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Parties: The Queen (Crown) Stephen Anthony Griffiths (Accused)

Representation: Counsel Sahu Khan (Crown) T Trotter (Accused)

Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)

File Number(s): SCC 242 of 2019

Loukas-Karlsson J

Introduction

1. On 13 March 2020 Stephen Anthony Griffiths (the accused) was found not guilty by reason of mental impairment on four counts by special verdict after a trial by judge alone: see R v Griffiths [2020] ACTSC 51. The offences to which these counts related were as follows:

(a) Aggravated burglary (offensive weapon) contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code) (CC2019/7408). The maximum penalty for this offence is imprisonment for 20 years, a fine, or both.

(b) Unlawful confinement of John Parker contrary to s 34 of the Crimes Act 1900 (ACT) (Crimes Act) (CC2019/7409). The maximum penalty for this offence is imprisonment for 10 years.

(c) Threat to kill John Parker being reckless as to whether John Parker would fear that the threat would be carried out contrary to s 30 of the Crimes Act (CC2019/7410). The maximum penalty for this offence is imprisonment for 10 years.

(d) Dishonestly appropriate property, namely car and house keys, a pocketknife, tin snips, and an Australian Government pension letter belonging to John Parker with the intention of permanently depriving him of the property contrary to s 308 of the Criminal Code (CC2019/7411). The maximum penalty for this offence is imprisonment for 14 years, a fine, or both. Facts

2. On the morning of 2 July 2019, John Parker (the victim) departed his Ainslie residence and drove to the shops at Dickson. At around 11:30am he returned to the house and entered through the locked front door. The victim’s residence is a two-bedroom apartment in Ainslie. He had lived there for approximately 3 years and lives alone.

3. Immediately upon entering his home, the victim observed the accused coming out of his bedroom holding a star picket in both hands. The victim had never seen the accused before and did not know why he was inside his home. The accused told the victim to sit down in a chair in the loungeroom. Fearing for his safety the victim complied with the request and sat down.

4. The accused began pacing around the loungeroom, mumbling about God. The victim could not understand what the accused was mumbling. The victim attempted to get away, but the accused would not let him up.

5. While the accused was pacing the victim noticed several personal photographs on the floor which were usually kept inside a cupboard. The accused began going through the photographs and began questioning the victim about who was in the photographs and where they lived. The accused was still holding the star picket in one hand.

6. The accused then produced a butcher’s knife with a 20 cm blade from behind his back which he had taken from a cupboard in the victim’s kitchen. He threatened the victim, stating “one of us is going to die today, you or me, mainly you” and asked him whether he had been stabbed before. The accused was approximately 1 metre away from the victim at this time and was holding the knife with the blade pointed at the victim. This caused the victim to fear for his life. He thought he was going to die.

7. The accused told the victim to get up and walk to the courtyard at the back of the residence. Once they were in the courtyard the accused started looking at the roof of the house and indicated that he wanted to get inside of the roof. The accused then walked back inside the house, putting the knife back into his pants and locking the victim in the courtyard.

8. A short time later, the accused asked the victim if he wanted any water. The victim replied that there was only water for his dog outside. The accused said that he had water in his car and proceeded to walk towards a dark coloured BMW X5 motor vehicle that was parked at the end of the victim’s driveway. The vehicle belonged to the accused.

9. The victim then managed to remove his mobile phone from the pocket of his pants and dial ‘000’. He requested police attendance and then left the line open. Police then called the victim back and asked whether he required assistance. As the accused had returned to within earshot, the victim pretended he was on his phone with a friend. When asked whether he needed police assistance he responded “yeah, yeah that’s it” and then put the phone down without hanging up.

10. The accused then unlocked the door to the courtyard to let the victim back inside the house, grabbing his left arm to prevent him from escaping. The accused then began to rant and rave about various and differing topics that the victim could not understand. At some stage the knife was left on the loungeroom couch.

11. At approximately 12:30pm, police attended the victim’s home and observed the accused pacing around the front yard carrying a wooden walking stick before losing sight of him. The victim then exited the front door of his residence in an extremely distressed state asking the police for help. The victim was visibly shaking at this time.

12. The accused then exited the front door where he stated “I give up” while showing his empty hands. At some stage the accused also said to the police that “the spirits have brought me here today” and other statements to the following effect:

(a) “I don’t know what my spirit level is, the spirits are at the house”;

(b) “The devil is outside”;

(c) “If I go to the park I will choke and die”;

(d) “God is here”;

(e) “The power lines are affecting my spirit”;

(f) “God told me to preach from Ayers Rock”;

13. Police searched the accused and found the following items, all of which belonged to the victim:

(a) A set of house and car keys;

(b) A pocketknife with a brown coloured handle;

(c) Tin snips; and

(d) An Australian Government letter addressed to the victim.

14. Police also located the accused’s wallet, identifying him from a NSW Driver’s Licence. The accused was subsequently arrested and conveyed to the ACT Watch House. Police checks confirmed the BMW motor vehicle was registered to the accused.

15. Once police had left, the victim observed that his residence had been ransacked, and items were strewn all over the place. A recycling bin was inside his bedroom and the manhole cover to the roof had been pushed up into the roof cavity.

Victim Impact Statement

16. In evidence before me was a Victim Impact Statement written by the victim. It was tendered but was not read onto the record. He writes that these offences have left him unable to sleep properly, scared to leave his home, and at the same time scared to be alone in it, for fear that someone is coming to kill him. He writes that he is now paranoid and startled by the slightest things.

17. The victim writes that before the incident he was a confident, fun loving, sociable member of his local area, enjoying community events and participating in the local lawn bowls team. He writes that he has now lost his confidence, shies away from the outside world, is constantly scared, and rarely leaves his house apart from seeing family and essential shopping. He writes that the accused has ruined his life.

18. The extent of the impact upon the victim was made clear by the Victim Impact Statement. Courts know the extremely serious effects of offences such as this. Nevertheless, it is especially valuable to read the words of the victim.

19. The Court acknowledges the significant impact that these offences have had and continue to have on the victim. It was a harrowing experience for him and has lifelong impacts.

Appropriate order under the Crimes Act

20. Pursuant to s 324(2) of the Crimes Act, the Court must make one of two orders:

(2) The Supreme Court must— (a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or (b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.

21. Section 308 of the Crimes Act provides a set of criteria for determining whether to order detention.

308 Criteria for detention For this part, other than division 13.5 (except section 335), in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria: (a) the nature and extent of the accused’s mental impairment, including the effect it is likely to have on the person’s behaviour in the future; (b) whether or not, if released— (i) the accused’s health and safety is likely to be substantially impaired; or (ii) the accused is likely to be a danger to the community; (c) the nature and circumstances of the offence with which the accused is charged; (d) the principle that a person should not be detained in a correctional centre unless no other reasonable option is available; (e) any recommendation made by the ACAT about how the accused should be dealt with.

22. On 13 March 2020 I made an order under s 324(2)(a) taking into account the relevant considerations set out under s 308 that the accused be detained in custody for immediate review by the ACAT under s 180 of the the Mental Health Act 2015 (ACT).

Nominated Term

23. After entering a special verdict of not guilty the Court is required to indicate whether, if the accused had not been acquitted by reason of mental impairment, a sentence of imprisonment would have been imposed. If such a sentence would have been imposed it must then nominate the best estimate of the sentence it would have considered appropriate. Section 302 of the Crimes Act provides:

302 Limitation on orders and detention—acquittals (1) If, under section 323 or 324, the Supreme Court makes an order that the accused be detained in custody for immediate review by the ACAT, the court must indicate whether, if the accused had not been acquitted, it would have imposed a sentence of imprisonment. (2) If, under subsection (1), the Supreme Court indicates that it would have imposed a sentence of imprisonment, it must nominate a term (a nominated term) in respect of that offence that is the best estimate of the sentence it would have considered appropriate if the accused were a person who had been found guilty of that offence. (3) In nominating a term in relation to an offence, the Supreme Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing. (4) A nominated term in relation to an offence takes effect on the day the Supreme Court nominates the term unless the court— (a) after taking into account any periods mentioned in subsection (3), nominates an earlier day; or (b) orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person.

24. In R v Kelly [2018] ACTSC 332 (Kelly) at [63] Murrell CJ noted that the purpose behind this requirement that the Court determine the “best estimate” of the sentences it would have imposed is to “ensure that a mentally impaired accused person is detained for no longer than a mentally unimpaired person would have been detained” (citing Explanatory Memorandum, Crimes (Amendment) Bill 1999 (ACT) at 5).

25. The Chief Justice also stated at [64]-[65]:

The estimation of such a sentence is a very difficult and artificial task. A determination of the degree of moral culpability is critical to the determination of an appropriate sentence. In effect, a finding of mental impairment means that the mental disability from which the accused was suffering at the time of the offences was such that he is not morally responsible for the commission of the offences. Had the accused’s disability been present at a lower level, he may have been found guilty but the mental impairment may have reduced his moral culpability and the sentence that was imposed. Given that considerations such as premeditation and planning reflect on moral culpability, such considerations may be largely irrelevant when deciding a nominated term. In R v Klobucar (No 2) [2016] ACTSC 53 at [27], Penfold J took a different approach; her Honour considered that her task was to consider the sentence that would have been appropriate had the accused’s mental impairment been present, but insufficiently severe to require a mental impairment verdict. Regardless of which is the correct approach to the issue of moral culpability, some sentencing considerations are undoubtedly relevant. In New South Wales, it has been held that, when determining the limiting term for a particular offence, courts should adopt and apply all the statutory and common law principles that apply to the sentencing of a person convicted of that offence: R v AN [2005] NSWCCA 239 (AN) at [13], and the same general approach should apply in this jurisdiction.

26. In R v Ophel [2019] ACTSC 325 (Ophel) Burns J also examined the operation of s 302 of the Crimes Act and the correct approach to nominating the best estimate of an appropriate sentence if the accused were a person who had been found guilty of an offence. The Court must consider all the circumstances relevant to the individual accused. If that accused suffers from a mental illness to the extent that their moral culpability is reduced in some degree, and as a matter of fact, this must be brought to bear in the sentencing process. A sentence must fully acknowledge the extent of that mental illness, and its effect on the accused (at [4]).

27. In Ophel Burns J determined that the correct approach to the nominated term is to sentence an accused at [3]: “as if no pleas of not guilty had been entered and [the accused] had been convicted after a trial following ordinary pleas of not guilty”. His Honour stated further at [5]-[6]:

To hypothesise a lower level of impairment for the purpose of nominating a term under s 302 would be unfair to an accused person, uncertain in operation and add a layer of artificiality to what has been said to be, to some extent, already an artificial task. The artificiality to which I refer is to that which Murrell CJ referred in R v Kelly [2018] ACTSC 332, when her Honour observed that a determination of the degree of an offender's moral culpability is crucial to the determination of sentence. However, the effect of jury verdicts of not guilty by reason of mental impairment is that an accused is not morally responsible for the commission of the acts which form the basis of the charges. In my opinion, this suggested artificiality is largely avoided, at least for practical purposes, by completely disregarding the verdicts of not guilty by reason of mental impairment and nominating a sentence as if the accused person had been convicted by the jury on a plea of not guilty simpliciter. In approaching s 302 in this way, the Court will give full weight in the ordinary way to the effect of an accused person's mental illness upon their moral culpability when arriving at a nominated term.

28. It was submitted that there was agreement as between the parties that the most appropriate approach to adopt with respect to the nominated term was that which was taken by Burns J in Ophel (T 37.28-47).

29. I propose to follow the approach to the nominated term outlined by Burns J in Ophel. I will for the purposes of sentencing disregard the verdicts of not guilty by reason of mental impairment. I will give full weight in the ordinary way to the effect of mental illness on moral culpability in arriving at a nominated term.

Prosecution Submissions on Sentence

30. The prosecution submitted that taking into account the maximum penalties for the four offences for which the accused was found not guilty by reason of mental impairment that nothing but a sentence of full time imprisonment was warranted.

31. The prosecution noted the following with respect to the objective seriousness of the offences:

(a) The premises that was burgled was a residential one and was the victim’s home.

(b) The frightening experience which the victim must have felt returning to his home and finding an armed intruder inside.

(c) The threats and directions made by the accused while holding a butcher’s knife, which the victim complied with in fear for his own safety.

32. The prosecution submitted that the subjective factors to be taken into account are that the accused had a mental condition for which he is receiving treatment, and that the accused did not challenge the prosecution’s evidence.

33. The prosecution referred to a table of past sentences imposed in the ACT for aggravated burglary, unlawful confinement, and threat to kill which were submitted to be relevant to current sentencing practices and patterns and a relevant consideration under s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

34. The prosecution referred in particular to the relevant cases of Kelly at [67] and Ophel at [8]. In the prosecution’s submission the protection of the community is a vital consideration in this matter. The prosecution submitted that in coming to a nominated term, consideration should be given to giving the authorities ample time to treat or manage the accused’s mental health. It was submitted that the nominated term is to be distinguished from the imposition of a period of incarceration for a specified term, as it is in normal sentencing proceedings, as in the former case the accused does not have to remain in custody for the nominated period, whereas in the latter he must remain in custody unless released on parole.

Defence submissions on Sentence

Objective Seriousness

35. In written submissions counsel for the accused conceded that nothing but a sentence of full time imprisonment was warranted and that alternative sentencing options would not adequately reflect the need for protection of the community and that concession was appropriately made. It was submitted that had the accused not been acquitted that the Court would have imposed a sentence of imprisonment: s 302(1) Crimes Act.

36. Counsel for the accused conceded that the objective seriousness of the aggravated burglary is increased by the offence having been committed in the victim’s home, where he is entitled to feel safe. It was submitted that the burglary was statutorily aggravated by the use of an offensive weapon. Counsel for the accused agreed that the use of the knife would have instilled significant fear in the victim, but submitted the offence could be distinguished from one which involved the use of a firearm, and that the use of a knife brought the offences towards the mid-range of objective seriousness.

37. With respect to the unlawful confinement offence counsel for the accused referred to R v Williams [2016] ACTSC 389 in which Refshauge ACJ at [53] outlined the matters which would relevant to the assessment of the objective seriousness of the offence.

38. Counsel for the accused submitted that the approximately one hour in which the victim was unlawfully confined was not a significant period of time, given that in R v Sharp [2018] ACTSC 286 (Sharp) the period of unlawful confinement was three hours and was found to be tending towards the mid-range. Comparatively with that case counsel for the accused submitted that one hour is towards to mid to low end.

39. With respect to premeditation and planning, counsel for the accused submitted that this consideration was not relevant to determining the objective seriousness in a matter of this type citing Kelly at [64]. Similarly, counsel for the accused submitted that the purpose of the unlawful confinement is not a relevant consideration in this matter as the purpose of the confinement is unclear, other that being a result of his delusional thoughts.

40. Counsel for the accused submitted that the level of constraint imposed upon the victim was at the low to mid-range given that the victim was not physically restrained. Counsel accepted that the victim was locked inside a courtyard and also constrained by fear of the accused’s threats. Counsel sought to distinguish this from the level of constraint imposed in Sharp, where the victim had been taped to a chair for a period of three hours.

41. It was submitted that the extent of the fear instilled was toward the lower end of the range of objective seriousness in contrast with comparative cases such as R v Thompson [2015] ACTSC 69. Counsel conceded that the accused’s threats towards the victim would have been terrifying, particularly due to the presence of the knife, but noted that the accused did leave the house to get water for the victim from his car.

42. Counsel submitted that there is no evidence of any physical injuries, and that taking all of the relevant matters into account the unlawful confinement offence sits at the low to mid-range of objective seriousness.

43. Counsel for the accused accepted that the threats were aggravated by both the presence of a knife, the proximity to the victim, and that they were made within the home of the victim. It was submitted that the threats were clearly distressing for the victim, as evidenced by the victim impact statement. It was submitted that this offence was in the mid to upper end of objective seriousness.

Consideration

44. The prosecution did not make submissions as to range. I find each of the offences of aggravated burglary, unlawful confinement, and threat to kill to be of mid-range. I have taken into account the factors discussed in R v Williams [2016] ACTSC 389 referred to by counsel for the accused. I also note R v Toumo’ua [2017] ACTCA 9 as to identifying features and range and note the identifying features referred to by counsel with respect to all offences.

45. With respect to the theft offence, counsel for the accused submitted that while there is no exact value attributed to the items which were taken, the Court can infer from the list of those items that their monetary value was low. It was submitted that there is no evidence to suggest they had any particular sentimental value. It was accepted that the Australian Government letter was likely to contain the victim’s personal and confidential information. It was submitted that as the letter was recovered there was no risk this information could be used for a nefarious purpose, and that all of the items were returned to the victim. It was submitted that this offence was in the lower end of objective seriousness. I find that offence to be in the lower range.

46. The assessment of objective seriousness and the question of whether or not moral culpability is taken into account in that assessment is a matter not entirely without controversy. The sentencing factor of the offender’s mental condition is relevant to the purposes of punishment, a subjective consideration, and at least before Muldrock v The Queen (2011) 244 CLR 120, a matter relevant to the assessment of the objective seriousness of a crime. See also GN v R [2012] NSWCCA 96 at [12] and Elturk v R [2014] NSWCCA 61; 239 A Crim R 584 at [39]. Muldrock was concerned with the standard non-parole legislation in NSW and has left ‘somewhat opaque’ the meaning of the term ‘objective seriousness’: Zreika v R [2012] NSWCCA 44 at [47]; R v Koloamatangi [2011] NSWCCA 288 at [19]-[21]. Ultimately the question may be somewhat arid as the High Court made it clear in Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian) that in sentencing all relevant considerations are ultimately taken into account in the process of instinctive synthesis.

47. In this jurisdiction in R v Lindsay [2020] ACTCA 25 at [34]-[36] the Court underlined that where an offender’s mental impairment has had a causative influence on offending behaviour, the offender’s moral culpability and therefore the objective seriousness of the offender are moderated:

In Elturk v The Queen [2014] NSWCCA 61; 239 A Crim R 584 (Elturk), the Court of Criminal Appeal (Beazley P, with whom RA Hulme and Schmidt JJ agreed) referred to the discussion of the relevance of mental impairment to sentencing in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (Muldrock), before approving a passage in McLaren v The Queen [2012] NSWCCA 284 at [27]–[29], (McCallum J, McClellan CJ at CL and Bellew J agreeing) to the effect that an assessment of the “moral culpability” of offending could be equated to an assessment of the “objective seriousness” of the offence. In Elturk, the Court affirmed that, if mental impairment has a causative influence on the offending conduct, then that impact should be considered: at [35]. Adopting the approach to causal connection and moral culpability in Muldrock at [54], in Ngata v The Queen [2020] ACTCA 18 at [21], this Court said: In order to find that an offender’s moral culpability is lessened, there must be a real or causal connection between the mental impairment and the offending. It may be made out by evidence which establishes that the offender’s mental impairment affected his ability to appreciate the wrongfulness of his conduct, obscured his intent to commit the offence, impaired his ability to make calm and rational choices or to think clearly at the relevant time. (citations omitted) The import of these decisions is that, generally, where an offender’s mental impairment has had a causative influence on offending behaviour, the offender’s moral culpability and hence the objective seriousness of the offence are moderated. An obvious exception to this general proposition is self-induced mental impairment, e.g. through the voluntary ingestion of drugs. At the same time, mental impairment may inform other matters relevant to fixing an appropriate sentence, such as the offender’s ability to cope with imprisonment and the sentencing purposes that are invoked in the particular sentencing exercise.

48. I have taken into account these principles in the assessment of objective seriousness in this case.

Subjective factors

49. The defence tendered a bundle of documents comprising a character reference of Mr White, a close friend of the accused dated 30 January 2020, two letters from Ms Brown and Mr Penders dated 18 December, both of whom are employees of Foresite, a company which provides education and training services at the Alexander Maconochie Centre (AMC), and a number of certificates indicating that the accused has completed a number of competency programs while in custody. These were submitted to be relevant to the accused’s prospects of rehabilitation and his willingness to engage in programs at the AMC. It was submitted that the accused instructs he intends on using the skills obtained through these courses to re-engage in the workforce and become a contributing member of society.

50. It was submitted that the accused’s background, family, education and employment history have been well documented in both the report of Dr Furst in evidence, and in R v Griffiths [2020] ACTSC 51. It was submitted that Mr White has known the accused for 30 years, and the reference attests to the accused’s character as being honest, reliable, hardworking, and a well-respected member of their community.

51. It was submitted that the accused has a limited criminal history, with the ACT criminal history containing significantly aged offences of a different nature and the NSW history containing a single trespass offence for which he received a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was accepted that the accused does not have an unblemished record, however it was submitted that the entries on these criminal records are of little relevance to the current offences and as such the Court can afford him leniency.

52. Counsel for the accused submitted that it was important to distinguish the two prior incidents detailed in the reports of Dr Furst and Dr Arthur (and referred to in R v Griffiths [2020] ACTSC 51 at [49]-[66] from the accused’s recorded criminal history. It was submitted that both were dealt with through the mental health systems and courts of their respective jurisdictions. Counsel agreed that the Court can have regard to this evidence when considering the sentencing principles, and in particular the need to protect the community.

53. It was submitted that the accused did not challenge any of the prosecution evidence and that no witnesses, including the victim, were required to be called. It was submitted that this both benefits the victim and facilitates the administration of justice.

54. It was submitted on 28 April 2020 that the accused remained in custody in the AMC. His detention was reviewed by the ACAT on 9 April 2020 despite the requirement under s 180(2)(a) of the Crimes Act that this review occur no later than 7 days after the making of an order pursuant to s 342(2)(a) of that Act. It was submitted that ACAT had advised that this delay was due to COVID-19 restrictions. It was submitted that at that review hearing the accused’s treating team made an application that he be detained and transferred to Dhulwa Mental Health Unit, but that there were at that time no beds available at that facility. On 21 April the ACAT dismissed an application by his treating team for a forensic psychiatric order. The accused was transferred from the AMC to Dhulwa on 5 May 2020 following orders which were made by the ACAT on 4 May 2020.

55. With respect to time in custody counsel for the accused submitted that the accused has remained in custody since his arrest on 2 July 2019 with that time in custody wholly attributable to these offences. It was submitted that under s 302(2) of the Crimes Act this time can be taken into account when considering the nominated term. It was submitted that it would be appropriate for the nominated term to commence on 2 July 2019.

56. It was submitted that there should be significant concurrency between the nominated terms by way of s 302(4) of the Crimes Act. It was submitted that all four offences were committed as a course of conduct, on the same day, and formed a single incident. It was submitted that there was an overlap in conduct with respect to the threat to kill offence and the unlawful confinement. Counsel conceded that the nominated periods should not be wholly concurrent so that the separate and distinct offences are appropriately reflected.

57. It was submitted that the weight given to rehabilitation should be equal to that of the protection of the community.

58. Counsel for the accused submitted that the accused plans to live with his de facto partner and their four-year-old daughter upon his release from custody. It was submitted that the accused believes his family to be his biggest protective factor in maintaining his mental health and treatment regimen. Counsel submitted that the accused had instructed that his motivation to comply with his treatment was founded in his desire to be the best possible father and husband he can be and not miss any further parts of his children’s lives by risking relapse. The accused instructed his counsel that his partner is aware of his diagnosis, psychiatric history, and current treatment regime and she will be able to assist him with this as well as monitor him for changes in behaviour and mood. The accused intends to remain in the ACT where he has access to mental health services.

59. Counsel accepted that it is appropriate for the Court to place significant weight on protecting the community when deciding upon an appropriate nominated term given the accused’s psychiatric history. It was submitted that the offences before the Court arose following the accused’s non-compliance with medication and that the protection of the community directly correlates with ensuring that he remains compliant with his treatment. Counsel referred to Ophel and Kelly which noted that the purpose of an order under s 302 of the Crimes Act involves the community protection through the monitoring process conducted by the ACAT. Counsel for the accused submitted that the letter from Ms Cameron which forms Exhibit 10 notes that the accused has been voluntarily compliant with his treatment while in the AMC. He has been accepted into the Detention Exit Community Outreach program upon his release which it was submitted will ensure another layer of community protection by assisting with his engagement with community based mental health treatment teams.

60. The prosecution did not cavil with the submissions of the defence. I accept these submissions as they accord with my view of the facts.

Sentence

61. The Court arrives at a nominated term in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes include punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim and rehabilitation.

62. The dominant purposes in cases which require consideration of a nominated term such as this are the protection of the community, promotion of rehabilitation, and recognition of the harm done to the victim and the community. The protection of the community is a paramount consideration: Kelly at [67]. Rehabilitation considerations are built into the order through ongoing monitoring and oversight by the ACAT: Kelly; R v Steurer [2009] ACTSC 150.

63. In arriving at a nominated term for the accused, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

64. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian.

65. In R v Lockwood [2018] ACTSC 288 at [51]-[54], I noted the following with regard to the offence of burglary:

There is a “significant range of available sentences” for burglary, though they are “generally within the range of imprisonment for from one year to two years and six months”: Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]-[32]; Millard v The Queen [2016] ACTCA 14 at [44]-[45]. Similarly, there is a “significant range of available sentences for [aggravated burglary], depending on the objective seriousness of the offending and the subjective circumstances of the offender”: Rubinho v The Queen [2015] ACTCA 22 at [41]. The maximum penalty for burglary is 14 years imprisonment whereas for aggravated burglary it is 20 years imprisonment: ss 311 and 312 of the Criminal Code. As noted in R v Lindley-Jones [2014] ACTSC 296 at [23] and in R v Seears [2015] ACTSC 109 at [39], the Sentencing Database indicates that, in this jurisdiction, sentences exceeding three to four years’ imprisonment are uncommon for offences of aggravated burglary, despite the maximum available penalty of 20 years’ imprisonment.

66. In respect of unlawful confinement, I referred to the decision of R v Williams [2016] ACTSC 389 where Refshauge ACJ stated the following at [53]:

The offence of unlawful confinement is also a serious one. Nield AJ has outlined in R v Hatzis (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) some of the factors that are relevant to the assessment of the seriousness of this offence. From that decision and others, such as R v Dalton [2014] ACTSC 204, R v Thompson [2015] ACTSC 69, and R v East [2015] ACTSC 54, it seems to me that the matters relevant to that assessment include at least: • The length of the unlawful confinement; • The extent that it was premeditated or planned; • The way in which was effected; • The purpose of it; • The conditions under which the victim was confined, including the behaviour towards the victim, such as the level of restraint, any physical or verbal abuse committed and whether the victim was subjected to degrading behaviour; • The extent of the fear instilled; and • The injuries inflicted.

67. In relation to concurrency, I note the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26] which refers to Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27]:

[W]here offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.

68. I have taken these principles into account in determining a nominated term.

Time in custody

69. As at 22 May 2020 the accused has been in custody since his arrest on 2 July 2019, a period of 326 days. The accused was transferred from the AMC to Dhulwa on 5 May 2020 following orders which were made by the ACAT on 4 May 2020. Nominated term

70. For the purposes of s 302(1) of the Crimes Act, I indicate that if the accused had not been found not guilty of these offences by reason of mental impairment, I would have imposed sentences of imprisonment.

71. With regard to the offence of aggravated burglary (CC2019/7408), I nominate a term of 18 months imprisonment for the purposes of s 302(2) commencing 2 July 2019 and expiring 1 January 2021.

72. With regard to the offence of unlawful confinement (CC2019/7409), I nominate a term of 3 years imprisonment for the purposes of s 302(2) commencing 2 October 2019 and expiring 1 October 2022.

73. With regard to the offence of threat to kill (CC2019/7410), I nominate a term of 2 years years imprisonment for the purposes of s 302(2) commencing 2 July 2021 and expiring 1 July 2023.

74. With regard to the offence of dishonestly appropriate property (CC2019/7411), I nominate a term of 6 months imprisonment for the purposes of s 302(2) commencing 2 July 2019 and expiring 1 January 2020.

75. This equates to an aggregate head sentence of 4 years imprisonment as set out below. Orders

76. In relation to the offence of aggravated burglary (CC2019/7408), I nominate a term of 18 months imprisonment for the purposes of s 302(2) commencing 2 July 2019 and expiring 1 January 2021.

77. In relation to the offence of unlawful confinement (CC2019/7409, I nominate a term of 3 years imprisonment for the purposes of s 302(2) commencing 2 October 2019 and expiring 1 October 2022.

78. In relation to the offence of threat to kill (CC2019/7410), I nominate a term of 2 years imprisonment for the purposes of s 302(2) commencing 2 July 2021 and expiring 1 July 2023.

79. In relation to the offence of dishonestly appropriate property CC2019/7411), I nominate a term of 6 months imprisonment for the purposes of s 302(2) commencing 2 July 2019 and expiring 1 January 2020.

I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson

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