Director of Public Prosecutions v Graham
[2024] ACTSC 67
•19 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Graham |
Citation: | [2024] ACTSC 67 |
Hearing Date: | 18 March 2024 |
Decision Date: | 19 March 2024 |
Before: | Berman AJ |
Decision: | See [74] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery by way of joint commission – unauthorised possession of prohibited firearms – early guilty plea – consideration of motivation – consideration of Bugmy factors – term of imprisonment imposed – restorative justice referral |
Legislation Cited: | Crimes (Restorative Justice) Act 2004 (ACT) s 24 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 |
Parties: | Director of Public Prosecutions Troy William Graham ( Offender) |
Representation: | Counsel A Brown ( DPP) T Taylor ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 91 of 2023 SCC 275 of 2023 |
BERMAN AJ
Facts
1․All home invasion offences are serious, but the home invasion offence for which I am sentencing the offender was particularly serious.
2․In the Australian Capital Territory, there lived Mr Marcus Cooper and Ms Brenda Cooper, their 14-year-old son Jackson Cooper, and Jackson’s 13-year-old girlfriend. In early July 2022, two things happened. Firstly, Jackson started selling vapes via his Snapchat account, and secondly, Jackson’s girlfriend posted a video on Jackson’s Instagram and Facebook accounts showing $3,500 in $50 denomination banknotes.
3․The offender must have become aware of those events, because he and others used the ruse of pretending to buy vapes from Jackson Cooper in order to gain access to the Cooper’s premises, where the offender believed there was $3,500 in cash.
4․On 10 July 2022, the offender’s co-offender had a conversation on Facebook Messenger with Jackson Cooper about the purchase of a vape. They arranged that a third person, who turned out to be this offender, would go to Jackson Cooper’s home to purchase the vape on behalf of the co-offender.
5․So it was that in the early hours of 11 July 2022, Jackson Cooper opened his front door. He saw two men standing at the door, one of whom was the offender. They forced their way inside; the offender being armed with what Jackson Cooper believed was a shotgun. As it later transpired, it was a sawn-off rifle.
6․Considerable violence followed, as the two men attempted to find out where the $3,500 was so that they could steal it. Of course, the problem faced by the four people in the house was that there was never $3,500 there to begin with. The video depicting the $3,500 had not been created by Jackson Cooper or his girlfriend.
7․Jackson Cooper ran to his parents’ bedroom, closing and locking the door behind him. His girlfriend tried to run away with her phone, but the men told her to drop her phone and turn it off, something she, sensibly, complied with.
8․The men began trying to bash down the bedroom door. Marcus Cooper had been woken by the commotion and shouted to the two invaders words to the effect of, “What do you want? Just leave. Just take whatever you want and leave”. One of the men responded by saying, “We want the money. Where’s the money? Give us the money now or I’ll kill youse all”. One of the men also said words to the effect of, “We know you’ve got $3500 here”.
9․Eventually the men were successful in gaining access to the bedroom, and they began to punch and kick Marcus Cooper, and the offender hit him with the butt of the firearm.
10․Bravely, Brenda Cooper tried to intervene, saying words to the effect of, “You touch my husband again, I’ll kill you”, “Stop hurting him”, and “Leave him alone”. The response from one of the offenders was to say to her, “Shut your mouth, cunt, or I’ll punch your teeth in”.
11․The two men then resumed their assault upon Marcus Cooper, hitting him to the back of the head with the butt of the firearm. Even more bravely than before, Brenda Cooper again went to her husband’s aid by pushing this offender in the chest. In response, one of them hit her on the right side of the forehead. The force of this blow knocked her to the floor, causing her to hit her stomach on the base the bed, bruising it in the process.
12․The co-offender dragged Jackson Cooper by his hair from his parents’ bedroom to his own bedroom. It is worth acknowledging here that both offenders were grown men, and the boy who was dragged by his hair from one room to another was only 14 years old.
13․In his bedroom, he gave the second man a bag which contained things including some vapes and an iPad. He offered to get some more property, but the co-offender said, “No. I want the money”.
14․At some point one of the men took Jackson Cooper into the hallway and told him to get on his knees facing the kitchen. He did what he was told, and then felt something cold on the back of his head. It seems likely that this was an attempt to scare Jackson Cooper into revealing where the money was, but, as already noted, there was no money in the house in the first place. Jackson Cooper told the men this, and his girlfriend added, “It’s old videos of money that he posted”. Jackson Cooper then went to the couch in the lounge room, where he was punched by the offenders.
15․The home invaders must have by now realised that there was, in truth, no bundle of $3,500 in cash for them to steal. They did become aware, however, that in a locked room in the Cooper residence, there was a firearm safe.
16․They broke down the locked door to that room by kicking it, and then pointed the firearm they had brought with them at Jackson Cooper, telling him to open the safe. Jackson Cooper told them that he did not know the code, that only his father did.
17․Jackson Cooper attempted to escape by running outside with his phone, however he encountered a third man, who pointed a black handgun at him and who told him to give him his phone and go back inside. He did so.
18․When he got back inside, he saw that his father was still being assaulted. Eventually his father complied with the offender’s demands and opened that part of the safe which contained ammunition and six firearms; one 12-gauge shotgun, two .410 shotguns, and three rifles of various calibres.
19․Kept in a separate compartment were the bolts and magazines for those firearms. When he was told to open that compartment too, he told them he could not because the key was at a friend’s house “for safety reasons”.
20․The offender pushed Marcus Cooper to the ground and jabbed him in the back of the head with the barrel of the firearm. The two men inside the house then took all the firearms contained in the safe. When Marcus Cooper went to lock the door behind them, the third man, the one who had been outside and who pointed the handgun at Jackson Cooper, entered the premises and took the ammunition.
21․Eventually the three offenders left.
22․They left behind four people, two of them children, who must have been terrified.
23․The offender retained possession of two of the firearms which were stolen, the 12-gauge shot gun and a .308 calibre rifle. They were eventually discovered in the backyard of another person, after the offender was arrested.
Objective seriousness
24․As I mentioned at the beginning of these remarks, these offences were particularly serious:
(a)there were multiple victims;
(b)two of those victims were children;
(c)they were all in their own home;
(d)it was nighttime;
(e)one of those children was subject to actual violence;
(f)this offender was armed with a firearm;
(g)he committed the offence with two other men;
(h)actual violence was inflicted upon three of the four people in the house;
(i)one of them, Marcus Cooper, suffered significant injuries;
(j)damage was occasioned inside the house;
(k)the offender used the firearm as a blunt instrument;
(l)the offender played an active and central role;
(m)the offence was clearly planned, as evidenced by the exchange of
messages concerning the sale of a vape; and(n)the firearm was possessed by the offender not only during the home invasion, but also when he left it at the home of another person more than two weeks later.
The offences
25․As a result of the events I have just described, the offender is to be sentenced for:
1.aggravated robbery by way of joint commission (s 310 of the Criminal Code 2002 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT));
2.unauthorised possession or use of a prohibited firearm (s 42(1) of the Firearms Act 1996 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT)); and
3.unauthorised possession or use of more than three but fewer than 10 firearms (s 43(1) of the Firearms Act 1996 (ACT) by virtue of s 45A of the Criminal Code 2002 (ACT)).
26․I note that it is an element of the offence of aggravated robbery that the offender was either in company or in possession of an offensive weapon. In this case, both of those circumstances of aggravation are present.
27․These events occurred on 11 July 2022. Seven days later, the offender was at it again. The offender, who this time was armed with a knife, and then a crowbar, broke into a house whilst accompanied by a female carrying a baseball bat. Once inside, they began searching the premises and examining things. They were clearly intending to steal things, including, it seems, the keys to cars parked at the premises. Two of the occupants of the house surprised them and engaged in a struggle with this offender. Eventually the offender and his female accomplice ran away.
28․For this offence the offender was charged with aggravated burglary (s 312 of the Criminal Code 2002 (ACT)).
29․This offence was committed:
(a)also at night;
(b)at a time when people were likely to be present;
(c)at a time when the victims were likely to have been asleep and thus vulnerable;
(d)at a residential home;
(e)in a way that caused damage to a locked door when it was forced open; and
(f)with a degree of planning, as evidenced by the implements which the offenders brought with them in order to gain entry to the house.
30․I should make it clear that the prosecution does not rely on any suggestion that the offender was armed with an offensive weapon during the commission of this offence.
Plea of guilty
31․The offender pleaded guilty to all of the offences with which he has been charged, either shortly after a Criminal Case Conference for the offences he committed on 11 July, or at the Magistrates Court for the other matter. In order to reflect the utilitarian value of his pleas of guilty, the sentences on the earlier offences will be about 15% less, and the sentences on the other matter about 25% less, than they would otherwise have been. I have chosen the lower end of the range of discounts for sentences imposed after a Criminal Case Conference because of the rolled-up nature of the aggravated robbery offence.
32․At the time the offender committed these offences, he was subject to a suspended sentence of imprisonment, which had been imposed upon him in the Magistrates Court. Whilst that does not, of course, effect the objective gravity of his offending, it is nevertheless an aggravating feature which I must take into account.
Subjective features
33․The offender has a lengthy criminal history, which is explained by his ongoing and persistent problems with drugs, his addiction to drugs beginning at a very young age.
34․He is an Aboriginal man who was born in Canberra. His parents separated when he was young, and he was largely raised by his mother and maternal grandparents. His family were good people. He was not exposed to drugs or violence as he grew up. Despite all the troubles he has caused his parents, he is particularly close to his father, with whom he has regular contact. His father was in Court yesterday to hear the sentence proceedings involving his son and is in court today when I am sentencing him.
35․The offender does not have the deprived background so very common in offenders being sentenced for robbery and burglary. He does not come from a family where drugs, violence and dishonesty were commonplace. But that does not mean that the Bugmy factors (see Bugmy v The Queen [2013] HCA 37; 249 CLR 571) are not enlivened.
36․Troubles began for the offender when his parents re-partnered. The offender described this as a “big shock” and felt left out when his parents had new families. He ran away from home and began to use drugs. He has had a problem with drugs ever since, and regularly commits offences in order to obtain money to buy the drugs to which he is addicted.
37․Ordinarily, the fact that a person commits offences to buy drugs to feed their addiction is of little mitigating value. After all, their decision to begin to use drugs was a personal and presumably informed choice. But that is not the case here. When a person begins to use drugs at an early age, it cannot be said that the choice to do so was an informed one. So the fact that the offences for which I must sentence him, and the offences for which he is serving a sentence imposed in the Magistrates Court, were all committed in the context of the offender’s desire to purchase drugs, is a matter which will see me imposing upon him a lesser sentence then if his decision to use drugs had come when he was a more mature adult.
38․What motivated the offender to commit these offences, the desire to buy drugs, is also relevant to the prospects of his rehabilitation. They are clearly guarded, as although the offender has said that he desires to give up drugs and associated criminality, he has not yet demonstrated an ability to do so.
39․But that does not mean that we simply give up hope. It is not only in the offenders’ interests that he be rehabilitated, but it is in the community’s interest as well. Notwithstanding that the offender has thus far shown a continuing attitude of disobedience to the law, and a lengthy sentence is necessary in order to reflect the objective gravity of what he has done, it remains an important aspect of the sentence which I will ultimately impose upon him that he be assisted in his rehabilitative efforts.
40․Mr Taylor, counsel for the offender, tendered a psychological report from Dr Douglas Pieter Boer dated 29 December 2023. In Dr Boer’s opinion, the offender suffers from a number of disorders, including severe Substance Use Disorder, Post Traumatic Stress Disorder (as a result of being shot at in his late teens), Major Depressive Disorder and Substance/Medication Induced Psychotic Disorder. He believes that these conditions contributed to the offender’s criminal behaviour, for example, by the offender’s depression leading to substance use, leading to drug addiction, and then the commission of crimes to get drugs.
41․I am satisfied that the offender’s moral culpability is reduced because of the early age at which he began to use drugs, and the connection between his mental disorders, drug use, and offending behaviour.
42․The offender is, I am satisfied, remorseful for what he has done. He has expressed his remorse to many people and is able to empathise with the victims of his offending. He has expressed a desire to participate in restorative justice which is, together with other matters, indicative of his remorse and also an acceptance of responsibility for his offending.
Impact on victims
43․That brings me to the impact on the many victims of these offences.
44․Marcus Cooper was left with a number of injuries, most seriously a minimally displaced fracture of the third cervical vertebral body, which meant that he had to wear a rigid cervical collar for six weeks. He continues to experience constant pain in his neck and upper shoulders which is not relieved by pain medication. He is unable to perform his full work duties, drive for long periods of time, or stand for a prolonged period.
45․It is expected that “with constant treatment, pain management, exercise and psychologist management,” he would be able to make an 80 to 90 percent recovery over the next two years.
46․It is likely, therefore, that some of the effects of the violence inflicted upon him will be long lasting, and perhaps permanent.
47․Eloquent victim impact statements prepared by Mr and Ms Cooper were read by the prosecutor, and a victim impact statement prepared by one of the victims of the aggravated burglary was tendered.
48․They reveal the unsurprising devastation which has resulted from what the offender did to them.
49․It is notorious that those who are the victims of offences of this kind suffer ongoing, sometimes even lifelong, consequences. As well as the physical injuries, Mr Cooper suffers from nightmares and anxiety. His income has suffered because he is on light duties at work. He is hypervigilant. Ms Cooper is afraid to even live in her own home and often wakes up in the night in a sweat and crying. She has had to take on extra shifts at work. They both speak about the consequences for their son, who has attempted suicide and “has had no contact with the real world outside of our house”.
50․One of the factors which the prosecution relied on in the NSW Court of Criminal Appeal’s guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry), which I will discuss soon, was the inadequate understanding of the significant and even severe consequences for victims of armed robbery. The victim impact statements from Mr and Ms Cooper enable me to understand how their lives have changed since 11 July 2022.
51․One of the victims of the aggravated burglary also reported hypervigilance, saying that he still often wakes up “several times a night with my pulse pounding at any perceived sound or light”, and that he is unable to go back to sleep until he has checked his security cameras.
52․It is a fundamental rule in sentencing that a sentence must reflect the harm caused by an offender. I understand the extent of the harm which the offenders’ crimes have brought about and will take that into account when formulating the appropriate sentences to impose upon him.
Henry guideline
53․The second guideline judgment handed down by the NSW Court of Criminal Appeal, and the first which the parties were told was to be a guideline judgment in advance of the hearing, concerned the offence of armed robbery: see Henry.
54․In this jurisdiction, that judgment has been described as “not binding” but “persuasive”: Hall v The Queen [2017] ACTCA 16 at [49].
55․The typical armed robbery offence postulated in Henry, which generally should result in a sentence of imprisonment of four to five years, was one which had the following features, outlined at 380:
(i)young offender with no or little criminal history;
(ii)weapon like a knife, capable of killing or inflicting serious injury;
(iii)limited degree of planning;
(iv)limited, if any, actual violence, but a real threat thereof;
(v)victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi)small amount taken; and
(vii)plea of guilty, the significance of which is limited by a strong Crown case.
56․This offender was not “young” if that is to be taken as suggesting a youthful immaturity, and he had far from “little criminal history”. Nor was there limited actual violence, and it is difficult to see how the theft of six firearms could fit the description of “small amount taken”.
57․As far as the four-to-five-year range is concerned, it is well recognised that “in the ACT sentences are usually lower than in New South Wales, regardless of whether the maximum penalties are the same”: R v Percival [2018] ACTSC 230 at [58].
58․Nevertheless, a comparison of the typical offence postulated in Henry and the present has been instructive. The sustained violence inflicted on Mr Cooper, the injuries he suffered, the use of violence on Ms Cooper, the consequences for them as revealed in their victim impact statements, the presence of and violence used on their 14-year-old son, and the presence of a 13-year-old girl, all take this aggravated robbery well outside that type of offence referred to in the Henry guideline.
59․I was referred by the prosecution to what were said to be comparative cases. These were helpful, and I have taken the sentences imposed in those matters into account, though of course no two cases are alike.
Totality
60․I must of course apply the principle of totality. Counsel for the offender referred me to the decision of Baker J in DPP v King [2024] ACTSC 59 (DPP v King) at [71]-[74], which I have found of considerable assistance.
61․Firstly, there is some significant overlap in the offences committed on 11 July 2022. For example, in assessing the objective gravity of the robbery offence, I must take into account the nature of the property stolen, namely firearms. But I must recognise that the offender is to be sentenced for a separate offence relating to possession of those firearms. I must not double count.
62․Another aspect of potential overlap relates to the offender’s possession of the shortened rifle. That is relevant to an assessment of the objective gravity of the aggravated robbery offence but is also the subject of a separate charge. Once more, I must not double count.
63․Next, a number of the offences relate to separate victims, and as Baker J said in DPP v King:
[73] Second, a number of the offences relate to separate victims. The sentences to be imposed must recognise the separate and individual harm that the offending inflicted upon each of these victims: O’Brien at [26(c)]; R v Gommeson [2014] NSWCCA 159 at [100] –[116] ; Benn v R [2023] NSWCCA 24 at [183] .
64․Finally, the offender is currently serving a sentence of imprisonment imposed in the Magistrates Court on 7 February 2024 for 18 separate offences that were committed at around the same time as the offences for which I will be sentencing him. Those were offences of burglary, theft, possession of weapons and stolen property, as well as driving offences. The principle of totality requires that I not simply impose a sentence of imprisonment which is totally accumulative on the sentences imposed in the Magistrates Court. Nor should I effectively ignore the many offences for which he was sentenced by the Special Magistrate by imposing sentences which are wholly concurrent with the sentences imposed by his Honour.
65․The effective sentence imposed in the Magistrates Court is one of imprisonment for 3 years and 8 months, with a non-parole period of 18 months. I propose to give effect to the principle of totality by starting the sentences I will impose from 26 July 2023, so that after I impose sentences on the matters before me, 1 year of the total sentence which the offender must serve will be referable to the offences dealt with by his Honour.
Parity
66․One of the people involved in the offence on 11 July 2022 has been sentenced under the pseudonym “CR”. He was the person who arranged the purported purchase of the vape and obtained the address where Jackson Cooper lived. He pleaded guilty to an offence of aid, abet, counsel or procure, an offence of aggravated robbery (the circumstance of aggravation being “in company”), and was sentenced to imprisonment for a period of 19 months: see DPP v CR (a pseudonym) [2023] ACTSC 293 at [166].
67․The principles of parity clearly apply, and this offender should not have a justifiable sense of grievance when he compares the sentence I impose upon him with the sentence imposed upon CR. Given their very different roles, the different offences they were charged with, and their respective ages, this offender must understand that the sentence imposed on him will be very different to the sentence imposed upon CR.
Purposes of sentencing
68․It is not surprising, given the seriousness of the offences for which I must sentence his client, that Mr Taylor asked me to be careful and not to impose a sentence that was so crushing that the offender simply gives up hope. Sometimes it is necessary to impose a crushing sentence, but I am satisfied that this is not one of those occasions. In my view, there must be some hope for the offender in the future, but the desire to promote his rehabilitation must be balanced against the other purposes of sentencing.
69․General deterrence is of particular importance. There are many people in this community addicted to drugs, and many of them think very little of resorting to serious criminality in order to fund their drug habits. People like them must know that if, when they have spent all their own money on drugs, they turn to crime to get money to buy drugs, particularly serious crimes such as these, the courts will respond by imposing significant, even harsh, sentences.
70․Personal deterrence is important too; the offender’s long-term problems with drugs and his very lengthy criminal history are testament to that.
71․Finally, it is important that the Court mark just how wrong offences of this kind are.
72․Mr Taylor submitted in particular that an appropriate way of balancing what the offender has done against the need to promote his rehabilitation would be to allow a longer than usual period of eligibility for parole. The non-parole period I have chosen is the least which I believe is appropriate in all the circumstances of this case. It is plenty long enough for the offender to be assisted, if he is willing, with his desire to give up drugs.
73․Were it not for the offender’s pleas of guilty, I would have imposed the following sentences:
(a)for the offence of aggravated burglary, imprisonment for 2 years and 8 months; and
(b)for the three offences committed on 11 July 2022, which have resulted in a total sentence of 6 years imprisonment, a total sentence of 7 years.
Orders
74․For those reasons, the following orders are made:
(1)For the offence of aggravated burglary (CC2023/6419), I impose a sentence of imprisonment of 2 years commencing on 26 July 2023 and expiring on 25 July 2025.
(2)For the offence of joint commission unauthorised possession or use of a prohibited firearm (CAN2023/90), I impose a sentence of imprisonment of 18 months commencing on 25 July 2024 and expiring on 24 January 2026.
(3)For the offence of joint commission unauthorised possession or use, of more than three, but fewer than 10 prohibited firearms (CAN2023/91), I impose a sentence of imprisonment of 18 months commencing on 26 January 2025 and expiring on 25 July 2026.
(4)For the offence of joint commission aggravated robbery (CC2022/9477), I impose a sentence of imprisonment of 5 years commencing on 26 July 2025 and expiring on 25 July 2030.
(5)The overall sentence I impose, together with the Magistrates Court sentence, consists of a sentence of imprisonment of 8 years commencing on 26 July 2022 and expiring on 25 July 2030.
(6)I set an overall non-parole period of 5 years, to date from 26 July 2022, and expire on 25 July 2027.
(7)I order the offences of aggravated burglary and aggravated robbery be referred for restorative justice, pursuant to s 24 of the Crimes (Restorative Justice) Act 2004 (ACT).
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |
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