R v Scott Leslie Hollingshed and James John Rodgers [1993] ACTSC 51 (11 May 1993)

SUPREME COURT OF THE ACT

THE QUEEN v. SCOTT LESLIE HOLLINGSHED and JAMES JOHN RODGERS
Nos. SCC17-18 of 1993
Number of pages - 9
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ(1)

CATCHWORDS

Criminal Law - sentencing - relevant principles - prison - whether appropriate institution - whether imprisonment involves denial of basic human rights - whether International Covenant on Civil and Political Rights applicable in sentencing.

International Covenant on Civil and Political Rights, Articles 2(3)(a), 7, 10(3)

Dietrich v. R [1992] HCA 57; (1992) 109 ALR 385 at 391

Mabo and Others v. The State of Queensland [1992] HCA 23; (1992) 175 CLR 1.

McKellar v. Smith and Another (1982) 2 NSWLR 950

HEARING

CANBERRA, 1 and 30 April 1993 and 4 May 1993
11:5:1993

Counsel for the prosecution: Ms. M. Doogan

Solicitors for the prosecution: Director of Public Prosecutions

Counsel for the accused: Mr. B. Collaery

Solicitor for the accused: B. Collaery

Counsel for ACT Attorney-General: Mr. K. Crispin, QC

Solicitors for ACT Attorney-General: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. On the first count each be sentenced to 2 years imprisonment to date from 18 January 1993.

2.On the second count each be sentenced to 4 years imprisonment cumulative on the first count.

3.On the third count each be sentenced to 3 years concurrent.

4. On the fourth count each be sentenced to 6 years concurrent.

5. On the fifth count Rodgers be sentenced to 1 year concurrent.

6. A non-parole period of 4 1/2 years be fixed to date from 18 January 1993.

DECISION

MILES CJ Scott Leslie Hollingshed and James John Rodgers each pleaded guilty on arraignment to joint counts of burglary, robbery and making a demand with a threat to inflict grievous bodily harm, all committed on 15 January 1993, and to a further joint count of armed robbery committed on 17 January 1993.

2. Rodgers pleaded guilty to a further count of assault occasioning actual bodily harm directed at him alone, that offence occurring on 13 January 1993. Convictions were recorded on all counts. The convictions supersede proceeding by way of committal for sentence under s.90A of the Magistrates Court Act 1930. The Director of Public Prosecutions will file a notice of discontinuance in relation to the s.90A proceedings.

3. The first lot of offences occurred at about 9 p.m. on 15 January 1993 when Rodgers, together with Hollingshed and a third man called Edward Wright, went to the home of the victim in Braddon. Rodgers had made the acquaintance of the victim some weeks before in a bar. The other offenders were apparently unaware of Rodgers' previous acquaintance with the victim. Rodgers said in evidence that he had acted as the victim's intermediary for the purpose of obtaining drugs. He considered the victim to be a homosexual. The three offenders had been to premises nearby in order to rob or steal but were unable to gain entry. At Rodgers' suggestion they went to the victim's house. They gained entry through an open door. They were disguised in balaclavas and surprised the victim who was in bed watching television. Hollingshed and Rodgers held him down. Wright, at their request, tied his arms and legs. Rodgers put his hands at the victim's throat and threatened the victim that unless he disclosed where his wallet was, he would be beaten. Rodgers stuffed a towel into the victim's mouth and tied it with a pillowcase. Rodgers retrieved the wallet from the kitchen and removed from it $10 in cash and two cash cards. Rodgers took a knife from the kitchen and with the victim still held by Hollingshed, Rodgers threatened the victim with the knife until he disclosed the PIN number of one of the cards. The intruders then left with the wallet, the cash card and some other items. They tore two telephones from the wall. Hollingshed and Rodgers went to an automatic teller machine and withdrew $200 from the victim's account. They used it to buy cannabis and amphetamines. They gave the remaining $50 to Wright.

4. In the early hours of 17 January 1993, Hollingshed and Rodgers and a third unidentified man went to Glebe Park after an unsuccessful attempt to rob someone in a nearby park, a place considered to be the resort of homosexual men. In Glebe Park they found a young man together with his girlfriend on a park bench. Whilst the other men stood by, Hollingshed in a balaclava approached the couple with the knife taken from the house in Braddon. He grabbed the victim from behind with his right arm against the victim's throat and the knife held at the throat. The victim handed over his wallet with a cash card and disclosed his PIN number. Hollingshed told the victim he was sorry for what he had to do for a living. All three then decamped and were unsuccessful in trying to use the cash card at an automatic teller machine.

5. When arrested later that day both offenders initially denied any knowledge of the offences, but after being told the result of fingerprint identification from one of the items at the house in Braddon, they made certain admissions. They gave evidence at the sentencing stage which confirms the facts already outlined. Hollingshed added that he had no knowledge of the use of the knife by Rodgers at the house at Braddon. He said that the use of the knife in the subsequent offence was simply to scare the victim. He offered the view that the threat of the use of a knife or other intimidation, if done calmly, reduces the risk of actual violence. He also said that he was under the influence of drugs at the time, that amphetamines bring out his alter ego, and that he is not normally the sort of person to commit those sorts of crimes. He spoke of the use of "retaliation in defence" in the prison environment.

6. Rogers said in his evidence that he was so heavily influenced by drugs on 15 January that he thought that the victim was a man who had sexually assaulted him when he was about 8 years of age. He denied any knowledge of the use of the knife by Hollingshed on 17 January.

7. That these were offences of the utmost seriousness almost goes without saying. The victims must have been terrified. The man at Braddon was bruised about the face and neck.

8. The offence of assault occasioning actual bodily harm was committed by Rogers when he assaulted a man whom he suspected of speaking to the police over a matter concerning an acquaintance. He approached the man in the street, punched him several times and then kicked him several times in the head as he lay on the ground. The man suffered severe bruising to the face and sought medical attention.

9. Hollingshed was born on 25 October 1965 and grew up in the Newcastle area. He worked in various unskilled occupations after leaving school until 1981. By then he had already developed problems relating to drug addiction. He left his parents' house and has not been in employment since. He is the father of a child born of a de facto relationship in 1989 in the Newcastle area. He has been treated twice for his drug addiction following suicide attempts. He has several convictions as an adult going back to 1984 for a variety of offences including two burglaries and two assaults. He has been ordered to perform community service twice. He was sentenced to six months imprisonment in 1986 for stealing. In 1990 he was sentenced in the Newcastle local court to 2 years 6 months imprisonment with an additional term of 8 months. He was on parole at the time of the present offences. He had been released from Cooma Correctional Centre on 8 July 1992 and went to reside with a married couple who befriended him. However, he developed an illicit relationship with the woman which led to him being sent from Cooma to the ACT for the purpose of parole supervision. Whilst on parole he met Rodgers.

10. Hollingshed has had numerous opportunities to respond positively to counselling and treatment over a number of years, but so far has been unable to do so. Nevertheless a pre-sentence report indicates that he is considered as having some positive qualities. He has two prior convictions for assault in 1987 and 1988 respectively. He has been assessed as drug-dependent and suitable for residential treatment at a treatment centre under the Drugs of Dependence Act 1989.

11. Rodgers was born at Birdsville in a remote area of Queensland on 22 March 1970 and spent the first few months of his life in an orphanage. He was adopted into a large family in Queensland where strict discipline and religious instruction were imposed. He said that he was sexually abused by an adult friend or member of the family when he was about 8 years of age. The claim appears consistent with the rest of his history. His relationship with the adopting family was poor and he ran away finally at the age of 14. He lived on the streets of Kings Cross and, according to a pre-sentence report, became part of a sub-culture in which drug use, violence and crime were normative behaviour. He was apparently attractive to homosexual men, which enabled him to develop a strategy of robbing them. He told the corrections officer that he was kidnapped and sexually assaulted by three men at the age of 15 which has had a powerful effect on him causing, him to seek revenge on homosexual men generally. He moved to Queensland, Victoria, the Northern Territory, South Australia and then Western Australia. In South Australia he had a relationship with a woman which resulted in the birth of a child. He committed a number of offences in various places and was sentenced in the Perth District Court to one year and ten months imprisonment on 19 December 1991 on three charges of house breaking and two of stealing a motor vehicle.

12. Rodgers came to the ACT in August 1992 (he had previously lived here for some months in 1988). He formed a relationship with a young woman. He has had odd jobs but nothing like permanent employment. He is reported to have responded positively to supervision at the Belconnen Remand Centre. It is clear that he has deep emotional problems which probably derive from the experiences mentioned. His drug addiction (which, according to him, borders on the suicidal) may be secondary. I do not accept his account that he thought that the victim of the Braddon robbery was the man who assaulted him whilst a child. However, the psychological evidence is that he is beginning to achieve some insight into the enormous problems he has to overcome. An assessment panel has reported that he is not suitable for a treatment order under the Drugs of Dependence Act.

13. It is apparent that both men have deep problems, for Hollingshed predominantly drug addiction and lack of socialising skills and for Rodgers deeper psychological problems aggravated by drug addiction. Hollingshed has not been able to respond to treatment or counselling that was offered prior to the present offences. Rodgers does not appear to have had the opportunity of such treatment and counselling and whether he would respond positively to it is impossible to say. Whilst both have long records, especially having regard to their respective ages, they are not extremely serious records. Apart from their records, however, the rest of the evidence establishes that violence has become a way of life for them. Although rehabilitation must be considered, the ordinary principles of sentencing point firmly in the direction of an immediate custodial sentence, the length of which would be reduced having regard to the plea of guilty and the contrition shown thereby and independently.

14. However, Mr. Collaery, for the offenders, has submitted that I should take the radical course of not sending either of them to prison but should order that they be remanded in custody for a period of six months during which time they can receive treatment at the Belconnen Remand Centre for their drug addiction. I presume that at the end of that period I would be asked to reassess the situation with a view to their immediate release.

15. In support of that proposal Mr. Collaery has put forward a number of arguments. Some of them are familiar enough. He says that a prison sentence would serve no positive purpose and that in essence it would have the effect of further brutalizing each of these young men, so that upon their eventual release they would present a greater threat to society than when they commenced to serve their sentences. There is considerable force in that argument taken in isolation. However, the Court is bound by sentencing principles. Where the traditional factors taken into account for the purpose of sentencing leave no room for avoiding a prison sentence as a sentence of last resort, the possible or even likely corrupting effect of prison cannot in itself provide grounds for avoidance. It has sometimes been said that offenders are sent to prison not for their own good but for the good of the community, a proposition which involves the paradox that it is hardly for the good of the community that an offender emerge from prison with his or her criminal propensity confirmed. However, that is a risk that the community must run.

16. Mr. Collaery raised a further and important objection to the imposition of an immediate sentence on these men. He called evidence from Mr. Frank Young, a community corrections officer, with the Housing and Community Services Bureau, ACT Government. Mr. Young is a qualified clinical psychologist with considerable experience in the prison systems of Western Australia and New South Wales. Mr. Young also spent some time interviewing Rodgers for the purpose of the case. He said in his evidence that he thought Rodgers suffered from cognitive confusion, involving a latent homosexual tendency with a hatred and fear of homosexual men. Mr. Young considered him to be a classic case of a victim become perpetrator. Mr. Young considered Rodgers to have a high level of anger and a low level of tolerance as a result of which he would be likely to be at significant risk of physical and sexual assault by other prisoners and likely to prove to be such a threat himself to other prisoners.

17. I accept those expressions of opinion from Mr. Young. They are consistent with those of Dr Barreda Hansen, another psychologist well qualified with extensive clinical experience, although not in the New South Wales prison system.

18. Mr. Young's evidence went further. He said that, because Rodgers posed a threat to other homosexual prisoners, he was unlikely to be classified as suitable to serve his sentence in Cooma Corrections Centre, an institution where the programmes are especially designed for the protection and rehabilitation of sexual offenders. At the same time Rodgers would be a likely victim of violence in other prisons. In short, Mr. Young considered that there was no place for Mr. Rodgers in the New South Wales prison system except in an isolated protective unit where rehabilitation and training were unlikely to be available or effective. As Mr. Young put it, the New South Wales authorities do their best but the resources are simply not there.

19. In the light of that evidence, Mr. Collaery submitted that to sentence Rodgers to imprisonment would be to incarcerate him in a system which denied his basic human rights and violated the International Covenant on Civil and Political Rights (ICCPR). He relied in particular on the following provisions of the ICCPR:
"Article 2

3. Each State Party to the present Covenant undertakes:
(a) to ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy,
notwith- standing that the violation has been committed by persons
acting in an official capacity;
.....
Article 7
No one shall be subject to torture or to cruel, inhuman or degrading
treatment or punishment.
....
Article 10
3. The penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social
rehabilitation.
...."

20. The first question that arises from this novel approach to sentencing is whether the Court may have regard at all to the provisions of the ICCPR. Australia signed the ICCPR on 30 November 1980 subject to certain declarations and exceptions which are not relevant. On 25 December 1991 Australia became party to the Optional Protocol to the ICCPR according to which individuals who claim that their rights under the ICCPR have been violated, who have exhausted all available remedies, may make a submission to the Human Rights Committee of the United Nations. For lawyers it is trite to say that the ICCPR is an international instrument which does not form part of the general domestic law of Australia or of any State or Territory. But in these remarks on sentence it may be necessary to emphasise that essential principle. It was clearly enunciated by Mason CJ and McHugh J in Dietrich v. R. [1992] HCA 57; (1992) 109 ALR 385 at 391.

"Ratification of the ICCPR as an executive act has no direct legal
effect upon domestic law; the rights and obligations contained in the
ICCPR are not incorporated into Australian law unless and until
specific legislation is passed implementing the provisions. No such
legislation has been passed. This position is not altered by
Australia's accession to the First Optional Protocol to the ICCPR,
effective as of 25 December 1991, by which Australia recognizes the
competence of the Human Rights Committee of the United Nations to
receive and consider communications from individuals subject to
Australia's jurisdiction who claim to be victims of a violation by
Australia of their covenanted rights. On one view, it may seem
curious that the Executive Government has seen fit to expose Australia
to the potential censure of the Human Rights Committee without
endeavouring to ensure that the rights enshrined in the ICCPR are
incorporated into domestic law, but such an approach is clearly
permissible."

21. The ICCPR is a schedule to the Human Rights and Equal Opportunity Commission Act 1991 (Commonwealth). For present purposes, however, that Act does not go further than to assign to the Commission it creates the function inter alia of enquiring into and reporting on any act or practice in Australia which may be inconsistent or contrary to human rights as declared in the schedule.

22. Nevertheless, to recognize that the ICCPR is not directly part of the domestic law of Australia, is not to deny that the Courts may pay attention to it. Mason CJ and McHugh J in Dietrich said that Australian courts should follow the "common sense" approach that Kirby P expressed in Jago v. District Court of New South Wales [1989] HCA 46; (1988) 12 NSWLR 558 at 569 (and elsewhere) that where the inherited common law is uncertain, regard may be had to an international treaty which Australia has ratified as an aid to explication and development of the common law.

23. In Mabo and Others v. The State of Queensland [1992] HCA 23; (1992) 175 CLR 1, Brennan J said at p 42:

"The opening up of international remedies to individuals pursuant
to Australia's accession to the Optional Protocol to the International
Covenant on Civil and Political Rights brings to bear on the common
law the powerful influence of the Covenant and the international
standards it imports. The common law does not necessarily conform
with international law, but international law is a legitimate and
important influence on the development of the common law, especially
when international law declares the existence of universal human
rights."

24. In McKellar v. Smith and Another (1982) 2 NSWLR 950, I suggested that Australian courts might take judicial notice of the ratification by this country of ICCPR, the Declaration of the Rights of the Child and other international instruments which contain provisions and establish standards relevant to the exercise of the discretion to exclude evidence of a confession of a juvenile obtained unfairly. I see no reason not to adopt the same sort of approach in the sentencing process, where the discretionary factors to be taken into account are numerous and conflicting.

25. It is important to bear in mind that no complaint is made on behalf of the present offenders that the decision of an ACT Court to sentence a person to imprisonment involves in itself a denial of human rights. The complaint is the effect of the judicial pronouncement of sentence. Put shortly it is that if sent to serve a prison sentence in New South Wales, Rodgers in particular will be inevitably the subject of sexual or other physical violence by other prisoners, or will be incarcerated in solitary confinement, and that either course will involve a breach of basic human rights as declared in the ICCPR.

26. The Report of the Australian Law Reform Commission on Sentencing (ALRC 44) in accordance with s.7 of the Law Reform Commission Act 1973 (Commonwealth) considered the implications of the limits of severity of punishment imposed by the ICCPR. It concluded that whilst the ICCPR and Australian community values make unacceptable such extreme punishments as the death penalty and flogging, imprisonment as such did not involve a denial of human rights despite the harsh social environment of prison. The Report noted that "sexual and other assault, violence and intimidation, openly acknowledged by authorities, occur" and that drug use and abuse is a significant factor in prison life (paras. 44-46).

27. Since the Report of the Royal Commission into NSW Prisons in 1978 conditions in those prisons have changed. The "regime of brutality" that previously existed at Grafton for instance (Report, p 118) has officially ended, although prisoners appear to now be at greater risk of unofficial violence at the hands of other prisoners. This may be in part due to the unstable nature of prison regimes brought about by the increasing proportion of prison populations constituted by drug offenders or by the use of drugs within prisons, or both. It may also be due in part to the greater freedom allowed within the prisons as a result of the 1978 Royal Commission Report.

28. In 1984 the Australian Institute of Criminology published the Minimum Standard Guidelines for Australian Prisons based on the United Nations Standard Minimum Rules for the Treatment of Prisoners adopted in 1955. The Guidelines are updated by the Australian Conference of Correctional Administrators. The last update was in 1989. The Guidelines provide the minimum conditions of standards of treatment to inmates in NSW prisons who have been sentenaced in the ACT, according to the agreement between the ACT Housing and Community Services Bureau and the NSW Department of Corrective Services. The agreement came into effect on 1st January 1993 (replacing an earlier agreement of 1971). The agreement also provides that "in particular inmates sentenced in the ACT are to have the same access to visits, written correspondence, telephone calls, private property, health care and education programs as NSW inmates, commensurate with the gaol of classification and security rating".

29. Of course agreements may always be broken and standards not always met. However, the material upon which it is proper to act does not show this to be the case so far as alleged discrimination against ACT prisoners is concerned.

30. There can, in my view, be little doubt that Rodgers will be at considerable risk if placed within the general prison population. Concern for risks of that sort has not made sentencing any easier in recent years. The incidence of violence among prisoners, the apparent ready availability of drugs in prisons and the risk of acquiring the AIDS virus through the use of contaminated needles, are matters of such concern in the community that sentencing judges cannot remain ignorant of them. However, what is sought in the present case is to go beyond a recognition of these matters to a judicial finding that the control and management of the prisons in New South Wales amounts to a breach of the ICCPR.

31. There are several reasons why I am not prepared to go so far. First the evidence lacks particularity as to the imminence of the risk. It is by no means clear that Cooma Corrections Centre is the only institution in New South Wales where Rodgers can be assured of humane treatment. Mr. Young said that several New South Wales prisons contain segregation units. I am simply not convinced that they all involve solitary confinement of the prisoners segregated to them. Secondly, to make findings that New South Wales prisoners are denied their human rights, or conversely that the conduct of the prison authorities there is in breach of the ICCPR, is a very serious matter. It is, in effect, to condemn people without hearing their side of the case and indeed to deny them their own human rights to be given a hearing.

32. It was put that prison sentences operate unduly harshly on persons sentenced to prison by an ACT court because there is no prison within the Territory. Pursuant to the Removal of Prisoners (Australian Capital Territory) Act 1968 (Commonwealth) the prisoners must serve their sentences in New South Wales in prisons some distance from Canberra, usually at Goulburn, Cooma or Tumbarumba. That involves cost, inconvenience and possibly hardship to family and others whose visits are essential to rehabilitation and maintaining proper social contact. That is no doubt true. However, in my view, prisoners from Canberra are in no different position from that of other offenders whose homes and families are distant from the prisons in which their sentences are served. Many prisoners in New South Wales, perhaps most, may be in that unfortunate position.

33. Moreover, neither of these offenders has any substantial ties with the ACT. It is because the offences occurred within the Territory that it is the ACT which must pay the cost of their incarceration or rehabilitation as the case may be. Hollingshed's family ties seem to be in the Newcastle region and it may be in his best interests that he be confined to a prison in that area. Rodgers has a female friend in Canberra and the comparative hardship of being confined to Goulburn rather than Belconnen will no doubt be real. But it is not denial of basic human rights. It was also said that there was some discrimination against ACT prisoners in the New South Wales prisons. However, the Memorandum of Understanding between the ACT and New South Wales governments specifically provides to the contrary. Although I have heard it suggested that ACT prisoners are denied access to Official Visitors, that appears to be contrary not only to the Memorandum of Understanding, but to the provisions of s.8A and other relevant provisions of the New South Wales Prisons Act 1952 and Regulations. Further proof of this allegation of discrimination would need to be established before it could be acted upon.

34. Lastly, and over-shadowing all, is the seriousness of the offences of which both men have been convicted and the lack of any substantial mitigating circumstances. There may be cases in which it could be said that to send a person to prison to serve a sentence immediately would be unduly harsh and that a better course would be to remand the person in custody for a period equal to the otherwise appropriate sentence. However, even that might be an improper use of the discretion to remand in custody: see Ex parte Corbishley; Re Locke (1967) 2 NSWR 547. It would certainly be a miscarriage of the discretion involved in the sentencing process in the present case.

35. I am conscious that once a person leaves the ACT to be confined in a prison in New South Wales, he or she passes out of the jurisdiction of this Court. Any question about the lawfulness of treatment whilst so confined cannot be the subject of proceedings in this Court. However, there is no doubt that any justiciable complaint of that nature may be made to the Supreme Court of New South Wales or other court of competent jurisdiction in that State. Moreover, there may be prisoner advocacy facilities in New South Wales which are not available in the ACT.

36. Finally, it must be recognized that should either of the offenders receive what they assert is inhumane treatment in New South Wales, there are extra judicial courses of action open to them. One is to seek an inquiry by the Human Rights Commissioner who is better equipped than a sentencing judge to inquire into and report on some of the matters raised at this hearing. Whether the Discrimination Commissioner appointed under the Discrimination Act 1991 (ACT) has been given the powers conferred on the Human Rights Commission by virtue of an arrangement made under the Human Rights and Equal Opportunity Act 1986 (Commonwealth), I do not know. I direct that a copy of these remarks be sent to the Human Rights Commissioner, and to the ACT Discrimination Commissioner, to act upon as either or both see fit.

37. Furthermore, as Australia is now a signatory to the First Optional Protocol to the ICCPR, individual persons alleging violations of the ICCPR are now entitled to petition the United Nations Human Rights Committee for violation of the rights declared by the ICCPR. I am fully aware of the undesirability of waiting for serious consequences to occur before taking appropriate action, but nevertheless, I am of the firm view that the sentencing process must proceed in the ordinary way.

38. The offenders will be sentenced bearing in mind that their culpability is approximately equal and that although Rodgers is to be sentenced for a further offence, he is the younger man and without a prior history of violence. Because there is no power to partially accumulate sentences and because the imposition of wholly cumulative sentences would operate harshly, I apply the totality principle to the sentences overall.

39. On the first count each is sentenced to 2 years imprisonment to date from 18 January 1993.

40. On the second count each is sentenced to 4 years imprisonment cumulative on the first count.

41. On the third count each is sentenced to 3 years concurrent.

42. On the fourth count each is sentenced to 6 years concurrent.

43. On the fifth count Rodgers is sentenced to 1 year concurrent.

44. I fix a non-parole period of 4 1/2 years to date from 18 January 1993.