Director of Public Prosecutions v Girvan
[2023] ACTSC 35
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Girvan |
Citation: | [2023] ACTSC 35 |
Hearing Date: | 6 March 2023 |
DecisionDate: | 6 March 2023 |
Before: | Mossop J |
Decision: | See [40] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – various offences of carjacking and aggravated robbery – offences took place in the early hours of the morning – offending involved use of a machete and axe to threaten victims – offending occurred to support drug habit –prospects of rehabilitation are mixed – custodial sentence imposed |
Legislation Cited | Criminal Code 2002 (ACT) ss 310, 311, 318, 326 Road Transport (Road Rules) Regulation 2017 (ACT) |
Parties: | Director of Public Prosecutions Corey Girvan ( Offender) |
Representation: | Counsel C Wanigaratne ( DPP) J Sabharwarl ( Offender) |
| Solicitors Director of Public Prosecutions Fraser Criminal Law ( Offender) | |
File Numbers: | SCC 206 of 2022 SCC 207 of 2022 SCC 208 of 2022 |
MOSSOP J:
Introduction
The offender, Corey Girvan, has pleaded guilty to a string of offences committed in the early hours of 21 May 2022. In these reasons the names of the victims are anonymised as their names are not necessary for the understanding of the sentence imposed.
The charges are summarised in the following table.
Count Charge Particulars Max penalty Count 1 Joint Commission Burglary (SCCAN2022/180); s 311 Criminal Code 2002 (ACT) Between 1:36am – 2:00am, trespassing on property of KG through open door. Theft of keys to white Ford Ranger. 14 years’ imprisonment, a fine of $224,000 or both. Count 2 Joint Commission Take Motor Vehicle (CC2022/5627); s 318 Criminal Code 2002 (ACT) Between 1:36am – 2:00am, theft of white Ford Ranger belonging to KG.
5 years’ imprisonment, a fine of $80,000 or both. Count 3 Obtain Property By Deception (CC2022/5628); s 326 Criminal Code 2002 (ACT) At 3:05am, purchase of two packets of cigarettes using KG’s St George Vertigo Mastercard.
10 years’ imprisonment, a fine of $160,000 or both. Count 4 Joint Commission
Attempted Aggravated Robbery (CC2022/7115); s 310 Criminal Code 2002 (ACT)Between 3:30am – 4:00am, attempted carjacking of white taxi belonging to IT. Threatened IT with 30-45 cm knife.
25 years’ imprisonment, a fine of $400,000 or both. Count 5 Joint Commission
Attempted Aggravated Robbery (CC2022/5629); s 310 Criminal Code 2002 (ACT)Between 3:45am – 4:20am, attempted carjacking of vehicle belonging to EN. Engaged in car chase with EN. 25 years’ imprisonment, a fine of $400,000 or both. Count 6 Aggravated Robbery (CC2022/5630); s 310 Criminal Code 2002 (ACT) Between 4:30am – 4:45am, carjacking of white taxi, driven by BN and belonging to NT. Attacked the victim’s car with an axe. 25 years’ imprisonment, a fine of $400,000 or both. Count 7 Joint Commission Aggravated Robbery (CC2022/5631); s 310 Criminal Code 2002 (ACT) Between 4:40am – 4:53am, assault and theft of mobile belonging to UC. 25 years’ imprisonment, a fine of $400,000 or both.
The offender also pleaded guilty to a transfer offence of driving without a seatbelt contravention of the Road Transport (Road Rules) Regulation 2017 (ACT) which carries a maximum penalty of 20 penalty units.
Facts
The facts are agreed and set out in an agreed statement of facts. They are, in summary, as follows.
Counts 1 and 2: joint commission burglary and joint commission take motor vehicle
At about 10:20pm KG, a resident of Galbraith Close in Banks parked his white Ford dual cab utility in the driveway of his house. He put the electronic fob for the white Ford on a wall near the front door. He left his wallet either near the fob or in the car itself. In the wallet was a St George Vertigo MasterCard.
At 1:36am the offender and two other males were captured on CCTV walking towards Galbraith Close. One or more of the males entered KG’s house through the front door and stole the fob and, if it was there, the wallet. The front door had been left unlocked because the lock was broken. The offender and the unidentified males then stole the white Ford and left the area. At about 2:05am the white Ford entered the car park between the Lanyon Vikings Club and the Conder oval. One or more of the males removed several items from the car belonging to KG and left them in the car park. The car left the car park at 2:13am.
Count 3: Obtain property by deception
About 3:03am the offender entered a shop known as BP 2go in Phillip. He purchased two packets of cigarettes valued at $75.98 and used the St George Vertigo MasterCard belonging to KG to pay for them.
Count 4: Joint commission attempt aggravated robbery
Between 3:15am and 3:20am, IT, a taxi driver, parked his taxi in the Phillip District Playing Field car park. He fell asleep in his vehicle. Fifteen minutes later the white Ford entered the car park and stopped beside the vehicle. The offender exited the driver seat of the white Ford, approached IT’s vehicle and attempted open the driver’s door. He was unable to do so because the door was locked. He said “open the door or I will smash the window” about three times. He had a knife in his hand which was about 30 to 45 cm long. He attempted to hit the driver’s window with the knife, however, IT drove the vehicle forwards and the knife instead hit the rear driver’s side passenger window causing it to shatter. IT then drove his vehicle out of the car park. The white Ford continued to follow his vehicle along a number of streets until he turned on to Callam Street where the Woden police station is located at which point the white Ford stopped pursuing him.
Count 5: Joint commission attempt aggravated robbery
Between 3:30am and 4am EN parked his grey Ford Ranger in a parking bay on one side of Isherwood Street in Weston. He parked the vehicle nose into the parking space and sat in his vehicle listening to music while smoking a joint. The white Ford drove loops along the road before stopping in front of EN’s vehicle, blocking him from reversing out. The offender exited the driver side of the white Ford with a large machete approximately 30 to 40 cm long and told the other males to get out. The offender then held the machete above his head and motioned with his hand for the other males to hurry up. Another male exited the white Ford and approached EN’s vehicle from the other side. The offender attempted to hit EN’s vehicle with the machete. As the offender approached the vehicle EN began driving backwards and forwards in order to navigate his vehicle around the white Ford. He drove his vehicle up onto the footpath and nature strip before getting around the white Ford. He then drove for approximately 20 minutes while being pursued by the white Ford. The pursuit involved speeds substantially in excess of the speed limit. At one point he called his mother who in turn called 000. The operator told her to tell her son to drive to a police station. He also called police at 4:12am and was told to do the same. It was only when he had turned onto Callam Street where the Woden police station is located that the white Ford ceased pursuing him.
Count 6: Aggravated robbery
At about 4:30am BN arrived in his taxi to collect a passenger from an address in Warragamba Avenue, Duffy. The white Ford drove past BN’s vehicle then returned, approaching BN’s vehicle from behind before pulling in front of it at an angle so as to block him from moving forward. The offender exited the Ford from the driver’s side holding an axe and approached the taxi. The offender attempted to open the driver’s door two or three times but could not because the door was locked. The offender said “give me the money” to which BN replied “I have no money”. The offender then hit the driver’s side window of the vehicle with the axe causing the window to shatter. BN reversed his vehicle about 100-200 m at speed. The white Ford performed a U-turn and drove towards BN’s vehicle while the offender ran alongside the white Ford. BN attempted to perform a U-turn but his gears got stuck. The offender yelled a number of times “get out of the car” to which BN responded “I don’t have anything”. The offender yelled “get out of the car cunt I’ll fuck you with an axe”. The offender hit the windscreen of the vehicle with the axe. The offender reached into the vehicle through the shattered driver’s side window and removed the key from the ignition. The offender yelled “get out dickhead, you got no keys; get out, it’s my car”. BN then exited the vehicle and the offender got in and drove off in a westerly direction along Warragamba Avenue. The white Ford also drove off in the same direction.
Count 7: Joint commission aggravated robbery-CC 2022/5631
Between 4:30am and 4:40am UC was outside his residence on Warragamba Avenue in order to receive an international call from his sister and not to disturb his wife who was sleeping. UC crossed the road and sat on the retaining wall opposite his residence under the streetlight. He had been on the phone for about five or ten minutes when the white Ford drove along Warragamba Avenue past him. The white Ford stopped and reversed back towards him. The driver got out of the vehicle holding a large knife in his hand which was approximately 30 cm long. The driver yelled at UC “what do you have”. Two other males armed with guns got out of the white Ford and also yelled “what do you have”. UC responded that he had nothing but his mobile phone. The driver punched UC in his left ear. The driver asked UC to show him his pockets, so UC turned his pockets inside out. The driver checked that they were empty then punched him on the left ear a second time. The driver grabbed UC’s mobile phone causing a small cut on UC’s right hand. The driver then attempted to punch UC in that ear a third time, however, UC moved his head so that the drivers fist passed over his face, hitting his nose. The males got back into the white Ford and drove off.
At 8:05am that day New South Wales police had located the white Ford in Wagga Wagga.
Victim impact
A victim impact statement was provided by BN, the victim of the aggravated robbery which is count 6. That was the robbery in which the car was ultimately taken. He indicated that he did not suffer any physical injury but the incident had a strong mental and psychological effect on him. He drives taxis and Ubers on the morning shift from 3am till 3pm. However, since the incident he is not able to work when it is dark and as a result has not been able to start before 7am. He lost the cash that was in the car as well as his mobile phone as a result of the robbery. He did not drive for about a month after the incident. Since the robbery he has continued to lose income because he does not feel able to start work before 7am given what happened to him.
The owner of the taxi lost three and a half months’ income as well as the $1000 insurance excess. This has also caused him stress because he had invested his savings into the operation of the taxi as a business.
Objective seriousness
Looked at overall this was an awful and intense crime spree involving random victims and the use of violence. The offender was on bail for summary matters at the time of offending.
Count 1 was a burglary of a residential premises at night when the residents were likely to be and in fact were home. The entry was through an open door. It is in the medium range of objective seriousness for this offence.
Count 2 involved the taking of the motor vehicle. It is in the mid-range of objective seriousness for this offence bearing in mind that it is a charge of taking rather than driving.
Count 3, obtaining property by deception, involves the misuse of the credit card. It is in the low range of objective seriousness for this offence having regard to the nature and value of the transaction.
Count 4, the attempted aggravated robbery on the taxi driver, IT, must have been terrifying. It involved a random attack on a taxi driver. It involved threats of damage and the use of a knife. It involved the actual infliction of damage upon the vehicle in an attempt to break into it. It then involved a persistent pursuit of the vehicle until it approached the police station. It is at the upper end of the mid-range of objective seriousness for an attempted aggravated robbery.
Count 5 is another example of an attempted aggravated robbery, this time on a stranger. It involved threats with a large machete and an attempt to hit the vehicle with the machete. It then involved a long and dangerously high-speed pursuit of the victim’s vehicle until it approached a police station. Once again it is in the upper end of the mid‑range of objective seriousness for an attempted aggravated robbery.
Count 6 is an aggravated robbery of another taxi driver. This involved the use of an axe to shatter the car’s window and was successful because of the taking of the keys from the vehicle. The video of the incident makes clear the terrifying nature of the incident for the driver. It is at the upper end of the mid-range of objective seriousness for an aggravated robbery.
Count 7 is the robbery of the man making a telephone call outside his house. It involved use of guns and a large knife. It involved the infliction of actual violence upon the victim by three punches and the theft of his mobile phone. Although the value of the property stolen was less significant than that in count 6, it involved actual infliction of violence upon the victim and is still in the mid-range of objective seriousness for an aggravated robbery.
Subjective circumstances
The subjective circumstances of the offender are outlined in a pre-sentence report dated 1 March 2023.
The offender is 20 years old. He was 19 at the time of the offending. He is single with no children. He reported a normal upbringing although there appears to have been some alcohol abuse and verbal aggression on his father’s part. He has two siblings and three half siblings. His older brother is currently in custody. His younger sister lived in the family home with his parents and the offender.
He left school at the age of 14 prior to completing Year 10. He has had various employment within the motor industry. Some weeks prior to his arrest he started a new job manufacturing windows. His mother reported that he had removed himself from the bad situation he was in due to his drug use and told his mother that “this behaviour wasn’t for him”.
He commenced using alcohol at the age of 16. He started using cannabis at 16 and was introduced to methamphetamines at the age of 17. He irregularly used heroin and MDMA. Methamphetamine was his primary concern and his use increased until he was spending up to $1000 a day on the substance and turned to criminal activities to fund his ongoing use.
While in custody he had declined the opportunity to participate in the Solaris Therapeutic Community. There is some indication that his attitude has changed and that he is now interested in such a course.
He told the author of the pre-sentence report that he was using methamphetamine heavily at the time of the offending and he had experienced drug induced psychosis and did not have a full recollection of the offences.
He continues to have the support of his family and will be able to return to his family home upon release. Given his history of employment since leaving school he is likely to be able to find employment upon release. He is assessed as being at a medium risk of reoffending.
While in custody his behaviour has fluctuated between being polite and respectful to being disrespectful and verbally abusive towards custodial officers. Further his initial lack of interest in the drug rehabilitation program within the prison is a further sign that he may not be ready to fully engage with a path towards rehabilitation.
His mother remains supportive of him. She recorded that the deaths of his grandmother and the boyfriend of her daughter while he was incarcerated have had an impact upon him. The mother of a friend of his reports favourably on his conduct towards her intellectually disabled son.
Criminal history
The offender had a modest criminal history with offences of trespass, unlawful possession of stolen property, possessing a knife without reasonable excuse, providing a false name or address and drink driving. These offences occurred prior to the present offending but were only the subject of convictions after the present offending.
Plea of guilty
The offender pleaded guilty to counts 3, 4 and 6 in the Magistrates Court after the provision of the brief of evidence. He will receive a discount of approximately 25 percent on account of these pleas of guilty. He pleaded guilty to counts 1, 2, 5 and 7 in the Supreme Court after committal for trial but before listing in a criminal case conference. He will receive a discount of approximately 20 percent on account of these pleas of guilty.
Time in custody
The offender was arrested on 9 June 2022 and has been in custody since that date. So as to take this period into account the sentences imposed will be backdated until 9 June 2022.
Consideration
This is a very serious set of offences. I infer that it was driven by the need to obtain money for drugs. It was at the desperate and violent end of the spectrum reflecting a willingness to use violence in order to obtain property and to damage vehicles before stealing them. The willingness to damage property in the course of stealing tended to undermine the inferred purpose of the exercise. Deterrence, denunciation, recognition of harm and punishment are all significant sentencing considerations.
As against the seriousness of the offending it must be recognised that the offender was only 19 at the time of the offending and is now only 20. He had no criminal history at the time of this offending but had committed offences for which he was subsequently convicted. His criminal history is such that he remains entitled to some leniency and it does not tell against his prospects of rehabilitation. He is suffering his first period of incarceration. The fact that the offending was drug-related is an explanation of the conduct rather than an excuse for it. It does indicate that if the difficulties with drugs are addressed there may be reasonable prospects of rehabilitation, something which may have been less apparent if the explanation for the offending was not so clear. I was asked to consider a assessment for entry into the Drug and Alcohol Sentencing List. However, I did not consider that he would be eligible having regard to the sentence that I will impose. Nevertheless, rehabilitation is a significant sentencing consideration and if it occurs, is in the long-term interests of the community.
Because of the gravity of the offending there are significant sentences of imprisonment that must be imposed. However, the totality of the sentence must bear in mind that he is still a young man who is not so entrenched in criminal behaviour and will have the opportunity to address his illicit drug use whilst in custody. He has good prospects of employment and retains the support of his family. However, it cannot be said that the subjective information reflects as positive signs of rehabilitation as might be hoped. It may be that, by reason of his youth, he has not yet realised the need for reform. Having regard to his youth and lack of prior custodial sentences, the length of the individual terms of imprisonment are modest ones having regard to the gravity of the offending. Further, in order to achieve an appropriate total sentence a significant degree of concurrency between the sentences will be allowed but not so great as to be seen to give a bulk discount for multiple offences committed within a short period. It can be hoped that by setting a relatively modest non-parole period and hence a substantial period of supervision in the community, the offender will be motivated to obtain his release at an early stage and be subject to supervision for a significant period so as to set him on a path that avoids relapse into drug use in the future.
The aggregate sentence that will be imposed is five years and three months. The non‑parole period will be 33 months or two years and 9 months. The non-parole period is at the shorter end of the usual range on account of his youth and the potential for him to change course and demonstrate in custody a commitment to rehabilitation.
The transfer charge of driving without a seatbelt will be dealt with by a modest fine with no time to pay.
Orders
The orders of the Court are:
1. On count 4, the charge of attempted aggravated robbery (CC 2022/7115), the offender is convicted and sentenced to 24 months’ imprisonment (reduced from 30 months’ on account of the plea of guilty) commencing on 9 June 2022 and ending on 8 June 2024.
2. On count 5, the charge of attempted aggravated robbery (CC 2022/5629), the offender is convicted and sentenced to 22 months’ imprisonment (reduced from 30 months’ on account of the plea of guilty) commencing on 9 June 2023 and ending on 8 April 2025.
3. On count 6, the charge of aggravated robbery (CC 2022/5630), the offender is convicted and sentenced to 33 months’ imprisonment (reduced from 42 months’ on account of the plea of guilty) commencing on 9 July 2023 and ending on 8 April 2026.
4. On count 7, the charge of aggravated robbery (CC 2022/5631), the offender is convicted and sentenced to 27 months’ imprisonment (reduced from 36 months’ on account of the plea of guilty) commencing on 9 December 2024 and ending on 8 March 2027.
5. On count 1, the count of burglary (SCCAN 2022/180), the offender is convicted and sentenced to 14 months’ imprisonment (reduced from 18 months’ on account of the plea of guilty) commencing on 9 April 2026 and ending on 8 June 2027.
6. On count 2, the charge of taking a motor vehicle (CC 2022/5627), the offender is convicted and sentenced to 9 months’ imprisonment (reduced from 12 months’ on account of the plea of guilty) commencing on 9 November 2026 and ending on 8 August 2027.
7. On count 3, the charge of obtaining property by deception (CC 2022/5628), the offender is convicted and sentenced to 3 months’ and seven days imprisonment (reduced from four months’ on account of the plea of guilty) commencing on 2 June 2027 and ending on 8 September 2027.
8. On the transfer charge of drive without a seatbelt the offender is convicted and fined $200 with no time to pay.
9. The non-parole period commences on 9 June 2022 and ends on 8 March 2025.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 20 April 2023 |
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