Kurt John Drayton v The Queen [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Refshauge,Penfold JJ
• Judgment Date: 31 October 2013
• Docket Number: No. ACTCA – 21 of 2012 No. SCC 26 of 2013
• Date: 31 October 2013

[2013] ACTCA 44

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Murrell CJ, Refshauge and Penfold JJ

No. ACTCA – 21 of 2012

No. SCC 184 of 2012

No. SCC 26 of 2013

Between:

Kurt John Drayton

and

The Queen

For the Appellant: In person

Counsel for the Respondent: Mr J White

Bugmy v The Queen (1990) 169 CLR 525

Muldrock v The Queen (2011) 244 CLR 120

Power v The Queen (1974) 131 CLR 623

R v Shrestha (1991) 173 CLR 48

Crimes (Sentencing) Act 2005 (ACT), s 65, Pt 4.4

APPEAL AND NEW TRIAL — APPEAL — appeal against non-parole period — defendant sought shorter non-parole on the basis of rehabilitative prospects while on parole — no specific error shown — non-parole period not manifestly excessive — appeal dismissed

ORDER

THE COURT ORDERS THAT:

• 1. The appeal be dismissed.

EX TEMPORE JUDGMENT

REASONS FOR JUDGMENT

THE COURT:

1 Kurt John Drayton, the appellant, is a 32 year-old man with a significant intellectual disability. He and his then partner came to Canberra to address their drug addiction through the Opiate Treatment Service. The relationship was a volatile one, however, and on 23 June 2012, Mr Drayton and his partner had a fight. As a result, Mr Drayton became upset and left where they were living.

2 He went to the Woden Bus Interchange, kicking some items, including a wall which he damaged, and then took a bin into the toilet block there, intending to light a fire in it to keep warm. He soon left the fire without attempting to put it out. The fire spread and caused extensive structural damage to the area.

3 Mr Drayton was identified from CCTV footage and later arrested. He made admissions in an interview and was charged with arson and damaging property. He was committed for sentence to this Court on 14 August 2012.

THE OFFENCES

4 He was later charged with four burglaries and two thefts committed in 2013, for which, following his pleas of guilty, he was committed to the Supreme Court for sentence on 22 February 2013. He was also charged with a number of other offences which were later included on a list of additional offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT).

5 On 18 March 2013, he was sentenced for all these offences to a total period of three years imprisonment, to commence on 7 February 2013 to take account of pre-sentence custody. A non-parole period of 25 months was set, to commence also on 7 February 2013. Mr Drayton has appealed against the sentence. His Notice of Appeal identifies the challenge as being to the non-parole period.

6 The facts of the four burglaries and two thefts are as follows.

7 On 22 January 2013, Mr Drayton forced open the flyscreen of a rear window to an office in Griffith and cut the flyscreen to gain entry, stealing a camera and docking station. He left his fingerprints on the window and its frame.

8 On 29 January 2013, he removed the lower section of the glass entry doors at a fast food restaurant in Fyshwick and attempted unsuccessfully to remove some charity donation boxes. Again, he left his fingerprints on the glass that had been removed.

9 Between 21 January and 2 February 2013, Mr Drayton removed the glass sliding door from the front of a caf? in Kingston and took about $400 from the cash till. He left behind his fingerprints on the metal surfaces of the sliding door.

10 On 2 February 2013, he attempted to enter the church hall of St Paul's Anglican Church, Manuka, by damaging the door with a chisel. The door was insecure and the damage caused was estimated to have cost $2,000.

11 The offences on the list of additional offences involved:

• • the theft of a bicycle from outside the Westfield Shopping Centre, Belconnen;

• • the unlawful possession of a wheelbarrow used to transport the bicycle and some other stolen goods, namely, a money box;

• • the possession of items including a spanner and a packet of Allen keys with intent to use them for theft; and

• • trespassing in the Canberra Centre after it had been closed for the evening.

12 Under s 65 of the Crimes (Sentencing) Act, a court which imposes a sentence, or two or more sentences, of imprisonment which total one year or more must set a non-parole period unless, under s 65(4), it considers that it would be inappropriate to do so, having regard to the nature of the offence or offences, or the offender's antecedents.

13 The purpose of setting a non-parole period is, as stated by Barwick CJ and Menzies, Stephen and Mason JJ in Power v The Queen (1974) 131 CLR 623 at 629:

[T]o provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum period that a judge determines justice requires that he must serve having regarding to all the circumstances of the offence.

14 That, of course, requires a consideration of the subjective circumstances of the offender and therefore, amongst other things, the prospects of reform and the matters that may need to be addressed for that purpose.

SUBJECTIVE CIRCUMSTANCES

15 Mr Drayton was the only child of his parents, but because his violent mother left the family home, he was raised by his paternal grandmother in New South Wales. His father, a boilermaker, had no criminal record and Mr Drayton was fond of his father. He went to school in New South Wales until Year 8, but failed to achieve, as he was affected by Attention Deficit Hyperactivity Disorder (ADHD) and, no doubt, by the intellectual disability with which he has been diagnosed by Mr Tom Sutton, clinical psychologist, who examined him for the sentencing proceedings.

16 Apart from a few short-term casual labouring positions, Mr Drayton has not had any employment. He drank a lot of alcohol in his early years, but more recently rarely drinks alcohol. He has, however, an extensive poly-drug using history from age 13, when he would consume up to nine Dexamphetamine tablets a day, medication he started consuming when it was prescribed for his ADHD. He started using heroin when he was 17, and this addiction went out of control in 2012, when he and his partner decided to enter the Suboxone Program in Canberra, which they did on 18 July 2012.

17 Mr Drayton has some physical health problems, including poor oral health, back pain and skin problems.

18 He has been assessed by Mr Sutton as having substantial intellectual challenges. Mr Sutton reported that his literacy and written arithmetic level are equivalent to ‘third class primary levels’ and his reasoning is at borderline between deficient and low average levels.

19 His memory is worse than expected, between 0.1% and 0.3% of the normative group for his age. Mr Sutton commented ‘[i]f he were elderly he would be classified as having dementia, similar to Alzheimer's Disease.’

20 Mr Sutton continued:

His current levels of intellectual and memory functioning means he is incapable of safe independent functioning. They lessen any degree of internally motivated rehabilitation capacity. Any rehabilitation and behavioural changes require external structures to be in place’

21 Mr Sutton did say, however, that Mr Drayton ‘can understand the legality and social appropriateness or otherwise of his behaviour.’

22 Mr Drayton has a long and depressing criminal history in New South Wales....