R v Musolino [2018] ACTSC 3

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aid and abet unlawful confinement - aid and abet assault occasioning actual bodily harm - assault occasioning actual bodily harm - guilty pleas - young offender

Hawkins v The Queen (1993) 67 A Crim R 64

Office of the ACT Director of Public Prosecutions (Crown)

1. On 13 October 2017 the offender pleaded guilty to the following offences:

(a) aid and abet unlawful confinement (CC 2017/7358), contrary to s 34 of the Crimes Act 1900 (ACT);

(b) aid and abet unlawful confinement (CC 2017/7359), contrary to s 34 of the Crimes Act 1900 (ACT);

(c) aid and abet assault occasioning actual bodily harm (CC 2017/7360), contrary to s 24 of the Crimes Act 1900 (ACT); and

(d) assault occasioning actual bodily harm (CC 2017/7361), contrary to s 24 of the Crimes Act 1900 (ACT).

2. The maximum punishment for the unlawful confinement charges is 10 years' imprisonment. The maximum punishment for the assault charges is five years' imprisonment.

3. The offender was born in 1998. He is now 19 years of age. While on remand, the offender was sentenced to a custodial term for an assault charge. The offender's behaviour while in custody has been poor, as shown in Exhibit F.

4. The offender has spent 93 days in custody in respect of the current offences. Accordingly, his sentences will be backdated to 28 October 2017.

5. The offender has three brothers. His parents separated when he was four years of age, after which he lived with his mother. Initially, he did not get on with his stepfather. He does get along with and is supported by his mother and brothers.

6. The offender did not complete Year 10. Instead, he commenced employment in the construction industry. He worked at his stepfather's rendering business and remained in that employment until he entered custody. Notwithstanding his account of his poor relationship with his stepfather, it appears that this source of employment is still open to him.

7. The offender started drinking heavily when he was 18 years old. He has also used illegal drugs. He has been described as having insight into his criminal behaviour. Other than the assault charge and these offences, he has no criminal record. According to the author of the pre-sentence report, he is of medium to low risk of general reoffending, mostly because of his substance use and the company he keeps.

8. The background to the offences is a little difficult to follow. It seems that, on 8 April 2017, the offender and two other men attended a party at a private residence. In the early hours of 9 April 2017, a dispute arose concerning some missing cash.

9. The offender and some co-offenders visited the home of the victim, who they thought had taken the property. They instructed him to sit in a vehicle and drive them to a house. The victim was detained in the house. He was strapped to a chair and interrogated about the missing property. He was punched a number of times by the gang of miscreants.

10. On 10 April 2017, another victim was treated in a similar way by the offender and his co-offenders. The treatment of this victim was perhaps more frightening and serious than that of the first victim. This offender took a greater part in the assaults upon the second victim.

11. The offences are described in detail in the Statement of Facts (Ex A).

12. The photographs tendered by the Crown illustrate the effect of the assault on one of the victims, Mr Piesley. There is also a victim impact statement from the other victim, Mr Fisher, and his father. The effect of the offences on Mr Fisher are very serious and extend to mental harm. He has been suicidal and will live with his experience probably for the rest of his life.

13. I think these offences are objectively serious. They involve confinement, extreme violence, use of weapons and other implements, like pliers, all of which would have contributed to the terror inflicted upon the victims.

14. Sentencing is an evaluative and considered process. The Crimes (Sentencing) Act 2005 (ACT) sets out a number of factors which must be taken into account. The principles of sentencing and its objectives are explained. Section 10 provides that imprisonment must be a last resort.

15. When sentencing a young offender, especially one without a record, a sentence of imprisonment should be avoided wherever possible. However, some crimes are so severe that they demand a term of imprisonment. It is relevant that the offender has already spent some time in prison in respect of these offences.

16. Learned counsel for the offender provided very useful written submissions. Their intent was to persuade me that an Intensive Corrections Order ('ICO') was the appropriate path to take. I disagree. In my view, for reasons expressed in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT), it would not be appropriate to impose an ICO.

17. I am very mindful that the offender is a young man with most of his life ahead of him. His prospects of rehabilitation are a very important consideration in sentencing. However, as stated by the New South Wales Court of Criminal Appeal in Hawkins v The Queen (1993) 67 A Crim R 64, where a young man:

conducts himself violently in the way an adult might conduct himself, and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remain significant considerations in sentencing that youth.

18. I have also had regard to the references written on behalf of the offender. The reference from his mother is particularly important. She describes the family background and the problems that she has experienced in bringing up her children. Perhaps her intentions were noble but she has not helped either herself or her son by being complicit in his use of marijuana. She does not wish to be separated from her son and emphasises the remorse that he has expressed. These are all important factors but they do not overcome the level of violence and the nature of the criminal conduct that her son was involved in. He must be punished by the continuation of a custodial sentence.

19. There are also references from the offender's former stepfather and from a family friend. These references highlight the tragedy that has befallen the offender's mother. The effect on the offender's family is a natural consequence of his criminal conduct. It can be taken into account in sentencing but only to a limited extent. Almost every person that commits an offence harms others who are close to him or her.

20. It was also submitted that I should take into account that, if the offender remains in prison, it will be counterproductive to his rehabilitation because, as his conduct in prison so far has shown, he will become involved in more violence. The other side of the coin is, of course, that if he is violent in prison he is just as likely to be violent outside prison, where there are no safeguards. The other offence for which he was sentenced by the magistrate also involves violent conduct. It must be brought home to this offender, and all potential offenders, that violence is a completely unacceptable means of achieving a goal.

21. Sometimes a person who takes the law into his own hands can be, to a degree, understood if there is at least an element of ethical justice in his actions. That is not, however, the case where the property that is at the core of the vigilante action is itself probably derived from illegal activity. The facts in this case describe a bunch of thugs confining and beating people up for absolutely no good reason.

22. The offender is entitled to a discount for his pleas of guilty which I have allowed in the order of approximately 20%.

23. As far as accumulation and concurrency is concerned, I agree with the Crown's submission that the offences in respect of each victim may be treated concurrently but there should be a degree of accumulation as between the two sets of offences.

(a) In respect of the offence of aid and abet the unlawful confinement of Mr Piesley (CC 17/7358), the offender is sentenced to 9 months' imprisonment commencing on 28 October 2017 and ending on 27 July 2018.

(b) In respect of the offence of aid and abet the unlawful confinement of Mr Fisher (CC 17/7359), the offender is sentenced to 15 months' imprisonment commencing on 28 April 2018 and ending on 27 July 2019.

(c) In respect of the offence of aid and abet assault occasioning actual bodily harm on Mr Piesley (CC 17/7360), the offender is sentenced to 6 months' imprisonment commencing on 28 October 2017 and ending on 27 April 2018.

(d) In respect of the offence of assault occasioning actual bodily harm on Mr Fisher (CC 17/7361), the offender is sentenced to 15 months' imprisonment commencing on 28 April 2018 and ending on 27 July 2019.

(e) The total sentence is 1 year and 9 months' imprisonment.

(f) I set a non-parole period of 15 months commencing on 28 October 2017 and ending on 27 January 2019.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.