CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - sentence - aggravated burglary - common assault - possess a knife without a reasonable excuse

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7

R v Greentree [2017] ACTSC 274

R v Lindley-Jones [2014] ACTSC 296

R v Minnis [2014] ACTSC 268

R v Seears [2015] ACTSC 109

R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269

Office of the ACT Director of Public Prosecutions (Crown)

1. On 19 September 2017, the offender was arraigned and pleaded guilty to the following charge:

That on 28 January 2017 at Canberra in the Australian Capital Territory [he] remained in a building, namely [an address in the Australian Capital Territory] as a trespasser with intent to commit an offence that involved causing harm to anyone in the building, in company with Steven Lockwood and two unknown males and at the time had an offensive weapon with him.

2. The offence is contrary to s 312 of the Criminal Code 2002 (ACT). It carries a maximum penalty of a fine of $300,000 and/or 20 years' imprisonment.

3. The offender's plea of guilty was entered on a limited basis. He said that he acted alone and not in the company of Steven Lockwood or any other person.

4. This prompted a disputed facts hearing, which I heard on the same day as the plea. I gave my decision on 20 September 2017, finding that the offender had acted in company (R v Greentree [2017] ACTSC 274). I ordered that the judgment not be published pending the trial of an alleged co-offender. The same order is made in respect of this judgment.

5. The offender's version of events was patently unbelievable. Notwithstanding this fact, he is still entitled to some benefit from his plea of guilty. It must, however, be limited because, although a much shorter hearing was involved, it was still necessary for the victim to give evidence. I think that a discount of approximately 10% is appropriate.

6. The background and facts of the offence are set out in my judgment of 20 September 2017. In short, the offender entered the premises of an acquaintance (the victim) with three men. The victim was assaulted, threatened and robbed. His injuries included a stab wound caused by chef's scissors. The offender also struck him with a golf club.

7. The offender was born in 1982 in New South Wales. His parents separated when he was very young. He had observed acts of domestic violence between them. The offender has maintained a good relationship with his mother and stepfather. His biological father lives overseas. His father is an alcoholic and a drug addict. The offender has two siblings but has little to no contact with them because of his violent behaviour.

8. The offender has a long history of drug and alcohol abuse, which resulted in him being evicted from his family home. He has frequently been homeless.

9. The offender had a reasonable school education but has a limited history of employment. In 2001 he was assaulted while working at a detention centre in Western Australia. He suffered physical injuries and post-traumatic stress disorder. It is not clear if his injuries triggered his mental health issues or if they commenced at an earlier time. The offender seems to have a partner but their relationship is conducted from afar, as she lives in Western Australia.

10. The offender has an extensive criminal record, traversing Australia. He has not, however, been very criminally active since 2009. It is not clear if periods of incarceration or hospitalisation have played a part.

11. The offender has a history of diabetes. It is unclear whether he continues to be diabetic. He is otherwise physically well.

12. The offender's mental health issues are significant. To some extent, the issues are of a similar type to those suffered in the offender's maternal family. These are outlined in the psychiatric report dated 12 September 2017. The offender began to suffer psychotic episodes in about 2001. It was at this time when he was diagnosed with schizophrenia. He was hearing voices. These voices continue to plague him, often insulting his mother or urging him to violence.

13. One of the voices has prompted the offender to attempt to take his life. He has been admitted to hospital often; on one occasion he was an inpatient for about two years. He is currently taking antipsychotic medication.

14. The offence was committed in January of this year. On 28 March 2017, while still at large, the offender was reported to be suffering from "highly distressing auditory and tactile hallucinations". He said that one of the voices was instructing him to assault people.

15. It is not suggested that the voices prompted the offender to engage in the present offence.

16. It was submitted that the Verdins principles should apply (R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269). Dr Samuels, the psychiatrist, was asked to address this point. His response may be seen as somewhat equivocal.

17. Nevertheless, I think his mental health condition must be taken into account in sentencing. Dr Samuels thought that the offender "may experience greater distress being incarcerated then the average detainee due to his mental health issues". However, he continued:

Conversely, it is worthy of note that Mr Dash appeared to have better engagement with mental health services whilst incarcerated, potentially due to stable accommodation, supervision of medication and arguably his reported abstinence from illicit drugs in the controlled setting.

18. Dr Samuels highlights a similar contradiction in respect of self-harm:

It is noted that given Mr Dash's mental health diagnosis, history of suicide behaviours, drug abuse and poor coping strategies, he may be at higher risk of self-harm in the event that he is further detained. However, this could be managed through mental health support and operational consideration to his placement within the prison.

19. The facts of the offence are objectively serious. They involved a sustained assault on the victim and injuries which could have been a good deal more serious than they were. The victim will no doubt continue to suffer the effects of the incident, in respect of his mental anguish, on a long-term basis.

20. It is important that in sentencing I consider the objects of sentencing, as expressed in

s 6 of the Crimes (Sentencing) Act 2005 (ACT), and the purposes of sentencing, as stated in s 7. It is also important that I be satisfied that there is no alternative to imprisonment having regard to the nature of the offence, the requirements for deterrence, the prospects of reoffending and the demands of the community to be satisfied that offenders are properly punished for serious crimes.

21. I have been referred to and taken guidance from the decisions of the Chief Justice in the following cases: R v Minnis [2014] ACTSC 268; R v Lindley-Jones [2014] ACTSC 296; and R v Seears [2015] ACTSC 109.

22. I do not think there is any alternative to imprisonment in this case. The offence is too serious. No submission was made that an Intensive Corrections Order would be appropriate. The submission that the sentence might be suspended in the future is not tenable against the seriousness of the offence.

23. The offender has been in custody since 3 May 2017. The sentence of imprisonment will be backdated to this date. In arriving at the term, I have included a deduction of about 10% for the plea of guilty.

24. The offender is also to be sentenced for a common assault charge arising from the same incident. I think it appropriate that this sentence be concurrent with the sentence for the indictable matter. I note common assault carries a maximum penalty of two years' imprisonment.

(i) In respect of the offence of aggravated burglary (XO 2017/31209), the offender is sentenced to a term of imprisonment of 2 years and 9 months commencing on 3 May 2017 and ending on 2 February 2020.

(ii) In respect of the offence of common assault (CC 2017/4958), the offender is sentenced to a term of imprisonment of 9 months commencing on 3 May 2017 and ending on 2 February 2018.

(iii) I set a non-parole period of two years commencing on 3 May 2017 and ending on 2 May 2019.

26. I recommend that the psychiatric report of Dr Samuels dated 12 September 2017 be brought to the attention of Corrective Services.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.