R v Seears [2015] ACTSC 109

CRIMINAL LAW - Sentence - aggravated burglary - assault occasioning actual bodily harm - damage property - specific deterrence - general deterrence

Crimes Act 1900 (ACT) s 24

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35

R v Lindley-Jones [2014] ACTSC 296

R v Minnis [2014] ACTSC 268

1. The offender entered a late plea of guilty to the offence that, on 26 May 2013, he committed an offence of aggravated burglary (he was armed and intended to cause harm to someone), contrary to s 312 of the Criminal Code 2002 (ACT) (the Criminal Code). The maximum penalty is 20 years' imprisonment and/or a fine of $300,000.

2. In sentencing the offender, I have been asked to take into account the additional offences:

(a) Intentionally cause damage to property (the act of breaking the victim's bedroom window), contrary to s 403 of the Criminal Code.

(b) Assault occasioning actual bodily harm (to the victim of the burglary), contrary to s 24 of the Crimes Act 1900 (ACT).

3. The offender has spent two months and 28 days in custody. He was released to bail and has been on bail since August 2013.

4. The plea of guilty was entered five days before the trial was fixed for the third occasion. Given the history of the matter and the strength of the Crown case, pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), a discount of about 10% is appropriate.

5. The offender married S in 1972. The couple was divorced in 1978. In 1979, they resumed cohabitation and lived together reasonably amicably for many years thereafter. They had three sons, who are now adults. In the late 1990s, there was an incident, described by the offender as infidelity, on the part of S. The offender volunteered in evidence that he used intimidation to break up that relationship.

6. The offender said that, some time before the subject offence, he joined the Rebels Motorcycle Gang, purely for the purpose of enjoying motorcycle riding. He remained a member until 2013. His membership of the Gang placed a considerable strain on his relationship with S because he devoted a lot of time to the Gang's activities.

7. As a consequence of fractures in the relationship, in March/April 2013, S left the offender and moved out of the home. It is the offender's understanding that, by that stage, S was already in a relationship with the victim. The offender was devastated at the breakup of his relationship and he maintained his devotion to S.

8. It is in those circumstances that, on 25 May 2013, the offender communicated with S by a series of text messages. He sent her a text message at 3.22pm referring to the victim in abusive terms. Later that day, S went to the victim's house. That evening, the offender attended the victim's house and knocked at the front door. When the victim opened the front door, the offender demanded to see S and pushed his way into the home. The victim and S succeeded in evicting the offender, who left the premises.

9. Thereafter the offender sent many text messages to S. The text messages were abusive. They referred to the victim in very objectionable terms. They became threatening, saying, "You want me to pay another visit, eh?" and "Windscreens make a nice bang when they get hit hard enough." One of the messages sent at 11.58pm said, "Just imagine how lucky you're going to be when I finish with him."

10. The offender consumed alcohol over the course of that night. At about 6am on the morning of 26 May 2013, the offender drove to the victim's house and parked outside. He removed from his car a 1.2 metre silver coloured spirit level and a plastic shopping bag. The bag contained an angle grinder, 16 black cable ties, electrical tape, a redhandled kitchen knife and a timberhandled holding knife.

11. The offender walked to the front porch of the victim's house carrying these items. He placed the shopping bag on the ground near the front door. The offender said in evidence that he intended the items in the shopping bag to provide a threat or intimidation to the victim and/or S. The offender then used the spirit level, which is the weapon, the subject of the charge, to smash a double glass paned window of the victim's bedroom, which was located at the front premises. The victim and S, who were asleep in bed, were showered with glass. The latter event is the subject of the additional offence of intentionally cause damage to property.

12. Wearing only underwear, the victim ran to the front door and opened it to see the offender standing there holding the spirit level in his hands. When asked what he was there for, the offender replied, "You know what I'm here for; I'm going to kill you." He elaborated by saying, "You're sleeping with my wife," and then continued to scream that he was going to kill the victim.

13. The victim walked away. The offender walked towards him with the spirit level raised. The offender swung the spirit level towards the victim and struck him a number of times with the spirit level on the left arm and the left side of his head, causing injuries, including significant lacerations. The victim began to feel dizzy and unsteady. The offender repeatedly told the victim that he was going to kill him. S managed to intervene and she grabbed the spirit level. The offender then punched the victim in the face, continuing to threaten to kill him because the victim had "ruined his life". These events are the subject of the offence of aggravated burglary and the additional offence of assault occasioning actual bodily harm.

14. Fortunately, the victim had a boarder. The boarder heard the commotion. He grabbed the offender around the chest with both hands and assisted the victim to restrain the offender. The police were called and the victim and the boarder continued to restrain the offender until the police arrived. While being escorted from the premises by police, the offender explained, "How would you feel if someone was screwing your wife?"

15. The victim was conveyed to Calvary Hospital, where multiple injuries were observed. He required 17 stitches to his left arm, four stitches to his head and pain relief medication.

16. At the time of the offence, the offender was on bail on a charge of common assault. The fact that the offence was committed while the offender was on conditional liberty is an aggravating feature.

17. The offender's criminal history includes a number of assault matters. In 2008 the offender came before the Supreme Court in relation to the offence of assault occasioning actual bodily harm. An offence of aggravated burglary was taken into account as an additional offence. These offences were committed on 26 February 2006. They involved a home invasion in which a person was hit with a baseball bat. It was alleged that a friend of the offender had a grievance against the victim. It was an example of the offender taking the law into his own hands.

18. On 20 January 2007 the offender committed two offences of common assault. The offender believed that a person had taken an item belonging to his nephew. He sought to achieve summary justice by committing the assaults.

19. In 2011 the offender committed another common assault. This was a "road rage" incident. The criminal proceedings were not finalised until August 2013. This is the matter for which the offender was on bail at the time when he committed the subject offence.

20. For the 2006 offence, Penfold J sentenced the offender to three months' imprisonment, to be released after serving about two weeks, on an 18 month good behaviour order. For the 2007 offence, the offender received an 18 month good behaviour order and had to perform 200 hours of community service. He did not breach these two good behaviour orders by committing any further offences. For the offence committed in 2011, the offender was fined $2000.

21. It is clear that the offender has a history of taking the law into his own hands.

23. Relatively little is known of the offender's upbringing except that his father died when the offender was 15 years of age. The offender was obliged to take on responsibilities that were onerous for a boy of that age. He sought to fill the father's role within the family. He married S when he was about 20 years of age.

24. He is described by character referees as an intelligent and affable person. By all accounts, he is a very hard worker. He has always been in employment in the building industry. Currently, he has employment. Since his release on bail, he has resided in the Cooma area. He says he has built a new life in Cooma, removing himself from his former associates in Canberra. He says he is happy, has family there and lives a generally quiet life.

25. He says that he wants to continue to pursue that life. He says that, at almost 63 years of age, he realises that he needs to settle down. I accept that that is his intention. Whether he is able to achieve that goal is another matter. It is very surprising to find someone coming before the Court for an offence of this nature committed at about 60 years of age, not having learnt his lesson from a series of prior similar incidents.

26. The Crown not unreasonably characterises the offence as a violent home invasion committed by the offender when he was in a jealous rage. The weapon in question was a spirit level, which is certainly not the most serious type of weapon. The weapon is very much towards the lower end in terms of seriousness

27. On the other hand, the burglary was obviously planned, albeit planned in the context of a degree of intoxication and "a jealous rage". The offender admitted that it was his intention, in going to the premises, to intimidate the victim. This was, in effect, the culmination of a campaign to end the relationship between the victim and S. The offender had been sending text messages and threats to S over the preceding months and he intensified the campaign on the evening of 25 May 2013.

28. The offender took with him not only the spirit level but also other potentially more threatening items. They were located in the bag, which the offender said he intended to leave on the front porch. There is no evidence that his intention was otherwise.

29. The offender went to the victim's home when he knew that the victim would be at home with S. He went in the early hours of Sunday when the victim and S were in bed. He smashed the front window, which would have been very frightening as it showered the previously sleeping victims with glass. The incident only terminated when the boarder came to the assistance of the victim.

30. The offender attacked the victim by striking him many times with the spirit level and causing numerous injuries, some of which required stitches.

31. In addition to the physical attack, there was a verbal attack. The offender repeatedly said that he was going to kill the victim. The victim would have believed that that was the offender's intention. There is no doubt that it was an extremely frightening event for the victim, S and the boarder. However, the offender has not been found guilty of attempting to murder the victim.

32. The objective circumstances of the offending conduct are of at least moderate seriousness.

33. Since the commission of the offence, the offender has breached the law in at least one respect. He breached a protection order put in place to protect S. The breach was not particularly serious; he sent her a text message in mid2013.

34. In sentencing the offender, I have regard to the maximum available penalty of 20 years' imprisonment. I take into account the additional offences, although these do not aggravate the penalty. Rather, they enable the Court to take into account the personal and property injuries that occurred in the course of the aggravated burglary. The offender not only entered with intent to cause harm, but he actually proceeded to cause harm.

35. The Court is required to consider the sentencing purposes in s 7 of the Sentencing Act. A prominent purpose is general deterrence. Home invasions are abhorred by the community. They involve the violation of the privacy and tranquillity of homes. Given the offender's history of disobedience to the law, specific deterrence is also another very important sentencing purpose.

36. I note that, when Penfold J sentenced the offender in 2008, she observed that two important sentencing objectives were general deterrence and specific deterrence. In light of the subject offence, the sentences imposed on that occasion were inadequate to achieve the purpose of specific deterrence. It is important to impose a sentence that contains an element of adequate punishment. Accountability, denunciation, recognition of harm to the primary and secondary victims and protection of the community are important sentencing purposes.

37. Rehabilitation must also be considered. There is nothing in particular before the Court that addresses the question of rehabilitation, except for the offender's stated intention. Rehabilitation is best addressed by imposing a relatively short nonparole period.

38. The offender has not previously served any significant period in custody. Hopefully at 62 years of age, imprisonment will have a fairly immediate effect upon him. I therefore consider it appropriate to allow the authorities some scope to release him relatively early. The offender appreciates that, at his age, his remaining time is quite limited.

39. I was referred by the Crown to two decisions that are of some assistance: R v Minnis [2014] ACTSC 268 and R v Lindley-Jones [2014] ACTSC 296. Both decisions provide a reminder of the relevant matters and approach. I have also considered the statistics on the ACT Sentencing Database with respect to aggravated burglary. However, they are of little assistance. As noted in LindleyJones at [23], 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.

40. I am aware that I am required to take into account the matters set out in s 33 of the Sentencing Act. I believe that I have done so. I am satisfied that the only appropriate sentence is one of fulltime imprisonment.

41. The offender is convicted of the offence of aggravated burglary.

42. Taking into account the additional offences of assault occasioning actual bodily harm and intentionally cause damage to property, the starting point for the sentence was three years and six months' imprisonment. With a reduction of a little over 10% for the plea of guilty, the sentence to be imposed is three years' and one month imprisonment. I consider that an appropriate nonparole period is 18 months. The sentence will be backdated to take into account the two months and 28 days already spent in custody.

43. I impose a term of imprisonment from 26 January 2015 to 25 February 2018, with a nonparole period to expire on 25 July 2016.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.