R v Alberts
[2021] ACTSC 341
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Alberts |
Citation: | [2021] ACTSC 341 |
Hearing Date: | 7 May 2021 |
DecisionDate: | 12 May 2021 |
Before: | Refshauge AJ |
Decision: | 1. Akeem Patrick Alberts be convicted of aggravated robbery and be sentenced to two years and six months imprisonment, to commence on 24 October 2020 and end on 23 April 2023. 2. Akeem Patrick Alberts be convicted of common assault and be sentenced to three months imprisonment, to commence on 24 March 2023 and end on 23 June 2023. 3. A non-parole period of 18 months, to commence on 24 October 2020 and end on 23 April 2022, be set. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Common Assault – Reparation Order for Victims – Rehabilitation |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 19, 33, 35, 46J, 52, 46J Crimes Act 1900 (ACT) s 26 Supreme Court Act 1933 (ACT) pt 8 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 D’Aniello v Police [2009] SASC 172 Valentini v The Queen (1989) A Crim R 23 |
Parties: | The Queen ( Crown) Akeem Patrick Alberts ( Offender) |
Representation: | Counsel E Wren ( Crown) B Morrisroe ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) S Allen (7 May 2021) and P Koci (12 May 2021); McKenna Taylor ( Offender) | |
File Numbers: | SCC 51 of 2021 SCC 52 of 2021 |
REFSHAUGE AJ
The criminal law sets standards of behaviour that are intended to maintain the peace and stability of a civilised society. Breaches of that behaviour must, therefore, be subject to a response that reinforces those standards. This is the task of imposing sentences on those who offend against the criminal law.
In discharging this task, which has been entrusted to the courts, the courts must meet many obligations, including being fair to the offender, reinforcing respect for the legislative standards of behaviour, recognising the harm done to victims and attempting to use what options are available to prevent the offender from re-offending.
Akeem Alberts has pleaded guilty to two offences of aggravated robbery and common assault. It now falls on this Court to impose just, adequate and appropriate sentences for those offences.
At the sentencing hearing, the Crown tendered its Crown Sentencing Tender Bundle without objection. As well as the formal documents of committal of the indictable charge and the transfer of the summary charge, it contained: an Agreed Statement of Facts, Mr Albert's Criminal History, a Drug and Alcohol Treatment Assessment dated 14 April 2021 and a Drug and Alcohol Sentencing List Suitability Assessment Report dated 28 April 2021 (Suitability Assessments), a Drug and Alcohol Sentencing List Cultural Assessment dated 28 April 2021 (Cultural Assessment), Victim Impact Statements of two of the three victims of Mr Alberts' offending and compensation schedules. No challenge was made to the contents of any of these documents.
The victims who made Victim Impact Statements read their statements to the Court, as they are entitled to do under s 52(1)(c) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Neither counsel for the Crown nor counsel for Mr Alberts asked them any questions.
From this material I make the following findings.
The facts
Late in the afternoon on 24 October 2020, the first victim was driving a gold Toyota Corolla motor vehicle with her friend, the second victim, as a passenger, along Hindmarsh Drive, Stirling. The second victim was the registered owner of the vehicle. Another friend, a third victim, was driving her blue Toyota Corolla motor vehicle in front of them. The two cars were travelling in the same direction, in the same lane.
At about 5.45 pm, they saw a black Holden Astra motor vehicle travelling in the same direction, along Hindmarsh Drive, but in a different lane. Mr Alberts was driving this motor vehicle and he and his passenger were throwing papers, bottles and other rubbish out of the vehicle.
Both victims in the gold Corolla looked at them and raised their arms with open palms, indicating, “what are you doing?”. Mr Alberts then changed lanes with his vehicle and drew in behind the gold Corolla. As the Corolla approached the intersection of Hindmarsh Drive and Williamson Street, Mr Alberts deliberately drove his vehicle into the back of the gold Corolla. The first victim continued driving and turned into Williamson Street. The third victim had already turned there, unaware of the collision.
The second victim recorded the black Astra with her phone. The first victim turned into Pearson Street and Mr Alberts followed. As the second victim approached the intersection with Coane Street, Mr Alberts overtook the gold Corolla and deliberately drove his vehicle into it, colliding with it again. Both vehicles came to a stop.
Mr Alberts and the other occupant, Ms Trudy Murray, got out of their vehicle and approached the gold Corolla. He opened the driver’s door of the gold Corolla and brandished a knife at the victims. The knife was 10-12 centimeters long, with a slight bend in the blade. Ms Murray opened the back door of the driver’s side of the gold Corolla and got in.
The first victim feared for her safety and jumped from the driver's seat onto the passenger seat, where the second victim was seated, and then tried to get out through the passenger side door. Ms Murray grabbed the first victim's hair and tried to take her phone as she got out of the vehicle. She then punched the second victim in her right eye and grabbed her phone, biting the second victim's right wrist for about five seconds, until she released her grip on the phone.
The second victim released her seatbelt and got out of the vehicle. Both she and the first victim ran from the scene, fearing for their safety, abandoning the vehicle and leaving behind the second victim's driver licence, laptop, keys and medication inside it.
In the meantime, the third victim saw the collision and stopped her vehicle. She heard the other victims screaming and saw people moving around the gold Corolla vehicle, including the victims get out through the passenger side door. She thought about turning around and driving back to see what was going on and to assist, but then saw the lights of the gold Corolla turn on and believed that her two friends were safe and she prepared to drive away.
The black Astra, however, drove up to her vehicle and stopped in the middle of the road, preventing the third victim from driving away. Mr Alberts and Ms Murray got out of their vehicle and went over to the third victim's blue Corolla. Mr Alberts was carrying the knife with the curved blade and motioned with the knife for her to get out of the car. Fearing for her safety, and that Mr Alberts would steal her car, she locked the door and reversed away. Mr Alberts and Ms Murray then returned to the black Astra and gold Corolla and drove both vehicles away.
The third victim then located the first and second victims and they sought help from the public to contact police. An ambulance arrived and assessed the second victim's arm, flushed it, and then later took her to The Canberra Hospital where she was assessed for concussion and given a tetanus injection for the bite and intravenous antibiotics. The bite wound was irrigated and flushed and a dressing applied.
Police, late that evening, found the black Astra and the gold Corolla in Wanniassa. They found the knife with the curved blade in the trousers of Mr Alberts, who was standing next to the vehicle. He was arrested and taken into custody. At the time he appeared to be intoxicated and admitted to recently using methylamphetamine.
The proceedings
As noted above (at [17]), Mr Alberts was arrested on the day of the offence and was taken to the Canberra Watch House. He appeared in the ACT Magistrates Court on 26 October 2020. He was charged with the aggravated robbery of the second victim and attempted aggravated robbery of the third victim and was remanded in custody.
After two adjournments, he pleaded guilty to the aggravated robbery. He remained in custody while there were negotiations between the prosecution and his legal representatives. This was before the prosecution had prepared the Brief of Evidence.
On 2 March 2021, the charge relating to the third victim was withdrawn and dismissed and the current charge of common assault against the third victim was preferred against Mr Alberts.
On that day, Mr Alberts entered a plea of guilty to that charge. The indictable charge was committed to this Court and the summary charge transferred under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under pt 8 of the Supreme Court Act 1933 (ACT). He was referred to the Drug and Alcohol Sentencing List.
He appeared in this Court on 5 March 2021 and Suitability Assessments under s 46J of the Sentencing Act were ordered to be prepared and a date set for his sentencing.
Mr Alberts has remained in custody since his arrest on 24 October 2020.
The offences
In order to discharge its obligations in sentencing, a court which is to sentence an offender must consider a number of matters set out in s 33 of the Sentencing Act. Important amongst these is the nature and circumstances of the offence (s 33(1)(a)), which will help assess how serious is an offence and, therefore, the kind and severity of the sentence to be imposed.
The courts have long identified the maximum penalty prescribed by the legislature as an important part of this consideration: see, for example, R v Oliver (1980) 7 A Crim R 174 at 176. As explained by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 133; [31], “the maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence”.
Aggravated robbery is a statutory offence prohibited by s 310 of the Criminal Code 2002 (ACT), which prescribes a maximum penalty of 25 years imprisonment or a fine of $400,000, or both. It is, therefore, apart from more serious homicide offences and offences of drug selling to children, among the most serious of ACT offences.
Part of the seriousness of the offence is that it is both a crime of violence and a crime of dishonesty. The Court said in R v O'Connor [2019] ACTSC 132 at [25]: such an offence is “quite disturbing as it shows the violent exploitation of the power imbalance”.
Of course, such an offence can be committed in a variety of ways. Here, there were two statutory factors of aggravation, namely that there were two offenders and a knife, a weapon, was used.
The courts have also identified particular factors which may aggravate or moderate an offence. This is an aspect of current sentencing practice, which a court sentencing an offender is required to consider: s 33(1)(za) of the Sentencing Act.
The place where it takes place is relevant: Doherty (1986) 8 Cr App R (S) 493 at 495. Here, the victims were in a car. Driving a car can be dangerous, given the current road toll because of dangerous drivers and the like. In addition, however, the risk of road rage is an additional risk that adds to the danger and is a matter of serious concern: D’Aniello v Police [2009] SASC 172 at [20].
The use of weapons in a robbery is obviously of concern and makes it a more serious version of the offence: R v McFarlane (1993) 2 Tas R 201 at 210.
In R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 381; [170], the New South Wales Court of Criminal Appeal listed relevant factors to identify the range seriousness the offence can take: the nature of the weapon, the vulnerability of the victim, the position in the scale of impulsiveness and planning, the intensity of the threat or actual use of force, the number of offenders, the amount taken and the effect on the victims.
On this scale, the offence at hand was quite a serious one: a knife was used. Courts have always strongly condemned the use of knives, regarding it as a serious matter: see Lieu v State of Western Australia [2012] WASCA 218 at [86]. As Higgins J said in R v Griggs [1999] ACTSC 22 at [41], a knife is “always ‘loaded’”. There is the danger, when a knife is brandished at close quarters, of an injury being inflicted on the victim: R v Crowther [2019] ACTSC 338 at [7]. The threat of its use was very frightening to the first victim and there was actual violence against the second victim, although this was inflicted by the co-offender.
The victims were in a vulnerable position - they were in seatbelts. So constrained, an escape was inhibited. The first victim, the driver, particularly could not escape easily as Mr Alberts was at her car door.
There does not seem to have been any particular planning of the offence. It was not like the robbery of a bank.
There was also the minimum number of offenders to constitute the offence.
The threat was quite significant and indeed the second victim was actually punched and bitten, injuries requiring medical attention.
The goods stolen were of significant value. The gold Corolla was taken, as was a laptop. Other items had quite significant personal value, such as the second victim's schoolwork. The inconvenience of losing one's mobile phone, keys and medication is not to be minimised.
The victims were very traumatised. The Victim Impact Statements are addressed below, but, in summary, they suffered long-term trauma and severe disruption to their education at an important time in their lives.
It was not the most serious version of the offence, but it was a very significantly serious offence.
In relation to the assault on the third victim, assault is an offence contrary to s 26 of the Crimes Act 1900 (ACT) and attracts a maximum penalty of 2 years imprisonment. The nature of the injuries is a significant indicator of the seriousness of the actual offence committed: R v Bloomfield (1998) 44 NSWLR 734 at 739-40; Ross v The Queen [2012] NSWCCA 161 at [20].
It is the case here that there was no actual injury caused, but to be approached by a man with a knife, where the third victim had seen her friends in difficulties and heard them scream, must have increased her fear. There was, however, no Victim Impact Statement from her, but the Court can make these findings of the likely emotions of this experience.
Subjective circumstances
Mr Alberts is a 23 year old Aboriginal man of the Wakka Wakka Nation, in what we call Queensland. He is either not a very good historian or the author of the various Reports misunderstood him, as there were some differences in the Reports. It was submitted that this was caused by stressors external to the matters on which he was reporting.
He appears to be the eldest of three boys and had three older sisters, though one account reported that he had four sisters and one brother. In any event, he was one of six children of his parents.
He was born on the Cherbourg mission, in South-East Queensland. His mother had very significant issues with alcoholism and left the family when Mr Alberts was 5 or 6 years of age, though one Report said that he was 3 years old and another said that he was 13 years old. Ms B Morrisroe, counsel for Mr Alberts, said that she had “spent some time with Mr Alberts ensuring the accuracy of the chronology” that she presented to me in her submissions, on which the above is based. That is accepted.
When Mr Alberts' mother left the family, a decision was made within the extended family that to have six children on his own was too big of an ask for his father. It was decided to send the three eldest children to live with extended family in Canberra and the three youngest children, which included Mr Alberts, remained in the Queensland community. He would see his mother once in a while, but not on a particularly regular basis.
The Cherbourg community is a complex community. There was some significant fighting between community members and some families.
Mr Alberts got into the habit of smoking cannabis and sniffing petrol at about age 15 or 16. He instructs that he did have a reasonably significant issue with petrol sniffing over a period of time. He ceased doing so, however, when a very close friend of his, that he had known all his life, committed suicide following an incident of sniffing. Nevertheless, it did not result in him stopping all substance misuse.
He attended school, but his education was interrupted [redacted for legal reasons], though he completed year 11 and probably year 12, although this is not certain on the evidence.
He appears to have had a good relationship with his father, but boredom and lack of parental responsibility led him to problematic behaviour, including some truancy. He left home when he was about 13 years old, associating with anti-social people [redacted].
[Redacted]. His girlfriend at the time was pregnant [redacted]. He, his girlfriend and the child lived together with the family for some time while his son was a baby, up until the baby was about seven months old.
There was a significant issue of family violence after his partner found out that Mr Alberts had not been entirely faithful to her, where his partner poured petrol on and around him and set it alight. As a consequence, Mr Alberts spent several weeks in hospital recovering from injuries, but, unfortunately, continued to engage in substance misuse and was in and out of trouble for some period of time.
He fell into a pattern of [redacted], otherwise seeking girlfriends for accommodation, and drug use [redacted]. He has had limited employment, working for about six months in 2012 as a farm hand, though he also told one reporter that he had worked as an automotive mechanic for some time.
Ultimately, at age 18, he determined to move to Canberra where he had an extended family, and indeed, some of his older siblings, for a fresh start. It did not take him long, however, to fall back into old habits. He and his brother would drink together and they both got into trouble. [Redacted].
He has no physical or mental health issues, though he has trouble regulating his emotions. He would “snap” and become aggressive, though he denied using violence in intimate relationships.
Mr Alberts started drinking alcohol when he was 14 or 15, “taking swigs of alcohol when available to him”. From age 16 or 17, he was drinking a 24 pack of rum once a week; then from about age 19 to 20, drinking “around the clock” until he gave it up for a period due to coughing up blood. He has continued to drink alcohol, stating alcohol is his primary issue, though the use of alcohol leads to the use of other drugs. He would drink “hard liquor” – tequila, whiskey and other hard liquor.
He used cannabis for the first time at about 15 or 16 years of age, but was soon consuming about 7 grams daily. He also has used MDMA, though, again, his recounting is a little unclear and he said both he used it now and again, or frequently.
Mr Alberts started consuming methylamphetamine at either age 16 or 20, depending on which report one accepts, injecting while he was in jail. In any event, he is currently using three to four points every two or three days.
Mr Alberts has also used heroin, which he has described as his primary drug of choice and concern, using about one gram a day intravenously.
He has used other drugs from time to time since he was 16, including cocaine, mixed with heroin and Valium, which he purchased on the street when available, to use to come down from other drug use.
Mr Alberts has not accessed any alcohol and other drug treatment. He originally expressed an interest in a Drug and Alcohol Treatment Order under s 12A of the Sentencing Act. At the sentencing hearing, however, the Court was informed that he no longer wished to participate in such a program. Given his history, that is a pity, but since his consent to the making of such an order is a precondition to the making of such an order (s 12A(2)(c) of the Sentencing Act), it is not possible for the Court to make one. It is noted, however, that the Crown did indicate that it considered that Mr Alberts may not have been an appropriate subject of a Drug and Alcohol Treatment Order.
Mr Alberts has a significant criminal history. [Redacted]. As an adult he still offended in Queensland, appearing not only in the Magistrates Court, but also in the District Court, though without any further custodial sentences.
When he moved to the ACT in 2017, he continued to offend. He also began to be sentenced to imprisonment for more serious charges, such as burglary, theft, common assault and dishonestly taking a motor vehicle without the owner's consent.
His most recent offence, burglary and failing to appear in accordance with a bail undertaking, was committed in July 2019 and resulted in a sentence of 12 months imprisonment with a non-parole period of 6 months. He was also referred for Restorative Justice, but no details of any outcome were in the evidence.
He made application for parole when the non-parole period expired, but that appears to have been refused as there was no drug residential rehabilitation bed available for him.
While he has some offences of violence on his record, he has not previously committed a robbery offence.
Sentencing practice
As noted above (at [29]), the court sentencing an offender must consider current sentencing practice: s 33(1)(za) of the Sentencing Act. This has a number of aspects. The attitude of courts to relevant factors is part of that and has earlier been considered.
In addition, it is important to have regard to what is referred to as “the collective wisdom of sentencing judges” (R v Oliver at 177) and to which the Court of Appeal has recommended that the sentencing court have regard to: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [59]; 27.
This can, in a limited way, be addressed by considering sentencing statistics such as appear in the ACT Sentencing Database. The limit of their use is reinforced by the regrettable lack of linking to the sentencing remarks for the particular cases for consideration of the current practice. Nevertheless, they have some value (R v Elphick [2021] ATSC 9 at [154]), often circumscribed by the lack of discrimination of relevant factors.
In this case, the ACT Sentencing Database shows that of the persons recorded as having been sentenced for aggravated robbery, 64% were sentenced to imprisonment for periods of 12 months to 12 years; 80% of these were sentenced to between 2 and 6 years imprisonment. Those whose sentences were fully (17%) or partially (14%) suspended were sentenced to, in the first case, 3 months to 36 months and, in the second case, 12 months to 48 months.
For those sentences, where sentencing remarks were available, the special factors, such as youth, short criminal history or serious attempts at rehabilitation, seem to have encouraged the less severe outcomes.
Additionally, as already suggested (at [69]), the consideration of other decisions can disclose current sentencing practice. Often parties submit sentencing decisions that have some similarity to the instant case for consideration: see MLP v The Queen [2006] NSWCCA 271; 164 A Crim R 93 at [33]; 100. In this case, neither party drew my attention to any such decisions and, as have noted above (at [69]), it is regrettable that not many sentencing remarks can be accessed through the ACT Sentencing Database.
So far as common assault is concerned, the Supreme Court rarely deals with such offences. Only 66 are recorded in the Database. If so, they are often associated with other offences. Nevertheless, 47% were sentenced to imprisonment, with sentences ranging from 3 months to 42 months. The two sentencing remarks provided were for rather singular occurrences: R v Nyuon [2020] ACTSC 171; R v Crowther.
The Magistrates Court deals with the majority of such offences. It is, perhaps, too diverse an offence to get a sense of any current practice from their statistics. It is noticeable, however, that 15% (still 462 sentences) are sentences of imprisonment in that Court, ranging from 1 month to 18 months imprisonment, with 80% in the range of 1 month to 7 months imprisonment. The majority (52%) of sentences were constituted by Good Behaviour Orders.
Victim Impact Statements
Both the first and second victims made Victim Impact Statements, and, as is their right (s 52(1)(c) of the Sentencing Act), read them out in Court.
Mr Alberts had had copies of these statements and had read them. He acknowledged the fear he had caused and the significance of the impact of his actions on the two young women.
The Victim Impact Statements were distressing documents and the authors reading them was powerful, disclosing the deep emotions they felt, which could not help but be affecting to their hearers.
The first victim spoke of the trauma of the events which caused her much distress, which she thinks about every day. She subsequently suffered low mood and severe anxiety and found it hard to complete tasks at home, work and school, disrupting her daily activities. She has difficulty in falling asleep, when her sleep is often disrupted, especially by terrifying nightmares. This, of course, leaves her fatigued during the day. She has sometimes been unable to go to work and she, her mother and her boyfriend have frequently to manage her panic attacks. These can disrupt her, including when driving. She also feels fear in public spaces.
This year had been her first year at university and these effects have dramatically interfered with what should have been an exciting start for a new phase in her life. She has had difficulty with her assignments because of her anxiety. Her parents have paid for her medical and psychologist treatment and the associated medication. The first victim has sought compensation of $1,012.
The second Victim Impact Statement was also very upsetting. It was saddening to hear of the severe and long lasting effects that these criminal actions have visited on her. It was a more detailed Statement and it is difficult to summarise without doing it injustice, but, hopefully, much of the essence and the pain and grief caused by these crimes can be captured.
She spoke of physical and psychological injury, problems with driving and her tragic response to the harm she had experienced and continues to feel, as well as the impact on her relationships and her economic loss.
Perhaps the most affecting consequence was the complete destruction of her final year of high school, no doubt already sadly interrupted by the response to the COVID-19 pandemic. This should have been an exciting rite of passage, a joyous and highly significant personal milestone, but, because of these offences, it was not to be for the second victim.
She outlined the ongoing medical treatment, often accompanied by fear as to what results the tests she had to undertake would show. This resulted principally from the attack by Ms Murray and not personally by Mr Alberts, though the joint crime leaves him with some responsibility. The final results were, fortunately, negative for her problems, but she will still have further tests later this year.
The second victim listed 14 psychological consequences and gave some really painful examples. From these, her driving has been severely impacted with anxiety or panic attacks, especially by ordinary acts of other drivers which reprise the driving by Mr Alberts, and she often has to stop. She had to sell her gold Corolla, her “Gold Nugget”, and this has caused grief.
She continues to experience panic attacks at work, school and sport, which clearly interferes with these important activities. Very sadly, she has also engaged in some self harm and has experienced anger and aggression, even to the extent of hitting out at her mother when her mother tried to comfort her. She experiences trouble sleeping and often feels frightened, especially when she is at home alone.
Of course, this all has terribly impacted her relationships and social life, losing her friends, negatively impacting her relationship with her boyfriend and avoiding social events.
In addition, she has suffered significant economic loss, not just of the loss of the items that were stolen in the robbery, but the inevitable loss when replacing her car, changing the locks in her house because of the loss of her keys and the need for medication. She is seeking compensation of $1,643.75.
Reparation
As noted above (at [79], [87]), compensation has been sought by the victims. Of course, there are two offenders, so each offender is liable for one half of the amount sought. The claim, therefore, against Mr Alberts is $506 for the first victim and $821.88 for the second victim. The Court has the power to order Mr Alberts to make such compensation under s 19(3) of the Sentencing Act. It is, of course, a matter of discretion and the Court is not bound to make an order on request and it should have regard to the means of the offender: R v West [2015] ACTSC 134 at [79] - [80].
The relevant principles are set out in R v Steen [2015] ACTSC 259 at [51] - [52] as follows:
Bell J made a most useful and thorough analysis of the principles surrounding the making of compensation orders in RK v Mirik (2009) 21 VR 623. His Honour made the following points:
· the making of such orders is discretionary;
· it is not wrong in principle, however, to order compensation against an offender without means;
· the order is a means of vindicating the invasion of the victim's rights by avoiding the need for expensive civil action;
· the court may have regard to the effect such an order may have on the rehabilitation of the offender and the means available to meet such an order. An order for compensation is not a punishment and is different in its effect on sentencing to a confiscation order;
· a lengthy period of payment is not reasonable; and
· compensation should generally only be ordered in straight forward cases.
In this case, an order for compensation would be largely symbolic. In the United Kingdom it has been held that a compensation order should not be made where there is no realistic prospect of its payment. See R v Inwood (1974) 60 Cr App Rep 70 at 73. That approach was followed in New Zealand in R v Rollo [1981] 2 NZLR 667 at 671-2, though legislation has since changed that situation there.
The Court notes, too, the reservation expressed by Hampel J, with whom Phillips CJ and Vincent J agreed, in R v Landolt (1992) 63 A Crim R 220 at 223, that such compensation should only be ordered if it can simply and obviously be determined and not for the sentencing court to inquire into a complex consideration, especially of amount. That does not appear to be an issue in these proceedings.
Note is also taken of the caution expressed in R v CA (No 2) [2016] ACTSC 371 at [14] where the Court said, in relation to an application for an order under s 19 of the Crimes (Sentencing) Act 2005 (ACT):
However, the making of a reparation order is not a core part of the sentencing process; rather, it provides quick and convenient redress to a victim of crime, avoiding the need for a civil proceeding in which the evidence will largely duplicate the evidence that is before the court in the criminal proceeding.
See also R v Watt [2021] ACTSC 20 at [39]-[46].
I have every sympathy for the first and second victims for their losses and accept that they are clearly entitled to be compensated. While it is accepted that the amount claimed appears clear, discrete, is not large and has not been challenged by Mr Alberts' counsel, it is not considered that it is appropriate to make such an order. Mr Alberts will be spending a considerable time in custody, where his prospects of repayment through employment or other legal means when returned to the community is limited, if not negligible. There can be no quick and convenient redress here.
This sentence and the views expressed, however, may assist the victims if they wish to take civil proceedings to recover their losses.
Consideration
The imposition of sentence is a very common occurrence in the courts of this Territory, but it is not an easy process. A number of purposes must be balanced. We are fortunate to have these set out in s 7 of the Sentencing Act, though this has largely set out in legislation what the common law has evolved over time.
Some of the purposes point in opposite directions, which is challenging for the judge who must impose a sentence and, from all the relevant matters set out in s 33 of the Sentencing Act and anything else that the law requires to be considered, construct the instinctive synthesis which is the sentence.
The offence of aggravated robbery was a very serious one of significant imposition on all the victims, with severe ongoing effects. It was not the most serious version of the offence, but demands punishment to respond to that seriousness and general deterrence to show that it is unacceptable in the community and to persuade others not to commit such offences. This may assist in the protection of the community.
Rehabilitation would also assist in the protection of the community, but it is not yet clear that Mr Alberts is genuinely committed to it at this stage. He certainly does not appear to have taken any particular steps towards that end.
It also seems that there is a need for some specific deterrence in that Mr Alberts needs to appreciate that the escalation of offending and continued breaches of the criminal law are unacceptable.
Mr Alberts has seriously inflicted harm on the victims. That needs to be recognised and the sentence will do so.
Mr Alberts has pleaded guilty to the offences and it is accepted that this was at an early stage of the proceedings. The evidence was strong, but not overwhelming. It is appropriate to recognise this by a significant discount, as provided in s 35 of the Sentencing Act.
While Mr Alberts was under the influence of drugs at the time of the offending, this is not of itself mitigating, though explanatory: Valentini v The Queen (1989) A Crim R 23 at 25. That he became addicted in his mid to late teens is relevant and provides some mitigation: Douglas v The Queen (1995) 56 FCR 465 at 470.
It is noted that Mr Alberts is still a relatively young man. Though in law an adult, it is accepted that maturation is a gradual process and his youth is a matter that moderates the sentence to a degree: see R v Tonna (No 2) [2020] ACTSC 362 at [44] - [48].
It is suggested that his childhood was disadvantaged. It is accepted that it was. Ms B Morrisroe, counsel for Mr Alberts, in her helpful and detailed oral submissions, submitted that this was to the level that attracted the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. The principles are set out in R v Crawford (No 1) [2020] ACTSC 245 at [86] as follows:
The High Court accepted in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 that childhood deprivation could explain subsequent behaviour such that the offender’s moral culpability ‘may be substantially reduced’: at [44]. The principles of the application of this principle were recently helpfully summarised by Loukas-Karlsson J in R v KN [2020] ACTSC 218, at [98], as follows:
‘In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and
(c) the application of the Bugmy principles is not discretionary: Irwin at [3].’
The Crown submitted that the childhood experiences did not rise to the level that would attract these principles. The Court respectfully disagrees and shall apply them.
Account is taken of the nature and circumstances of the offences as described in setting out the facts and discussing the offences. Account is also taken of the personal circumstances of Mr Alberts as described and the harm done to the victims, as well as the matters to which reference has been made in these reasons.
There are two offences and have considered the sentence for each separately. While they are part of the same course of conduct, they are somewhat separate, involving a separate victim, and so do not attract the need for significant concurrency.
The total sentence has been carefully considered to ensure that it is just, adequate and appropriate for the total criminality committed by Mr Alberts. There are no common elements in the offences that require concurrency.
In all the circumstances, however, no other sentence than sentence of imprisonment must be made: s 10 of the Sentencing Act.
The total sentence exceeds 12 months and, accordingly, a non-parole period must be considered and will be made.
Sentence
[His Honour then spoke directly to the offender]
Mr Alberts, please stand.
The Court makes the following orders:
1)You are convicted of aggravated robbery and sentenced to two years and six months imprisonment, to commence on 24 October 2020 and end on 23 April 2023. Had you not pleaded guilty, you would have been sentenced to three years and four months imprisonment.
2)You are convicted of common assault and sentenced to three months imprisonment, to commence on 24 March 2023 and end on 23 June 2023. That is to be cumulative as to three months on the sentence for aggravated burglary. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
3)A non-parole period of 18 months be set, to commence on 24 October 2020 and end on 23 April 2022.
You may be seated.
| I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: L Ireland Date: 6 May 2022 |
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