The Queen v Keith Carberry [2000] ACTSC 60 (7 July 2000)

Last Updated: 16 October 2000

The Queen v Keith Carberry [2000] ACTSC 60 (7 July 2000)

CATCHWORDS

CRIMINAL LAW - sentencing - Aboriginal offenders - heroin addiction - principles applicable.

Drugs of Dependence Act 1989

Crimes Act 1900, s 429A

R v Fernando (unreported, 13 February 1992, Supreme Court of New South Wales, Wood J)

No. SCC 81 of 2000

Judge: Miles CJ

Supreme Court of the ACT

Date: 7 July 2000

IN THE SUPREME COURT OF THE )

) No. SCC 81 of 2000

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

KEITH CARBERRY

ORDER

Judge: Miles CJ

Date: 7 July 2000

Place: Canberra

THE COURT ORDERS THAT:

1. Keith Carberry be sentenced to three years imprisonment to date from 23 February 2000, to be suspended as from Monday, 10 July 2000 upon him entering into a recognizance self in the sum of $500 without surety, to be of good behaviour for a period of three years, on condition further as follows:

(1) To submit to the supervision of the Director of Corrective Services or the Director's nominee, including interstate supervision, and for that purpose to report to the Director's office, Magistrates Court building by noon Monday;

(2) After reporting in compliance with (1), to proceed in the company of Mr Frederick Monaghan to the Bennelong Haven, Kempsey, New South Wales and to reside there and submit to whatever treatment or counselling as may be advised by those in charge of the centre.

1. Yesterday Keith John Carberry continued a plea of guilty to a charge of armed robbery. The offence was committed on 30 December 1999 at about 5.30 pm. The victim approached the offender in Civic and asked whether he would sell him some cannabis or if he knew where the victim could buy some cannabis. The two men were previously unknown to each other.

2. As it happened, the offender had a knife in his pocket and was suffering from the effects of heroin withdrawal. The offender took the victim to some nearby flats where, after about an hour they were joined by another man whom I shall call the co-offender. The co-offender asked to see the victim's money and when the victim produced a $50 note the offender produced the knife, demanded the money and threatened to use the knife. The co-offender snatched the money and a struggle followed involving all three persons. The victim managed to get hold of the knife. The co-offender dislodged the victim's wallet from his pocket. The offender picked it up and they both fled. There was $100 in the wallet. The victim suffered superficial injuries in the struggle, not caused by the knife. The wallet, the money and the knife have never been recovered.

3. The offender pleaded guilty at an early stage and in his evidence to the Court indicated some remorse and sympathy for the victim. Today is his 20^th birthday. This was his first offence as an adult. He has had several matters in the Childrens Court, however, and the offence was in breach of at least two recognizances entered into in the Childrens Court.

4. Several matters in the Childrens Court over the years involve assault and assault police. There are also several matters to which he pleaded guilty in the Magistrates Court recently, which are part-heard there and which await sentencing in August.

5. Mr Carberry has been assessed as dependent on heroin and treatment is recommended by a duly constituted panel under the Drugs of Dependence Act 1989 (the Drugs of Dependence Act). The seriousness of the offence, all too prevalent in the residential areas on the edge of the commercial part of the city, hardly needs to be emphasised.

6. However, I should say that on the facts I am not convinced, as the prosecution submits, that the offender lured the victim to a dark and remote place for the purpose of robbing him at the point of the knife. Although that concession was gained during proper questioning by Mr Webber of counsel for the prosecution, I gained the strong impression that Mr Carberry would agree with anything that was put to him.

7. On the face of it, the offence requires an immediate custodial sentence. There is, however, the question of how this otherwise likely outcome should be modified by the offender's heroin dependence and the recommendation of the assessment panel. But overshadowing that is the fact of the offender's background as an Aboriginal person. This is not a factor which emerges often in dealing with crimes committed in this city. Otherwise and in other parts of Australia where the problem is met frequently, the courts have endeavoured, at least in recent times, to develop sentencing principles and practices appropriately.

8. It is well acknowledged that the result in some places has not avoided heavy over-representation of Aboriginal people in the criminal justice system, and particularly within prisons, with consequences quite unacceptable for Australian society generally, let alone for Aboriginal people.

9. Keith Carberry was born in Griffith, New South Wales, as I said, 20 years ago. He is a member of the Wirajuri people. He and his family have been between Griffith, Wagga and Canberra over a number of years, and it appears that they are more or less settled now in Canberra.

10. A pre-sentence report states that Mr Carberry describes his childhood as "normal and happy". That in itself is a significant factor, since his childhood was subject to conditions of disadvantage which most people in the general community would find difficult to tolerate or even comprehend. He does not read or write. He has never been in employment. The closest he ever got to a job was being ordered to perform unpaid community service at the age of 17. He began using alcohol at age 14, cannabis at 15 and heroin at 18. However, amongst the 23 or so offences on his record there is nothing relating to illicit drugs. He has so far not been the recipient of any attempt at treatment for his drug dependence, not even for counselling which is otherwise available in abundance in this Territory

11. Yet there is room for some optimism and a positive approach. He does have support in the Aboriginal community. Mr Frederick Monaghan has made arrangements for his admission to Bennelong Haven, a centre for the treatment and rehabilitation of persons dependent on alcohol and other drugs, situated on the North Coast of New South Wales. The centre is run by Aboriginal people for Aboriginal people.

12. On the evidence, no extravagant claims are made for Bennelong Haven, but it has succeeded on occasions in the past with people from various parts of the country. I am quite convinced that this offender should not go to prison until there has been at least an attempt to treat his heroin addiction at Bennelong Haven.

13. The Crimes Act 1900 (the Crimes Act), s 429A lays down with apparent confidence the criteria that are to be taken into account in order to arrive at a sentence which is just and appropriate. Judges and magistrates, whose daily task is to sentence, know that it is much more difficult and more complex than those who drafted the legislation seem to have imagined. Nowhere in the Crimes Act is there any reference to Aboriginal people, although one of the criteria is the "cultural background" of the offender which is lumped together with "character, antecedents, age, means and physical or mental condition". As has been said judicially, and often enough, aboriginality, if I can use that term, is not in itself sufficient to justify a sentence that would not be imposed on an offender of a different ethnic and cultural origin. Yet, it may be relevant to explain the offence, the circumstances of the offender and most importantly, may require the court to recognize the problems of disadvantage arising from substance abuse, systemic violence, ill health and lack of training and education in the Aboriginal community, and requires in the general public interest a more sophisticated approach than simply imposing a sentence of imprisonment.

14. The principles relating to the sentencing of Aboriginal offenders were gathered together by Wood J of the Supreme Court of New South Wales in R v Fernando, unfortunately unreported, given on 13 February 1992:

"(A) The same sentencing principles are to be applied in every case irrespective of the identity of a Particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.

(B) The relevance of the aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within aboriginal communities, and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunities and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

(F) That in sentencing persons of aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.

(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.

(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."

15. I endorse those expressions of principle with respect. They are, of course, not to be applied automatically and their importance, or the importance of any one or more of them, varies according to the case before the Court and, in particular, may vary according to whether the offender is, for instance, a member of a remote community, such as there are in parts of New South Wales, or an inner city dweller.

16. But there is one further aspect that I will emphasise and which I do not think, with respect, has been covered by the principles enunciated by Wood J, and that is this. Keith Carberry comes before the Court as a heroin addict. Neither he nor the Aboriginal community or any part of it is responsible for the scourge of heroin that so disrupts the life of this city and is so apparent in a high proportion of serious offences that come before this Court. Responsibility in that regard lies fairly and squarely on entrepreneurs whose origins are elsewhere.

17. I have given consideration to whether a custodial sentence may be wholly avoided, but in the circumstances I think the seriousness is such that that course is not entirely appropriate. It is likely to be seen as the result of misguided sympathy and that perception is to be avoided. I therefore propose to proceed by way of suspended sentence. I would have preferred to combine that with a treatment order under the the Drugs of Dependence Act but, with respect to the panel, I am quite convinced that the treatment proposed at Bennelong Haven is more likely to succeed than that proposed by the panel. Unfortunately, as I understand the provisions of the Drugs of Dependence Act, I cannot make a treatment order other than that recommended by the panel. It would have been preferable for the progress to be monitored by the panel but that also cannot be done. I hope that the order that I propose to make will have a similar practical effect, and I think there are good prospects of that.

18. So stand, Keith Carberry. I will formally sentence you and then I will tell you a bit more about it. You are sentenced to three years' imprisonment to date from 23 February 2000, suspended as from Monday next, 10 July 2000, upon entering into a recognizance self in the sum of $500 without surety, to be of good behaviour for a period of three years. On condition further as follows:

19. (1) To submit to the supervision of the Director of Corrective Services or the Director's nominee, including interstate supervision, and for that purpose to report to the Director's office, Magistrates Court building by noon Monday;

20. (2) After reporting in compliance with (1) to proceed in the company of Mr Frederick Monaghan to the Bennelong Haven, Kempsey, New South Wales and to reside there and submit to whatever treatment or counselling may be advised by those in charge of the centre.

21. All right. Now, what that means is that I have actually sentenced you to gaol, but you do not have to go back to gaol beyond Monday. You have to go back immediately, but you can be released on Monday if you sign a paper promising to behave yourself for the next three years and to report to the Magistrates Court building next door and accept the supervision of the people called the Corrective Services of the Australian Capital Territory.

22. In addition to that, if you want to be released, you have to go with Mr Monaghan up to Kempsey and go into the Bennelong Haven and stay there for as long as they tell you to stay there and do whatever they tell you to do. If you do all that you can stay out of gaol. Now, do you understand what I say?

23. THE PRISONER: Yes.

24. HIS HONOUR: All right. I know you have trouble with reading and writing and you are required to sign a paper. I have already explained it to you. I expect it will be explained to you again before you sign the paper. Anything further?

25. MR WEBBER: No, your Honour.

26. MR JEFFREY: No, your Honour.

27. HIS HONOUR: Yes, very well. Mr. Carberry may be removed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Remarks on Sentence herein of his Honour, the Chief Justice.

Associate:

Date: 7 July 2000

Counsel for the Prosecution: Mr S Webber

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr J Jeffery

Solicitor for the Defence: Central Southern Aboriginal Legal Service

Date of hearing: 6 July 2000

Date of sentence: 7 July 2000