Director of Public Prosecutions v Larkham

[2023] ACTSC 68

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Larkham

Citation:

[2023] ACTSC 68

Hearing Date:

30 March 2023

DecisionDate:

31 March 2023

Before:

Mossop J

Decision:

See [40]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – plea of guilty to aggravated robbery, dishonestly ride in stolen motor vehicle, possess offensive weapon with intent and dishonestly appropriating property – robbery was of chemist and with use of syringe – robbery had enduring impacts on staff and business – where crimes committed to support drug addiction – offender at crossroads in her life – sentence of imprisonment imposed to be served by way of intensive corrections order

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 11(3)

Crimes Act 1900 (ACT), s 334(2)(a)

Criminal Code 2002 (ACT), ss 45A, 310(b), 318(2), 321, 381(1)

Cases Cited:

Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354

CD v The Queen [2013] VSCA 95
DPP v Larkham [2022] ACTSC 365

Lyddy v The Queen [2019] VSCA 35

Parties:

Director of Public Prosecutions

Grace Emily Larkham (Offender)

Representation:

Counsel

S Bargwanna (DPP)

K Musgrove (Offender)

Solicitors

Director of Public Prosecutions

Hugo Law Group (Offender)

File Numbers:

SCC 252 of 2022

SCC 253 of 2022

MOSSOP J:

Introduction

1. The offender has pleaded guilty to the following offences:

(a)Aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT) (CAN 6662/2022);

(b)Dishonestly riding in a motor vehicle without consent contrary to s 318(2) of the Criminal Code 2002 (ACT) (CAN 6663/2022);

(c)Possess offensive weapon with intent contrary to s 381(1) of the Crimes Act 1900 (ACT) (CAN 6664/2022); and

(d)Dishonestly appropriating property contrary to s 321 of the Criminal Code 2002 (ACT) by virtue of s 45A (CAN 7455/2022).

Facts

1. The facts are agreed and are in summary as follows.

Burglary, possession of offensive weapon and ride in motor vehicle charges

1. At about 10:29pm on 10 July 2022 the offender and her co-offender and partner at the time, Kieran Eichmann, arrived at the O’Connor Shops on Sargood Street in a white Toyota Hilux. Investigations would later reveal that the vehicle was stolen.

1. At 10:38pm they entered Capital Chemist O’Connor. The offender was holding a syringe with a blood-like liquid substance and wearing a balaclava. Mr Eichmann was also in a balaclava and was armed with a nail gun.

1. The offender approached the store security guard, held the needle up to him, told him to put his phone down in the merchandise stand and said that she would “stab him” if he did not comply. Mr Eichmann continued into the store and screamed at one of the pharmacists to open the safe and to fill his bag with medication, specifically Oxycontin and Valium. At one point the bag became full and the pharmacist was directed to use a different bag. Apart from this description of the need for two bags, the Agreed Statement of Facts does not disclose the amount or value of the drugs taken.

1. The same pharmacist was then directed to unlock the cash register. The pharmacist indicated that he was unable to do so, so Mr Eichmann forcibly removed the cash register. He handed it to the offender who carried it out of the store.

1. Mr Eichmann then struck his hammer on the glass countertop to remove the second cash register from the store. Meanwhile, the offender returned to the store and again threatened the store security guard with the needle. Notwithstanding the theft of the cash registers, there is no agreed fact which identifies any amount of money taken with those items.

1. At about 10:43pm the offender and Mr Eichmann departed from the premises in the stolen Toyota Hilux. Mr Eichmann was driving. At 10:50pm police identified the vehicle driving on Fairbairn Avenue, Campbell. After pursuing the vehicle for approximately 30 minutes, including using stop sticks to puncture all four tyres on the vehicle, the offender and Mr Eichmann were arrested and taken into custody.

Minor theft charge

1. Earlier, at about 3:28pm on 20 June 2022, the offender and her co-offender entered the Anaconda store in Fyshwick and browsed for approximately three minutes before removing six jackets from the racks. At about 3:31pm they walked past the cashier before sprinting out of the store. They did not pay for the items. The value of the stolen jackets totalled $1939.94.

Victim impact statements

1. Two victim impact statements were provided to the court. The victim impact statements in this case serve to demonstrate the societal consequences of illicit drug use and inadequately treated mental health conditions. A pharmacist present during the robbery was threatened by Mr Eichmann with a nail gun. He suffered severe stress resulting in disrupted sleep, hypervigilance and a sense of apprehension when on his work premises. He received medical advice that he should no longer work there. As a result, he resigned from his position in the business even though that involved significant financial disadvantage for him.

1. The owner of the business provided a statement which outlined the broader consequences of the offending for the business. These included losing two of her staff members, dealing with a workers’ compensation claim which went on for five months, the costs associated with an insurance payout for medication and business assets taken, the loss of inventory needed to supply the local community and increased financial costs associated with the security systems of the business. These impacts occurred in the context of the business having been on the front line of healthcare during the period of the pandemic, which the owner recorded had already left her “exhausted, stressed and anxious”. It had a particular impact upon the owner, requiring her to cover gaps in the roster of the employed staff of the business, including having to work 26 days straight. It also had other more personal impacts which are not necessary to set out but which have undoubtedly been significant.

1. The victim impact statements indicate the immediate impacts of crimes involving violence or threats of violence upon those who are involved as well as the broader impacts upon businesses that provide important services to the community. They illustrate the costs that must be borne by individual businesses and shared, through insurance, across the community. They illustrate the very strong societal interests in preventing such conduct occurring.

Objective seriousness

1. The aggravated robbery was both in company and in possession of a weapon. It involved threats of violence. It involved a number of people being put in fear of serious harm. It involved commercial premises which were particularly vulnerable to such offending, being a late-night chemist stocking drugs which was robbed after 10pm at night. The volume of medication stolen is not described although it involved more than one bag and included serious narcotic drugs. The offending involved a degree of premeditation even though it was more brazen than sophisticated. It is offending at the upper end of the mid‑range of objective seriousness for an aggravated robbery.

1. In reaching this conclusion I have dealt with the matter on the basis that the drugs taken from the pharmacy were taken in order to obtain prescription drugs for either self‑consumption or on sale. This reflects the acceptance of a submission made on behalf of the prosecution. It involves rejection of the submission made by counsel for the offender that it was not open to conclude that there was any intention of on sale. In the context of the present case this submission lacked utility. It was uncontroversial that the offender was heavily involved in illicit drug use. Her moral culpability and the seriousness of the offending would not be affected by whether or not she intended to use the drugs herself or to on-sell them in order to obtain money to support her drug habit. There will be some cases in which a financial as opposed to drug dependence motivation will be significant in characterising the moral culpability of the conduct. For example, it might be considered more serious for drugs to be sold in order simply to make money than if the motivation for doing so was to support an addiction of the seller. However, in the present case, given the uncontested fact of long-term addiction it made no difference to the gravity of the offending that the drugs might have been on-sold to raise money to fund the acquisition of illicit drugs. There was some evidence that the offender used Valium herself. There was no evidence that the offender abused Endone or Oxycontin herself (although that is clearly a possibility). There was no evidence that she had any personal use for Viagra. In those circumstances the submission made by the prosecution as to the possible reasons for the theft of these drugs was entirely appropriate.

1. The ride in a stolen vehicle charge is above the mid-range of objective seriousness for this offence. It involved the use of a vehicle for the purposes of committing other offences. It is not a case in which it can be said that the offender was a mere passenger. Rather, although not the driver, she appears to have been an equal participant in the dishonest exercise. It is in the mid-range of objective seriousness for this offence.

1. The charge of possessing an offensive weapon with intent relates to the possession by the offender of the syringe with a blood-like liquid substance in it. What is required for this offence is that the person has an offensive weapon in circumstances indicating an intent to use the weapon or a substance to commit an offence involving actual or threatened violence. In this case the syringe was used to threaten the security guard on two occasions and it is that conduct which most obviously indicated the relevant intention. This offending is in the mid-range of objective seriousness for this offence.

1. The minor theft involves a brazen theft committed during the day of the items described earlier. Section 321 of the Criminal Code involves theft of goods with a maximum value of $2,000. The amount stolen this in case had a value of $1939.94. The theft was from a commercial business as opposed to an individual or a residential premises. It is above the mid-range of objective seriousness for this offence.

Criminal History

1. [Redacted]. In 2020 she was convicted of various charges including resisting arrest and assaulting an officer. In 2021 she was charged with assault occasioning actual bodily harm, which was ultimately dismissed on mental health grounds pursuant to an order made under s 334(2)(a) of the Crimes Act 1900 (ACT).

Subjective circumstances

1. The subjective circumstances of the offender are outlined in a pre-sentence report dated 27 March 2023, a report of Dr Olav Nielsen, consultant forensic psychiatrist dated 13 February 2023, a letter from the director of a rehabilitation centre, two character references and a letter from the offender herself.

1. The offender is 24 years old. She is single and has no children. She is the only child of her parents who separated when she was very young. She had an unremarkable upbringing. She has good relationships with both parents although some conflict with her mother over the offender’s drug use and poor decision making.

1. She ceased formal education part way through Year 11. After finishing school she had intermittent employment. She is reliant on income from Centrelink. She currently lives with her mother.

1. She has a history of illicit substance use commencing at the age of 12. By 16 this was problematic, using both cannabis and methamphetamine daily. Four years ago she shifted from cannabis to heroin. She has used methamphetamine over a 10-year period. Leading up to the offences she was using methamphetamine and heroin intravenously daily. She used Xanax and Valium to counterbalance those drugs. Following her release on bail she spent two months in a residential drug rehabilitation program in which she engaged meaningfully and completed all relevant activities. She continues to be in contact with the outreach program of that rehabilitation facility.

1. In the past, her peer network mostly consisted of people involved in drug use and criminal activities. Since a period in custody at the AMC and two months of residential treatment she has ceased contact with most of those companions. She has some prosocial friends with children who are not involved in drug use and criminal activity.

1. Her mental health is significant for the purposes of sentencing. She was diagnosed with schizophrenia, anxiety and depression in 2017.

1. She was first admitted to a psychiatric hospital in May 2019. She spent one month in the Adult Mental Health Unit of the Canberra Hospital. She was placed on a psychiatric treatment order for six months after that admission but stopped all medication after that order lapsed. She had a further period in hospital during most of January 2022. A psychiatric treatment order was made on 8 July 2022, three days prior to the aggravated robbery.

1. The report of Dr Nielsen indicates that his diagnosis is of chronic schizophrenia and substance use disorder. The persistence of symptoms of schizophrenic illness for some weeks after her admission to hospital indicated to the doctor that the appropriate diagnosis was schizophrenia rather than a drug induced condition. However, any use of cannabis or methamphetamine would exacerbate her condition. Dr Nielsen expresses the opinion that her schizophrenic illness is likely to have contributed to her offending in a way that reduced her culpability. That was because her undertreated mental illness is likely to have resulted in the impairment of her ability to exercise appropriate judgement, to make calm and rational choices and resulted in a reduction of normal social inhibitions and the ability to appreciate the wrongfulness of her conduct. He says that people with persistent psychosis are drawn to substances for a range of reasons including the dysphoria associated with the condition, to alleviate side effects of medication and because persistent psychosis affects the ability to control impulses including the urge to use such substances.

1. She now receives a monthly depot injection of drugs to treat her schizophrenia. She has ambitions to study at the Canberra Institute of Technology. Her mental health is such that so long as she continues on medication and remains free of illicit drugs, she will remain stable and functional.

1. While, due to her drug use at the time, she could not recall the events at the time of her offending, she accepted responsibility for her offending behaviour. She recognised the connection between her offending and her illicit substance use and antisocial companions. She verbalised her remorse for her actions and indicated a willingness to participate in Restorative Justice so that she could apologise to the victims. A referral for Restorative Justice was made on 17 March 2023 and the matter is currently in the waiting list.

1. She is assessed by the author of the pre-sentence report as being suitable for a community service work condition and an intensive correction order (ICO).

1. Dr Nielsen expressed the opinion that because she was dependent upon her parents it was important that she be able to move interstate if her mother did. Although in her letter to the court, her mother indicated an intention to move to Queensland (where the offender’s father also lives) by the end of 2023, at the sentencing hearing it was indicated that this was a long-term goal. This meant that an ICO was more readily available because, as the parties both agreed, transfer of an ICO to Queensland is not currently available.

Plea of guilty

1. The offender entered a plea of guilty to all counts on the eighth mention in the Magistrates Court. A reduction of 25 percent in the sentence that otherwise would have been imposed is appropriate in the circumstances.

Time in custody

1. Following her arrest, the offender served 121 days in custody for the offences the subject of these proceedings. She applied and was granted bail to attend an intensive residential drug rehabilitation program in Queensland on 10 November 2022 and successfully applied for a variation permitting her to return to Canberra so as to allow her to reside with her mother in Canberra at the conclusion of that program. McCallum CJ described the varied bail conditions as involving “a condition that she remain effectively under house arrest” because she was required to remain at her mother’s house except when in the company of her mother: see DPP v Larkham [2022] ACTSC 365 at [4].

Consideration

1. The starting point for consideration of this case must be that this involved a very serious aggravated robbery upon a vulnerable but important community facility.

1. As is commonly the case, in this case there is a tension between the need to denounce, punish and deter the offending conduct on the one hand and the need for the rehabilitation of the offender on the other. The significant additional feature of the present case is that the offender suffers from chronic schizophrenia and that schizophrenia is indirectly associated with her offending in a way which reduces her culpability.

1. I accept the submission put on behalf of the offender that this is a case where the offender is at a crossroads in her life. That is principally because although she has had a long history of use of illicit drugs she has not previously spent time in prison. Her time in prison and subsequently, after the grant of bail, her time at the rehabilitation facility has allowed her to get free of illicit drugs and some insight into the difficulties that she will have if she continues to use illicit drugs and associate with antisocial people involved with drug use. Her relatively limited criminal history means, notwithstanding her long history of illicit drug use, that she is entitled to a degree of leniency which would not be available had she a greater criminal history involving previous sentences of imprisonment.

1. The decisions in CD v The Queen [2013] VSCA 95 at [36], Lyddy v The Queen [2019] VSCA 35 at [62] and Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 at [38]-[40] illustrate the caution that must be exercised in relation to a finding of remorse. A guilty plea alone is not enough and self-pity or regret at having been caught and punished is not enough. Notwithstanding that she did not give oral evidence on oath or affirmation to this effect, I accept that the offender is, to an extent, remorseful in the relevant sense of the word. The impression given is that she has, following her cessation of illicit drug use, truly recognised the adversity of her actions. She has demonstrated a willingness to participate in Restorative Justice so as to apologise to the victims. It does not appear to me to be a case where that conduct is insincere. Although the offender has not attempted to make financial reparations to the victims of the offending, in the circumstances of this case, having regard to what is known about her financial circumstances, that is not indicative of an absence of real remorse.

1. Counsel for the prosecution appropriately referred to a number of cases involving aggravated robberies which were relevant for the purposes of taking into account current sentencing practice. Those sentences involved a range of dispositions from around five years’ imprisonment down to two years and seven months to be served by way of intensive correction along with a fine and a period of community service.

1. The significant features of the present case are that the offender suffered from a mental health condition which was associated with her drug use and her offending and that as a result of being incarcerated, the indications are that by breaking her long history of illicit substance use and obtaining appropriate treatment for her chronic schizophrenia there are better than reasonable prospects of her leading a lawful life in future. That trajectory would be adversely affected if she were now returned to custody. Within that framework, which necessarily involves a significant degree of leniency in order to encourage her rehabilitation, a sentence can be imposed that gives sufficient recognition to the purposes of sentencing such as general and specific deterrence, denunciation, recognition of harm done to the victims of the offending.

1. The sentence that I will impose involves an aggregate sentence of two years, two months and 16 days’ imprisonment. There will be a large degree of concurrency between the sentences on the first three charges as these all arise out of a course of related conduct and in order to achieve an appropriate overall result. The sentence for the theft offence will be partially cumulative upon the other sentences. The sentences will be backdated so as to take into account the 121 days spent in custody. They will be served by way of intensive correction. As none of the individual sentences exceed two years it is not necessary to have regard to s 11(3) of the Crimes (Sentencing) Act 2005 (ACT). However, in case I am wrong and the aggregate sentence is the relevant consideration, I consider that having regard to the matters in s 11(3) the imposition of the ICOs and aggregate sentence that I will impose is appropriate. It will be a condition of the ICO on the aggravated robbery charge that the offender perform 160 hours of community service. Each ICO will include conditions permitting directions relating to illicit drugs and medical or other treatment.

1. The orders of the Court are:

1.     On the charge of aggravated robbery (CAN 6662/2022), the offender is convicted and sentenced to imprisonment for 22 months and 15 days (reduced from 30 months on account of the plea of guilty) commencing on 30 November 2022 and 14 October 2024.

2.     On the charge dishonestly riding a motor vehicle (CAN 6663/2022), offender is convicted and sentenced to nine months’ imprisonment (reduced from 12 months on account of the plea of guilty) commencing on 15 March 2024 and ending on 14 December 2024.

3.     On the charge of possessing an offensive weapon with intent (CAN 6664/2022), the offender is convicted and sentenced to imprisonment for three months (reduced from four months on account of the plea of guilty) commencing on 15 October 2024 and ending on 14 January 2025.

4.     On the charge of minor theft (CAN 2022/7455), the offender is convicted and sentenced to imprisonment for two months and seven days (reduced from three months on account of the plea of guilty) commencing on 8 December 2024 and ending on 14 February 2025.

5. Each of these sentences of imprisonment is subject to an intensive correction order under s 11(2) of the Crimes (Sentencing) Act 2005 (ACT) with the following additional conditions under s 11(5) of that Act:

(i)the offender is to undertake medical treatment and supervision as directed;

(ii)the offender is to supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer;

(iii)the offender is to attend educational, vocational, psychological, psychiatric or other programs or counselling as directed; and

(iv)the offender is to not consume illicit drugs.

6.     The intensive correction order in relation to the charge of aggravated robbery is subject to the further condition that the offender perform 160 hours of community service within 12 months.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 1 May 2023