CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated burglary - common assault - parity - guarded prospects of rehabilitation - significant criminal history

Crimes Act 1900 (ACT) ss 21, 26

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33

Supreme Court Act 1933 (ACT) ss 68D, 68E

Beale v R [2015] NSWCCA 120

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cheung v The Queen [2001] HCA 67; 209 CLR 1

Filippou v The Queen [2015] HCA 29; 256 CLR 47

Fusimalohi v The Queen [2012] ACTCA 49

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462

Heard v The Qukeen [2015] ACTCA 6

Hili v the Queen [2010] HCA 45; 242 CLR 520

Leach v The Queen [2007] HCA 3; 230 CLR 1

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Millard v The Queen [2016] ACTCA 14

Nguyen v The Queen [2016] HCA 17; 256 CLR 656

Pavicevic v The Queen [2010] ACTCA 25

R v Greentree [2017] ACTSC 274

R v Greentree (No 2) [2017] ACTSC 315

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Isaacs (1997) 41 NSWLR 374

R v JW [2010] NSWCCA 49; 77 NSWLR 7

R v Lindley-Jones [2014] ACTSC 296

R v Martin [2017] VSCA 291; 20 VR 14

R v Minnis [2014] ACTSC 268

R v Olbrich [1999] HCA 54; 199 CLR 270

R v Pham [2015] HCA 39; 256 CLR 550

R v Seears [2015] ACTSC 109

Rubinho v The Queen [2015] ACTCA 22

Thompson v The Queen [2018] ACTCA 2

1. On 28 January 2017, Steven Dean Lockwood (the offender) was found guilty by a jury of an offence of aggravated burglary by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code) per s 312 of the Criminal Code. The jury could not reach a verdict on the second count of the indictment, which was an offence of wounding pursuant to s 21 of the Crimes Act 1900 (ACT).

2. The maximum penalty for this offence is imprisonment for 20 years, a fine, or both.

3. Also before me is a matter transferred from the Magistrates Court, being an offence of common assault contrary to s 26 of the Crimes Act 1900 (ACT).

4. The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 (Cheung) endorsed the NSW Court of Criminal Appeal's approach in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) in relation to the Court's role in sentencing and interpreting a jury's verdict of guilty following a trial. The Court in Cheung at [14] quoted the summarised principles from Isaacs (at pages 377-378) as follows:

1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...

2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ...

3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ...

5. To give effect to these principles, it is first necessary to summarise the evidence given by the complainant in the matter.

6. The complainant met the co-offender Mr Jeremy Dash-Greentree in 2013 or 2014, when they were in prison together. Once Mr Dash-Greentree had moved yards within the prison, the complainant did not see Mr Dash again until three to four weeks before the offence currently before me, when the complainant saw Mr Dash-Greentree at Ainslie.

7. The complainant had seen Mr Dash-Greentree with a lot of luggage, and pulled over to the bus stop to give him a lift. The complainant drove Mr Dash-Greentree back to the complainant's residence, where they had a "beer and a bong". Mr Dash-Greentree left after approximately half an hour. The complainant gave evidence that Mr Dash-Greentree had not been to the complainant's residence prior to this. The complainant gave evidence that he supplied cones of cannabis to smoke on this occasion.

8. The next occasion that the complainant saw Mr Dash-Greentree was on 28 January 2017, the date of the offences before me. The complainant was playing Call of Duty on his PlayStation in his residence from about 2:00 or 3:00 pm in the afternoon, and had consumed about eight to ten "cones" of cannabis. By night time, sometime between 10:00pm and 12:00am, the complainant heard a knock at the door. The complainant recognised Mr Dash-Greentree at the door, and welcomed him into his residence. The complainant turned around briefly to check on his PlayStation, and was then punched in the face by Mr Dash-Greentree. The complainant was knocked to the ground. The complainant then saw three other men enter the house. One of the men the complainant described was "tall with a shaved head, tattoos, leathery appearance, in shorts and a singlet". The tattoos were on his "legs, arms and neck". This man was at a later time identified by the complainant as the offender, but was unknown to him at the time of the incident. The complainant did not know any of the men other than Mr Dash-Greentree.

9. The complainant gave evidence that a struggle ensued. The complainant gave evidence that he was being punched and kicked. He was then hit in the face with a golf club by Mr Dash-Greentree. Mr Dash-Greentree and the offender then made threats accompanied by demands for money and property of value. The complainant was subsequently stabbed under the left collarbone using half of a pair of scissors. The complainant was then lifted onto the couch, where he was tied up. Other men were searching the house at this point. The men took the complainant's mobile phone, an electronic face shaver, between approximately a quarter and half an ounce of cannabis, and a small amount of cash. The complainant gave evidence that the men where in his residence for about 15 to 30 minutes.

10. After the men left the residence, the complainant took approximately 5 minutes to untie himself. Using his PlayStation, he asked another online player to call an ambulance for him. Shortly after, the police attended with an ambulance, and the complainant was escorted to hospital.

11. Some months later, the complainant received a call from Constable Szabo about forensic evidence being located in the house. Constable Szabo informed the complainant that the offender's fingerprints had been located in his residence. The complainant then looked up the offender on Facebook to see if he could recognise the person to assist with the investigation. The complainant gave evidence that after looking through about four or five people's profiles on Facebook, he came across the offender's profile and "recognised him straight away".

12. In cross examination, the following additional matters emerged:

(a) At some point during the incident, after being punched by Mr Dash-Greentree but before being stabbed, the complainant lost his glasses;

(b) The complainants recollection of the events and description of the men to the attending police officer's at the scene of the incident and whilst in hospital was clouded by the incident itself, the complainant's injuries, shock and morphine administered at the hospital, which resulted in differing versions of the events in question;

(c) The complainant had tried to grab a pair of black kitchen scissors during the incident, and one of the men either stepped on the complainants hand, or the complainant was jumped on, or he was hit by a golf club; and

(d) The complainant initially told police officers that Mr Greentree-Dash had stabbed him. The complainant gave evidence in relation to this apparent inconsistency that he had said that Mr Greentree-Dash had stabbed him because he was the only one that he had recognised;

13. A charge of common assault pertaining to information CC2017/4974 is also before me. Sections 68D and 68E of the Supreme Court Act 1933 (ACT) provides for backup and related offences.

14. Relevantly, s 68D(2) provides as follows:

(2) The court must deal with any back-up or related offence with which the accused person has been charged if the court considers that it is in the interests of justice.

15. In my view, it is not in the interests of justice for the Court to deal with this matter and accordingly I dismiss the information. I have formed the view that it is not in the interests of justice to deal with this charge for the reason that the facts in relation to this transferred charge, being the assault that occurred on entry to the complainant's unit, form part of the facts in relation to the charge for which I now sentence the offender. Any separate sentence I might have imposed would in any event be concurrent: see for example R v Greentree (No 2) (2017) ACTSC 315 at [24].

16. In these circumstance any further consideration is inevitably otiose and not in the interests of justice.

17. In sentencing the co-offender in R v Greentree (No 2) (2017) ACTSC 315, Elkaim J made the following remarks in relation to objective seriousness at [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.

18. I endorse these remarks both with respect to the seriousness of the offence and with respect to harm to the victim.

19. Counsel for the offender submitted that because the statutory aggravation of being in company is an element of the offence, it cannot be considered an aggravating factor, and it was submitted that the aggravating factor that the complainant was at home was present. The prosecution did not cavil with these propositions. Counsel for the offender further submitted that evidence at trial about the stabbing of the complainant was not relevant to sentence as it concerned a separate count on the original indictment for which no verdict was entered. Overall, he submitted that the offence should be considered as being below the middle range of offending for the type of offence.

20. The prosecution referred to the well-known factors relevant to objective seriousness outlined in R v Ponfield [1999] NSWCCA 43; 48 NSWLR 327, and relevant ACT authorities: see R v Hutchison [2014] ACTCA 29 at [38]; Barrett v The Queen [2016] ACTCA 38 at [16]- [17]; Simonds v The Queen [2013] ACTCA 13 at [54]. The prosecution also referred to the matter of R v Kilic [2016] HCA 48; 259 CLR 256.

21. The prosecution made submissions in relation to moral culpability by reference to the case of Beale v R [2015] NSWCCA 120 (Beale).

22. The Court in Beale stated the following at [59].

Where the evidence does not permit a differentiation between the role of the participants in a joint criminal enterprise then an analysis of their "moral culpability" separate to their criminal responsibility cannot be undertaken. In such a case, the Court cannot sentence the offender on the basis that he did or did not perform some particular act of the participants in the joint criminal enterprise. In terms of the approach to fact finding enunciated in Olbrich at [25] to [27], the Crown has not discharged its onus of proving beyond reasonable doubt that the particular offender performed some heinous act and thereby had a greater level of moral culpability than the other participants. Equally the offender has not demonstrated, on the balance of probabilities, that he did not perform some particular act and that he thereby had any lesser level of moral culpability than the other participants. Instead the offender is sentenced on the basis of the principle stated in the emphasised passage from Wright set out above, namely that he bears criminal responsibility for "the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise" even though it is not known whether he personally performed those acts.

[Emphasis original]

23. On the basis of Beale, the prosecution urged upon me that in assessing the objective seriousness of the offence in relation to the offender, I should take into account the wounding. Importantly, as referred to above, there was a hung jury and therefore no verdict with respect to the charge of wounding. There was undoubtedly a wounding. The jury, however, could not agree beyond a reasonable doubt that the offender stabbed the victim, and there was therefore no verdict on the wounding charge.

24. On the facts of this case, it is not appropriate for me to take into account the wounding in assessing objective seriousness. Whether or not the wounding was part of the joint commission of the burglary is an aggravating matter on sentence. It is abundantly clear on the authorities that this is a matter that I should be satisfied of beyond a reasonable doubt: see R v Olbrich [1999] HCA 54; 199 CLR 270; Leach v The Queen [2007] HCA 3; 230 CLR 1; Filippou v The Queen [2015] HCA 29; 256 CLR 47. Having heard all the evidence in this trial I am not so satisfied.

25. I find the facts as set out above in relation to the complainant's evidence. I do not take into account the wounding in assessing the objective seriousness for the offence for the reasons also set out above. I find the objective seriousness of the offence to be broadly mid-range for this type of offending.

26. A Pre-Sentence Report (PSR) was prepared for the sentence hearing. The offender is now in his 50's. He was born in South Australia, and is of Aboriginal descent through his father. He reported minimal connections with culturally specific communities during the majority of his life, and expressed an interest in connecting with his heritage through Winnunga Health Services (Winnunga) while in the Alexander Maconochie Centre (AMC).

27. The offender described to the author of the PSR a traumatic childhood marred by family violence, and he left the family home at 12 years old to reside with an older sibling. Following the separation of his parents, he returned to live with his father and step mother in New Zealand for a period of four years, which he reported as a positive experience. The offender returned to Australia in 1983 and his relationship with his parents deteriorated to the extent that there has been no contact with his parents for over ten years.

28. The offender reported two significant intimate relationships. He met his first partner at the age of 20 years and formed an 11 year relationship, and had two children, both of whom are now adults and reside with their mother. The offender is currently in his second relationship, which he described as being very supportive, but that he finds it difficult to communicate his concerns and emotions, which he attributed to his poor communication skills.

29. Prior to his incarceration in the AMC, the offender resided with his partner and her daughter.

30. Prior to his incarceration, the offender noted his employment history had been irregular for a number of years, predominantly due to drug and relationship issues. The offender has expressed his desire to return to bricklaying when he is released from the AMC.

31. The offender noted a heroin addiction between the ages of 17 and 18 years, and he recommenced heroin use again at the age of 47. Regarding his current drug use, he claimed abstinence since his incarceration and prior to this he smoked a gram of heroin a day and a quarter ounce of cannabis every second day. The offender stated he had also used methamphetamine on an irregular basis for a short period prior to the current period of custody. In custody his urinalysis has been negative for drugs.

32. A letter from ACT Health, dated 24 September 2017 and available to the author of the PSR reported that the offender exhibited no evidence of a major mental illness.

33. In summary, the offender is a 53 year old Aboriginal man who has an extensive criminal history and poor compliance with community orders. He has limited connections with pro-social supports and is culturally disconnected. The author of the PSR notes that the offender appears to blame the offending history on his childhood and other life experiences, and took no responsibility for his own behaviour.

34. The PSR also notes that service records identified the offender as having frequent behavioural issues identified as verbal abuse and threats of violence towards staff and other detainees. The author notes that he remains a significant risk to the community.

35. The offender has, however, undertaken counselling with a psychologist from Winnunga in relation to a post release plan, which I discuss below. The purpose of these sessions is to prepare and assist individuals who have been in custody for a prolonged time with skills to integrate into the community.

36. The offender disagreed with the Statement of Facts. The offender maintains that he was not a participant in the offence and was not present when it occurred. The offender informed the author of the PSR that he had known the victim from purchasing illicit substances from him previously. The offender provided an alternative explanation to the author of the PSR for the presence of his fingerprints in the apartment. Remorse is therefore not in evidence before me.

37. I have before me a letter from Ms Thabile Twala, a registered psychologist with Winnunga, referred to above. Ms Twala was called to give evidence on 24 August 2018. In cross examination, it was stated by Ms Twala that she was not aware of the nature of the offence being dealt with by this Court or the offender's custodial record. She emphasised her role as a psychologist in counselling toward a post release plan for parole.

38. I also have before me a letter from the Deputy Acting Chief Executive Officer of Benelong's Haven Ltd, an Aboriginal Family Residential Drug and Alcohol Rehabilitation Centre, stating that Mr Lockwood has been conditionally accepted into a program.

39. The offender has a significant criminal history, which is documented at Exhibit 2. This includes one failure to appear in 2017, one failure to appear in 2016, two common assaults in 2015, one assault occasioning actual bodily harm in 2015, two contraventions of protection orders in 2015, and various interstate offences.

40. The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:

...just as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301-2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]-[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).

41. The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [32].

42. In evidence before me, I have the Pre-Sentence Report of Mr Dash-Greentree, a confidential psychiatry report for Mr Dash-Greentree, and two judgments of this court in relation to Mr Dash-Greentree, being R v Greentree [2017] ACTSC 274 and R v Greentree (No 2) [2017] ACTSC 315.

43. R v Greentree [2017] ACTSC 274 concerned a disputed facts hearing regarding Mr Dash-Greentree's involvement in the same incident for which Mr Lockwood is presently before me for sentencing. In R v Greentree (No 2) [2017] ACTSC 315, Elkaim J sentenced Mr Dash-Greentree in relation to these offences. Mr Dash-Greentree pleaded guilty to the offences of aggravated burglary and common assault. Elkaim J noted Mr Dash-Greentree's significant criminal history and significant mental health problems, including a history of psychotic episodes for which he is now taking antipsychotic medication. Elkaim J sentenced Mr Dash-Greentree to two years and nine months for the offence of aggravated burglary, and nine months for the offence of common assault, to be served wholly concurrently, as referred to above, with a non-parole period of two years.

44. The prosecution and the offender made submissions in relation to parity. In accordance with the principles of parity, I take into account the sentence of Mr Dash-Greentree, the matters referred to above, and in particular the fact that he received a 10% discount on sentence on account of his plea of guilty, and that Mr Dash-Grentree's sentence took into account the wounding.

45. The offender went into custody on 13 May 2017 in relation to other offences, and the offender was charged for this offence on 14 May 2017. A non-parole period for the other offences expired on 12 April 2018.

46. Counsel for the offender submitted that all time spent by the offender in custody since 14 May 2017 has been referable to this offence. The prosecution submitted that no time spent by the offender in custody is referrable to this offence. As a compromise, the prosecution submitted that any time spent since the expiry of the non-parole period on 12 April 2018 has been referable to this offence.

47. I pay due regard to the principle of totality as discussed in Mill v The Queen [1988] HCA 7; 166 CLR 59 at [62]- [63], and the recent observations in the case of Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [61]- [65], in the process of both structuring the sentence and then reviewing the overall result to determine whether that adequately reflects the totality of criminality involved in relation to the pre-existing sentences and the current sentence. I also pay regard to s 63 of the Crimes (Sentencing) Act 2005 (ACT) in relation to the start of sentences and backdating sentences. I also take into account the age of the offender in his 50's, and the consequent need in the circumstances of this case to avoid the risk of institutionalisation.

48. In my view, taking into account these considerations, I propose to backdate the sentence to commence on 12 October 2017.

49. Counsel for the offender provided me with sentencing statistics for the offence of aggravated burglary. Counsel for the offender submitted that the range for terms of imprisonment is "from six months to...54 months", and that most fall within the range of "18 months to 42 months" of imprisonment.

50. It must be said and it is well recognised that bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili).

51. 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].

52. 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].

53. 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.

54. 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.

55. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.

56. The court sentences 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 of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration. Prospects of rehabilitation may only be described as guarded in respect of this offender. Nevertheless, a post release plan has been developed by the offender with a psychologist from Winnunga as discussed above.

57. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full time imprisonment is not appropriate.

58. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

59. As stated in R v Minnis [2014] ACTSC 268 at [20], home invasions are abhorred by the community and it is important to send a strong message in relation to the unacceptability of such conduct.

60. I note that in Pavicevic v The Queen [2010] ACTCA 25 at [9], it was underlined that "as far as the objective seriousness of the offence is concerned, there are limits to the amount of differentiation that may be allowed amongst co-offenders to a joint criminal enterprise (citing R v JW [2010] NSWCCA 49; 77 NSWLR 7)". I take this into account in respect of the facts, other than in relation to the wounding which I have not taken into account.

61. Childhood disadvantage does not "diminish with the passage of time and repeat offending" but does not have the same "(mitigatory) relevance for all purposes of punishment": Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].

62. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]- [203], [273] and [347]; R v Martin [2017] VSCA 291; 20 VR 14 at [19]- [30].

63. It must be recognised by the Court that the aggravated burglary has had a significant impact upon the victim. Both the short and long-term consequences of being the victim of such a crime must be acknowledged. It must also be recognised that no sentence that the court imposes will rectify the consequences of what has occurred to the victim in the commission of the offence by the offender.

64. Both parties accept that the offender must receive a sentence of imprisonment to be served by way of fulltime imprisonment.

65. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence, subjective matters, parity considerations and totality.

(a) In respect of the offence of aggravated burglary (CC2017/4973), the offender is sentenced to a term of 2 years and 9 months of imprisonment, commencing on 12 October 2017 and ending on 11 July 2020.

(b) I set a non-parole period of 2 years, commencing 12 October 2017 and ending on 11 October 2019.

(c) I dismiss information number CC2017/4974.

I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.