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[2018] ACTSC 305
Supreme Court of the ACT
2018-11-02
Loukas-Karlsson J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated burglary - threat to inflict grievous bodily harm - recklessly inflict actual bodily harm - intentionally inflicting grievous bodily harm - home invasion in company - presence of firearms - co-accused - parity - youth of offenders - offenders on conditional liberty at time of offences - youth of victim an aggravating factor
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - unauthorised possession of a prohibited firearm - plea of guilty
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated burglary - take motor vehicle - unlawful possession of stolen property - theft - driving motor vehicle without consent - damaging property - possession of Cannabis - possession of methylamphetamine - unauthorised possession of stolen property - unauthorised possession of ammunition - possession of an unregistered prohibited firearm - transferred offences - plea of guilty - parity - consideration of s 66 of the Crimes (Sentencing) Act (ACT)
Crimes Act 1900 (ACT) ss 19, 23, 31
Crimes Act 1900 (NSW) ss 33, 112
Criminal Code 2002 (ACT) ss 45A, 308, 312, 318, 324, 403,
Drugs of Dependence Act 1989 (ACT) ss 169, 171,
Firearms Act 1996 (ACT) ss 42(a)(iii), 177, 249
Supreme Court Act 1933 (ACT)
Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297
Butters v R [2010] NSWCCA 1
Cheung v The Queen [2001] HCA 67; 209 CLR 1
Choi v R [2007] NSWCCA 150
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 91 ALJR 1063
DPP v Brooks [2008] VSCA 253
Elson v Ayton [2010] ACTSC 70
Fusimalohi v The Queen [2012] ACTCA 49
Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hawkins v The Queen (1993) 67 A Crim R 64
Hili v the Queen [2010] HCA 45; 242 CLR 520
Hogarth v The Queen [2012] VSCA 302; 37 VR 658
Imbornone v R [2017] NSWCCA 144
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
Mun v R [2015] NSWCCA 234
Munro v R [2006] NSWCCA 350
Ndlovu v The Queen [2018] ACTCA 33
Pavicevic v The Queen [2010] ACTCA 25
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Al-Harazi (No 7) [2017] ACTSC 350;
R v Bright [2017] ACTSC 328
R v Clinch [1994] WASC 57; (1994) 72 A Crim R 301
R v Harrison [2002] NSWCCA 79; 121 A Crim R 380
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Isaacs (1997) 41 NSWLR 374
R v KNL [2005] NSWCCA 260; 154 A Crim R 268
R v Lindley-Jones [2014] ACTSC 296
R v Lockwood [2018] ACTSC 288
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v MMK [2006] NSWCCA 272; 164 A Crim R 481
R v Martin [2017] VSCA 291; 20 VR 14
R v Meyboom [2012] ACTCA 48
R v Minnis [2014] ACTSC 268
R v Mumberson [2011] NSWCCA 54
R v Musolino [2018] ACTSC 3
R v Ndlovu [2017] ACTSC 244
R v Okwechime [2015] ACTSC 129
R v Pham [2015] HCA 39; 256 CLR 550
R v Seears [2015] ACTSC 109
R v Stretton [2014] ACTSC 96
R v Stretton [2017] ACTSC 313
R v Tonari [2014] NSWCCA 232
R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103
R v Verdins [2007] VSCA 102; 16 VR 269
R v Vimahi; R v Grech (No 2) [2017] ACTSC 176
Rubino v The Queen [2015] ACTCA 22
Thompson v The Queen [2018] ACTCA 2
Van Zwam v R [2017] NSWCCA 127
Wootton v R [2014] NSWCCA 86; 241 A Crim R 256
Xiao v R [2018] NSWCCA 4; 96 NSWLR 1
Zdravkovic v The Queen [2016] ACTCA 53
Legal Aid ACT (Offender - Stretton)
SCC 138 of 2017; SCC 139 of 2017; SCC 228 of 2017; SCC 117 of 2018; SCC 118 of 2018.
1. Reece Salcedo (the offender Salcedo) and Nathan Stretton (the offender Stretton), were both found guilty after a trial of the following offences which occurred on 10 February 2017 (hereafter the trial offences):
(a) One count of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code) pursuant to s 45A of the Criminal Code (maximum penalty 20 years imprisonment, 2,000 penalty units, or both);
(b) One count of making a threat to inflict grievous bodily harm contrary to s 31 of the Crimes Act 1900 (ACT) (Crimes Act (ACT)) pursuant to s 45A of the Criminal Code; (maximum penalty 5 years imprisonment);
(c) One count of recklessly inflicting actual bodily harm contrary to s 23 of the Crimes Act (ACT) pursuant to s 45A of the Criminal Code (maximum penalty 5 years imprisonment); and
(d) One count of intentionally inflicting Grievous Bodily Harm contrary to s 19 of the Crimes Act (ACT) pursuant to s 45A of the Criminal Code (maximum penalty 20 years imprisonment).
2. Additionally, the offender Salcedo pleaded guilty at the start of the trial to Count 6 on the indictment, an offence that on 20 February 2017 he had unauthorised possession of a prohibited firearm contrary to s 42(a)(iii) of the Firearms Act 1996 (ACT) (the 20 February 2017 offence). The maximum penalty for that offence is imprisonment for 10 years.
3. Further to the above offences, the offender Stretton is to be sentenced for a number of other offences to which he pleaded guilty on 21 May 2018 in the Magistrates Court. Those offences were as follows:
(e) One offence of aggravated burglary (23 May 2017) contrary to s 312 of the Criminal Code (maximum penalty 20 years imprisonment, 2,000 penalty units or both);
(f) One offence of taking a motor vehicle without consent (23 May 2017) contrary to s 318(1) of the Criminal Code (maximum penalty 5 years imprisonment, 500 penalty units or both);
(g) One offence of unlawful possession of stolen property (23 May 2017) contrary to s 324(1) of the Criminal Code (maximum penalty 6 months imprisonment, 50 penalty units, or both);
(h) One offence of theft (23 May 2017) contrary to s 308 of the Criminal Code (maximum penalty 10 years imprisonment, 1000 penalty units or both);
(i) One offence of driving a motor vehicle without consent (23 May 2017) contrary to s 318(2) of the Criminal Code (maximum penalty 5 years imprisonment, 500 penalty units, or both);
(j) One offence of damage property (23 May 2017) contrary to s 403(1) of the Criminal Code (maximum penalty 10 years imprisonment, 1000 penalty units or both);
(k) One offence of possession of a prohibited substance (cannabis) (23 June 2017) contrary to s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT) (maximum penalty 1 penalty unit);
(l) One offence of possession of a drug of dependence (methylamphetamine) (23 June 2017) contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (maximum penalty 2 years imprisonment, 50 penalty units, or both);
(m) One offence of unauthorised possession of ammunition (23 June 2017) contrary to s 249(1) of the (ACT) (maximum penalty 10 penalty units);
4. Offences (e)-(j) will be called the 'May 2017 offences' hereafter, and offences (j)-(n) will be called the 'June 2017 offences' hereafter.
5. Offences (g), (k), (l), (m) and (n) are transferred offences from the Magistrates Court pursuant to Part 8 of the Supreme Court Act 1933 (ACT). The remaining offences had been committed to the Supreme Court for sentence.
6. 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:
7. Taking into account these principles, I make the following factual findings.
8. At about 8:30pm on 10 February 2017, the victims Mr Scott Gielissen and Ms Angela Rukavina were driving towards Lanyon Shops in Calwell when they noticed Ms Cassie Ogle, a former associate of Mr Gielissen, in the car behind them. Mr Gielissen and Ms Ogle had fallen out towards the end of 2016, in relation to their illegal drug dealing enterprise. The two vehicles had a collision, causing some damage to both vehicles. Mr Gielissen got out of his car, spoke to Ms Ogle. Mr Gielissen then removed her car keys from her car. Mr Gielissen and Ms Rukavina then drove away from the scene. Mr Gielissen threw Ms Ogle's car keys out of the window about 20-30 meters later. Ms Ogle did not see this.
9. Ms Ogle then phoned the offender Salcedo at 9:06 pm and they exchanged a number of calls which culminated at 9:25pm. At about this time, the offender Salcedo drove with the offender Stretton to Mr Gielissen and Ms Rukavina's residence.
10. The victim QU, a young girl who was 13 years old at the time, was at the residence whilst Mr Gielissen and Ms Rukavina were away. Another child was asleep upstairs at the residence. QU had been watching a movie when the two offenders came to the door of the residence. QU gave evidence that the two offenders asked for some "keys to a...Mazda". QU told the offenders that she didn't know what they were talking about, and that they might "have the wrong house". The offenders continued asking for the keys for a short period, before saying "okay, thanks", and leaving. QU shut the door and returned to watch the movie. Shortly after, Mr Gielissen and Ms Rukavina returned home.
11. When Mr Gielissen and Ms Rukavina returned home, they noticed two men standing nearby. Ms Rukavina noticed one of the men peering into the window of their home. Ms Rukavina asked the men what they were doing. The offender Salcedo replied that he wanted the keys to his car. Mr Gielissen heard the commotion outside, and then intervened, asking the men to leave. Mr Gielissen then returned inside, and locked the screen door, and told QU not to open the door. Ms Rukavina remained outside with the men, where she noticed that the offender Salcedo was carrying a sawn-off shotgun. Further words were exchanged, including Ms Rukavina explaining she had children in the house. Then the offenders barged past Ms Rukavina, and pulled the locked front screen door open. This constitutes the offence of aggravated burglary.
12. Mr Gielissen then re-entered the lounge room and saw an offender pointing his firearm in the direction of QU, who was lying on the living room couch. The offender then made a threat. This constitutes the offence of making a threat to inflict grievous bodily harm.
13. Mr Gielissen ran at the offender Salcedo with a metal pole he had brought with him from the garage. One of the offenders fired at least one round from a firearm, which struck QU. This constitutes the offence of recklessly inflicting actual bodily harm.
14. The struggle between Mr Gielissen and the offender Salcedo continued. A further round was discharged, one of which struck Mr Gielissen on his left bicep. This constitutes the offence of intentionally inflicting Grievous Bodily Harm. The offenders then left the residence. A short time later, police and ambulances arrived at the scene.
15. On 20 February 2017, the offender Salcedo was arrested in a car park in Lanyon in relation to the above offences. On the same day, police executed a search warrant at the offender's home, and seized a prohibited firearm, namely a sawn-off shotgun that was found underneath a pillow on a bed in a room occupied by the offender Salcedo.
16. On 16 May 2017, police were conducting a mobile patrol in Wanniassa. Police attempted to conduct a traffic stop on a white Lexus, but the vehicle failed to stop for police. Police conducted checks on the vehicle which revealed it was registered to the first victim. Police then attended the first victim's residence, where they observed an open garage door. Police then entered the residence, which they found to be in disarray. Police contacted the first victim, who informed police that he was the lawful occupant of the residence, and that he was overseas with a co-occupant. He advised that a Kawasaki motorcycle was also located in the garage, which police confirmed had also been stolen from the residence.
17. On 18 May 2017, the second victim noticed that his motorcycle trailer, which had been secured with a lock on the hitch and chains around the wheel and secured to a spike in the ground outside his residence, had been stolen.
18. On 19 May 2017, police identified the stolen Kawasaki motorcycle outside a residence in Wanniassa that they were attending on an unrelated mother. The police were unable to speak to any of the residents of the property.
19. On 23 May 2017 at 10:30pm, police were called to Kingston in the ACT where a witness observed a white SUV leave the underground carpark by breaking through the garage door of the carpark. The SUV was towing a motorcycle trailer with a trail bike secured on it. Police reviewed CCTV footage and identified the vehicle as the first victim's Lexus. The trailer was later identified as the stolen trailer belonging to the second victim.
20. On the same day, police observed the white Lexus travelling towards Queanbeyan. The vehicle failed to stop for NSW police and a pursuit was initiated. The vehicle came to an abrupt stop outside the Best Western Central Motel in Queanbeyan. Two males were sighted running from the vehicle. After a short foot pursuit, the co-offender Warren Bright (the co-offender Bright) was apprehended by police. A search of the vehicle revealed a substantial number of suspected stolen property within it. On review of the CCTV footage, Constable David immediately recognised the other male as the offender Stretton.
21. On 16 June 2017, the third victim started his motor vehicle, and placed some of his personal effects inside it. He remembered he had left something inside and returned to collect it. When he returned to his motor vehicle, he noticed it was gone. The vehicle was a Ford XR6.
22. On 23 June 2017, police observed a person they recognised as Nathan Stretton driving a Ford XR6 in Wanniassa. Later that day, police approached the vehicle while it was parked in Fadden. The offender was the sole occupant of the vehicle at the time, and was placed under arrest.
23. Police observed a number of items in the vehicle, including a clip seal bag containing methylamphetamine, and a shoulder bag containing the following items:
(a) A apparent homemade .22 calibre firearm;
(b) 96 x .22 calibre rounds of ammunition;
(c) A large amount of vehicle keys, including those for an Audi, a new model Holden, a Land Rover and many others;
(d) Wallet contents belonging to Brian Gee;
(e) Jewellery;
(f) A small amount of cannabis;
(g) Assorted coins in several currencies
24. The firearm was later classified as a prohibited firearm. The offender does not possess a firearms licence allowing him to possess a firearm or ammunition, or a prohibited firearm permit.
(a) One offence of unlawful possession of stolen property (23 May 2017) contrary to s 324(1) of the Criminal Code (maximum penalty 6 months imprisonment, 50 penalty units, or both);
(b) One offence of possession of a prohibited substance (Cannabis) (23 June 2017) contrary to s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT) (maximum penalty 1 penalty unit);
(c) One offence of possession of a drug of dependence (methylamphetamine) (23 June 2017) contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (maximum penalty 2 years imprisonment, 50 penalty units, or both);
(d) One offence of unauthorised possession of ammunition (23 June 2017) contrary to s 249(1) of the Firearms Act 1996 (ACT) (maximum penalty 10 penalty units); and
(e) One offence of unauthorised possession of stolen property (23 June 2017), contrary to s 324(1) of the Criminal Code (maximum penalty 6 months imprisonment, 50 penalty units, or both).
26. The offender is also to be sentenced for these transferred offences related to the May 2017 and June 2017 offences. It is appropriate that these sentences be concurrent with the sentences for the related indictable matters.
27. Counsel for the offender Salcedo conceded that the offending was 'very serious'. Counsel for the offender Stretton conceded that the offending was "objectively extremely serious". Counsel submitted that the use of salt rounds in the offending rather than a lead shot should be seen as a mitigating circumstance, as it infers a "conscious decision by the offenders to not inflict the sort of injury that might be inflicted" by traditional lead shots. Counsel submitted that the offenders were unaware QU was a child during the offending.
28. The prosecution submitted that "home invasions involving firearms and the infliction of actual violence are the most... objectively serious" forms of aggravated burglary. The prosecution referred to DPP v Brooks [2008] VSCA 253 (Brooks) and Hogarth v The Queen [2012] VSCA 302; 37 VR 658 (Hogarth) in regards to the seriousness of offences of this nature. The prosecution submitted that in this case, both forms of statutory aggravation were present, being the use of weapons and being in company. The prosecution submitted that the use of a firearm points to the objective seriousness being towards the upper end of the spectrum. The prosecution submitted that had traditional lead bullets rather than salt rounds been used, the objective seriousness would have been greater; however, the prosecution submitted that the salt rounds, whilst less lethal than traditional rounds, have the capacity to inflict terrible injury, as occurred in this matter.
29. The prosecution further submitted that there was not a particularly significant degree of premeditation or sophistication to the offending, but also that the offending was not spontaneous or impulsive. The prosecution further submitted that the presence of a child is a particularly aggravating feature, pointing to the objective seriousness being "towards the very upper end of the spectrum for offences of this nature".
30. In relation to the offence of intentionally inflicting grievous bodily harm charge, the prosecution submitted that the injuries suffered by Mr Gielissen were very serious, requiring surgery and ongoing physiotherapy as well as having a psychological impact, but "nowhere near" the upper end of the spectrum. The injuries were caused by the discharge of a firearm. The prosecution submitted that the offence was "somewhere just below the mid-range".
31. In relation to the offence of recklessly causing actual bodily harm, the prosecution submitted that the injury, which required surgery, was towards the upper end of the spectrum of injuries encompassed by actual bodily harm. The prosecution submitted that the offence falls between the mid and upper range of the spectrum.
32. The parties provided further written submissions after the hearing regarding the presence of a child. Counsel for the Offender Stretton submitted that the "circumstances of a victim may...be taken into account in considering the objective seriousness of an offence", but only where "the victim or the victim's circumstances put the victim into a class of victims who are acknowledged to be vulnerable". It was further submitted that:
In the circumstances of the present case, it is submitted, the fact that [QU] was a 13 year old child at the time of the offences does not constitute an aggravating circumstance affecting the objective seriousness of the offence, she being no more or less vulnerable by reason of her age than her mother or her mother's partner and it is not a vulnerability that would put any of them in a special category.
33. Counsel for the offender Salcedo adopted Counsel for the offender Stretton's submissions, and withdrew concessions made at the sentence hearing about the victim QU's age being an aggravating factor.
34. The prosecution submitted that "the age of a victim will affect the assessment of the objective seriousness of an offence", even where "an offender is unaware or mistaken as to their age". The prosecution submitted that "children...are a particularly vulnerable class of people in the community". The prosecution submitted that as "a general rule...the Court should proceed on the basis that a child is vulnerable victim", and that such an approach "would accord" with s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and "community expectations". The prosecution further submitted that offending in the presence of the child increases the objective seriousness: see Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 (Gore); R v Al-Harazi (No 7) [2017] ACTSC 350; Elson v Ayton [2010] ACTSC 70 (Elson).
35. The prosecution's submissions also note Counsel for the offender Stretton's submission that the offenders were unaware of QU's age. The prosecution submitted firstly that these were untested and self-serving statements: see Imbornone v R [2017] NSWCCA 144 (Imbornone); Munro v R [2006] NSWCCA 350. Second, the crown submitted that the contention is "utterly implausible" given the evidence at trial. In particular, the prosecution submitted that the Court had the benefit of observing the victim as she gave evidence, and noted that the victim "looked like a teenage girl...had the voice, demeanour, patterns of speech and mannerisms that one would expect of a teenage girl" and that "while her current height was 6'1, she had grown 2-3 inches in the year prior to the trial". Further, the prosecution submitted that the victim's evidence of speaking to the offenders before the offending through the front door was unchallenged. The prosecution submitted it would have become apparent "once they began to talk and interact with her" that she was under 18, should it not have been immediately apparent from her appearance. The prosecution further noted the unchallenged evidence of Ms Rukavina that she told the offenders she had children in the residence.
36. The trial offences are objectively very serious as was accepted by both counsel for the offenders. In relation to the aggravated burglary, both forms of statutory aggravation are present being the use of a weapon and being in company. In relation to the salt rounds, I accept, as conceded by the prosecution, that it is a consideration. A round with lead pellets would increase the objective seriousness. Nevertheless, as can be seen from the injuries inflicted on the victims, while salt rounds are less lethal in nature, the capacity to inflict serious injury when used in a firearm is clear. As to the presence of a child, this in my view, is an aggravating factor in relation to objective seriousness. I accept the submissions of the prosecution in this regard, as it accords with my own assessment. Overall, the objective seriousness of the aggravated burglary is toward the upper end of the spectrum.
37. As to the offence of intentionally inflicting grievous bodily harm I accept the submissions of the prosecution that it is "nowhere near" the upper end of the spectrum and below the mid-range. As to the offence of recklessly causing actual bodily harm I accept the prosecution's submission that the offence falls between the mid and upper range.
38. Counsel for the offender Salcedo conceded that there was very little that could be said to a Court that ameliorates the offending, as with all unlawful firearm possession matters. He submitted that the reason the offender Salcedo had armed himself was because he was fearful of repercussions arising from the 10 February 2017 offences. The unlawful possession of a firearm, on the facts of this offence, is clearly a serious matter.
May 2017 Offences and June 2017 Offences (Stretton)
39. Counsel for the offender Stretton submitted that the aggravated burglary in Kingston of the Husqvarna motorcycle was less serious than a burglary upon a home or residential premises, as it was a burglary of a carpark under a building. Counsel submitted that it was not of obviously special or intrinsic value, and could have been easily replaced, and that most of the stolen property subject to the burglary was recovered, including the Lexus station wagon.
40. The prosecution conceded that the burglary offences were "somewhat unremarkable", and that the offences were not "at the upper end of the spectrum".
41. I accept the submissions of both the prosecution and the offender in this regard as they are broadly consistent.
42. The following material is before me in relation to the offender Salcedo:
(a) The offender Salcedo's Criminal History;
(b) A victim impact statement from QU;
(c) A victim impact statement from Scott Gielissen;
(d) A victim impact statement from Angela Rukavina;
(e) A letter under the hand of the offender's mother, Ms Millar;
(f) A letter under the hand of the offender's sister, Ms Salcedo; and
(g) A Pre-Sentence Report (PSR) dated 18 July 2018.
43. The following material is before me in relation to the offender Stretton:
(a) A Crown Tender Bundle, containing:
- (i) The indictment;
- (ii) A s 90A certificate;
- (iii) A transfer of charges;
- (iv) An agreed statement of facts pertaining to the May and June offences;
- (v) An annexure detailing items stolen;
- (vi) A PSR;
- (vii) The offender's criminal history;
- (viii) Sentencing remarks by Mossop J in R v Bright [2017] ACTSC 328; and
- (ix) Sentencing remarks by Penfold J in R v Stretton [2017] ACTSC 313.
(b) A victim impact statement from QU;
(c) A victim impact statement from Scott Gielissen;
(d) A victim impact statement from Angela Rukavina;
(e) Sentencing remarks by Penfold J in R v Stretton [2014] ACTSC 96; and
(f) A letter under the hand of Luisa Pauletto, Corrections Pscyhological and Support Services.
44. In evidence before me where three Victim Impact Statements from each of the three victims of the trial offences. The Victim Impact Statements were read out by the prosecution at the sentence hearing. Each of the three statements set out the significant and wide-ranging impact that the offences have had on the victims.
45. The extent of the impact upon the victims was made clear by the Victim Impact Statements. The reading of the victim impact statements is important as the offenders heard what the victims had to say. Courts know the extremely serious effects of such offences as aggravated burglary and inflicting grievous and actual bodily harm. Nevertheless, it is valuable to hear the words of the victims. The victims in their Victim Impact Statements spoke of the physical and psychological impact of the commission of the offences. The court acknowledges the significant impact that the offence have had and continues to have on the victims.
46. The victim QU, who as previously stated was 13 at the time of the offences, spoke in her statement of the frightening events on the night, her time in hospital, and her difficulties at school as a result what occurred. She states that she will carry the scar with her forever. The victim Mr Gielissen spoke of the physical, psychological, and other serious impacts of the offences that had their genesis in the taking by him of the car keys. The victim Ms Rukavina spoke of the significant and serious psychological impact of the offence on her as well as the significant financial impact.
47. In evidence before me is the PSR prepared for the offender Salcedo.
48. The offender Salcedo is 21 years old, and was aged 19 at the time of the offences. He was born and raised in Canberra as one of four children, and described a stable and supportive childhood. The offender was living with his father prior to being remanded in custody.
49. The offender Salcedo reported completing year 11, and being employed as a labourer for a concrete preparation business. He has been employed as a cleaner at the AMC during his remand period.
50. The offender Salcedo reported smoking cannabis at age 15, and would use 2 grams of cannabis per week. He also identified smoking 0.2 grams of methylamphetamine a week from age 16 until his remand in custody. He has completed the First Steps Alcohol and Other Drug Program whilst remanded in custody. The PSR notes that the offender Salcedo failed to give a urine sample on one occasion while in custody. Counsel for the offender Salcedo submitted that this was because he had already passed urine that morning, and did not want to wait in the medical facility for some hours. It was submitted that he had been "well and truly punished" for this mistake through a curtailment of visitation rights.
51. ACT Health records confirm that the offender was diagnosed with psychosis and suspected drug use while in Bimberi Youth Justice Centre in 2013. The offender was admitted to the Mental Health Unit on 2 February 2017 following suicidal ideation, aggression and methamphetamine use disorder. Counsel for the offender at the sentence hearing submitted that at the time of the trial offences, the offender was "only weeks out of hospital, where he had been admitted in a psychotic state due to amphetamine use".
52. The PSR concludes that the offender remains a risk to other members of the community until his criminogenic risk factors are adequately addressed, in particular his illicit drug abuse, antisocial attitudes, antisocial companions and mental health. It further states as follows:
Mr Salcedo acknowledged he needed to make a concerted and sustained effort to address his illicit drug abuse, antisocial attitudes, antisocial companions and mental health in order to prevent his re-offending. His resolve to address his criminogenic risk factors is yet to be tested in the community.
53. Counsel for the offender specifically did not address me in relation to any R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins) matter including hardship in custody. He submitted that his client's mental health issues "gives an explanation to very, very serious offending combined with drugs".
54. The PSR notes that the offender Salcedo accepted the decision of the Court, and appeared to show some insight into his behaviour. The PSR notes that the offender Salcedo acknowledged the impacts of the offence on the victims. Counsel for the offender Salcedo submitted at the sentence hearing that his client was "extraordinarily sorry that a child was involved and the child was injured" during the offending.
55. The prosecution submitted that these comments did not constitute remorse. The prosecution cited the principles outlined in Imbornone in relation to untested out of court statements.
56. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 (Mun) at [36] ; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender's self-serving untested statements as evidence of remorse. Accordingly I do not ascribe significant weight to the remorse expressed. I also note of the in relation to it being an irrelevant consideration on sentence that the offender does not give evidence on oath.
57. In evidence before me were letters from the offender Salcedo's mother and sister in support of his rehabilitation efforts whilst in the AMC.
58. The offender Salcedo's mother wrote that her son has always struggled with his mental health, and that he was diagnosed with a drug-induced psychosis as a teenager. He subsequently made progress with his studies and gained employment, but began taking drugs as a result of a relationship breakdown. She further indicated that in February 2017 her son was struggling with his mental health and started using drugs, and was admitted to the Adult Mental Health Unit, where he was held for five days and then released without support. It was soon after this that he was arrested. His mother visits him once a fortnight, taking turns with his father. She has observed that the offender remains positive and keeps busy while in custody with educational opportunities and jobs such as cleaning. She expresses the view that her son has matured since his incarceration, has expressed regret and has a desire to get his life back on track. His mother concluded her letter of support stating:
Reece has the support of everyone in his family, he will be able to return to the family home after his incarceration. Reece is a very hard worker and has been given the support of his employer to return to work...
I feel that Reece has reflected a lot on his actions while being incarcerated;....[he] is adamant that he will work hard and turn his life around and I believe he can do this.
59. The offender Salcedo's sister also wrote a letter of support for her brother writing that:
He is a really hard worker and has struggled to keep on track, but he has not been able to get the right help for his mental health issues, and even after his cry for help in February 2017 he was discharged from the adult mental health unit with no supports in place.
60. She visits her brother in prison every week, and further states that:
I have seen him stay positive and try to make the best of his situation, he has taken on a job in the prison and was working on his handwriting and maths skills to keep his mind busy. He has been taking his medication and has often talked about how he can't wait to get back to working hard and saving. He has plans for the future and admits that he needs to take steps to keep his mental health good and not follow others so blindly in the future.
61. I take these references into account on sentence.
62. The offender has a criminal history as an adult, including driving offences and dishonesty offences. The offender also has a significant criminal history as a minor, including offences of violence and an attempted aggravated robbery. The offender has also committed offences in NSW.
63. The offender Salcedo was on a suspended sentence for aggravated robbery at the time of the trial offences. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor.
64. The prosecution submitted that the offender Salcedo's prospects for rehabilitation were not as poor as the offender Stretton's. The prosecution also submitted that I would err in placing too much weight on the offenders age in light of Hawkins v The Queen (1993) 67 A Crim R 64, where it is stated that the "protective function of the criminal courts would cease to operate" where a "young man conducts himself violently in a way an adult might conduct himself": see also R v Musolino [2018] ACTSC 3 at [17].
65. Counsel for the offender submitted that in light of the offender's youth (aged 19 at the time of the offences), his family support, prospects for working full time, his potential for rehabilitation, this being his first time in custody, and the need for extensive support to assist with mental health and drug abuse issues, he would benefit from a lengthy period on parole. I consider in these circumstances, it is appropriate for there to be a longer than usual parole period. It must be stated in this context that it was correctly conceded by counsel for the offender that there would be an inevitably lengthy overall sentence.
66. In evidence before me was a PSR for the offender Stretton. Also before me was Penfold J's remarks on sentence in R v Stretton [2014] ACTSC 96 and R v Stretton [2017] ACTSC 313.
67. The offender Stretton is 23 years old, and was aged 21 at the time of the trial offences and 22 at the time of the May and June offences. He was born in Canberra, and is one of three children to his parents union. His parents separated nine or ten years ago, which he found difficult to cope with, but he maintains his relationship with both parents and siblings, and is also close with his grandmother.
68. The offender Stretton left the family home at age 17 to live with his grandmother. He has returned to live with his mother in the ACT a number of times, and has chosen to reside in Bredbo, NSW with his father in recent years in order to avoid anti-social acquaintances in Canberra. Bredbo remains his proposed residence if he is released.
69. The offender Stretton failed to receive his Year 10 certificate, and withdrew from the formal education system as a result of being frequently suspended and his increasing drug use. He had been employed in 2010 as a roof tiler and in 2011 as an apprentice landscaper, but has been unemployed for six years, which he attributed to his increasing drug use. He described accessing Centrelink whilst completing periods of residential rehabilitation, but was not supported by that service whilst in the community.
70. The PSR notes that the offender Stretton has a significant history of illicit substance use dating back to 12 years of age. He advised that he smoked cannabis on a daily basis until the age of 15, when he supplemented his use with methamphetamines, which he continued until his current period of custody. He also disclosed regular overconsumption of alcohol from 12 to 17 years of age, which he replaced at age 18 with illicit substance use. The offender Stretton has engaged in four different community based residential rehabilitations, but has only completed one. However, the offender Stretton completed the Solaris Therapeutic Community program at the AMC on 10 April 2018.
71. The prosecution noted that in sentencing the offender Stretton in 2014, Penfold J had challenged his claims of serious alcohol abuse commencing at age 12, and that the offender subsequently withdrew his claims of significant alcohol and cannabis abuse. The prosecution submitted that this illustrates the problem with "untested statements made to third parties such as pre-sentence report authors". The prosecution submitted that it would be difficult to have any certainty as to when the offender Stretton's substance abuse problems commenced.
Mr Stretton is a [23] year old man with a significant criminal history and record of polysubstance abuse. It is of particular concern that despite multiple periods of remand and multiple attempts at residential rehabilitation, Mr Stretton continues to use illicit substances when in the community and proceeds to maintain an anti-social lifestyle. However, it is positive that he has completed the Therapeutic Community, is willing to continue drug interventions in the community, and is able to identify the contributing factors and show insight into his offending behaviour.
Mr Stretton has been assessed as being at a medium risk of reoffending. His risk may be reduced if he addresses his illicit substance abuse, unemployment, leisure/recreation and anti-social companions.
73. The offender Stretton reported that he was diagnosed with anxiety and depression by his GP in 2013. Counsel for the offender Stretton submitted that there were no Verdins submissions available to be made in support of the offender Stretton, however that mental health generally is a relevant sentencing consideration pursuant to s 33(1)(m) of the Sentencing Act.
74. The PSR indicates that the offender Stretton agreed with the Statement of Facts in relation to the May 2017 Offences and the June 2017 Offences, and was able to show insight into his offending and identified multiple contributing factors to the commission of the offences. Counsel for the offender Stretton submitted that he was not asked specific questions in relation to his remorse for the trial offences during the preparation of the PSR, though his instructions were that he was remorseful.
75. The prosecution submitted that the comments in the PSR were not clear expressions of remorse, as per the submissions above in regards to the offender Salcedo. I do not ascribe significant weight to the 'remorse' so expressed.
76. In evidence before me was a letter by the hand of Luisa Pauletto, student counsellor with Corrections Psychological and Support Services at AMC. The letter notes that he has been regularly attending Anger Management sessions, and that he has practiced "a number of anxiety management strategies and improved his distress tolerance skills". The reference also notes that the offender has been participating in "goal planning, behaviour activation, thought-challenging and improving concentration skills", and that during counselling, he has "shown insight into his triggers". I take this reference into account on sentence.
77. The offender Stretton has a significant criminal history, including multiple offences of car theft, attempted aggravated burglary and aggravated burglary, several firearm offences and several drug possession offences.
78. The PSR notes that the offender Stretton's compliance with community based orders is considered to be poor. The prosecution submitted that the offender Stretton has failed to make any meaningful progress in community based orders.
79. The offender was serving a suspended sentence at the time of the offending. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.
80. The prosecution submitted, overall, that the offender Stretton's prospects of rehabilitation were poor.
81. Counsel for the offender Stretton submitted that the completion of the Solaris Therapeutic Community program may provide cause for hope that the offender has "come to the realisation that the continued use of illicit drugs is a dead-end street", and that "something must give and give now".
82. In my view the prospects for rehabilitation are guarded, however the completion of the Solaris program is somewhat encouraging.
83. 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).
84. 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 at [32]. I will take parity into account in the determination of the sentences of the co-offenders.
85. Counsel for the offender Salcedo conceded that the two offenders were "both as guilty as each other" in the offending.
86. Counsel for the offender Stretton submitted that some evidence of the victims at trial suggested that "Mr Stretton remained in the background". Counsel for the offender Stretton further submitted that a fact-finding exercise may arise as to whether the offender Stretton had and discharged a gun. Ultimately, counsel for the offender Stretton conceded that, on the basis of the offending being a joint criminal enterprise, there is nothing that would make the offender Stretton less culpable than the offender Salcedo.
87. The prosecution submitted that the culpability of the two offenders was the same, on the basis that the case at trial was put on the basis of a joint criminal enterprise pursuant to ss 45 and 45A of the Criminal Code.
88. 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 (R v JW [2010] NSWCCA 49; 77 NSWLR 7).
89. I apply the relevant principles in relation to sentencing co-offenders in this joint criminal enterprise. I therefore do not differentiate between the offenders in this regard.
90. In terms of subjective features, counsel for the offender Stretton submitted that whilst there may be some points of difference between the two offenders, the two offender should be dealt with in the same way.
91. The prosecution submitted that the offender Stretton's criminal history was more extensive than the offender Salcedo's, which reduced the scope for lenience for the offender Stretton.
92. In my view the head sentences should be the same for both offenders reflecting the joint commission of the offences. There is greater scope for the reduction of the non-parole period with respect to the offender Salcedo as discussed above.
93. In relation to parity with the co-offender Bright, counsel for the offender Stretton submitted that the sentences imposed by Mossop J might be used as a "guide" for those matters.
94. In R v Bright [2017] ACTSC 328, Mossop J sentenced the co-offender Bright to the following in relation to offences committed with the offender Stretton.
On charge CC2017/5911 (aggravated burglary - intent to steal) the offender is convicted and sentenced to 14 months' imprisonment commencing on 26 August 2019 and ending on 25 October 2020.
On charge CC2017/5910 (take motor vehicle without authority) the offender is sentenced to seven months' imprisonment commencing on 26 May 2020 and ending on 25 December 2020.
On charge CC2017/10758 (ride/drive motor vehicle without consent) the offender is convicted and sentenced to seven months' imprisonment commencing on 26 July 2020 and ending on 25 February 2021.
95. The co-offender Bright was being sentenced to a number of other offences at the same time, which resulted in a total sentence of just over four years. The non-parole period set was two years and one month.
96. I will take into account the sentences of Bright with respect to parity considerations.
97. The offender Salcedo has been in custody since 20 February 2017. I note that in May last year, he was resentenced by Magistrate Theakston for breaching the terms of the suspended sentence in relation to the aggravated robbery. The prosecution submitted that three months would have to be deducted from the starting point for his sentences. I will deal with this aspect in discussing totality.
98. In relation to the offender Stretton, the prosecution submitted that no time in custody has been referrable to the offences before me: see R v Stretton [2017] ACTSC 313. Counsel for the offender accepted that no time in custody was exclusively referable to the matters before me for sentence.
99. The prosecution submitted that in light of s 66 of the Sentencing Act, I would be required to set a new non-parole period for the sentences imposed by Penfold J. The prosecution submitted that the sentences I impose should commence at the end of the non-parole period of the sentences set by Penfold J, being 6 March 2018. Again, I will deal with this aspect when dealing with totality.
100. I note that that the imposition of further term of imprisonment where the offender is serving a sentence of imprisonment results in the automatic cancellation of any non-parole period set for the existing sentence: s 66(3) of the Sentencing Act.
101. The offender Salcedo entered a plea of guilty on the first day of the trial for the 20 February 2017 firearm offence. I therefore allow a 10% discount in relation to the plea.
102. The offender Stretton entered early pleas of guilty for the May and June 2017 offences, in the Magistrates Court. I therefore allow a 25% discount for the pleas of guilty.
103. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo'ua) at [41]-[48]; see also Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 in relation to the utilitarian value of pleas of guilty in commonwealth matters.
104. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50].
105. There is no discount in relation to the matters that proceeded to trial.
106. Counsel for the offender Salcedo stated, "There's nothing comparable that I could find". Counsel for the offender Stretton stated, "they are a rare creature in this jurisdiction". The prosecution referred to the High Court decision of Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 91 ALJR 1063, emphasising that consideration of sentencing range should not be elevated to a primary controlling or principal consideration.
I haven't provided your Honour any cases from the territory involving an aggravated burglary in the nature of a home invasion because of the handful of home invasion type cases in the territory none involve a factual matrix even remotely comparable to this one.
108. The prosecution referred to s 112(3) of the Crimes Act 1900 (NSW) which contains the offence of breaking into a dwelling to commit an indictable offence in circumstances of special aggravation. The NSW offence carries a maximum penalty of 25 years as opposed to the 20 year maximum penalty in the ACT. Additionally in NSW, the offence carries a standard non-parole period. In that regard the prosecution referred to the decision of Wootton v R [2014] NSWCCA 86; 241 A Crim R 256 as a yardstick. Additionally, the prosecution referred to the Victorian decision of Hogarth as a yardstick. That decision concluded, in relation to the maximum penalty as a yardstick, that in Victoria, "current sentencing practices for confrontational aggravated burglary do not adequately reflect that yardstick".
109. I take these cases into account. The Court of Appeal decision of Rubino v The Queen [2015] ACTCA 22 at [41] should also be noted in this context (see also R v Lockwood [2018] ACTSC 288) at [52]:
There is no single correct sentence for aggravated burglary. In R v Hutchinson [2014] ACTCA 29 this Court recently reviewed cases said to be relevant to the consideration of current sentencing practice in respect of the offence of aggravated burglary (in particular Simonds v R [2013] ACTCA 13; Fusimalohi v R [2012] ACTCA 49; and Tate v R [2012] ACTCA 50.) That review revealed a significant range of available sentences for this particular offence, depending on the objective seriousness of the offending and the subjective circumstances of the offender.
110. I was provided with sentencing statistics for s 33(1)(b) Crimes Act 1900 (NSW) and s 19 of the Crimes Act (ACT), being the offence of intentionally inflicting grievous bodily harm. The prosecution submitted that s 33(1)(b) Crimes Act NSW (1900) was the equivalent offence in NSW to s 19 of the Crimes Act (ACT). I note however that the NSW provision carries a maximum penalty of 25 years of imprisonment, as opposed to the maximum penalty of 20 years in the ACT.
111. I was also provided with statistics from New South Wales for the offence of home invasion contrary to s 112(3) of the Crimes Act 1900 (NSW), again noting that the NSW provision carries a maximum penalty of 25 years of imprisonment, as opposed to the maximum penalty for aggravated burglary in the ACT of 20 years of imprisonment.
112. 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.
113. 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.
114. In sentencing the offender, 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.
115. 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 a consideration in light of the youth of the offenders.
116. The violation of the home must be regarded as extremely serious by the court. As stated in Brooks at [22]:
The violation of the privacy and safety of the home of any person, whatever be their age or situation, must be seen to be regarded as extremely serious by the courts. As the present case demonstrates, the financial loss occasioned by the victim will often be its least serious consequence. Where the entry is effected for the purpose of violence or intimidation, or where the perpetrator engages in such behaviour whilst there, the level of criminality is clearly aggravated. Put at its simplest, the members of this community are entitled to feel and remain safe in their homes and the courts must play their part through the sentencing process to ensure that this right is vindicated.
117. The extreme seriousness of offences of this nature was similarly underlined in Hogarth at [1]:
Home invasion is a particularly nasty form of criminal conduct. Typically, a home invasion involves multiple offenders entering a person's home, carrying weapons, intending to rob or injure the victims in revenge for some actual or perceived wrong. The entry of the offenders - acting in anger and often fuelled by alcohol - is itself a terrifying experience for the householders, irrespective of what may occur after entry.
118. This was further underlined by Murrell CJ in R v Minnis [2014] ACTSC 268 at [20]:
General deterrence is of considerable importance. Home invasions are abhorred by the community and it is important to send a strong message in relation to the unacceptability of such conduct.
119. In relation to the two firearm offences before me, the prosecution submitted that I should have regard to the objects and purposes contained in s 5 of the Firearms Act; and "successive parliaments have made it clear that we do not want a gun culture in this country similar to those which are found in some other countries". As a result, the sentencing purpose of general deterrence should "by far and away be the overarching consideration". The prosecution referred to a number of decisions in this respect: see R v Okwechime [2015] ACTSC 129; R v Vimahi; R v Grech (No 2) [2017] ACTSC 176; R v Ndlovu [2017] ACTSC 244; Ndlovu v The Queen [2018] ACTCA 33.
120. 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. Full time imprisonment reflects the gravity of the offences committed by the offenders.
121. 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.
122. 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].
123. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].I will discuss totality in more detail below.
124. The prosecution submitted in this regard that while there is scope for significant concurrency for the trial offences, total concurrency would be indicative of error: R v Tonari [2014] NSWCCA 232. In respect of the offender Salcedo, the prosecution submitted that there should be a degree of accumulation between the trial offences and the 20 February offence. In respect of the offender Stretton, the prosecution submitted that the offending in May, June and the trial offences are all discrete, requiring a significant degree of cumulation.
Totality and Concurrent and Consecutive Sentencing
125. In R v MMK [2006] NSWCCA 272; 164 A Crim R 481 (MMK) at [11] it was underlined that the principle of totality was related to the principle of proportionality. The task of the court is to ensure that the overall sentence is neither too harsh and therefore crushing nor too lenient. Relevantly, McHugh J in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 308, stated:
the Court...adjust[s] the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
126. In R v MAK [2006] NSWCCA 381; 167 A Crim R 159 (MAK) at [18], the court stated the totality principle must be applied without suggesting that a discount is given for multiple offences:
A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at [112].
127. The Court in MMK at [13] made clear "the discretion is generally circumscribed by a proper application of the principle of totality". The court emphasised in relation to concurrency and accumulation that:
It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.
128. In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 (Pearce), McHugh, Hayne and Callinan JJ stated at [45]:
A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
129. Importantly, an offender should not be punished twice for common elements between offences: Pearce per McHugh, Hayne and Callinan JJ at [40]. I take this into account in dealing with offences arising from the same episode.
130. The court in MAK discussed two matters that fall under the rubric of totality. The first is that:
The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of the sentence.
131. The court at [16] quoted R v Clinch [1994] WASC 57; (1994) 72 A Crim R 301 at 306-307 where Malcolm CJ stated that "a sentence of five years is more than five times as severe as a sentence of one year": see also Gore at [42], where the following was stated:
Another key feature of sentencing which demonstrates the inappropriateness of the "proportionate-to-maximum sentence" approach needs to be borne in mind. That is, that the severity of a sentence does not increase in a linear proportion with its length.
132. The second matter in MAK at [17] is that in applying the totality principle, a court should avoid imposing a "crushing sentence": see also Elson at [113].
133. The question of the totality and existing sentences of imprisonment must also be addressed. The totality principle is applied where an offender is serving an existing sentence, and is sentenced by a second court: Mill at 66; Choi v R [2007] NSWCCA 150 at [157]. In this case, I propose to commence the sentences in a way that takes into account the pre-existing sentences.
134. For the offender Salcedo, I will commence the sentence from 20 February 2017. For the offender Stretton, noting that under s 66 of the Sentencing Act, I am required to set a new non-parole period for the pre-existing sentences imposed by Penfold J, I will commence the sentences from 6 December 2017. Therefore, the three months relating to each offender will be subsumed as a matter of totality within the lengthy sentences to be imposed for the more serious offending.
135. It must be recognised by the Court that the offences committed against the victims have had a serious and significant impact upon them all. Both the short and long-term consequences of being the victim of these offences must be acknowledged. This was an extreme violation of the safety and sanctity of the home and of the people who lived there. It must also be recognised that no sentence that the Court imposes will rectify the consequences of what has occurred to the victims in the commission of these offences by the offenders.
136. All parties accept that the offenders must receive a lengthy sentence of imprisonment to be served by way of fulltime imprisonment.
137. 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 offences, subjective matters, parity considerations and totality.
138. I recorded convictions in relation to the trial matters upon the return of the verdicts of the jury on 1 May 2018. I now record convictions in relation to the other matters.
139. Overall, for the offender Salcedo there will be a sentence of 10 years with a non-parole period of 5 years.
140. Overall, for the offender Stretton there will be a sentence of 11 years with a non-parole period of 6 years and 5 months.
141. I make the following orders in respect of Reece Salcedo:
(a) For the offence of aggravated burglary (CC2017/2411), the offender is sentenced to 7 years of imprisonment from 20 February 2017 to 19 February 2024.
(b) For the offence of threatening to inflict grievous bodily harm (CC2017/2414), the offender is sentenced to 2 years of imprisonment from 20 February 2017 to 19 February 2019.
(c) For the offence of recklessly inflicting actual bodily harm (XO2017/31214), the offender is sentenced to 4 years of imprisonment from 20 February 2021 to 19 February 2025
(d) For the offence of intentionally inflicting grievous bodily harm (XO2017/31182), the offender is sentenced to 4 years of imprisonment from 20 February 2022 to 19 February 2026.
(e) For the offence of unauthorised possession of a prohibited firearm (XO2017/31183), the offender is sentenced to 2 years of imprisonment (reduced by 10 percent from 2 years and 3 months of imprisonment) from 20 February 2025 to 19 February 2027.
(f) I set a non-parole period of 5 years, commencing 20 February 2017 and finishing on 19 February 2022.
142. I make the following orders in respect of Nathan Stretton:
(a) For the offence of aggravated burglary (CC2017/7059), the offender is sentenced to 7 years of imprisonment from 25 December 2017 to 24 December 2024.
(b) For the offence of threatening to inflict grievous bodily harm (XO2017/31210), the offender is sentenced to 2 years of imprisonment from 25 December 2017 to 24 December 2019.
(c) For the offence of recklessly inflicting actual bodily harm (XO2017/31212), the offender is sentenced to 4 years of imprisonment from 25 December 2021 to 24 December 2025.
(d) For the offence of intentionally inflicting grievous bodily harm (XO2017/31213), the offender is sentenced to 4 years of imprisonment from 25 December 2022 to 24 December 2026.
(e) For the offence of aggravated burglary (CC2018/10), the offender is sentenced to 14 months of imprisonment (reduced by 25 percent from 18 months of imprisonment) from 25 October 2026 to 24 December 2027.
(f) For the offence of taking a motor vehicle without consent (CC2018/11), the offender is sentenced to 7 months of imprisonment (reduced by 25 percent from 9 months of imprisonment) from 25 October 2026 to 24 May 2027.
(g) For the offence of unlawful possession of stolen property (CC2018/12), the offender is sentenced to 4 months and two weeks of imprisonment (reduced by 25 percent from 6 months of imprisonment) from 25 June 2027 to 7 November 2027.
(h) For the offence of theft (CC2018/13), the offender is sentenced to 6 months of imprisonment (reduced by 25 percent from 8 months of imprisonment) from 25 June 2027 to 24 December 2027.
(i) For the offence of driving a motor vehicle without consent (CC2018/14), the offender is sentenced to 7 months of imprisonment (reduced by 25 percent from 9 months of imprisonment) from 25 October 2026 to 24 May 2027.
(j) For the offence of damaging property (CC2018/1311), the offender is sentenced to 6 months of imprisonment (reduced by 25 percent from 8 months of imprisonment) from 25 June 2027 to 24 December 2027.
(k) For the offence of possessing a prohibited substance (cannabis) (CC2018/3899), the offender is sentenced to the rising of the court.
(l) For the offence of possessing a drug of dependence (methylamphetamine) (CC2018/3900), the offender is sentenced to 1 month of imprisonment (reduced by 25 percent from 1 month and 2 weeks of imprisonment) from 25 May 2027 to 24 June 2027.
I certify that the preceding one-hundred and forty-two [142] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.
(1988) 166 CLR 59
(1998) 194 CLR 610
(1997) 189 CLR 295
(1997) 41 NSWLR 374
(2004) 78 ALJR 616
(n) One offence of unauthorised possession of stolen property (23 June 2017), contrary to s 324(1) of the Criminal Code (maximum penalty 6 months imprisonment, 50 penalty units, or both); and
(o) Once offence of possession of an unregistered prohibited firearm (23 June 2017), contrary to s 177(2)(a) of the Firearms Act 1996 (ACT) (maximum penalty 1,000 penalty units, 10 years imprisonment, or both).
(m) For the offence of unauthorised possession of ammunition (CC2018/3902), the offender is sentenced to the rising of the court.
(n) For the offence of unlawful possession of stolen property (CC2018/4778), the offender is sentenced to 4 months and two weeks of imprisonment (reduced by 25 percent from 6 months of imprisonment) from 25 May 2027 to 8 October 2027.
(o) For the offence of possession of an unregistered prohibited firearm, the offender is sentenced to 2 years of imprisonment (reduced by 25 percent from 2 years 8 months of imprisonment) from 25 December 2026 to 24 December 2028.
(p) I set a non-parole period of 6 years 5 months, commencing 25 December 2017 and finishing on 24 May 2024.