R v Payne [2006] ACTSC 26 (14 March 2006)

Last Updated: 6 April 2006

R v CRAIG ANTHONY PAYNE [2006]

ACTSC 26 (14 March 2006)

EX TEMPORE JUDGMENT

No SCC 103 of 2005

No SCC 283 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 14 March 2006

IN THE SUPREME COURT OF THE )

) No SCC 103 of 2005

AUSTRALIAN CAPITAL TERRITORY ) No SCC 283 of 2005

BETWEEN: THE QUEEN

AND: CRAIG ANTHONY PAYNE

ORDER

Judge: Crispin J

Date: 14 March 2006

Place: Canberra

THE COURT ORDERS THAT:

1. in relation to the first charge of aggravated burglary (CC 04/11027), the prisoner be sentenced to 3 ½ years imprisonment;

2. in relation to the first charge of theft (CC 04/11029), the prisoner be sentenced to 6 months imprisonment, to be served concurrently with the sentence imposed on CC 04/11027;

3. in relation to the second charge of aggravated burglary (CC 04/11028), the prisoner be sentenced to 3 ½ years imprisonment, to commence 6 months after the sentence imposed on CC 04/11027;

4. in relation to the second charge of theft (CC 04/11030), the prisoner be sentenced to 6 months imprisonment, to be served concurrently with the sentence imposed on CC 04/11029;

5. in relation to the fail to appear after bail undertaking charge (CC 05/7034), the prisoner be sentenced to 1 month's imprisonment to be served concurrently with the sentence imposed on CC 04/11029.

6. the head sentence of 4 years is to commence today but be suspended immediately upon the following conditions: that he enter into a recognisance self in the sum of $1000 to be of good behaviour for 4 years; that he accept the supervision of ACT Corrective Services and comply with all reasonable directions including the provision of urine samples, place of residence, participation in drug rehabilitation and/or psychiatric or psychological treatment or testing; that he refrain from illicit drugs of any kind.

7. the prisoner be convicted of each offence.

1. The prisoner, Craig Anthony Payne, has pleaded guilty to two counts of aggravated burglary, two counts of theft, and a charge of failing to appear after a bail undertaking. Each of the property related offences were committed on 24 November 2004.

2. On that day, one of the complainants, Mr Davies, left his premises in Evatt, and upon returning found that his house had been the subject of a burglary. The first count of burglary relates to that incident, and the first count of theft relates to property taken from Mr Davies' premises.

3. On the same day, Mr Palmer, the other of the complainants, also left his premises in Melba and upon his return found that they had also been the subject of a burglary. The second count of burglary relates to that incident, and the second count of theft relates to property taken from those premises.

4. At about 10.57 am on that day, the police saw the prisoner and two other men inside a vehicle and signalled for it to stop. The vehicle continued for some distance before stopping, and the occupants then fled the scene. However, the prisoner was recognised and subsequently arrested.

5. He was brought before the ACT Magistrates Court on 22 February 2005 and initially refused bail, although bail was subsequently granted on 17 March 2005 to enable him to attend the Mancare program. Accordingly, he spent some 25 days in custody. The matters were set down for a committal hearing in June but the prisoner thereupon entered pleas of guilty and was remanded for sentencing. He spent some time in fulltime residential rehabilitation, in total a period of some 16 weeks, and appears to have been the subject of a home detention order during that period. Accordingly, it appears that he spent some 19 or 20 weeks with his liberty confined in one form or another.

6. It need scarcely be said that offences of aggravated burglary are very serious offences. Each offence carries a maximum penalty of 20 years' imprisonment, and anyone who doubts the severity of offences of that kind, need only have his or her own home invaded and ransacked to understand what a violation of privacy it can be. Such incidents have a considerable impact upon people. Members of this community should be entitled to leave their homes locked and return secure in the knowledge that their property will have been respected whilst they have been gone. When people, such as the prisoner, break in and steal property, they must expect that, in the absence of compelling mitigating factors, they will be sent to prison.

7. However, I am obliged by the provision of the Crimes Act 1900 (ACT) to take into account the subjective circumstances of the prisoner, and there are a number of matters to be taken into account in Mr Payne's case.

8. There are some aggravating features of the offence. The offences were committed in breach of successive recognisances upon which the prisoner had been released after appearances before the Children's Court, and subsequently before the Magistrates Court. Furthermore, all but the breach of bail offence were committed in company.

9. He also has a previous record for offences of dishonesty, including two previous convictions for burglary, albeit whilst he was a child. A previous record is not, of course, an aggravating factor, but it may reduce the scope for leniency otherwise available.

10. On the other hand, he is still a very young man. He was born on 12 January 1985 and was only 19 years old at the time of these offences. A pre-sentence report which contains some outline of the prisoner's background reveals that he was the second of three children and that he had an apparently good childhood, though he left the family at home at the age of 15 to reside with friends because he did not like living by rules that were imposed by his parents. He was apparently estranged from his parents for some time, though he has recently re-established his relationship with them. He also left school at the age of 15, which was at about the same time he left the family home. His school attendance had apparently been poor, and his academic performance had also been poor. In one year of high school, he attended for only 4 days. He indicated that he had been expelled from quite a number of schools.

11. He began drinking alcohol and smoking cannabis at the age of 16, explaining that he engaged in these activities with friends because it was the "in-thing." He said that his alcohol use had never been problematic, and that he normally drank only once a week or thereabouts with friends, although the author of the pre-sentence reports noted that in an earlier interview with ACT Corrective Services in March 2004 he had suggested he was using considerably more alcohol than that. He conceded having used cannabis on a daily basis, smoking up to 28 grams a day, and having used ecstasy and methamphetamines tablets on weekends from the age of 18. He spent some 16 weeks in the Canberra Recovery Services Residential Rehabilitation Program last year, and whilst he was eventually discharged from the program due to breaches of the Service's Code of Conduct, it was not suggested that he had returned to drug usage or that he had absconded from the program. The prisoner also reported that the program had been beneficial and claimed to have abstained from illicit drug use since March 2005. I should say that there is no evidence to suggest the contrary.

12. Most significantly, there is evidence to the effect that the prisoner suffered from meningococcal meningitis at 3 years of age. He was hospitalised for some time and apparently suffered brain damage as a result of the illness. He was subsequently diagnosed with attention deficit disorder, and both psychological and psychiatric evidence has been tendered in the proceedings before me directed toward this issue.

13. The author of the pre-sentence report observes that the prisoner's previous compliance with orders under the supervision of Corrective Services has been poor, and as a result he is now the subject of breach action. The report also notes that he has previously provided misleading information concerning contact details, residential address, drug use and employment status. In his final assessment, the author of the pre-sentence report suggests that much of the prisoner's offending behaviour had been committed for the purpose of supporting cannabis dependency. The author also notes the documented evidence of what he describes as psychiatric issues, which have, in the past, contributed to his offending behaviour. Whilst noting evidence which suggests that counselling may not be as effective in his case as in other cases, the author expresses the opinion that he should nonetheless, if released upon a recognisance, be subject to a condition that he be subject to supervision and obey all reasonable directions, including directions in relation to the provision of urine samples and participation in psychological counselling and treatment.

14. Dr Tom Sutton, a clinical psychologist, has provided a report in which he indicates that he administered a number of tests to the prisoner which revealed that, whilst the prisoner's intellect is average, he has serious problems processing information with verbal and language content, including comprehension and reasoning with words. His capacity for verbal comprehension is no better than 4% of his age group.

15. Dr Sutton concluded that the pattern of dysfunction in verbal and language process is consistent with the report of major damage following meningococcal disease to the left side of his brain. The dysfunctions demonstrated are consistent with poor social judgment controls. Dr Sutton expresses the opinion and I quote; "I have no doubt that the functional effects of his brain damage is contributing to his behaviours leading to his legal problems."

16. Dr Sutton continued to express the opinion that the prisoner's ability to process verbal instructions is compromised at basic receptive language, executive and attentional levels, and that the more complex the information, the more likely Mr Payne is to disregard it. His problem with flexibility in thinking means that he is always going to prefer short cuts when dealing with any issue in front of him. In this sense, he is poorly able to comprehend and be proactive when dealing with orders of the Court.

17. Dr Sutton expressed the opinion that the prisoner will not be amenable to counselling, as this is verbal in nature and he is too cognitively disorganised to make use of this approach. He needs constant stimulation of a physical kind. He recommended some sort of structured manual school training regime where he can be taught some skill and work at it constantly under supervision. Medication to moderate some of his attentional problems may be useful, but psychiatric opinions should be sought.

18. Following that report, arrangements were made for the prisoner to be assessed by a psychiatrist, and I now have access to a report from Dr George. Dr George referred to the report of Dr Sutton, and noted the conclusions reached. Dr George then stated that in his general assessment, the prisoner does not suffer a mental illness as such, but does have a psychiatric condition, in that he would be diagnosed with an organic mental disorder that affects his cognitions, personality and general behaviour. His past sociopathic behaviour would to a large degree have been a consequence of the effect of suffering meningococcal meningitis as a child. That illness, when only 3 years of age, combined with the documented brain injury as a result, have affected his ability to exhort social control over his actions, and to appreciate the consequences.

19. Dr George suggested, however, that it had been encouraging that the prisoner had indicated that he has been free of substance use over the last year and appeared to have good insight into the fact that he had to continue to maintain abstinence in this area. He also impressed Dr George as having some degree of insight into the nature of his problems, and said that he had struggled with his own nature as well as with being able to understand what had happened to his ability to function normally. Dr George said that this level of insight had probably allowed him to make some ground in recent therapeutic endeavours, and could indicate some improvement in cognitive function over time. Repeated psychometric evaluation would demonstrate this.

20. The note of optimism sounded by Dr George is confirmed by the opinions of a number of people expressed in references that have been tendered. It is also confirmed by the absence of any evidence of further drug usage, and the absence of any further offences.

21. I am, of course, obliged to take into account the fact that the prisoner has pleaded guilty, that being significant not only because it provides some limited evidence of remorse, but also because it saves the community the time and expense of a trial as well as the victims the inconvenience and stress of having to give evidence. I also take into account, his age and his evident immaturity, which is no doubt partially attributable to brain damage.

22. Had it not been for his brain damage and its impact upon his capacity to control his conduct, notwithstanding the submissions eloquently advanced on his behalf by Mr Edmonds, I would nonetheless have concluded that substantial sentences of imprisonment were inevitable, and that he should be required to immediately serve a substantial proportion of them before being released on recognisance.

23. These offences are, as I have already mentioned, serious, and I am unable to wholly accept Mr Edmond's submission that they were spur of the moment occurrences. As the learned Crown prosecutor has pointed out, that may have been true of the first set of offences, but they were not the only crimes committed. I do, on the other hand, accept that they were committed with very little forethought or planning.

24. The ultimate question is whether the sentences are so serious as to demand that he serve some further period of imprisonment before being released into the community, albeit subject to the stringent controls. In answering that question, it seems to me to be necessary to take into account the matters to which I am referred, and in particular the fact that this is a still very young man who has been struggling to cope with the consequences of serious brain injury, and who, in addressing his lifestyle and difficulties as a consequence of that brain injury, has, in recent months, apparently made real progress. I also take into account, as I have already mentioned, the fact that his liberty has been confined, either in custody or during periods of full-time residential rehabilitation, for some 19 or 20 weeks. In the circumstances, I have finally, and not without some hesitation, concluded that he could be given one last chance to remain in the community, subject, to strict limitations.

25. Mr Payne, in relation to the first offence of burglary, that is the offence committed on the property at Melba, I sentence you to be imprisoned for a period of three and a half years. In relation to the offence of theft of Mr Palmer's property, that is property taken from those premises, I sentence you to be imprisoned for a period of six months, and I order that that sentence be served concurrently with the first sentence.

26. In relation to the second burglary at Evatt, I again sentence you to a period of three and a half years, but direct that that sentence commence six months after the first sentence that I have referred to. In relation to the offence of theft of Mr Davies' property, I sentence you to be imprisoned for a period of six months but direct that that sentence be served concurrently with the third sentence.

27. There is a further offence of failing to appear as required by a bail undertaking. In relation to that, I sentence you to a period of one month's imprisonment but direct that that be served concurrently with the third sentence to which I have referred.

28. That involves a total head sentence of four years' imprisonment. I have taken into account the time already spent in custody. I direct that those sentences commence from today. I order, however, that those sentences be immediately suspended, subject to the following conditions.

29. Firstly, that you enter into a recognisance self in the sum of $1000 to be of good behaviour for 4 years.

30. Secondly, that you accept the supervision of ACT Corrective Services, and you comply with all reasonable directions that you may be given, including reasonable directions relating to the provision of urine samples, place of residence, participation in drug rehabilitation and/or psychological or psychiatric treatment or testing.

31. Thirdly, that you refrain from illicit drugs of any kind.

32. You will, of course, be convicted of each of the offences to which I have referred.

33. Now, Mr Payne, I need to make something very, very clear to you. You have been before the courts a number of times, and people have given you bonds, and they have let you go. But you have broken those bonds, and you have come back, and you have been given another bond. I want to make it very plain that this is the Supreme Court. That is not going to happen here.

34. You have been sentenced to long terms of imprisonment. I have suspended them on the condition that you are of good behaviour. If you are not of good behaviour, you will come back before me. You will not come back before a Magistrate or someone else, you will come back to me. If that happens, I will almost certainly send you to prison for a very substantial period of time.

35. So if you are tempted to go back onto drugs, or if you are tempted to commit some other offence, I want you to think about being here today, and understand what will happen to you if you come back, because the next thing that will happen is not another bond. The next thing that will happen is you will be standing in the quadrangle of Goulburn Jail thinking about what life might have been like if you had not committed the offence.

36. You have made real progress, and I am encouraged by it. I do have some real faith in you. If that were not so, I would not be giving you this chance. But I have got to warn you that if you do not take the chance I am giving you, the consequences will be very serious.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 5 April 2006

Counsel for the Crown: Mr D SahuKhan

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the Prisoner: Mr P Edmonds

Solicitor for the Prisoner: Paul Edmonds Criminal Law

Date of hearing 14 March 2006

Date of judgment 14 March 2006