(2013) 249 CLR 571
Cahyadi v Regina [2007] NSWCCA 1
(2016) 259 CLR 256
Source
Original judgment source is linked above.
Catchwords
(2013) 249 CLR 571
Cahyadi v Regina [2007] NSWCCA 1(2016) 259 CLR 256
Judgment (13 paragraphs)
[1]
Solicitors:
Legal Aid (NSW) (for the offender)
Public Prosecutions (NSW) (Crown)
File Number(s): 2020/195504
[2]
Introduction
Richard Anthony Mitchell has spent most of his adult life in gaol. As a result of the matters for sentence today, he will spend longer in gaol. He has a tragic history, to which I will soon refer. It is clear that once he went to gaol for the first time, he was fixed on a trajectory that meant that on his release, rather than learn the lessons meant to be taught by periods of imprisonment, he had been either institutionalised, so far as goal was concerned, or institutionalised by his peers and associates into a criminal lifestyle. A pattern has developed; soon after release he commits crimes and is returned to gaol. He was arrested and returned to gaol. I have sentenced him on a previous occasion.
The matters before the Court date from 2015 and 2016. I have received no real explanation as to why it took until 2020 for him to be charged. The delay may be procedural. It may have to do with matters involving prosecution and defence that I do not need to know about, but the delay has meant that he is approaching the end of two separate accumulated sentences; one imposed by me, and another imposed by Acting Judge Latham. I have had the opportunity of re-reading those sentencing remarks.
It is accepted that so serious are each of the matters before me, that further custody is required. I also accept that once these charges were laid, he has spent considerable time as a remand prisoner unable to be properly classified. This has impeded any rehabilitation measures that could have been offered while he was a sentenced prisoner. But I am prepared to accept he has done some things to try and help himself during this period of custody, to which I will later refer.
He went into custody on 3 March 2015. He was released on 2 October 2015. On 13 November 2015 he was served with a Firearms Prohibition Order. Sometime after his release, he acquired a 0.22 rifle. He then cut off its barrel, acquired ammunition for it, fired it at a tree from a friend's window. He then used that weapon to intimidate one of his partners. After an argument with another partner, he fired that firearm without regard for public safety.
He eventually accepted his guilt in relation to those matters, four of which were placed on an indictment. Another for Enter Enclosed Lands, is on the Form 1, it is associated with Count 3.
Another matter, Possession of Ammunition came to this Court on a s 166 Criminal Procedure Act 1986 (NSW) certificate. In all the circumstances, it is agreed by the parties, that it should be dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) by no further penalty other than a conviction.
The matters for sentence today are:
Count 1: Shortened Firearm (not pistol), Unless Authorised by Permit. Section 61(1)(a) Firearms Act 1996 (NSW), maximum penalty 14 years imprisonment.
Count 2: Acquire Firearm Subject to Firearms Prohibition Order. Section 74(1) Firearms Act 1996, maximum penalty 5 years imprisonment.
Count 3: Use Offensive Weapon with Intent to Commit the Indictable Offence of Intimidation. Section 33B(1)(a) Crimes Act 1900 (NSW) and carries a maximum penalty of 12 years imprisonment.
Count 4: Fire a Firearm without Regard to Public Safety. Section 93G(1)(c) Crimes Act 1900 and carries a maximum penalty 10 years imprisonment. This is a domestic violence related offence.
The guilty pleas came late. It is accepted that for the utilitarian value of the pleas there must be a reduction in each indicated sentence of 10%. I will take care that the process of accumulation does not erode that benefit.
It is also accepted that the sentences must be partially accumulated upon the earlier sentences imposed by myself and Acting Judge Latham.
Mr Fraser, counsel for Mitchell, urges upon me similar findings to which I made on the last occasion. That is, to impose a sentence that does not engender a sense of hopelessness. He asks that I maintain the same ratio between the parole and the non-parole period as that fixed first by Judge Latham and followed by myself on the earlier occasion.
Every sentencing exercise involves an assessment of the seriousness of what was done including consideration of the seriousness of what was done.
[3]
Agreed Facts
There are Agreed Facts before the Court. In short summary:
After his release from gaol in October 2015, the offender acquired a firearm from an associate known to the Court. It was a 0.22 calibre long rifle. He paid $200 for it.
He also obtained ammunition, that is the s 166 matter which I will deal with pursuant to 10A. As will be obvious, the rifle is the feature of each of the other offences.
Count 1 involves the shortening of that firearm by cutting off its barrel with a grinder.
Count 2 involves his possession of that firearm. It had some distinctive features. They were revealed by the offender, when he posted on social media a photograph of him holding that weapon.
The Form 1 matter involves him firing that firearm on a number of occasions. Once from the bedroom window of a suburban house into a tree and another by testing it by firing it through a pillow.
Count 3, was a serious offence involving one of his partners. Between 15 December 2015 and 16 January 2016, he made a request of Ms W. He became angry at her and abused her. He lifted up his shirt and showed her he was carrying a firearm. He then pointed it at her - holding it to her head. He was yelling and swearing at her. His victim said words to the effect of, "Just do it". He pulled the trigger, but it did not fire a bullet.
Count 4, was another serious offence involving one of his partners. In January 2016 he was with another young woman. They argued. Again, during the argument, he pulled out the shortened firearm and pointed it at her threatening her with it. He got a pillow and said, "No one will hear it".
The young woman left and started walking down to the street in the suburb of Fairy Meadow. This was also a serious offence involving one of his partners. As she neared the highway, she heard a gunshot. She turned and saw the offender out the front of the house she had just left. She walked back to him saying, "Please don't do this". He reloaded the firearm. She ran towards the highway. The offender fired again. She ran across the highway and hid in a warehouse.
It was not until July 2020 that police charged the offender.
[4]
Objective seriousness
Each offence involved significant breaches of the Firearms Act. Each of the counts on the indictment occurred after the Firearms Prohibition Order was served. I am not quite sure whether the s 166 matter did. It is not aggravated by that fact.
The Firearms Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was absolutely no justification here for the possession of the firearm or for anything that was done with it. Its possession, in relation to each matter, posed a significant risk to the safety of the community. I note that so far as Count 4 is concerned, that is already an element of the offence. The firearm, as modified, had no lawful use. The policy of Parliament is reflected in the maximum penalties provided, which are one guide to the exercise of my sentencing discretion: R v Krstic [2005] NSWCCA 391 at [14]; R v AZ (2011) 205 A Crim R 222 at [73].
It needs to be made absolutely clear that firearms, if possessed without authorisation and licencing contrary to Firearms Prohibition Orders, if they are used, are liable to be a source of danger or damage or harm to others. Their possession alone, even if not loaded, can create a high risk.
Each of the matters for sentence had objective seriousness of a high degree. Here, so far as Counts 3 and 4 are concerned, both victims were personally targeted by the offender.
It can be assumed that the particular offending was part of a larger picture of domestic violence, each was a demonstration of the offender intending to, and exercising power and control over the victim: R v Burton [2008] NSWCCA 128 at [97]; The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256; (2016) 91 ALJR 131.
Each of Counts 3 and 4 involved an exercise of coercive control by the offender. It from the underlying context that somehow the offender felt that he was the person wronged and that justified him behaving as he did.
Crimes involving firearms in a domestic violence context, are treated with real seriousness because offending in such context is, by any measure, unacceptable behaviour. Proper recognition must be given to the real harm crimes such as this do to their victims and the community in general.
In both cases, both victims could only have felt the real possibility that a bullet might have been coming their way. Even though there is no Victim Impact Statement, I do not underestimate the trauma that might be occasioned to a person placed in that situation by having a gun put to their head or fired in their direction.
Mr Fraser, in his submissions, said so far as Count 3 is concerned, said there was no evidence that the weapon was loaded. I accept that the rifle did not eject a bullet, and on balance his proposition is valid, as it was fired on other occasions including when tested. But the victim was not to know that fact when she was on her knees with the gun at her head.
[5]
Subjective case
I have the benefit of Mr Bembrick's comprehensive report, as I did on the last occasion. I have the benefit of a review by both Crown and the defence in their submissions of the offender's criminal antecedents and gaol history.
I have the benefit of an affidavit provided by Mitchell about his experiences in gaol since he was placed in custody. He was not required for cross-examination and not called to give evidence.
Ms Keay, for the prosecution, submits that I can give it little weight. But the affidavit's contents are relatively uncontroversial. He does not seek to address the objective circumstances of his offending, nor does he express any form of remorse.
The matters in his background, particularly what happened in gaol, seem relatively uncontroversial; if sad.
Ms Keay's principal point is that I would, given the history and given that the statements are untested, be very, very guarded of any expression not tested. In her submission, Mitchell does not intend to change his ways and any expressions of good intentions must be evaluated on the basis that they were untested assertions and in the past he has never been able to meet those good intentions.
I am prepared to accept that while drug free and having spent time thinking about his past and his future, he has the good intentions as expressed in his affidavit. The real test will be when he gets out because he will have the baggage of decades spent in gaol, since he went in in 2004. That baggage includes the fact most of his associates are; anti-social, possibly violent, drug taking, people with little regard for the rights of women. The sort of people I gaol on a regular basis.
That background and those associates will make giving effect to his promises to change very difficult. If he can learn to read, if he can learn to hold down a job, if he can keep his health and keep away from drugs, he might be able to turn his life around.
He has suffered during the pandemic and programs, which would ordinarily be available, have been denied him because of his remand status and the COVID-19 restrictions. These include significant times spent locked down in his cell and the restrictions on available work.
Mitchell has never lived a normal life in the community. It is going to take a lot for him to learn to live a normal life in the community and break the associations he has formed in gaol. I will not give up hope on him but offending while on parole will see him return to gaol for a significant time. Offending on parole may involve a judge saying that community protection can best be achieved by locking him up for as long as possible.
The offender's background is summarised, in both Mr Fraser's submissions in Mr Bembrick's report.
Mitchell is an Aboriginal man. His parents had problems with illicit drugs. He was born heroin dependant. He had behavioural and learning difficulties at school and only recently has had an opportunity to address his deficits in literacy and numeracy.
He was involved with drugs when very young, well before he could make a rational choice about drug use. He has been using heroin since he was 13 and methamphetamine since he was 18. That drug use has become an addition and is clearly associated with many of the crimes that appear on his extensive criminal record.
It is accepted that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 apply. An offender who had the start in life that Mr Mitchell did does not bear equal moral responsibility with one who had what might be termed a 'normal' or 'advantaged' upbringing. It is clear from all the material before me, including his criminal antecedence and gaol record, that his background has left a mark on him and compromised his capacity to mature and learn from experience.
Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his behavioural decisions. It is not unexpected, and it is the experience of the Court that many with that background resort to, and often become addicted to, illicit drugs such as heroin and methamphetamine.
That does not mean that drug use can in any way excuse his behaviour. It does not mean he bears no moral responsibility for his crimes, but his background must be taken into account and his moral culpability, it is accepted, is likely to be less than the culpability of an offender whose formative years have not been marred in the way set out in the material before me: R v Millwood [2012] NSWCCA 2 at [69].
[6]
Remorse
There was a belated acceptance of responsibility, but no remorse.
[7]
Delay
There has been a delay between the offences, his charging, and its ultimate disposition. Delay calls for a measure of understanding and flexibility: R v Todd [1982] 2 NSWLR 517 at 519; endorsed in Mill v The Queen (1988) 166 CLR 59 at [14].
[8]
Institutionalisation
Delay, and other material indicates, that he has been institutionalised and there is a risk that that institutionalisation, if the pattern is not broken, could result in him spending the rest of his life in custody.
If, after he granted parole, he returns to custody, it would be after he has offended against the community again. Every effort should be made to make sure that does not happen. It is in his and in the community's interest that he be supervised for as long as possible on parole and that his release to the community be supported, monitored, and structured. The risk of further institutionalisation, even in the face of entrenched and serious recidivism, does not mean that the effort should not be made. Nor does it preclude a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]; Jinette v R [2012] NSWCCA 217 at [103].
[9]
Structure of the sentence
The aggregate sentence must be a "just and appropriate measure of the total criminality involved": Postiglione v The Queen (1997) 189 CLR 295 at [307]-[308] (McHugh J); Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41. There must be some accumulation. There were separate victims but there was a short period of criminality involving the same weapon. While each offence has its distinctive features, some overlap, and they must not be double counted.
While there are these common features, one sentence could not reflect the criminality of them all: Cahyadi at [27] (Howie J). These sentences also need to be cumulative on, at least in part, existing sentences. I have to take into account those sentences so that the total period in custody adequately and fairly represents the criminality involved in all his offending.
Care needs to be taken. Too severe a sentence could result in a disproportionate level of overall punishment, and that could operate to increase the risk to community safety on release. Such risk can arise because of the danger that Mitchell may become even more institutionalised. There is also a risk that the value of any steps being taken to promote his rehabilitation, might diminish. There is a third risk, that any hope of normal life after the end of imprisonment, not be crushed. However, what is a crushing or what is a proportionate sentence can depend on the perspective of the observer, whether they are the victim, the community, the Appeal Court, or the offender: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [26]-[45] (Basten JA).
[10]
Submissions
Ms Keay, Deputy Senior Crown Prosecutor, and Mr Fraser, Public Defender, who appeared before me in the other matter, have provided written submissions to which they have spoken. They have informed this determination. Both counsel accept the seriousness of the offences. It is accepted that I must exercise a principled discretion when formulating how the sentences are to be accumulated, both within the aggregate sentence, and how they are structured alongside the other sentences being served.
[11]
Synthesis
I am heartened by the material that I have read in the affidavit. It would appear that Mitchell is making some effort. If that effort continues and is appreciated and documented when he comes before the State Parole Authority, he may earn his release, but that decision will obviously be for the State Parole Authority. There will be a lengthy period of parole, but there must be further time in custody as well.
[12]
Orders
In relation to the matter on the s 166 certificate, given the acquiring of the ammunition was fundamental to some of the other matters, I will deal with it pursuant to s 10A Crimes (Sentencing Procedure) Act. It being inexpedient to imposing further penalty.
The matter on the Form 1 will be taken into account when I sentence for Count 3. While of itself, a serious offence in the scheme of things, while it does add to the sentence to be imposed, it would not do so in any significant matter. It is a matter of "clearing the books".
So far as each of the indicated sentences, they reflect a reduction of 10%. I have rounded, as I do not believe the Act requires that I impose sentences fixed in days or minutes.
For Count 1: I indicate a sentence of 11 months.
For Count 2: I indicate a sentence of 1 year and 4 months.
For Count 3: I indicate a sentence of 3 years and 7 months.
For Count 4: I indicate a sentence of 2 years and 8 months.
The Aggregate sentence will be 5 years and 10 months imprisonment. The sentence will commence on 1 August 2022. There will be a non-parole period of 2 years and 2 months. He will be eligible for parole on 30 September 2024. The balance of the sentence of 3 years and 8 months will commence on 1 October 2024 and expire on 31 May 2028.
The effect of my sentence will be to extend the total sentence, which was 9 years, 2 months to just under 11 years. And to extend the period that must be spent in custody by a further 1 year and 2 months.
Mr Mitchell, I have extended your release date by 1 year and 2 months to 30 September 2024 on which date you will be eligible for consideration for release to parole.
[13]
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Decision last updated: 24 July 2024