R v Stott [2017] ACTSC 248

[2017] ACTSC 248

See [54] - [57] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - driveby shooting - arson to destroy vehicle used to commit shooting - conspiracy to traffic controlled drugs into Alexander Maconochie Centre - recent prevalence of drive-by shootings - need to send message to other potential offenders - no offending since mid-2015 - no evidence of drug use since mid2015 - drug rehabilitation program completed in pre-sentence custody - good prospects of rehabilitation - low non-parole period set in recognition of offender's youth and demonstrated commitment to rehabilitation.

Crimes (Sentencing) Act 2005 (ACT), ss 70, 72

Crimes Act 1900 (ACT), s 27(3)(c)

Magistrates Court Act 1930 (ACT), s 90B

Supreme Court Act 1933 (ACT), s 68D

Melbom v Regina [2011] NSWCCA 22

Powell v R [2014] NSWCCA 69

Quealey v R [2010] NSWCCA 116

R v Clifton [2016] ACTSC 326

R v Wrigley [2015] ACTSC 114

Legal Aid ACT (Offender)

SCC 206 of 2016; SCC 207 of 2016; SCC 127 of 2017

1. Harley Stott has pleaded guilty to three offences as follows:

(a) one count of being knowingly concerned in the use of an offensive weapon against another in circumstances likely to endanger human life, arising under s 27(3)(c) of the Crimes Act 1900 (ACT) and s 45 of the Criminal Code 2002 (ACT), and carrying a maximum penalty including 10 years imprisonment;

(b) one count of arson, arising under s 404(1) of the Criminal Code and carrying a maximum penalty including 15 years imprisonment; and

(c) one count of conspiring to traffic controlled drugs, arising under s 603 and s 48 of the Criminal Code and carrying a maximum penalty including 10 years imprisonment.

2. Two offences of obstructing or hindering the investigation of an offence were transferred to this Court for sentencing under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT). However, the Crown accepted the two pleas of guilty on the indictment relating to the drive-by shooting and arson incident in full satisfaction of all matters arising out of that incident, and offered no evidence on the transferred charges. Accordingly, I dismiss those charges.

3. The offence of being knowingly concerned in the use of an offensive weapon (which involved Mr Stott being in company with the person who actually used the firearm), and the arson offence, were committed on 2 February 2015 and related to a dispute between Tracey Organ, who owned the house at which the drive-by shooting occurred, and Erin Miller. Ms Organ and Ms Miller were in dispute over an outstanding drug debt. On 1 February 2015, Ms Organ discovered that her nephew had stolen jewellery from Ms Miller's safe and Ms Organ, by text message, let Ms Miller know that to get the jewellery back, she would need to buy it back from Ms Organ, as well as paying the outstanding drug debt.

4. Ms Miller then enlisted her friend Mr Stott to help her get the jewellery back.

5. Early in the morning of 2 February 2015, Mr Stott was at Ms Miller's premises where he had been using drugs. Mr Stott and another man drove to another house in a goldcoloured Subaru WRX. At this house Mr Stott got into the back seat of the car and a third man got into the front passenger seat with a firearm. Mr Stott was present while the two other men discussed the use of the firearm. Around 2.30 am the three men drove to Ms Organ's home where the third man, sitting in the front passenger seat, discharged five rounds from a .22 calibre sawn-off rifle. One of those bullets went through the lounge room window and hit a woman who was watching television in Ms Organ's lounge room. The bullet hit the woman in the stomach, but did not penetrate further than the surface layer of her skin. The other bullets hit a wall at the front of the house.

6. Ms Organ immediately reported the shooting to police, and named Ms Miller and a person believed to be the third man as likely to be involved.

7. The gold Subaru was driven around Canberra for some time, until the driver parked the car in a playing field in North Canberra. In discussions with the other two men, Mr Stott was asked to burn the vehicle with the rifle inside.

8. Mr Stott drove the car away, leaving the other two men, and took it to Stromlo Forest Park. Shortly afterwards, at Mr Stott's request, a friend of Ms Miller's and another person drove out to Stromlo Forest Park with a jerry can of petrol to meet Mr Stott. Both cars were then driven to Sherwood Road, Coree, where Mr Stott poured petrol over the Subaru and set fire to it with a lighter. A local farmer noticed the fire and called the fire brigade.

9. Australian Federal Police forensic investigators later attended the scene, and Mr Stott's DNA was found on a ring from the lid of the jerry can.

10. Mr Stott was arrested on 25 February 2015 in relation to a number of unrelated offences.

11. In May 2015, while in custody awaiting sentence for those offences, Mr Stott conspired to traffic drugs into the Alexander Maconochie Centre (AMC) using a mobile phone that had been smuggled into the AMC.

12. Police intercepted communications between Mr Stott and Ms Miller in which Mr Stott asked Ms Miller to arrange for methylamphetamine, cannabis and heroin to be made available to be smuggled into the AMC. The plan was for the drugs to be passed from an associate of Ms Miller to a prisoner in the AMC who would be attending Directions ACT in Woden at a specific time. It seems that Ms Miller's associate did attend with the drugs as planned, but did not get an opportunity to pass the drugs to the prisoner.

13. Mr Stott was arrested in relation to the arson and the drive-by shooting on 4 February 2016, and was granted bail the next day, 5 February 2016. He was arrested again on 9 April 2016 and has been in custody ever since. He was charged with the conspiracy offence on 10 May 2017.

14. As well as the statement of facts, the following material is in evidence before me:

(a) Mr Stott's criminal history;

(b) a pre-sentence report dated 21 July 2017; and

(c) a CADAS report dated 26 July 2017;

(a) a letter from Karralika showing Mr Stott had been approved for admission (with an admission date of 31 July this year), and a Karralika brochure;

(b) a certificate of graduation from the Solaris Therapeutic Community, said to be from March 2017;

(c) certificates of attendance at the seven-week SMART Recovery program; the Healthy Body, Healthy Mind program; and the First Steps to Anger Management program, all in November or December 2015 (while Mr Stott was in custody);

(d) a Discipline Form 3 from the AMC recording that Mr Stott was charged with assaulting another detainee in August 2016, and setting out the penalty imposed, which appears to have been seven days loss of privileges (I understand this was tendered to give some further information about an assault referred to in the pre-release report in relation to Mr Stott's possible release from parole);

(e) a relapse prevention plan prepared by Mr Stott when he graduated from the Solaris program, but dated when it was typed up in July this year;

(f) the pre-release report that I have just referred to, dated 25 November 2015 and prepared by Corrections in anticipation of the expiry in December 2015 of the non-parole period set for Mr Stott's last sentence of imprisonment;

(g) an addendum to the pre-release report dated 4 December 2015; and

(h) a letter to the Court dated 2 February 2017 from Mr Stott's mother, Sharon Stott.

16. In considering the objective seriousness of the offences, I have had regard to the following matters.

(a) The shooting and the arson offences were committed while Mr Stott was on conditional liberty subject to good behaviour orders I made in July 2014. I note at this point that the good behaviour order was cancelled, and the relevant suspended sentence imposed, in my 2015 sentencing.

(b) The conspiracy was committed while in custody.

(c) The offensive weapon offence (that is the drive-by shooting offence) involved a weapon that was inherently dangerous, being a firearm.

(d) The shooting was not entirely spontaneous, although it seems that it may not have been intended at the point when Mr Stott and the second man left Ms Miller's home.

(e) The shots were fired at a house then occupied by five people, including two children, and one person was in fact hit.

(f) Mr Stott had unnecessarily involved himself in a dispute between two other people about drugs.

(g) Finally, the recent prevalence of drive-by shootings in Canberra, and the community concern caused by them, have generated a need to send a strong message to other potential offenders.

17. As to remorse, Mr Stott instructed his counsel to make no excuses for him and told her he takes full responsibility for his actions. He made the same comments to the presentence report author. Some remorse can also be inferred from the pleas of guilty.

18. Mr Stott does not appear to have been an active participant in either the driving or the shooting that constituted the drive-by shooting, but concedes that he was present, that he was aware of the proposed shooting as it was discussed in his presence, and that he did not try to remove himself from the situation or try to dissuade his co-offenders. He blames his actions on "seriously misplaced loyalty". Mr Stott says that he was offered money and drugs for burning the car, but he is not proud of his actions.

19. On the other hand Mr Stott appears to have been the instigator of the conspiracy offence.

20. All of Mr Stott's current offences are objectively serious examples of the offences concerned.

21. I have also had regard in this sentencing to Mr Stott's subjective circumstances.

22. Mr Stott is 24 years old. His criminal history in the ACT includes involvement in two attempted aggravated robberies, an assault occasioning actual bodily harm, and offences involving a stolen motor vehicle and receiving stolen property, as well as a drug possession offence and several other minor offences.

23. Mr Stott was born in regional New South Wales. He had no contact with his nowdeceased father after he was two years old, but says he has a good relationship with his mother and younger brother. Mr Stott told the pre-sentence report author that he felt his childhood was largely positive, and he has always felt very much loved by his mother. However, he believes he did not attend school until Year 4 because of his mother's lifestyle at the time; this seems to have put him at a real disadvantage when he did start school, and it is perhaps no surprise that he left school in Year 9. Mr Stott told the CADAS report author that school "wasn't for me".

24. Mr Stott told the pre-sentence report author that his mother was not always available to provide emotional support due to her drug use. Ms Stott in her letter conceded that she had not been a good role model for her son, but attributed Mr Stott's involvement with bad young men, and his descent into criminal behaviour, on her own incarceration in the AMC for nearly three years on kidnapping and other charges.

25. Mr Stott reported a history of drug use on his own part which involved cannabis, cocaine, ecstasy and methylamphetamine. He claimed to have ceased all illicit substance use when he was imprisoned in 2015. When last in the community in January 2016, Mr Stott's urine samples were negative for illicit substances, and the pre-sentence report author also noted negative results for all urinalysis since Mr Stott's return to custody in April 2016. In September 2016, Mr Stott entered the Solaris Therapeutic Community program and now continues to participate in the program as a graduate. Mr Stott told the pre-sentence report author that he had a positive experience in the program and hopes to transition to the community through a residential rehabilitation program.

26. Mr Stott reported no physical health issues, but his mother indicated that he suffers from the long-term effects of an assault by his stepfather. Mr Stott also has a history of depression, anxiety, suicide attempts and self-harm. Since being remanded in custody in April 2016, Mr Stott has been treated for an adjustment disorder with mild to moderate depressive symptoms; however, he told the pre-sentence report author that he does not believe he will require ongoing treatment when he is released from custody, and his counsel said that he hopes that when he is in the community he will be able to come off his depression medication.

27. Counsel for Mr Stott said that the offences were committed at a time when Mr Stott was not coping with his substance abuse issues, and "would have done anything for drugs". Mr Stott says that he committed the conspiracy offence, in effect, in an attempt to ensure his own supply of drugs while in the AMC.

28. Mr Stott was released on parole in January 2016, after Corrections initially recommended against his release due to a lack of suitable accommodation. His subsequent release was on the understanding that he would live with his partner and her mother. The current status of that relationship is not clear.

29. The pre-sentence report author reports that after he was released on parole in January 2016, Mr Stott was compliant with his parole order, and with bail orders made after he was charged and again granted bail in February 2016. None of the drug testing since his release in February 2016, including in the period since he was again remanded in custody, has indicated any drug use.

30. In custody Mr Stott has been disciplined for smoking in a non-smoking area, contravening an officer's directions, and assaulting another prisoner. However, his behaviour since September 2016, when he entered the Solaris program, is described as positive.

31. Mr Stott accepts that returning to his mother's home would not provide an appropriately supportive environment given his wish to remain drug free in the future.

32. Mr Stott is still a young man, and his rehabilitation is in my view still a significant sentencing consideration.

33. Mr Stott claims to have been clean and sober for approximately two years now, although it seems he has not been tested since March this year. Given that he has apparently been able to access drugs at some points while in custody, abstention for that extended period reflects more than a simple inability to obtain drugs. That is, it appears to reflect a real commitment on his part.

34. I have already mentioned Mr Stott's wish to make his next transition from prison into the community via a residential rehabilitation program, and that he had already organised a place in Karralika that would have been available shortly after the original sentencing date for these matters.

35. Mr Stott has also not offended for over two years now. Again, given that his most recent offence was committed in custody, this lack of offending does not simply reflect a lack of opportunity during the period concerned.

36. All three of Mr Stott's offences have a real impact in the broader community, and as such need to be dealt with so as to provide general as well as personal deterrence.

37. In relation to the arson and offensive weapons charges, Mr Stott pleaded not guilty in the Magistrates Court and was committed to this Court for trial. The trial was set down for 29 May this year, but on 4 May 2017 he pleaded guilty after lengthy negotiations with the Office of the Director of Public Prosecutions and the making of a quite significant change to the nature of the charge in relation to the shooting. Counsel says that, although those guilty pleas came quite late, they still had some utilitarian value, and that they showed an acceptance of responsibility for the offending in the form in which it was ultimately charged.

38. Mr Stott pleaded guilty to the conspiracy offence in the Magistrates Court on 24 May 2017, only two weeks after he was charged, apparently before a full brief of evidence was served, and also after significant negotiations. In that case, however, the negotiations seemed to have been in Mr Stott's interests rather than aimed at correcting the facts alleged against him. Counsel conceded that there was a strong prosecution case in relation to the conspiracy charge.

39. As well as taking account of the time Mr Stott has spent in custody in respect of these offences since April 2016, I also propose to provide a further period of backdating in recognition of the fact that the current offences were all committed before I sentenced Mr Stott in August 2015 for two other offences which were committed in February 2015, but after the drive-by shooting and the arson.

40. A review of the file suggests that there were a variety of complexities in the investigation and then the criminal processes related to the shooting and arson, but I can find nothing in the files that explains why the conspiracy offence took so long to be the subject of a charge. As a general proposition, it seems likely that if I had sentenced Mr Stott for any or all of the three current offences when I sentenced him in August 2015 for other offences, there would have been some concurrency with the other sentences that were imposed then, although I do note at this point also the provisions of ss 70 and 72 of the Crimes (Sentencing) Act 2005 (ACT), under which the sentence for the conspiracy offence would be entirely accumulated on the other sentences I am to impose unless I make a specific order to the contrary.

41. The prosecutor drew my attention to several New South Wales Court of Criminal Appeal cases relating to sentences for drive-by shootings, while pointing out that, unlike the ACT, New South Wales has a specific offence relating to discharging a firearm at a dwelling house with reckless disregard for safety, and that offence carries a higher maximum penalty than that applicable here (14 years imprisonment in New South Wales compared with 10 years for the more broadly-applicable ACT offence for which Mr Stott is to be sentenced).

42. Those cases, Quealey v R [2010] NSWCCA 116 (Quealey), Melbom v Regina [2011] NSWCCA 22 (Melbom), and Powell v R [2014] NSWCCA 69 (Powell), produced sentences of 5 years imprisonment; 3 years 9 months fixed term (possibly with a parole period as well); and 7 years imprisonment respectively. In each case the offender was the shooter, and knew that there was at least one person in the house shot at.

43. In Quealey, the offender was found to be the dominant player in the offence, which involved her discharging a shotgun twice, during the same chain of events but on two separate visits to the premises concerned, and the offence was among other things committed in breach of two good behaviour bonds imposed only four months previously. Ms Quealey's co-offender, who had a minor criminal history and whose role in the offence was the provision of the shotgun, was sentenced to four years imprisonment with a two-year non-parole period.

44. In Melbom, the offender had been sentenced for a total of nine offences; the shooting offence was committed in the course of a rampage in a single evening, which began with a dispute in the course of which the offender fired two shots at his former partner's home, and continued with, among other things, another shooting which resulted in the victim's leg being amputated. The offender was 29 years old, had a criminal history consisting of relatively minor offences, and had some psychiatric problems.

45. In Powell, the offender was 25 years old, with a dysfunctional childhood and a significant criminal history including offences of violence and a firearms possession offence.

46. The prosecutor also relied on the New South Wales sentencing database for the submission that in New South Wales, the "average" sentence for the shooting offence is between 3½ and 6 years, with an average non-parole period of 30 to 36 months. I note that those averages suggest a significant spread in the relationships between head sentences and non-parole periods.

47. As to the arson offence, the prosecutor referred me to Refshauge J's decision in R v Wrigley [2015] ACTSC 114, in which his Honour noted that the gravity of an arson offence depends on the intent with which the offence is committed, and that arson to destroy evidence of other crimes is an aggravating factor.

48. The offence is also aggravated by the use of accelerant, and the possible risk to others, including firefighters. The prosecutor pointed out that Mr Stott's offence was committed on 2 February, in a rural area, in what is usually the height of the bushfire season, and therefore carried the risk of starting a serious bushfire.

49. The prosecutor mentioned the fairly recent case of R v Clifton [2016] ACTSC 326, in which the offender was sentenced for an attempted arson in which he tried to set fire to an associate's vehicle. That sentence was 16 months imprisonment to be served by way of an intensive correction order.

50. Erin Miller, Mr Stott's co-offender in the conspiracy offence, was sentenced on what was referred to as a "rolled-up" charge which covered methamphetamine trafficking over a four-month period including the time when Mr Stott engaged her to help in moving that drug into the AMC. It is impossible to identify exactly the sentence for her part in the conspiracy for which I am to sentence Mr Stott.

51. For the trafficking offence, however, Ms Miller was sentenced to 2 years and 5 months imprisonment, reduced from 3 years for her guilty plea.

52. She was also sentenced to 14½ months imprisonment for arranging the destruction of CCTV footage from her house that was believed to be incriminating in relation to the drive-by shooting.

53. Those sentences were to be served so as to give a total sentence of 3 years 5 months, although several other sentences for unrelated offences were to run concurrently with the last 17 months of that period.

54. Mr Stott, please stand. I record convictions on one charge each of:

(a) being knowingly concerned in the use of an offensive weapon to endanger life;

(b) arson; and

(c) conspiracy to traffic in controlled drugs.

55. I now sentence you to imprisonment as follows:

(a) for the offensive weapons charge - to 3 years and 2 months, reduced from 4 years for your plea of guilty, and to run from 8 January 2016 until 7 March 2019;

(b) for arson - to 3 years, reduced from 3 years and 9 months, to be served so as to add 12 months to the total sentence, and to run from 8 March 2017 to 7 March 2020; and

(c) for the conspiracy to traffic in controlled drugs, to 2 years and 6 months reduced from 3 years 2 months, and to add only a further 12 months to the total sentence, to be served from 8 September 2018 until 7 March 2021.

56. I note in respect of that last sentence that that is in effect an order for the purpose of s 72 of the Crimes (Sentencing) Act that the sentence is not to be served entirely cumulatively.

57. That gives a total sentence of 5 years and 2 months imprisonment. In recognition of your youth, your wish to complete a residential rehabilitation program after your release, and your achievements so far in dealing with your drug habits, I set a low non-parole period of 2 years and 7 months.

58. As noted, the sentence will be backdated to 8 January 2016 to take account of the current period of pre-sentence custody, and for the reasons I have already mentioned in relation to delay in bringing some of these charges. So the sentence will run in total, until 7 March 2021.

59. The effect of the backdating and the non-parole period is that you will be eligible for parole in just under 12 months, being 7 August 2018, and I recommend that in considering your release on parole, the relevant authorities have regard to your wish to complete a residential rehabilitation program.

60. If you have any particular questions about those orders I have just made, please ask the court officials or Ms Vogel.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.