[2015] ACTSC 264

See [46] to [50], [52] to [54] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - co-offenders to be sentenced for aggravated burglary and assault offences - prosecution failure to provide proper brief of evidence to be given by complainant and third co-offender - late pleas of guilty on basis of different facts accepted after complainant and co-offender had given evidence - plea of guilty sentencing discounts given.

Crimes Act 1900 (ACT), s 24

Crimes (Sentence Administration) Act 2005 (ACT)

Aboriginal Legal Service (NSW/ACT) Ltd (Second Offender)

SCC 192 of 2014; SCC 193 of 2014; SCC 194 of 2014

1. William Jones has pleaded guilty to two counts, one of aggravated burglary and one of assault occasioning actual bodily harm, and AI has pleaded guilty to one count of aiding and abetting aggravated burglary.

2. The offence of aggravated burglary arises under s 312 of the Criminal Code 2002 (ACT) and carries a maximum penalty including imprisonment for 20 years. The aid and abet offence is, by virtue of s 45 of the Criminal Code, also an offence of aggravated burglary and carries the same penalty.

3. The offence of assault occasioning actual bodily harm arises under s 24 of the Crimes Act 1900 (ACT) and carries a maximum penalty including imprisonment for five years.

4. The offences were committed on 10 March 2014. Shortly before 4.00 am, one Alan Trott entered a unit at the Ainslie Village where the occupant of the unit was asleep and his friend, Jayden Mann, was watching TV. Mr Trott had been living in the next unit, and had recently had a falling out (apparently with racist overtones) with the occupant of the unit. Mr Trott's attempt to enter by the door of the unit was foiled by the two men pushing a chest of drawers in front of the door. He then broke the window, climbed into the unit through the broken window carrying a machete, and began to assault Mr Mann.

5. Mr Jones, who is Alan Trott's uncle and who had driven Mr Trott to the Ainslie Village, looked through the broken window and saw Mr Trott assaulting Mr Mann. Believing that the two men were fighting, he climbed through the window and punched Mr Mann several times. AI had followed Mr Jones through the window, but retreated quickly when he realised the gravity of the situation.

6. Mr Jones stopped punching Mr Mann, but Mr Trott did not stop his assault on Mr Mann. Mr Jones and AI pulled Mr Trott off Mr Mann and told him to get out. The three men left the unit through the broken window.

7. The occupant of the unit had called 000 when the assault began. The recorded 000 call includes the sounds of the assault, Mr Mann screaming, and Mr Trott threatening to kill Mr Mann.

8. After leaving the unit, the three men drove away from the Ainslie Village but were quickly stopped by police.

9. Mr Mann suffered a number of injuries including lacerations to the top of his head, his left shoulder and his back, and he was bleeding from his mouth and lips. There were large red welts on his chest, back and neck, and he developed many bruises. All Mr Mann's injuries were caused by Mr Trott, except for some bruising on the left side of his face which resulted from Mr Jones's punches.

10. Mr Jones was initially charged with two offences (aggravated burglary in company and intentionally inflict actual bodily harm) to which he pleaded not guilty in the Magistrates Court. On 26 August 2014 he was committed to the Supreme Court for trial.

11. AI was initially charged with three offences (aggravated burglary in company, possession of an offensive weapon and intentionally inflict actual bodily harm) to which he pleaded not guilty in the Magistrates Court. On 22 August 2014 he was also committed to the Supreme Court for trial.

12. Mr Jones was arrested on the morning of the incident and released on bail the next day (11 March 2014). He was arrested again, in relation to another offence, on 10 August 2014 and remained in custody until 12 March this year, at which point he was sentenced to five months imprisonment which had already been served in pre-sentence custody. He was then granted bail on 20 March 2015, leaving 73 days in custody attributable to the current offences and not set against any other sentence.

13. AI spent roughly nine hours in custody after his arrest on the morning of the incident. He was then released on bail, and has been on bail ever since.

14. The joint trial of Mr Jones and AI began on 9 June 2015 when a jury was empanelled. On 10 June, after Alan Trott and Jayden Mann had given evidence, it was pointed out that their evidence was significantly different from the evidence that had been indicated in the prosecution brief, and it emerged that neither of them had made a police statement and neither of them had been proofed by the prosecutor briefed in the trial. After further discussions between the prosecutor and defence counsel, the matter was resolved by pleas of guilty by each of the accused to charges that were different from those in the indictment and that reflected a different version of the facts from that on which the indictment had been based.

15. The Crown's failure to check whether the evidence likely to be given would support the charges that had originally been laid meant that there had been no earlier opportunity for the offenders to plead guilty to charges that properly reflected the circumstances of the incident. In those circumstances, it seems to me that the offenders' pleas, even coming as they did on the third day of the trial, entitled them to significant plea of guilty discounts. The prosecutor appearing on the sentence noted that the pleas were entered at the first opportunity after negotiations began between the parties.

16. Having regard to the difficulties in sorting out the details of this incident, it is appropriate to record:

(a) that Mr Jones's plea has been entered on the basis that he remained in the unit as a trespasser and punched Mr Mann several times to the left side of his face, causing actual bodily harm;

(b) that the Crown accepts that before entering the unit, Mr Jones had not formed any intention to assault anyone inside the unit; and

(c) that AI entered the unit as a trespasser intending to assist Mr Jones in assaulting Mr Mann but retreated when he realised the seriousness of the situation.

17. As well as the Statement of Facts, the following material was in evidence before me:

(a) a victim impact statement from Mr Mann;

(b) a criminal history for each offender;

(c) a pre-sentence report for each offender (dated 28 July 2015 for AI; 30 July 2015 for Mr Jones);

(d) a report indicating that AI could not be contacted to arrange the preparation of a CADAS report; and

(e) a copy of the sentencing remarks made when Mr Trott was sentenced for his part in this incident;

18. As well, two documents were tendered on behalf of Mr Jones, being a letter from the Northside Community Service and a letter from the current employer of Mr Jones's partner, Lisa McIntyre.

19. As well, oral evidence was given by Mr Jones and Ms McIntyre.

20. In considering the objective seriousness of the offence, I have had regard to the following matters.

21. The incident seems to me to be a moderately serious example of a burglary in company, having regard to the violence done to the complainant. However, I am sentencing both Mr Jones and AI on the basis that neither of them had any intention of being involved in the kind of violence that ensued, and that Mr Jones threw several punches at Mr Mann at the point when he believed that his nephew, Mr Trott, and the other man were engaged in a fight (rather than knowing that Mr Trott was engaged in assaulting the other man), but that apart from this, each man attempted to minimise the effect of Mr Trott's aggression rather than joining in with his actions.

22. Mr Jones gave evidence to the effect that he drove Mr Trott to the Ainslie Village so that Mr Trott could pick up his belongings from the unit where he had been living, and that he had gone with Mr Trott because he knew about Mr Trott's problem with the occupant of the other unit and he, Mr Jones, being Mr Trott's uncle, felt responsible for trying to keep Mr Trott out of trouble.

23. It seems that neither offender was aware of Mr Trott's intentions when they accompanied him to the Ainslie Village, and neither of them went to the Ainslie Village intending to take part in the incident that in fact took place.

24. Mr Jones, in discussion with the pre-sentence report author, accepted responsibility for the offences and identified negative peer associations, and drug and alcohol abuse, as risk factors leading him into poor decision making. He showed insight into his actions and empathy for the victim.

25. AI expressed some empathy towards the victim, although the pre-sentence report author saw his claim that he was intoxicated at the time of the offence as an attempt to minimise his actions and to avoid taking full responsibility.

26. The victim impact statement described the victim having received cuts to his head and all over his body, and having several of his front teeth broken. He said that the assault "felt like torture. I felt like I had gone to hell and back. During the incident I felt pain all over my body, my head, my legs, my ribs, everywhere". The victim noted that he has been left with scars all over his body, including his left collar bone, his right thigh, his left shin and the back of his head. He said that for about two weeks after the assault he had sore ribs and needed a lot of help from his then partner, including needing to be driven around.

27. The offences for which I am sentencing Mr Jones and AI, as distinct from the burglary as such, are in the overall scheme of aggravated burglaries towards the lower end of seriousness, noting particularly that both men apparently found themselves unwillingly and unintentionally caught up in a much more violent incident than they had expected.

28. I have also had regard in this sentencing to the subjective circumstances of the two offenders.

29. Mr Jones, who is 32, comes from Perth, where he grew up one of ten children in a family afflicted by violence and substance abuse. His father spent much of Mr Jones's childhood in prison and eventually his parents' marriage broke up.

30. Mr Jones has been in a partnership for 14 years and has four children with his partner. Although Mr Jones was convicted of domestic violence in 2014 and spent some months in prison, he said that his term of imprisonment had given him a chance to think about what was important to him and, in particular, to think about his responsibility for his children.

31. Mr Jones and his partner described their current relationship as positive. Those claims were supported by the social worker from Northside Community Service who noted in her letter that Mr Jones has made positive changes in his personal and family life and appeared to show a capacity to support that progress with appropriate support. The social worker said in her letter:

Lisa [McIntyre] has acquired a full-time job working with Uniting Care Ageing - Mirijani Nursing Home in Weston from 7am - 3pm, Monday - Friday. William is taking Lisa to work, returning home and preparing the children for school. He is making lunches, attending school meetings and assisting the school to create a Reconciliation Action Plan for positive outcomes for Indigenous and non-Indigenous relations. William is collecting Lisa from work each afternoon and taking on the domestic duties required in the home.

William has had a turbulent experience with the criminal justice system. His seven months recently spent in AMC has had a profound effect on William. He has realised his potential and choices available to him. William's desire to correct his past ways for his children and his long term partner are evident.

I have personally witnessed a change in William and his attitude, parental role and his relationship with Lisa. William has identified he would like to break the cycle of intergenerational trauma he has witnessed in his own upbringing and within his own family unit. I believe William has changed, I have had extensive conversations with Lisa who reports William has truly changed and grown.

32. Mr Jones left school in Year 9. He has had intermittent employment as a labourer in the construction industry, but since being released from the AMC in March this year he has, as noted in the Northside Community Service letter, taken over the main caring role for his four children while his partner works in an aged care home. He hopes to find employment again in due course, recognising that it may be difficult to find a job that will enable him to continue with his role as the primary carer of the household.

33. Mr Jones has a long history of abusing alcohol, starting when he was 18 and involving significant binge drinking as a young man. By the time he was remanded in custody in August 2014, he had reduced his alcohol consumption to 18 standard drinks per week, and claims not to have abused alcohol or illicit drugs since his release from the AMC in March this year. Mr Jones has told both the pre-sentence report author, and the court in oral evidence, that he has got his substance abuse under control. That information was confirmed by Ms McIntyre, but has not been otherwise verified.

34. Mr Jones has a long criminal history in Western Australia, consisting mostly of alcohol-related and other traffic offences, the most recent offences dating back to 2010. In the ACT his only conviction is for the 2014 domestic violence offence already mentioned.

35. AI is 19. He was born and raised in Canberra. He lives with his mother and five siblings but has no contact with his father.

36. He completed Year 10 during a period in custody and has begun an IT course. He has worked as a cleaner for some months but has recently been receiving Centrelink benefits.

37. AI has a significant criminal history as a juvenile involving driving offences, several offences of taking or driving motor vehicles without consent, two aggravated burglaries and a theft, three offences of possessing an offensive weapon and five common assaults, an assault occasioning actual bodily harm and an intentional threat to kill all committed on the same day in 2010 when he was 15.

38. AI began using alcohol at the age of 13 and his drinking was problematic by the time he was 15. His current pattern of alcohol consumption is assessed as high risk, and the pre-sentence report author believes that he is almost certainly alcohol dependent and requires significant treatment if he is to eliminate this dependency. He does not, however, use illicit drugs. As noted, AI claims to have been intoxicated at the time of the incident. He is assessed as having a medium risk of re-offending.

39. Nothing was put before me to indicate that AI has yet realised the dangers of his alcohol abuse and the need to do something about it.

40. Mr Jones and AI are, as already indicated, charged with slightly different offences in relation to this incident. Neither of them appears to have been the instigator of the burglary or the attack on the victim, but Mr Jones did seem to have a slightly greater awareness than AI of the likelihood that the trip to Ainslie Village would end badly.

41. Mr Trott had pleaded guilty in the Magistrates Court on 6 May 2015 and he was sentenced in the Supreme Court on 4 June this year for offences of aggravated burglary and recklessly inflict actual bodily harm.

42. For those offences, he was sentenced to 25 months imprisonment for the aggravated burglary, and 14 months imprisonment for the recklessly inflict actual bodily harm offence, the second sentence accumulated as to six months, giving a total sentence of 31 months imprisonment. A non-parole period of 16 months was set.

43. Mr Trott, who also came from Western Australia, has a significant criminal history in Western Australia including offences of violence and offences involving the use of weapons. Mr Trott is 26 years old and comes from an apparently stable family of six children. Mr Trott, however, began using cannabis at the age of 11 and Ice in his late teens, apparently suffering a drug-induced psychosis at the age of 16. Mr Trott conceded that he had a problem with anger management.

44. Burns J accepted in sentencing Mr Trott that he was under the influence of illicit drugs at the time of the incident, and that he had been assaulted and racially vilified by the victim, Mr Mann, on the day before the offence, but noted that these matters did not mitigate the offences. His Honour noted that Mr Trott's fairly early pleas of guilty were indicative of remorse and possessed utilitarian value, and reduced his sentences by 20% in recognition of those pleas. The sentences were also reduced by a further 25% in recognition of Mr Trott's agreement to give evidence against his co-offenders, Mr Jones and AI.

46. First, Mr Jones, I record convictions on the charges of aggravated burglary and the assault occasioning actual bodily harm.

47. I now sentence you, for the aggravated burglary, to 18 months imprisonment reduced from 24 months, and for the assault, to nine months reduced from 12 months, accumulated so as to add two months to the first sentence and giving a total sentence of 20 months.

48. That sentence is backdated by four months, to 12 April this year, to recognise both the 73 days you have so far spent in custody that has not been set against any other sentence, and also another roughly six weeks in recognition of the sentence you served last year. This is because it seems to me there might have been some concurrency with last year's sentence if this matter had been handled in such a way that the pleas of guilty could have been entered earlier.

49. If the sentence were to be served in full-time custody, it would therefore expire on 11 December 2016. Instead, however, the sentence will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months.

50. The good behaviour order is subject to the conditions:

(a) that for such a period not exceeding 18 months as Corrective Services considers necessary, you accept the supervision of Corrective Services and obey all reasonable directions of the Director-General or her delegate;

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and

(c) that either today or tomorrow, but no later, you attend Corrective Services at Eclipse House to arrange your supervision.

51. I note in relation to these good behaviour order conditions that Corrective Services might decide that the continued engagement with social workers from the Northside Community Service by Mr Jones and his family is an appropriate alternative to ongoing Corrective Services supervision. However, I would be concerned if Mr Jones and his family were to fall between the cracks as far as supervision and support is concerned in the next 12 or 18 months.

52. AI, I record a conviction on the charge of aiding and abetting aggravated burglary.

53. I now sentence you to 10 months imprisonment reduced from 14 months for your plea of guilty. If the sentence were to be served in full-time custody, it would therefore expire on 11 June 2016. Instead, however, your sentence will also be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act for 12 months.

54. Your good behaviour order is subject to the conditions:

(a) that for such period not exceeding 12 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate;

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer including, but not limited to, programs related to alcohol abuse; and

(c) that either today or tomorrow, but no later than the end of tomorrow, you attend Corrective Services at Eclipse House to arrange your supervision.

55. Each of you will be given a written copy of the good behaviour order, and it will be read to you by the court officials. In short, it means that for the period of the order, so that is 18 months for you, Mr Jones, 12 months for you, AI, you need to keep out of trouble, keep in contact with Corrective Services and generally cooperate with them. If you commit another offence while the good behaviour order is running, or if you otherwise breach your good behaviour undertaking, you may find yourself back before this court to be re-sentenced for these offences, and, depending on exactly how you breached the undertaking, you could well find yourself serving some or all of the remaining part of your sentence in full-time custody and that is, of course, 16 months for you, Mr Jones, and 10 months for you, AI.

56. So I encourage both of you to make a really serious attempt to keep out of trouble for the term of your good behaviour order, because otherwise you could be back in custody for quite some time. Mr Jones, you know very well what that is like because you only got out of the AMC about five months ago, and, AI, as far as I can make out you have not been in adult custody before, and I think you would find the AMC quite a nasty shock compared with Bimberi.

57. If either of you have any questions about the orders that I have made, please ask the court officials or your lawyers, who I am sure will be happy to explain things to you.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.