R v AC
[2015] ACTSC 240
•31 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v AC |
Citation: | [2015] ACTSC 240 |
Hearing Date: | 26 March 2015 |
DecisionDate: | 31 March 2015 |
Before: | Penfold J |
Decision: | See [46] and [47] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for two aggravated robberies committed as a juvenile – offender volunteered confessions while serving other sentences in order to have a “clean slate” when released from current custody – requirements for sentencing young offenders – non-parole periods not to be set for young offenders – sentence constructed so as to increase offender’s total period in custody but avoid offender being released subject to juvenile good behaviour order supervision and adult parole supervision. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 64, 133A, 133B, 133C, 133D, 133G, 133G(3), Chapter 8A Criminal Code 2002 (ACT), s 310 |
Parties: | The Queen (Crown) AC (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Self-represented (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Self-represented (Offender) | |
File Number: | SCC 30 of 2015 |
Introduction
AC has pleaded guilty to two offences of aggravated robbery under s 310 of the Criminal Code 2002 (ACT), an offence which carries a maximum penalty including 25 years imprisonment.
The offences
The offences were committed on 5 September 2011 and 23 October 2011. I shall refer to them as the new offences even though they are, in fact, older than the offences for which AC is currently in custody.
The agreed Statement of Facts describes the events in general terms as follows.
The September 2011 robbery
At about 10.30 pm on 5 September 2011, Joseph Ray, the victim of the September robbery, was talking on his mobile telephone on Hennessey Street, Belconnen. He was sitting in the driver’s seat of his vehicle, a Toyota Corolla with Queensland registration plates, and he had the door open.
At this time, AC approached him wearing a dark hooded jumper with the hood pulled up, a black baseball cap, navy track pants and a black bandana concealing his face.
After a brief exchange, AC asked the victim if he had any change and the victim replied that he did not have his wallet with him. AC then lifted the front of his hooded jumper and produced a small axe commonly referred to as a tomahawk from the front of his pants and pointed it at the victim. The victim described the axe as looking brand new with a wooden handle and a black blade. AC said “Now do you have any money on you?” The victim responded “I told you I don’t have my wallet on me”. AC told the victim to turn out his pockets which he did, placing two $20 notes and 70 cents in coins on the ground along with his mobile phone and the keys to his car. AC said, “I don’t want your car” and then collected the money and mobile phone.
He directed the victim to move away from him and, on observing the Queensland registration plates on the victim’s vehicle, said “Are you from Queensland, mate?” The victim replied that he was. AC said “Don’t mess with Canberrans” and ran away. The victim then ran inside a nearby residence and contacted police, who attended a short time later. A search of the area was conducted but nothing of interest was located.
The October 2011 robbery
The October robbery took place in the evening of Sunday 23 October 2011. The Spar Express Supermarket at Ngunnawal shops was open and trading. At about 8.45 pm, supermarket employees Andrew Bell (the store manager), Rachael Morley, Olivia Morley and Zachary Pighin were conducting closing procedures. Mr Bell and Olivia Morley were standing behind the two cash registers. Rachael Morley was stacking shelves in one of the aisles and Mr Pighin was standing at the front of the store close to the cash registers. There were no customers present.
Three males approached the front of the supermarket, causing the sensor-operated doors to open. All three males were dressed in dark clothing and brandishing knives. The first male was described as 18 to 20 years of age, 165 cm tall, pale skin and of a slim build. His face was concealed with a bandana. He was wearing black pants, black hooded jumper and black gloves. He had the hood of his jumper pulled up over his head and was carrying a blue-handled kitchen knife in his right hand.
The second male was also described as 18 to 20 years of age, between 170 and 175 cm tall, pale skin, short light-brown curly hair and of a slim build. His face was also concealed in a bandana, he was wearing a black hooded jumper with the hood over his head, and dark tracksuit pants, and he was carrying a kitchen knife in his right hand.
The third male was AC. His face was also concealed with a dark coloured bandana. He was wearing a black hooded jumper with the hood up over his head, black gloves and black Adidas tracksuit pants. He was holding a kitchen knife in his right hand.
All three males immediately began yelling and swearing at the supermarket employees, demanding money and cigarettes whilst making jabbing motions with their knives. He said “We’re robbing you, open your fucking register”.
The actions and behaviour of the three males caused the employees to be fearful that they might be harmed if they didn’t comply with the demands. AC threw a black sports bag towards the cash registers. The bag fell at Mr Bell’s feet and AC told him to put the money from the cash registers into the bag. Olivia Morley attempted to open her cash register but it wouldn’t open. Mr Bell also attempted unsuccessfully to open the cash register. He then succeeded in opening the cash register and removed money from the cash tray and placed it into the bag. AC said “Give us some Winfield Blues”. Olivia Morley stepped back and got a packet of Winfield Blue cigarettes and threw it towards the bag. Mr Bell put the cigarettes in the bag along with approximately $120 from his cash register. Rachael Morley then managed to open the second cash register and removed the money from the cash tray. Fearing the males might harm her if she didn’t hand over the money, she held the money out towards AC who snatched it from her hands.
The first male then picked up the bag and all three males fled the store on foot. They ran through the carpark towards Yarrawonga Street, where they got into a vehicle and left the scene. The employees contacted police and told them that one packet of Winfield Blue cigarettes to the value of $16.95, and $790 in Australian currency, had been stolen.
Police inquiries did not identify the offenders involved in these offences.
AC’s confessions
However, in July and August 2014, AC contacted police from the Alexander Maconochie Centre (AMC), where he was serving sentences for other offences, saying that he wished to confess to these offences. On the second occasion, AC told police that he was confessing because he wanted a clean slate when eventually released from the AMC.
AC pleaded guilty to each of the new offences on the first mention in the Magistrates Court. For reasons that did not become apparent, each of those first appearances did not take place until about six months after the relevant confession. Although AC has been in custody since before the first confession, none of that custodial time can at this stage be attributed directly to the new offences.
The sentence that AC is still currently serving runs until 5 August 2016, and is subject to a non-parole period which will expire on 5 June this year.
Evidence
As well as the Statement of Facts, the following material is in evidence before me:
(a)a criminal history;
(b)a report from Corrective Services dated 23 March 2015 indicating that AC had not co-operated in the preparation of a presentence report; and
(c)the pre-sentence report prepared in February 2014 for a previous sentencing.
AC was unrepresented before me, but the prosecutor did not object to me hearing an unsworn explanation from him about the failure to participate in the preparation of the pre-sentence report. He said that he had declined to meet the pre-sentence report author because he had been advised that visitors for him had arrived at the AMC from Newcastle, that he had been in custody since the last pre-sentence report was prepared, and that nothing relevant had changed in that time. I assume, however, that if there had been any disciplinary problems or other relevant matters arising in relation to AC’s period in custody, the pre-sentence report author could have reported them despite AC’s failure to speak to him or her.
Objective seriousness
Both of these robberies are serious offences and AC conceded as much in his submissions. However, they are by no means the most serious examples of the aggravated robbery offences. I assess the first offence as slightly below mid-range seriousness, and the second offence, involving two co-offenders, as of mid-range seriousness. In reaching those conclusions, I note also that each offence was aggravated by the fact that when the offence was committed, AC was subject to a good behaviour order made in the Magistrates Court.
The absence of a pre-sentence report means that I do not have the usual assessment of the offender’s remorse available to me, but I note that at the sentencing hearing, AC said that he had no explanation for his actions except that he wanted money to buy drugs and that he had done the wrong thing. This is easy to say, and AC’s remorse is perhaps more convincingly evidenced by his entirely voluntary confessions to the offences. I note also his expressed wish to finalise all his offences before leaving prison because he does not want to go back there. This is not evidence of remorse as such, but may be accepted as indicating a current wish to change his ways.
Subjective circumstances
I must also consider AC’s subjective circumstances.
He has a significant criminal history for a man who has only recently turned 21. It includes considerable juvenile offending, mainly minor dishonesty offences and some property damage offences. It also includes several more serious adult offences committed after the offences for which I am sentencing AC. Those adult offences include one aggravated burglary, one attempted aggravated burglary and one aggravated robbery. The offences for which I am sentencing AC were committed when he was still only 17 years old.
AC is currently in the AMC serving sentences for the two aggravated burglary offences that I recently mentioned, and the non-parole period for that sentence is due to expire on 5 June this year. He has been in continuous custody since 22 November 2013. At that point, he was re-arrested some two and a half months after being released on parole after serving 12 months of a 27-month sentence for the adult aggravated robbery offence, and an offence of riding or driving in a motor vehicle dishonestly and without consent.
I have also had regard to other aspects of AC’s subjective circumstances. As already mentioned, I do not have an up-to-date pre-sentence report, but I have taken much of the following information from Burns J’s sentencing remarks made in 2013 and 2014 and from the February 2014 pre-sentence report. That material indicates a number of matters:
(a)that AC had a difficult birth resulting in foetal distress, that his father died when he was two, that by 2013 and continuing into 2014, AC had a good relationship with his mother, and that the family dynamics generally improve when AC is not using illicit substances;
(b)that AC left school at 14, has undertaken his Year 10 certificate at CIT, and has had short-term employment from time to time but that he is generally reliant on Centrelink benefits while in the community;
(c)that AC began using alcohol at age 11 and by the time he was 18, he had progressed to heavy alcohol abuse;
(d)that he began using cannabis and amphetamines at age 12, and Ice at age 15 or 16, and continued drug abuse until he was remanded in custody in 2012. After his release on parole in 2013, he was using Ice and heroin, and in 2014 he claimed to have been using large quantities of Ice on a daily basis before being remanded in custody; and
(e)finally in this list, that AC has had a variety of mental health difficulties over the years, including Attention Deficit Hyperactivity Disorder and anxiety, and has been diagnosed over the last 10 years with neurological disorders, but there is no indication of a significant cognitive impairment. The February 2014 pre-sentence report mentioned incidents of self-harm. The most recent psychiatric report, prepared by Dr Danny Sullivan in 2012, indicated that the neurological disorders have to some extent settled and that substance abuse is now AC’s main risk factor for further offending.
I have already noted AC’s indication that the current offences were committed in order to buy drugs.
AC committed the first of the new offences alone, and the second one in company with two others. There is nothing before me to indicate that AC was other than an equal participant in the second offence.
While in custody, AC has been taking part in the Cognitive Self Change Program and also undertaking the Smart Recovery Program for the second time. At the hearing, he said that he was hoping to join the AMC Therapeutic Community once the current sentencing was finalised. AC credits the Cognitive Self Change Program with the insights that led him to volunteer confessions to these earlier offences.
Other sentencing issues
Clearly, general deterrence is significant for offences like these. At the moment, AC’s determination never to return to prison after he has finished with all his old offences may mean that personal deterrence is not such an issue.
As noted, AC pleaded guilty to these offences on the first mention in the Magistrates Court. Furthermore, police investigations had been unsuccessful and he had only been charged after volunteering confessions while serving other sentences.
AC is entitled to a substantial sentencing discount both for his early pleas of guilty and for his confessions to offences with which he might never otherwise have been charged.
The prosecutor noted that AC had not offered any information about the identity of his co-offenders in the second aggravated robbery; clearly he is not entitled to any relevant sentencing discount, but nor is he to be punished for failing to give that kind of assistance to authorities.
The prosecutor provided a summary of a number of other ACT sentences for aggravated robberies of similar seriousness as well as some more serious ones. None of them appears to involve a juvenile offender although one of the offenders was only 18.
Finally, I note that although AC is now 21, Chapter 8A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) requires that I sentence him as a young offender because of his age at the time of the offending. Sections 133A and 133B are relevant. This has several important consequences.
Section 133C of that Act requires that I must consider the purpose of promoting AC’s rehabilitation and may give more weight to that purpose than to any other sentencing purpose, and that I must have regard to the common law principle of individualised justice.
Section 133D requires me to take into account:
(a)AC’s culpability for the offences having regard to his maturity;
(b)his state of development; and
(c)his past and present family circumstances.
I have little information about these matters but have referred already to the information that is available to me.
Section 133G of the Sentencing Act provides that a sentence of imprisonment may only be imposed on a young offender as a last resort and must be for the shortest appropriate term. Even on that basis, I am satisfied that no penalty other than imprisonment would be appropriate for the current offences, and I think that AC understands that too.
Finally, s 133G(3) requires me, in sentencing AC as a young offender, to consider making a combination sentence consisting of the sentence of imprisonment and a good behaviour order with a supervision condition, and the provision notes that under s 64 of the Sentencing Act there is no scope for the setting of a non-parole period for a sentence imposed on a young offender.
As will become apparent, compliance with this last restriction is going to require a somewhat unorthodox approach to sentencing AC, given that he is currently serving sentences imposed for adult offences.
I have accepted AC’s submission that the sentences should run concurrently with the sentences he is currently serving, but that I should provide some extra penalty, to recognise the earlier offending, by way of increased custodial time. This will enhance AC’s chances of joining the Therapeutic Community in the AMC which might in turn also improve his chances of staying out of prison once he is released.
This would have been relatively simply done by extending AC’s existing non-parole period, but since I cannot set a non-parole period when sentencing a young offender, I am going to achieve this by directing that the new sentences are to be served entirely in full-time custody, and that they will expire an appropriate time after the current non-parole period, thus effectively extending the period before which AC will be eligible for release on parole.
As required by section 133G(3), I have considered the possibility of imposing a prison term and a good behaviour order, and have also considered suspending some of the new sentence, but I have concluded that there are simpler ways of achieving the desired outcome in this case, which is that the new sentences reflect the need for the earlier offences to have some impact on AC, without derailing his rehabilitation prospects or unnecessarily complicating his position in the corrections system.
I do not know what arrangements would be made for AC’s supervision if he were to be released from custody subject to both a parole period relating to his current sentence and a suspended sentence on the juvenile offences, and no submissions were made on behalf of the Crown about that matter. AC, especially noting that he was unrepresented, did not make any such submissions either. However, it seems to me that this is a complexity that is better avoided in everyone’s interests, in particular in AC’s interests and in the interests of the organisations responsible for providing such supervision. This is in turn a good reason for avoiding a sentence disposition that extends AC’s sentence on the juvenile offences beyond the point at which he could be released on adult parole.
Sentence
AC, please stand. I record convictions on the two charges of aggravated robbery and I now sentence you:
(a)for the September 2011 offence, to imprisonment for 16 months, reduced from 24 months for your plea of guilty and your unprompted confession; and
(b)for the October 2011 offence, to imprisonment for 20 months, reduced from 30 months for the same reasons.
The new sentence of 16 months will be backdated to 6 August 2014, and the new sentence of 20 months will be backdated to 6 April 2014. That means that both sentences will run concurrently with each other and with the sentences that you are currently serving, and will expire on 5 December 2015, so at the end of this year. For reasons already mentioned, I make no order for the suspension of any part of those new sentences, and I do not make any good behaviour order intended to operate after the end of the sentences.
Thus, the sentences I have just imposed involve a total term of 20 months imprisonment to run from 6 April 2014 to 5 December this year.
The sentences you are currently serving have a non-parole period that will be expire on 5 June this year, but because of the sentences I have just imposed, you will not be eligible for release before 5 December this year. At that point, there will be eight months remaining on your existing sentence, and for which you could be released if you were granted parole.
I note your suggestion, AC, that you don’t intend to apply for parole even when it does become available; this may well make it easier to complete your sentence without re-offending, but when that time comes as you approach December this year, you should probably think hard about whether you will be ready to take on the world outside the prison without any kind of parole support, or whether it might be safer to allow yourself some period of supported return to the community by applying to serve at least some part of those eight months on parole.
You may sit down, AC.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Kate Harris Date: 20 August 2015 |
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