Wednesday 4 December 2002
REGINA v Daniel Robert WELDON
REGINA v Gregory John CARBERRY
Judgment
1 IPP JA: These reasons concern two appeals by the Crown against sentences imposed by Norrish DCJ upon Gregory John Carberry and Daniel Robert Weldon.
2 On 23 July 2001 at Wagga Wagga, Carberry and Weldon, who are cousins and friends, carried out a joint criminal enterprise. This involved forcibly breaking into a house in which two young men, brothers, named Matthew and Darren George, were residing and stealing cannabis from them. Both Carberry and Weldon were charged with two offences in consequence of their conduct in this enterprise and both pleaded guilty to and were convicted of the charges of which they were convicted.
3 The charges of which Carberry was convicted were armed robbery with wounding pursuant to s 98 of the Crimes Act 1900 (which carries a maximum penalty of twenty-five years) and malicious wounding pursuant to s 35(1)(a) of the Crimes Act (which carries a maximum penalty of seven years). The charge sheet reflected that the wounding alleged as part of the offence of "armed robbery with wounding pursuant to s 98 ..." was the wounding of Matthew George with a tomahawk. According to the charge sheet, the malicious wounding pursuant to s 35(2) was the wounding of Darren George.
4 The charges of which Weldon was convicted were robbery in company inflicting grievous bodily harm pursuant to s 98 of the Crimes Act (which carries a maximum penalty of twenty-five years) and a charge of malicious wounding pursuant to s 35(1)(a) of the Crimes Act. According to the indictment, the grievous bodily harm was inflicted on Matthew George and the malicious wounding involved the wounding of Darren George.
5 On 2 August 2001, Norrish DCJ sentenced Carberry on the charge of armed robbery with wounding to a term of six years and nine months imprisonment dating from 11 November 2001 and expiring on 10 August 2008 with a non-parole period of four years expiring on 10 November 2005. On the second charge of malicious wounding, Norrish DCJ sentenced Carberry to a term of three years imprisonment dating from 11 November 2001 and expiring on 10 November 2004. The term of imprisonment in respect of the count of malicious wounding was ordered to be concurrent with the sentence in respect of the charge of armed robbery.
6 On 28 August 2002, Norrish DCJ sentenced Weldon on the charge of robbery in company inflicting grievous bodily harm to six years imprisonment dating from 19 November 2001 and expiring on 18 November 2007 with a non-parole period of three years expiring on 18 November 2004. His Honour sentenced Weldon on the second count of malicious wounding to a sentence of two years and six months imprisonment dating from 19 November 2001 and expiring on 18 May 2004. The sentence in respect of the charge of malicious wounding was ordered to be concurrent with the sentence imposed in respect of the charge of armed robbery in company inflicting grievous bodily harm.
7 I shall briefly describe the events that led to the commission of the offences of which Carberry and Weldon were convicted.
8 On 22 July 2001, Carberry and Weldon travelled from Canberra to Wagga Wagga to visit relatives and other friends. They consumed methyl amphetamine and other drugs before leaving Canberra. They arrived at Wagga Wagga at about 4am on 23 July 2001. There they drank some quantities of alcohol with valium and spent the morning and early afternoon driving around visiting various people.
9 At one of the homes they visited, Carberry found a tomahawk and armed himself with it. In mid-afternoon he and Weldon went to the home of the Georges with the intention of stealing some cannabis which they believed to be on the premises. Carberry, while armed with the tomahawk, knocked on the door while Weldon stood behind him. The door was opened by Matthew George, who was then seventeen years of age and a student. Carberry forced his way through the door and hit Matthew in the right eye. The blow caused him to fall backwards. Matthew called out for help. His older brother, Darren, was asleep but woke up when he heard Matthew screaming. He saw Matthew on the floor being hit around the head with a tomahawk by Carberry and went to his aid. Darren struggled with Carberry and was hit a number of times about the head with the tomahawk sustaining a laceration to his scalp that later required ten sutures. Matthew heard one of the men who was attacking Darren say, "You are dead you white bastard."
10 Darren managed to force Carberry and Weldon out the front door. He then became involved in a struggle outside the house with Carberry during which he was punched and kneed a number of times. Matthew struggled with Weldon and was punched and kicked by him. Darren went to his brother's assistance again and pushed Weldon away. Darren then assisted Matthew back into the house.
11 Carberry then armed himself with a piece of wood and forced his way back into the house. There he struck Darren twice (once to the face, once to the shoulder) with the piece of timber. Again Darren pushed him out of the house.
12 Weldon then came into the lounge room and threw a rock at Darren, striking him in the mouth. Darren sustained a laceration to his lip which required seven sutures and fractured a tooth.
13 During the incident Matthew offered one of the respondents a small bag containing cannabis leaf. This bag was knocked from his hand and one of the respondents (it is not known which) struck him on the top of his head causing him to lose consciousness again.
14 At some point during the incident Matthew sustained a wound above his right eye and a blunt force injury to his right eye. This blunt force injury also caused fractures to the bones around the right eye and in the sinus area. Matthew also sustained lacerations to the face and head which required sutures.
15 The blunt force injury to the right eye caused internal haemorrhaging in the eye and a choroidal rupture. The injury left Matthew with a droopy upper lid for many months. While the eyelid position eventually improved, the vision in the right eye was permanently affected. The vision has gone from normal to a level of 6/18, which is not sufficient to hold a driver's licence. There is no chance that the vision in this eye will ever improve. There is a risk that the vision may deteriorate if one of the ruptured areas should ever re-haemorrhage. Matthew relied on the vision in his right eye as the vision in his left eye was poor due to a pre-existing condition.
16 It is not known which of the two respondents actually inflicted the wound above Matthew's right eye or the blunt force injury to the eye. Norrish DCJ, however, rightly pointed out that as the respondents were involved in a joint criminal enterprise they bear joint responsibility for the various injuries suffered by their victims - each contemplated the possibility that, in the course of their joint criminal enterprise, injury would be caused to the respective victims.
17 Carberry and Weldon left the premises with two plastic bags containing cannabis leaf which they had taken from the George residence. They smoked some of the stolen cannabis that evening.
18 I now turn to Carberry's personal circumstances relating to the sentences imposed on him.
19 Carberry is an Aboriginal man born on 28 November 1972. He was twenty-eight years of age when the offences were committed. He grew up in a relatively small country town where, according to Norrish DCJ, "Aboriginal people have been and remain marginalised and from time to time discriminated against." His father was an Italian farm worker and his mother an Aborigine, who was said to have been a member of the stolen generation. Carberry's parents had a volatile marriage and he had an unstable upbringing. He has had little or no contact with his father since 1987. He was raised by his mother and has a close relationship with his siblings. He has support from his family.
20 Carberry had a close relationship with a woman for approximately fourteen years but that relationship has ended. Three children of the relationship are alive. One child died in 1998. The death of the child caused such grief that the couple separated. Since then Carberry has entered into a new relationship with another woman and a child has been born of this union. Norrish DCJ said that for many years Carberry had shown little concern for exercising any real parental responsibility for his children.
21 Carberry has consumed cannabis since the age of eleven and from his early teenage years has been a heavy drinker of alcohol. Since the death of his son in late 1998, he has consumed heroin, methylamphetamine and other amphetamine-type substances.
22 Essentially, he has been unemployed most of his adult life. He is a talented artist and sportsman but has never properly exploited his talents. Carberry has a lengthy criminal record for dishonesty, violence, drug-alcohol related and driving offences. He served sentences of imprisonment in 1995 and 1996. In 1992, 1994 and 2000 he endeavoured to enter rehabilitation centres but none of these attempts lasted more than three days.
23 In May 2002 Carberry told the author of a pre-sentence report that since his admission to custody on the charges the subject of this appeal he has been able to abstain from the use of alcohol or chemical substances. However, the author noted that "on previous occasions, supervision has been ineffective in changing Mr Carberry's behaviour. In this instance, while he has voiced more positive attitudes, there is as yet little reason to be confident of a beneficial outcome for future intervention. Of particular concern are his proclivity for violence and his untreated substance abuse issues.
24 Norrish DCJ noted that in the past Carberry had received lenient sentences for certain offences that reflected special consideration having been given to him, presumably by reason of his disadvantaged circumstances. Notwithstanding the opportunities that were afforded to him, his criminal career continued unabated. The learned judge observed that Carberry's criminal history reflected an attitude of anti-social, irresponsible, violent and dishonest conduct for many years prior to late 1998. His Honour did not accept Carberry's claims of being affected by drugs at the time of the commission of the offence. He said:
"In my view, this offence involved some planning, in particular the careful choosing of the victims, or at the location where the crimes were committed, arming himself with a weapon and, as the facts reveal, a deliberateness of execution that speaks eloquently of his purpose and intent at the relevant time."
25 His Honour considered that Carberry had a relatively clear understanding as to what he was doing at all relevant times. His conduct and the execution of the crime did not reflect a craving on his part, nor impulse, nor an inability to exercise proper judgment. It reflected deliberateness, selfishness and greed. His Honour said:
"The facts are that the prisoner is a person who simply wants to do what suits him with no regard to the interests and rights of others, even his immediate family. He is a person who spent his life setting out achieving his own ends without regard to anybody else."
26 This morning, his counsel, Mr Button, read to the Court an affidavit by Carberry in which he stated that he had been in strict protection since he was sentenced. According to Carberry, he had to sign on for strict protection because of the difficulties he had with other inmates. He said he was restricted in his activities in the gaol because he was in strict protection. He said, "I believe I will have to stay on strict protection for the rest of my sentence."
27 This affidavit provides very little information to the Court as to why Carberry is in strict protection and who must bear responsibility for his difficulties with other inmates. No grounds are given for his belief that he will have to stay in strict protection for the rest of his sentence. I would add that, according to this affidavit, the period of imprisonment has had some rehabilitative effect on Carberry.
28 In my opinion, the material in the affidavit, while relevant to sentencing, is not of significant weight in the issues that arise in this appeal.
29 I now turn to Weldon's subjective personal circumstances. Weldon was born on 23 January 1977. He is also an Aboriginal person who has had a deprived upbringing. Both his parents abused alcohol and he and his mother were both victims of domestic violence. He left school in year 8 and has only been employed for brief periods of time.
30 Weldon has been in a relationship with a woman for six years and has two children by her. He also has two children from a former relationship. The latter two live in New Zealand and he has had no contact with them for the last six years.
31 Weldon began drinking alcohol at an early age, began using intravenous drugs at age fifteen and for a period of three years from the age of eighteen was a heavy user of heroin.
32 Weldon has a lengthy criminal record, including convictions for offences of dishonesty, assault, assault occasioning actual bodily harm and driving offences. He has been supervised by the Probation and Parole Service in the past. In February 1999, in the ACT Supreme Court, he was sentenced on a charge of occasioning actual bodily harm to two years imprisonment suspended upon him entering into a recognisance to be of good behaviour for three years. The present offences constitute a breach of that recognisance.
33 Weldon has undertaken two attempts of rehabilitation in the past but these have not been successful. He has never served a sentence of imprisonment, although he has in the past undergone periods of incarceration whilst on remand.
34 There are obvious features of the criminal conduct of both respondents that constitute circumstances of aggravation. The violence they employed on Darren and Matthew George in effecting the robbery was unremitting, determined, ruthless and without mercy. The injuries they inflicted, particularly on Matthew, were serious and of a permanent nature. Their conduct was deliberate and planned and they well understood the serious consequences of what they had done. Although they were forcibly ejected from the home, they persisted in forcing their way in a second time, in effect they perpetrated a home invasion of a most serious kind.
35 Norrish DCJ rightly pointed out that there was little connection between the respondents' Aboriginality, their deprived upbringing and the harsh circumstances of their lives on the one hand, and their reasons for committing the two offences of which they were convicted and their conduct in doing so, on the other. His Honour rightly held that there was no matter that mitigated the objective seriousness of the offences.
36 In explaining how he had arrived at the sentences he had imposed on Carberry, Norrish DCJ pointed out that Carberry had pleaded guilty at the first reasonable opportunity and afforded him a discount of twenty-five per cent. His Honour said that the utilitarian value of the plea was high.
37 Norrish DCJ said that the appropriate sentence for the offence of armed robbery with wounding would ordinarily be one of nine years. Applying the twenty-five per cent discount he therefore imposed a sentence of six years nine months in relation to the armed robbery with wounding.
38 His Honour considered that the starting point for the sentence for the offence of malicious wounding committed by Carberry was four years. Taking into account the discount of twenty-five per cent, he imposed a sentence of three years.
39 Norrish DCJ ordered the fixed term sentence of three years in respect of malicious wounding to be concurrent with the sentence for the armed robbery with wounding. His Honour said in this regard:
"Both sentences should be served concurrently as they both arise out of the same set of circumstances."