R v Lockwood

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Loukas-Karlsson J
• Judgment Date: 19 October 2018
• Date: 19 October 2018
• Docket Number: File Numbers: SCC 211 of 2017; 212 of 2017

[2018] ACTSC 288

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Loukas-Karlsson J

File Numbers: SCC 211 of 2017; 212 of 2017

The Queen

(Crown)

and

Steven Dean Lockwood

(Offender)

Representation:

Counsel

Mr J Walker (Crown)

Mr P Bevan (Offender)

Cases Cited:

Beale v R [2015] NSWCCA 120

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cheung v The Queen [2001] HCA 67; 209 CLR 1

Filippou v The Queen [2015] HCA 29; 256 CLR 47

Fusimalohi v The Queen [2012] ACTCA 49

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462

Heard v The Qukeen [2015] ACTCA 6

Hili v the Queen [2010] HCA 45; 242 CLR 520

Leach v The Queen [2007] HCA 3; 230 CLR 1

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

Millard v The Queen [2016] ACTCA 14

Nguyen v The Queen [2016] HCA 17; 256 CLR 656

Pavicevic v The Queen [2010] ACTCA 25

R v Greentree [2017] ACTSC 274

R v Greentree (No 2) [2017] ACTSC 315

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Isaacs (1997) 41 NSWLR 374

R v JW [2010] NSWCCA 49; 77 NSWLR 7

R v Lindley-Jones [2014] ACTSC 296

R v Martin [2017] VSCA 291; 20 VR 14

R v Minnis [2014] ACTSC 268

R v Olbrich [1999] HCA 54; 199 CLR 270

R v Pham [2015] HCA 39; 256 CLR 550

R v Seears [2015] ACTSC 109

Rubinho v The Queen [2015] ACTCA 22

Thompson v The Queen [2018] ACTCA 2

Legislation Cited:

Crimes Act 1900 (ACT) ss 21, 26

Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33

Criminal Code 2002 (ACT) ss 45A, 311, 312

Supreme Court Act 1933 (ACT) ss 68D, 68E

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — aggravated burglary — common assault — parity — guarded prospects of rehabilitation — significant criminal history

Decision

See [66].

Loukas-Karlsson J

Introduction

1 On 28 January 2017, Steven Dean Lockwood (the offender) was found guilty by a jury of an offence of aggravated burglary by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code) per s 312 of the Criminal Code. The jury could not reach a verdict on the second count of the indictment, which was an offence of wounding pursuant to s 21 of the Crimes Act 1900 (ACT).

2 The maximum penalty for this offence is imprisonment for 20 years, a fine, or both.

3 Also before me is a matter transferred from the Magistrates Court, being an offence of common assault contrary to s 26 of the Crimes Act 1900 (ACT).

Facts

4 The High Court in Cheung v The Queen [2001] HCA 67; 209 CLR 1 ( Cheung) endorsed the NSW Court of Criminal Appeal's approach in R v Isaacs (1997) 41 NSWLR 374 ( Isaacs) in relation to the Court's role in sentencing and interpreting a jury's verdict of guilty following a trial. The Court in Cheung at [14] quoted the summarised principles from Isaacs (at pages 377–378) as follows:

• 1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …

• 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …

• 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.

• 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

• 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. …

5 To give effect to these principles, it is first necessary to summarise the evidence given by the complainant in the matter.

6 The complainant met the co-offender Mr Jeremy Dash-Greentree in 2013 or 2014, when they were in prison together. Once Mr Dash-Greentree had moved yards within the prison, the complainant did not see Mr Dash again until three to four weeks before the offence currently before me, when the complainant saw Mr Dash-Greentree at Ainslie.

7 The complainant had seen Mr Dash-Greentree with a lot of luggage, and pulled over to the bus stop to give him a lift. The complainant drove Mr Dash-Greentree back to the complainant's residence, where they had a “beer and a bong”. Mr Dash-Greentree left after approximately half an hour. The complainant gave evidence that Mr Dash-Greentree had not been to the complainant's residence prior to this. The complainant gave evidence that he supplied cones of cannabis to smoke on this occasion.

8 The next occasion that the complainant saw Mr Dash-Greentree was on 28 January 2017, the date of the offences before me. The complainant was playing Call of Duty on his PlayStation in his residence from about 2: 00 or 3:00 pm in the afternoon, and had consumed about eight to ten “cones” of cannabis. By night time, sometime between 10:00pm and 12:00am, the complainant heard a knock at the door. The complainant recognised Mr Dash-Greentree at the door, and welcomed him into his residence. The complainant turned around briefly to check on his PlayStation, and was then punched in the face by Mr Dash-Greentree. The complainant was knocked to the ground. The complainant then saw three other men enter the house. One of the men the complainant described was “tall with a shaved head, tattoos, leathery appearance, in shorts and a singlet”. The tattoos were on his “legs, arms and neck”. This man was at a later time identified by the complainant as the offender, but was unknown to him at the time of the incident. The complainant did not know any of the men other than Mr Dash-Greentree.

9 The complainant gave evidence that a struggle ensued. The complainant gave evidence that he was being punched and kicked. He was then hit in the face with a golf club by Mr Dash-Greentree. Mr Dash-Greentree and the offender then made threats accompanied by demands for money and property of value. The complainant was subsequently stabbed under the left collarbone using half of a pair of scissors. The complainant was then lifted onto the couch, where he was tied up. Other men were searching the house at this point. The men took the complainant's mobile phone, an electronic face shaver, between approximately a quarter and half an ounce of cannabis, and a small amount of cash. The complainant gave evidence that the men where in his residence for about 15 to 30 minutes.

10 After the men left the residence, the complainant took approximately 5 minutes to untie himself. Using his PlayStation, he asked another online player to call an ambulance for him. Shortly after, the police attended with an ambulance, and the complainant was escorted to hospital.

11 Some months later, the complainant received a call from Constable Szabo about forensic evidence being located in the house. Constable Szabo informed the complainant that the offender's fingerprints had been located in his residence. The complainant then looked up the offender on Facebook to see if he could recognise the person to assist with the investigation. The complainant gave evidence that after looking through about four or five people's profiles on Facebook, he came across the offender's profile and “recognised him straight away”.

12 In cross examination, the following additional matters emerged:

• (a) At some point during the incident, after being punched by Mr Dash-Greentree but before being stabbed, the complainant lost his glasses;

• (b) The complainants recollection of the events and description of the men to the attending police officer's at the scene of the incident and whilst in hospital was clouded by the incident itself, the complainant's injuries, shock and morphine administered at the hospital, which resulted in differing versions of the events in question;

• (c) The complainant had tried to grab a pair of black kitchen scissors during the incident, and one of the men either stepped on the complainants hand, or the complainant was jumped on, or he was hit by a golf club; and

• (d) The complainant initially told police officers that Mr Greentree-Dash had stabbed him. The complainant gave evidence in relation to this apparent inconsistency that he had said that Mr Greentree-Dash had stabbed him because he was the only one that he had recognised;

The Transferred Offence

13 A charge of common assault pertaining to information CC2017/4974 is also before me. Sections 68D and 68E of the Supreme Court Act 1933 (ACT) provides for backup and related offences.

14 Relevantly, s 68D(2) provides as follows:

68D Back-up and related offences

…

(2) The court must deal with any back-up or related offence with which the accused person has been charged if the court considers that it is in the interests of justice.

…

15 In my view, it is not in the interests of justice for the Court to deal with this matter and accordingly I dismiss the information. I have formed the view that it is not in the interests of justice to deal with this charge for the reason that the facts in relation to this transferred charge, being the assault that occurred on entry to the complainant's unit, form part of the facts in relation to the charge for which I now sentence the offender. Any separate sentence I might have imposed would in any event be concurrent: see for example R v Greentree (No 2) ...