of men acting suspiciously. They found nothing abnormal and resumed their duties. But at about 9.30 am they observed Mr Ainsworth's vehicle.

15. At that stage, one of the offenders, Mr Fleet, committed the offences that are the subject of the s 90B referral. Mr Fleet and his partner were travelling in Mr Ainsworth's vehicle. Police activated emergency lights and a siren, indicating that the vehicle should stop. It stopped very briefly, and Mr Fleet's partner exited the vehicle.

16. Mr Fleet then accelerated away. Because police were in a caged vehicle, they did not initiate a pursuit, but they followed the vehicle and observed it driving in a very dangerous fashion. Among other things, the vehicle travelled through a stop sign without slowing below 50 kilometres per hour, travelled in the wrong direction in ANZAC Park, completed a U-turn on Constitution Avenue and then began to travel against the flow of traffic at a time when there was a moderate amount of traffic on Constitution Avenue, it being about 9.30 am in the morning. There were a large number of pedestrians, and workers who were attending to roadworks in the area. The offender drove along ANZAC Parade, mounted the kerb, drove onto the pedestrian walkway separating the north and southbound lanes of ANZAC Parade, at a time when there were a large number of pedestrians in the area, accelerated away and then proceeded to drive in an erratic and dangerous fashion. After he proceeded through red traffic lights at the intersection of Allara Street and Constitution Avenue, police lost sight of the vehicle.

17. At about 11.30 am the vehicle was located at the premises in Braddon. Upon searching Mr Fleet's right hand pocket, police located a small white plastic bag containing two pink cylinders and a lump of cannabis. Police entered the unit in Braddon to speak to Mr Fleet about the incident. Upon entry, they found the victim in a distressed state, with his hands in a prayer position, mouthing the word "hostage". He was escorted from the premises and taken for medical treatment.

18. In relation to the offence of unlawful confinement, its objective seriousness is moderate to high. The victim was detained for 29 hours. He was heavily drugged for most of the period. He was obliged to hand over his PIN number. While there were no physical injuries, a number of serious threats were administered by both offenders, such as would inspire terror. At one stage, the victim thought that he may die.

19. The motivations on the part of Mr Dalton were personal animosity relating to the custody dispute, as well as financial gain for the purpose of purchasing drugs. Presumably, the motivations on the part of Mr Fleet were friendship and the desire to obtain money for drugs. The victim was confined in a residence and in a car. There must have been some premeditation, because as soon as the victim entered the premises the offenders began working in concert to get him into the car. It is not known when the plan was hatched, but it seems to have been formulated at least prior to the victim walking into the premises. The offence was committed in company. That enabled the offence to be committed easily and added to the trauma for the victim.

20. The Court acknowledges the suffering of the victim. It was a terrifying incident, and it extended over a significant period of time. It is no wonder that the victim thought that he was going to die and that he was, in effect, praying at the time that the police rescued him. It is no surprise to learn that he feels isolated and anxious and has had to move well away from Canberra. When he has to return to Canberra for medical treatment for an injury sustained otherwise than through these offences, he feels extremely worried. He does not like to tarry in Canberra, and that means that he has limited opportunity to pursue relationships with friends in Canberra.

21. In his victim impact statement, he says that he feels that he has been deprived of his freedom. I accept that statement. He is not free to move about Canberra without anxiety. He has turned to drinking as a crutch, and is dreading the thought of counselling, although counselling is something that he will have to undertake at some point if he is to recover.

22. As far as Mr Dalton is concerned, he has a criminal history of minor to moderate seriousness. He has served two relatively brief periods in custody, one in 2011 in New South Wales for offences of assault, take and drive vehicle without consent, drive while disqualified from holding a licence and larceny of less than $2,000. Initially, those matters resulted in a community service order, but there was a call up and a three-month period of imprisonment was imposed in early 2012. In October 2012, he committed a raft of offences that saw him imprisoned in 2013. There are a number of other relatively minor offences in his criminal history. They include approximately six offences of driving with the low or midrange prescribed concentration of alcohol and driving while disqualified.

23. The commission of those offences is consistent with the information that the offender has had a substance abuse problem. Initially, it was an alcohol problem. Since 2008 or 2009, he has abused amphetamines.

24. The offender was in a relationship with a drug user (Ms Face, I assume) and the couple has twin daughters aged five, who are the subject of the custody dispute. He claimed that he has mental health issues. I have not received reports exploring that contention, but it may well be true. In the past, he has worked in the racing industry, originally as a jockey, then as a stable hand and track rider. It was an irregular lifestyle that was conducive to the development of a substance abuse problem. He has a hazy recollection of the offences because he was under the influence of ice at the time.

25. At the time of the offences, Mr Dalton was on conditional liberty. He was on bail for offences for which he was subsequently sentenced in this Court.

26. On a slightly brighter note, when the offender was bailed to undertake drug rehabilitation through the Karralika Residential Rehabilitation Program in March 2013, he managed to complete the short term program there, graduating on approximately 8 May 2013. He was scheduled to pursue a further rehabilitation placement, but as there was no bed available, the placement could not occur immediately. In the intervening period, he resumed consumption of ice, leading to commission of the offences.

27. In relation to Mr Fleet, his criminal history is more significant than that of Mr Dalton. In 2012, this Court sentenced him for a number of offences, including an aggravated burglary, for which he received an 18-month sentence. The offences also included an offence of take and drive motor vehicle without consent. The total effective sentence that was imposed was 30 months with a 16-month non-parole period. That sentence saw him released on 28 May 2013 to Karralika, where he remained for a matter of hours before discharging himself.

28. Two weeks later, Mr Fleet committed the subject offences. As I have mentioned, parole was cancelled and he is serving the sentence (imposed in 2012) to 20 August 2014.

29. He had a very disadvantaged upbringing. His mother was in prison through most of his childhood. He was raised by his grandmother. There were difficulties with behaviour, both at home and at school. When he was 15 years of age, in Year 10, he left both home and school. He has been employed at times, but he was unemployed on the date of the offences.

30. Mr Fleet has two children. Like Mr Dalton, he has few pro-social acquaintances. Most of his acquaintances are drug users. He has had a substance abuse problem since his teens, and the problem has been serious since he was about 20 years of age. He was a daily user of cannabis until the date of the offences and a heavy user of amphetamines, injecting large amounts on the date of the offences. He has made two unsuccessful attempts to rehabilitate. He has done drug courses while in custody.

31. Mr Fleet is described as having a high risk of reoffending because of his history of substance abuse, poor attitude, lack of pro-social ties and antisocial peer group. Mr Fleet has a worse criminal history than Mr Dalton. Both were on conditional liberty. The nature of the conditional liberty to which Mr Fleet was subject was very significant. Mr Fleet had only just been released for offences that included aggravated burglary, and was on parole for a significant period, parole that he had recently breached by failing to engage in the Karralika Program. His prospects of rehabilitation appear to be bleaker than those of Mr Dalton, at least in the short term.

32. In relation to the objective seriousness of the conduct of each offender, it is difficult to distinguish the seriousness in a meaningful way. I accept that, initially, Mr Dalton seems to have been the more active of the two. It was he who blocked the path of the victim, starting the series of events that followed. However, it seems that the incident was premeditated and both offenders had planned it, perhaps only just before the victim arrived. Nevertheless, they planned it together. While Mr Dalton initially administered more threats and physically detained the victim, it was Mr Fleet who forced the victim to take drugs. For these reasons, I see no significant difference in the objective seriousness of the conduct of each offender.

33. In relation to the subjective matters, as I have mentioned, Mr Dalton's circumstances are slightly stronger than those of Mr Fleet.

34. I intend to impose concurrent sentences in relation to all but the main offence, due to the seriousness of that offence. In relation to Mr Dalton and the offence of forcible confinement, the starting point was a four-and-a-half-year sentence. By discounting 15%, there is a sentence of three years and 10 months. I impose that sentence from 6 October 2013 to 5 August 2017.

35. In each of the other two matters, Mr Dalton is sentenced to imprisonment for 12 months from 6 October 2013 to 5 October 2014.

36. In fixing the non-parole period, I have had regard to the overall picture of imprisonment. The offender has been in custody from his date of arrest, 19 June. I fix a non-parole period that will expire three years from 19 June 2016. Mr Dalton is eligible for release to parole on 19 June 2016.

37. In relation to Mr Fleet and the principal offence, the starting point for the sentence was five years' imprisonment. By discounting 15%, I arrive at a sentence of four years and three months imprisonment from 20 January 2014 to 19 April 2018. In relation to the motor vehicle offence, he is sentenced to a concurrent sentence of 18 months' imprisonment from 20 January 2014 to 19 July 2015. For the offence of driving dangerously, he is sentenced to six months' imprisonment from 20 January 2014 to 19 July 2014. In relation to the three other matters, he is convicted and fined $10 in each matter.

38. In setting the non-parole period applying to Mr Fleet, I have taken into account the overall picture of imprisonment; he has been imprisoned from 19 June 2013. I fix a non-parole period to expire on 19 November 2016. He is eligible for release to parole on that date.

39. The disqualification period of three months which applies to the offence of dangerous driving will run from 19 November 2016.

40. In sentencing the offenders I have had regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT), and to the relevant s 33 factors that are known to me. I have also had regard to the cases to which I have been referred, including R v Stott (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 6 September 2011).

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.