BIRD, J

STATE OF TASMANIA v JORDEN BIRD 28 FEBRUARY 2022

COMMENTS ON PASSING SENTENCE JAGO J

Jorden Bird you have pleaded guilty to aggravated burglary and aggravated robbery. At 10am on 22 February 2020 you were with three other young men and travelled by taxi to the home of Trent Ford. He lived at his residence alone. When you went there with the other men the intention was to steal money or cannabis or both. The State accept that you did not appreciate that anyone would be home at the residence. Mr Ford was in fact home and he woke to answer a knock at his door. When he did so the largest of your co-offenders, Mr Black, burst through the door and punched him. He stumbled backwards and began to fall to the ground. As he did Mr Black rode him to the ground and punched him to the face three or four more times. He repeatedly asked him “where is your money, where is your smoke”. The complainant told Mr Black his wallet was in the bedroom. Mr Black kicked him about five times whilst he was on the floor. Mr Black and another of your co-accused, Mr Horne, then grabbed the complainant and dragged him upstairs to his bedroom. You and another young man stayed in the downstairs area of the house. The other young man who was downstairs with you began to ransack the area looking for cash and cannabis. You were present throughout all of this and did nothing to discourage the ransacking, but the State accepts that you did not actively participate in searching for the cash or cannabis or upturn any of the furniture.

The other young man who was with you located ounce bags of cannabis in a drawer in the kitchen and under the couch in the lounge room. Meanwhile upstairs, the other two men had pushed the complainant to the ground and one of the men produced a 10cm knife and demanded money. Your co-accused threatened to stab the complainant if they did not get what they wanted. The Crown accept you were not upstairs in the residence at any point and were unaware as to what was occurring. They accept you did not appreciate that any of your co-accused had taken a knife to the residence. The Crown do not assert that you bear any criminal responsibility for what occurred upstairs.

Frustrated about not being able to find money, your co-accused kneed Mr Ford in the forehead three times. They took his phone from him and forced him to disclose its pin number. Before leaving, one of your co-accused observed the complainant was wearing a necklace. He demanded it, and despite Mr Ford saying the rings on the necklace belonged to his parents, it was ripped from his neck. Mr Ford was again punched to the face and told not to tell anyone or call the police or the group would return and kill him.

You and your co-accused left the house in possession of the complainant’s wallet, which contained $350, two credit cards, a debit card and a driver’s licence. Mr Ford’s passport, his mobile phone and bags of cannabis were also stolen. The complainant waited several minutes before walking to a friend’s house. Police and an ambulance were called. Mr Ford was injured and bleeding badly. He had suffered a broken nose, multiple abrasions to his forehead, bruising to his scalp, mild bruising to the right side of his neck, a swollen ear, tenderness to his ribs and bleeding into the membrane which covered his left eye. As a result of police investigations you and your co-accused were all identified. You were arrested on 26 February 2020 and participated in a record of interview. You admitted going to the house with the three other men. You said you were aware the plan was to obtain money and cannabis from the home. You told police you were not aware that anyone was going to be at the home. You co-operated with police by identifying the other three co-accused. You agreed you saw one of the co-accused punch the complainant upon him opening the front door. You agreed you went inside but said you did not assault anyone or participate in the ransacking of the residence. You told police you walked inside but then waited on the doorstep and would have yelled out to the others if anyone turned up.

It is the State’s case you went to the residence intending to commit an aggravated burglary and became a party to the aggravated robbery because you appreciated the complainant was present from the moment the door was opened and that violence was used immediately. Having seen this initial violence, you nevertheless stayed at the residence and continued to be present, willing to offer assistance by way of alerting the others if anyone turned up. You were ignorant of events upstairs and are not to be punished for those behaviours. By your pleas of guilty you accept your criminal liability to this extent.

You were 19 at the time of the crime, you are now 21. At the time of the commission of the crime you had no prior convictions at all. Your childhood was a difficult one. Your father was a very violent person and you witnessed a number of episodes of family violence. Your parents separated when you were young. Whilst you initially remained living with your mother, that relationship developed difficulties when she began a relationship with a person you did not get on with. Luckily you were able to go and live with your grandmother. She has always been, and continues to be a strong support for you and a positive influence. It seems that at around the age of 16 years you began to use cannabis and have used it heavily ever since. When you were 18 you were introduced to methylamphetamine and quickly developed a daily addiction. It was whilst you were using methylamphetamine heavily that this crime was committed. Your co-accused were also drug users. You had all run out of money to purchase more drugs and the idea was to travel to Mr Ford’s home to obtain money and/or drugs. The plan was not a particularly sophisticated one. Apparently there was a basic discussion in the taxi on the way to the home, but no definite plan of which you were aware. Whilst I accept that you did not believe that anyone would be home, and you were unaware of the presence of any weapons, you saw the complainant viciously assaulted from the moment he opened the door and you remained there and continued to join in with the robbery. As a result you are criminally responsible for it. I accept you found the situation confronting, you were taken by surprise by the extent of the violence offered by your co-accused and you felt conflicted as to whether you should stay. Of course, the right thing to do would have been to leave and get assistance. I am told you certainly appreciate that now, and feel deep shame about your involvement in this matter. To your credit, you have tried to make up for your involvement by co-operating with police and telling them who else was involved. You have indicated from an early stage that you would plead guilty. There has been some delay in finalising the matter because there was a difficulty in obtaining a psychological assessment, but the State accept they expended no time preparing a trial in respect to your matter. When it appeared as though some of your co-accused were taking the matter to trial, you agreed to assist in the prosecution by giving evidence. This co-operation came at a cost to you. You have been assaulted twice by persons affiliated with your co-accused and you have been threatened, including receiving threats as to what may happen to you if you are incarcerated. As I have said, you have no prior convictions for sentencing purposes. Around the time the aggravated robbery occurred you drove a motor vehicle whilst a prescribed illicit drug was present in your oral fluid, on eight occasions. You were also involved in some matters of dishonesty. These offences were reflective of your drug use at the time. You were sentenced for these offences in October 2020. They were all dealt with by way of fine and disqualification. There was also a 12 month community correction order made. You successfully completed this order.

To your credit, it seems as though you have made a substantial number of changes in your life since your involvement in this matter. You are back living with your grandmother in stable accommodation. You have disassociated yourself from a number of the persons you were spending time with when the crime was committed. It seems you have maintained two close friendships, both of whom are positive influences, but otherwise have severed relationships with known drug users. You have the possibility of work with a fencing company, with whom you have previously worked. They approached you and offered you work. You told them about these crimes and they remain willing to employ you. Most importantly, you are working very hard on abstaining from the use of illicit substances. You now recognise the effect your drug use had on you, and are determined to stay away from them. You are also receiving professional assistance for a number of mental health difficulties that have characterised your life to date. You have been diagnosed with post-traumatic stress disorder (flowing from the abuse and trauma you experienced as a child), ADHD, depression and Autism. Your GP has prescribed you with some new medications which appear to be working well. You have accepted a referral from Autism Australia to see a specialist in that field. I am told you now recognise the need to follow the guidance of mental health professionals and not try to cover the effect of your mental health issues with illicit drugs.

You are still a young man and in my view the rehabilitative efforts you have made over the last two years should be encouraged. Your plea of guilty; your remorse, which I accept is genuine; your preparedness to co-operate with authorities and the absence of any prior criminal history all counts in your favour. It is of course necessary to consider the question of parity. I note the sentences imposed upon your co-accused all involved actual periods of imprisonment or detention. The role you played in this offending was different to the others, and the basis upon which the State assert criminal responsibility is also different. The State accept you played a lesser role and were not physically involved in any aspect of the violence or in searching the house for drugs and money. The fact you are not to be held criminally responsible for any of the violence which occurred upstairs is a significant point of difference. All three of your co-accused had far worse criminal histories than yours at the time of the commission of the offences. Because of those factors parity has a far lesser role to play in the sentencing exercise.

These were very serious crimes. In company with three others, you forced entry into Mr Ford’s home and stood by while your co-accused used violence to inflict serious injury upon him, in order to achieve their purpose. I have no doubt it was a terrifying experience for him. He sustained serious physical injuries and the psychological effect of the crime upon him is likely to be long-standing. Such violence must be condemned by the courts. The sentence must be tailored to not only recognise your youth and rehabilitative endeavours, but also to ensure that your offending – to the extent you are criminally responsible – is appropriately punished. It is also important that the victim be vindicated and that others be deterred from behaving in a similar way. I am satisfied I can achieve all of the competing sentencing aims by the imposition of a period of home detention. It should be a reasonably substantial period of home detention in recognition of the seriousness of the offending. In determining a home detention order is appropriate, I note what was said in Director of Public Prosecutions v King [2020] TASCCA 8 at [52]-[56]. A home detention order has both punitive and rehabilitative aspects. It involves a substantial burden and a material deprivation of liberty. Home detention is far from a lenient punishment. It carries with it a considerable measure of deterrence and denunciation, and is therefore effective as a general deterrent. In the case of Mr Bird, at the age of 21, the very real restrictions that will be placed upon his freedoms will also provide the punitive response the seriousness of the crime demands.

Jorden Bird you are convicted on both counts on the indictment. I impose one sentence. I impose a home detention order for an operational period of 10 months to commence today. The order will include the following conditions which will apply for the whole of the operational period.

You must not commit an offence punishable by imprisonment.
You must reside at [address].
You must be there at all times except when you are not there for a “relevant reason” as specified in s 42AB(4) of the Sentencing Act That includes going somewhere with your probation officer’s permission.
You must permit a police officer, probation officer or other prescribed officer to enter those premises.
You must permit a police officer to conduct a search of the premises, conduct a frisk search of you, and take a sample of any substance found on the premises or on your person.
You must submit to electronic monitoring, including the wearing or carrying of an electronic monitoring device.
You must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
You must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring device, including directions relating to the installation, attachment or operation of the device or system used for the purpose of electronic monitoring, if those directions are given to you by a police officer, a probation officer, another prescribed officer or any other person whose functions involve the installation or operation of a device or system used for the purpose of electronic monitoring.
You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections, and be accessible for contact through that device at all times.
You must not take any illicit or prohibited substances.
You must not take any medication containing an opiate, benzodiazepine, bupropion hydrochloride or pseudoephedrine, unless you provide written evidence from your medical practitioner that you have been prescribed that medication. You must submit to the supervision of a Community Corrections officer as required by that officer.
You must not consume alcohol and you must submit to testing for the presence of alcohol by a police officer or Community Corrections officer.
You must submit to the supervision of a Community Corrections officer as required by that officer.

You will be provided with a written document that sets out the entirety of the conditions I have just enunciated.

I order that you must attend the Community Corrections office at Glenorchy by 10am tomorrow for the fitting of an electronic monitoring device and induction in respect to this order.

I also make a community correction order to operate for a period of 12 months from today. Again you will be required to report to a probation officer at the office of Community Corrections at Glenorchy by 10am tomorrow. During the 12 month operational period of that order you must report to a probation officer as required by the probation officer and comply with the reasonable and lawful directions of the probation officer. During the operational period of the order you must not leave or remain outside of Tasmania without the permission of the probation officer. You must keep your probation officer informed of any change of address or employment and notify them of such change within 2 working days or its occurrence. I impose the following special conditions:

You must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer.
You must attend educational or other programs, undergo assessment and treatment for alcohol or drug dependency, submit to testing for alcohol or drug use and submit to medical, psychological or psychiatric assessment or treatment as directed by your probation officer.

You will be given a document which sets out the entirety of the conditions that attach to the Community Correction order.