Director of Public Prosecutions v Cringle
[2024] ACTSC 357
•8 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Cringle |
Citation: | [2024] ACTSC 357 |
Hearing Date: | 2 October 2024 |
Decision Date: | 8 November 2024 |
Before: | Christensen AJ |
Decision: | See [62]-[63] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by joint commission – premeditation, planning, and targeting of the victim – activated taser and firearm – stolen vehicle – breach of suspended sentence – entrenched drug dependency – relevant criminal history – prospects of rehabilitation – institutionalisation – appropriate supervision upon release |
Legislation Cited: | Crimes Act 1900 (ACT) s 381 |
Cases Cited: | DPP v Girvan [2023] ACTSC 35 |
Parties: | ACT Director of Public Prosecutions ( Crown) Shane Daniel Cringle ( Offender) |
Representation: | Counsel E Bayliss ( Crown) R Thomas ( Offender) |
| Solicitors ACT Director of Public Prosecutions Paul Edmonds & Associates ( Offender) | |
File Numbers: | SCC 168, 169 of 2023 |
CHRISTENSEN AJ:
Introduction
1․Shane Cringle is to be sentenced for an offence of aggravated robbery by joint commission. The offence is contrary to s 310 of the Criminal Code 2002 (ACT) (CriminalCode) and carries a maximum penalty of 25 years imprisonment, 2500 penalty units, or both (CAN 2023/5908).
2․In addition, Mr Cringle seeks that two offences are taken into account on sentence:
(a)Ride in stolen motor vehicle, contrary to s 318(2) of the CriminalCode, carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both (CAN 2023/5911).
(b)Possess offensive weapon, contrary to s 381(1) of the Crimes Act 1900 (ACT) (Crimes Act), carrying a maximum penalty of 1 year imprisonment, a fine of $2000, or both (CAN 2023/5909).
3․The offending occurred on 28 April 2023. At that time, Mr Cringle was subject to a term of imprisonment that was suspended with a good behaviour order. This was imposed by the Magistrates Court some five months before the offending the subject of sentence. The breach of that order is also to form part of the sentencing exercise.
4․It is not in dispute that the only appropriate penalty is one of imprisonment, and that there will inevitably be a lengthy total term of imprisonment imposed. The primary issue is the time at which Mr Cringle is to become eligible for parole, with it submitted on his behalf that he is motivated to engage in rehabilitation once in the community. The prosecution cautions against a finding that there are solid prospects of rehabilitation.
The sentence offences
5․On Friday 28 April 2023, Mr Cringle was a passenger in a stolen motor vehicle with an unidentified male co-offender. They drove to the Manuka shopping precinct and robbed a male individual, the victim in this matter, who was entering the Westpac bank for the purpose of depositing the weekly takings from his businesses.
6․The victim is the owner of two businesses that operate out of shopfronts in Fyshwick. For several years, it had been the victim’s usual practice to do the business banking on a Friday morning.
7․Mr Cringle had an association with one of the victim’s businesses through a family member’s previous employment with the business. On the morning of the robbery, Mr Cringle attended at the business in the stolen vehicle wanting to make a purchase. The item he sought was not available. He then left in the vehicle with another male. They left at approximately 9:21am.
8․Shortly after 10am, the victim drove his vehicle from the business premises to the Manuka shopping precinct. He had a calico bank bag containing $17,650 in cash and banking books. As the victim turned into Franklin Street in Manuka, Mr Cringle and his co-offender were following immediately behind in the stolen vehicle. At 10:33am, the victim parked his car on Franklin Street. As this occurred, the stolen vehicle double parked a short distance further down the street.
9․The victim commenced walking to the Westpac bank. As he did so, the stolen vehicle pulled up alongside him.
10․Mr Cringle got out of the passenger side of the vehicle and ran towards the victim. The unidentified co-offender remained in the vehicle. Mr Cringle was wearing an orange fluorescent jumper, black gloves, a black cap, dark pants, work boots, sunglasses and a surgical mask.
11․The victim heard a clicking noise when he was about five or six metres from the bank. He turned and saw Mr Cringle running towards him holding a taser. The victim recognised the sound as being a taser, and saw Mr Cringle was holding the taser towards him.
12․The victim ran towards the bank and went through the automatic glass doors. Mr Cringle approached the doors, before stopping and turning back towards his vehicle, which had been reversed slightly down the street by the co-offender and was now positioned closer to the doors of the bank.
13․Mr Cringle opened the front passenger door of the vehicle and got inside. Simultaneously, the unidentified co-offender opened his door, got out, and ran towards the bank. The co-offender was wearing similar clothing to Mr Cringle, including a black cap, sunglasses and a surgical mask.
14․The co-offender was holding a firearm in his right hand. He had his arm out in front of him, pointed ahead. He ran through the doors of the bank towards the victim.
15․The victim tripped and fell to the floor as he tried to move away from the co-offender. While pointing the firearm, the co-offender said words to the effect of “drop the fucking bag, drop the fucking bag”.
16․The victim threw the bag he was carrying across the floor. It was picked up by the co-offender, who then ran from the bank. He returned to the driver’s seat, and they drove away. The closed circuit television footage showing the robbery enables a conclusion to be drawn that they drove off at speed. The incident took some 30 seconds, from when the victim got out of his car until when the offenders drove away.
17․At the time, there were a high number of people in the area who witnessed the offending. This included nearby community members, and bank staff and customers. They inevitably will have been alarmed and distressed by the offending behaviour.
18․The most alarm and distress caused though, will have been to the victim himself. While going about his business responsibilities, he was pursued and confronted by two separate offenders, brandishing frightening weapons. Fortunately, he was not physically harmed during the offence, but he did fall to the floor during the robbery, likely increasing the extent to which he felt vulnerable. A substantial amount of money was stolen from him, seemingly his entire weekly takings from his business activity. The financial and psychological impacts will have been immediately felt, as well as in the longer-term.
19․Subsequent police investigations ascertained that a portion of the money stolen was used by Mr Cringle to purchase a Holden Barina that a community member had advertised for sale on Gumtree. The purchase took place on the day of the robbery, in an amount of $3000. It was paid for using $50 notes.
20․Some five days later, Mr Cringle was spoken to by New South Wales Police during a traffic stop. He was observed to have a large number of $50 notes down the front of his pants. He told police that it was an amount of approximately $6500 that his father had given him, and that they were using it to purchase a car.
21․The following day, on 4 May 2023, police responded to calls of suspicious activity in a unit complex in Wright. This is where Mr Cringle’s partner resided. Police attended and the stolen vehicle used in the robbery was parked in the carpark. Mr Cringle’s partner gave police permission to search her unit. Police located clothing items consistent with clothing worn by Mr Cringle during the robbery. Subsequent forensic investigations of the stolen vehicle linked Mr Cringle to it.
22․The vehicle used by the offenders, a Nissan Patrol in brand new condition, had been stolen two days before the robbery. It was stolen from outside of the vehicle owners’ house, after the key was stolen from inside their home during the night. Personal items were inside the vehicle when it was stolen. The number plates on the vehicle at the time of the robbery had been stolen earlier on the day of the robbery from another vehicle.
23․On 8 June 2023, Mr Cringle was arrested in relation to this offence. He remained in custody solely in relation to this offending from that date until 27 September 2023. From 28 September 2023 he has been remanded in custody on this offending and a separate series of alleged offending. A total period of 520 days is to be taken into account, with the sentence to be backdated to commence with reference to that period: s 63 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
Assessment
24․The charge of aggravated robbery against Mr Cringle is the aggravated form of the offence due to the commission of the robbery being one committed with another person, and with the possession of the offensive weapon, being the taser. These factors of aggravation account for the increased applicable maximum penalty.
25․The possession of the taser, and the conduct of riding in a stolen motor vehicle before and after the aggravated robbery, are offences that are to be taken into account on sentence in accordance with pt 4.4 of the Sentencing Act (and see DPP v Vincent (No 2) [2023] ACTSC 379 at [64]). These offences elevate the importance of specific deterrence and punishment. In taking the riding in the stolen vehicle into account, it is relevant to emphasise that Mr Cringle’s conduct with respect to this vehicle does not extend to the circumstances of its theft. That is likely of little comfort to the owners of the vehicle who experienced the theft and invasion of their privacy as a result of that offending.
26․There are aspects of brazenness and sophistication to the offending. It involved premeditation, planning, and targeting of the victim with a view to robbing him at a time when he had his business takings on him. The conduct of Mr Cringle was persistent in his approach of the victim, in circumstances where he chased the victim with an activated taser. The co-offender then pointed the firearm, including when the victim was on the ground. As the prosecution submitted, there was a very real threat of extreme violence.
27․Strongly deterrent sentences are warranted, to deter not only Mr Cringle from further offending of this type, but to deter other potential offenders who may consider targeting individuals in this way.
28․While Mr Cringle was not ultimately the person who directly confronted the victim with a firearm, issued verbal threats, and secured the money, he had an essential role in the robbery. The weapon he personally brandished towards the victim was itself serious and will have caused significant alarm. This was plainly an offence reliant on two offenders having a willingness to participate in a serious form of robbery. Mr Cringle retains a high level of moral culpability for the offending, even in circumstances where he had returned to the vehicle after his initial involvement.
29․On Mr Cringle’s account, at the time of the offence he was affected by an abuse of prescription medication, and that he “agreed to do it as I was off my face”. He described not having the emotional insight or tools to know how to stop the crime from progressing and stated, “I tried my hardest to make sure no one was hurt”. I expect that is of little comfort to the victim and the community members exposed to the offending, who were undoubtedly harmed psychologically. I accept though that there was not direct physical harm caused and that this aggravating factor of this form of offending does not arise.
The breach
30․On 9 November 2022, Mr Cringle was sentenced in the Magistrates Court as follows:
Offence
Sentence imposed
Unlawful possession of stolen property
CAN 2022/1746
5 months imprisonment
Drive while right to drive suspended
CAN 2022/1745
Convicted and fined $500
Aid/ abet/ counsel/ procure obtain property by deception
CAN 2021/9249
1 month imprisonment
Obtain property by deception
CAN 2021/9026
3 months imprisonment
Possess drug of dependence
CAN 2021/6816
Convicted and fined $1000
Unlawful possession of stolen property
CAN 2021/6815
3 months imprisonment
Aggravated burglary
CAN 2021/6814
18 months imprisonment
Take motor vehicle without consent
CAN 2021/6813
12 months imprisonment
31․The total effective sentence imposed was 2 years and 5 months imprisonment, to commence on 20 July 2021 and conclude on 19 December 2023. The term was suspended after 18 months with a good behaviour order for a period of 12 months. That is, having regard to the period in custody and the date the sentence was imposed, Mr Cringle was released into the community from 19 January 2023.
32․A period of 11 months of imprisonment was suspended. This related only to the offences of unlawful possession of stolen property, obtain property by deception, unlawful possession of stolen property, and take motor vehicle without consent, as, per the original sentence orders, the term of imprisonment for the aggravated burglary was served prior to being released on the suspended sentence order.
33․Section 107 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) provides that this Court may deal with the breach of the Magistrates Court sentence. The prosecution submitted that the only appropriate outcome would be to impose the suspended sentence: s 110 Sentence Administration Act. I agree.
34․The offending the subject of sentence occurred within three months of his release on the suspended sentence, before any solid progress towards rehabilitation was achieved. While not offending of a similar nature, the original offending was not without its own level of seriousness. It is recidivist offending, and recidivist non-compliance with community based orders. The suspended sentence was imposed for offending that occurred in July 2021 and February 2022, while Mr Cringle was on parole. The offending was in the nature of theft of a motor vehicle and use of a stolen bank card to make purchases.
35․I am satisfied that it is appropriate to impose the suspended term. Doing so is not disproportional to the gravity of the breach. To give effect to the imposition, it is necessary to impose each of the original sentences of imprisonment that were imposed on 9 November 2022 in accordance with the structure of those sentences, and to then backdate the sentences by the period of 18 months served before the suspension took effect.
36․No submission was made pressing that a re-sentence occurs instead, although it was appropriately submitted that totality then becomes a relevant consideration. I agree. While it is important to reflect the imposition of the suspended term to give effect to the consequences of breaching that order, given the overall sentence that will be imposed, a level of concurrency is appropriate.
37․It was not sought by the prosecution that the Court enforce the security that formed part of the good behaviour order. Accordingly, I do not propose to order enforcement, recognising also that Mr Cringle has no financial means to meet such an order: ss 110(3), 111 Sentence Administration Act.
38․It is otherwise an aggravating factor on sentence that Mr Cringle was on conditional liberty, that is, subject to the suspended sentence at the time of the offending. This is informative in determining the appropriate sentence to be imposed. As the prosecution submitted, it demonstrates very poor prospects of rehabilitation.
Subjective circumstances
39․Mr Cringle is now aged 38 years and was aged 37 years at the time of the offending. He is in a long-term relationship and has no dependents.
40․He was born and raised in Canberra and has a number of siblings, including a brother who he has a positive relationship with. From a young age, he had a turbulent upbringing. He was exposed to domestic violence.
41․His mother passed away when he was aged five. After his mother’s passing, he resided with his father and stepmother. His relationship as an adult with his father is volatile and while Mr Cringle believes that his father cares for him, he “keeps stuffing up”.
42․Mr Cringle completed high school to year 10, despite exhibiting behavioural difficulties at school. He has good physical health, but has had mental health challenges, with a diagnosis of depression since he was 16 years of age. He has used medication for this condition on and off since that time.
43․Mr Cringle has engaged in intermittent informal employment, but, with a large portion of his adult life having been spent in custody, has had limited opportunities for employment. He has gained qualifications in first aid, computers, and hospitality while in custody, and also engaged in various forms of therapeutic intervention.
44․At the time of the offending, Mr Cringle was in a situation of insecure housing. He had returned to substance abuse upon his release from custody. This reliance on substances stems from his use of alcohol from 14 years of age, ‘speed’ at 15 years, cannabis at 16 years, and ‘ice’ at 17 years. By 18 years of age, he, as described in the pre-sentence report, had “added heroin to his daily use”. This continued until he was 34 years of age, when he commenced pharmacotherapy which he continues to be prescribed.
45․I accept that the offending occurred in a context of entrenched drug dependency that was an addiction arising from early exposure to substances. It was submitted on Mr Cringle’s behalf that this reduces his moral culpability for the offending. The prosecution submitted against such a finding being made as the discrete circumstances that enliven such a conclusion are not available.
46․I am satisfied that a reduction in moral culpability is warranted. The information before the Court details the extent of substance use that commenced from an early age, at an age and in circumstances before there was an opportunity for personal choice to be made. The information before the Court shows that Mr Cringle’s offending has consistently occurred in circumstances of substance abuse.
47․Mr Cringle has had a mixed response to previous rehabilitative program interventions. He has not yet achieved abstinence from the interventions he has attempted.
48․Positively, Mr Cringle has available to him prosocial family and friend supports. This includes a long-term close friend who gave evidence at his sentence hearing. She was well aware of his offending behaviour. It was apparent from her evidence that Mr Cringle is not someone who ought be readily dismissed as incapable of rehabilitation. She describes him as having an inherent strength and resilience “to try and come out the other side”. Further, his friend describes Mr Cringle as someone who provides immeasurable support to her and her sons, and who is one of the “sweetest, kindest, gentlest” people she has met in her life.
Criminal history
49․Mr Cringle has previously been convicted and sentenced for an offence of aggravated robbery: R v Cringle [2018] ACTSC 41. The offending on that occasion, in September 2017, involved the use of a claw hammer and a knife to threaten a staff member at a McDonald’s restaurant. A sentence of 48 months imprisonment was imposed. At that time, Mossop J observed that (at [29]):
The offender has spent the majority of his adult life in custody. Unfortunately, whether by reason of that fact, his character or lack of social supports, he has been unable to conduct himself lawfully out of prison.
50․Prior to that sentence, Mr Cringle had been sentenced in the Supreme Court to terms of imprisonment for offences of assault, conspiracy, property offending, theft and drug offending. He was also sentenced in 2007 for an offence of aggravated robbery committed in August 2007. The details of that offence are not available, but he was sentenced for that, and other offences, to a total period of 6 years and 6 months imprisonment.
51․Mr Cringle is not to be sentenced again for his previous history, but his criminal history is such that no leniency can be afforded. This is particularly so in circumstances where the seriousness of his offending has seemingly increased, at least with reference to the most recent robbery. Lengthy terms of imprisonment have not previously deterred him, and community protection has significance in the sentencing exercise.
Pleas of guilty
52․The pleas of guilty were entered on 15 April 2024, being the day the five day trial was to commence in the Supreme Court. A small level of utilitarian value remains as witnesses were not ultimately required to give evidence, jury members were not required, and court resources were saved. Nonetheless, the victim and the witnesses will have experienced the anxious expectation of being required to give evidence, as well as community members inconvenienced for the purposes of attending the court in anticipation of jury service.
53․A reduction in the order of 10 per cent is appropriate.
Current sentencing practice
54․The prosecution assisted with a number of authorities relating to current sentencing practice, while acknowledging the limitation that these provide: DPP v Joliffe-Cole [2024] ACTSC 256; DPP v Muell [2024] ACTSC 184; R v Marshall (No 2) [2022] ACTSC 102; DPP v Girvan [2023] ACTSC 35; R v Batcheldor [2021] ACTSC 208; R v Hawkins [2020] ACTSC 29; R v Apps (No 2) [2019] ACTSC 369. None of these authorities have the characteristics of sophistication and planning that occurred here, including exposing the victim to two serious weapons. They do though involve examples where physical violence was inflicted, and involve recidivist offenders. Sentences in the range from two years and seven months through to five years imprisonment were imposed in the authorities provided.
Consideration
55․It is plain that the only appropriate penalty is one of imprisonment, and that the real issue for determination is the time at which Mr Cringle becomes eligible for parole. In determining this, the role of community protection and Mr Cringle’s prospects of rehabilitation are significant.
56․There have been incidents of behaviour requiring discipline while in custody, most recently in June 2024. While not indicative of positive progress towards rehabilitation, such behaviours also need to be considered in the context of a person who has spent much of his adult life in custody, and while on remand has anticipated a further period of incarceration. It is likely that despondence and frustration would set in. It is also likely that the inevitable further period that Mr Cringle is to spend in custody risks institutionalisation if that is not already his experience. I consider this a relevant consideration in determining the appropriate parole period. Community protection is ultimately only going to be sustainably achieved if Mr Cringle is not unduly negatively impacted by his experience in custody, and if he receives appropriate supervision upon release.
57․For Mr Cringle, this plainly requires a plan upon release that enforces engagement with a rehabilitation program to address his drug dependency, which will address his risk of reoffending. Mr Cringle demonstrates insight into this, and a motivation to do so. While he has indicated such insights and motivations in the past, and not consistently achieved this, he has on one occasion previously completed a parole order. It is also of relevance to note how he was described in the pre-sentence report:
… he accepted responsibility and verbalised an awareness of ‘needing to change and do better’. He verbalised his understanding that his sentence is a consequence of his offending, and of the ongoing impact his actions may have on the victim. He communicated his culpability, did not minimise his actions and appeared to display considerable victim empathy.
58․I conclude that the prosecution’s caution as to Mr Cringle’s prospects of rehabilitation is entirely warranted. But the prosecution did also fairly recognise that “Mr Cringle is clearly someone with a degree of potential”. I agree.
59․Mr Cringle has protective factors available to him, and he is someone who has prospects of rehabilitation with the appropriate support. A lengthy period under supervision in the community will enable such supports, particularly with a recommendation as to rehabilitative engagement which I propose to make. A lengthy period of parole supervision will also provide deterrence to rehabilitate and to not re-offend.
60․The pre-sentence report expresses an opinion that Mr Cringle would benefit from a residential rehabilitation program to address his substance abuse issues, and to engage with services to address his mental health and accommodation issues. The report opines that “should Mr Cringle engage meaningfully with these services, his risk of reoffending may gradually reduce over time”.
61․While Mr Cringle is someone who has committed a serious offence, and several serious offences in the past, this stems from him being someone with entrenched drug dependency who has limited opportunities to develop as an adult in the community with the necessary supports to overcome his challenges. It does not stem, on my assessment, from him being a person who inherently wants to engage in criminal behaviour and cause harm to other community members. A parole period that reflects a level of leniency will bring hope to Mr Cringle, and contemplates, and supports, hope for Mr Cringle’s participation in the community without offending.
Orders
62․For those reasons the following orders are made:
(1)The conviction of Shane Daniel Cringle of aggravated burglary – intent to steal (CAN 6814/2021) be confirmed and the sentence of 18 months imprisonment to commence on 5 December 2021 and end on 4 June 2023 be imposed.
(2)The conviction of Shane Daniel Cringle of take motor vehicle without authority (CAN 6813/2021) be confirmed and the sentence of 12 months imprisonment to commence on 5 December 2022 and end on 4 December 2023 be imposed.
(3)The conviction of Shane Daniel Cringle of unlawful possession of stolen property (CAN 6815/2021) be confirmed and the sentence of 3 months imprisonment to commence on 5 December 2022 and end on 4 March 2023 be imposed.
(4)The conviction of Shane Daniel Cringle of obtain property by deception (CAN 9026/2021) be confirmed and the sentence of 3 months imprisonment to commence on 5 November 2023 and end on 4 February 2024 be imposed.
(5)The conviction of Shane Daniel Cringle of obtain property by deception (CAN 9249/2021) be confirmed and the sentence of 1 month imprisonment to commence on 5 December 2023 and end on 4 January 2024 be imposed.
(6)The conviction of Shane Daniel Cringle of unlawful possession of stolen property (CAN 1746/2022) be confirmed and the sentence of 5 months imprisonment to commence on 5 December 2023 and end on 4 May 2024 be imposed.
(7)Shane Daniel Cringle be convicted of aggravated robbery (CAN 5908/2023) and be sentenced to 4 years 6 months, reduced from 5 years imprisonment on account of his plea of guilty, to commence on 5 December 2023 and expiring on 4 June 2028.
(8)The total sentence imposed be 6 years 6 months, to commence on 5 December 2021 and end on 4 June 2028.
(9)A nonparole period of 4 years and 2 months be imposed to commence on 5 December 2021 and end on 4 February 2026.
(10)It is recommended to the Sentence Administration Board under s 120(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) that:
When released on parole, Shane Daniel Cringle be required as a condition of the parole to undertake a substantial period of supervised or mandated drug rehabilitation, preferably in a residential drug rehabilitation facility, if a program is available to him.
63․In making the sentence order in respect to the offence of aggravated robbery (CAN 2023/ 5908), the additional offences of ride in stolen motor vehicle (CAN 2023/5911) and possess offensive weapon with intent (CAN 2023/5909) were taken into account.
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 20 January 2025 |
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