R v Ball
[2014] ACTSC 310
•22 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ball |
Citation: | [2014] ACTSC 310 |
Hearing Date(s): | 22 September 2014 |
DecisionDate: | 22 September 2014 |
Before: | Murrell CJ |
Decision: | See [45]-[47] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – guilty plea – aggravated robbery – causing property damage – unlawfully abandoning a child – theft – dishonestly take motor vehicle – dishonestly obtain property by deception – stealing a motor vehicle |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35 Crimes Act 1900 (ACT) s 41 Australian Road Rules r 304 |
Cases Cited: | R v Henry (1999) 46 NSWLR 346 R v Meyboom (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 14 February 2014) |
Parties: | The Queen (Crown) Andrew Ball (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr A Hopkins (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Harris Wake (Offender) | |
File Number(s): | SCC 73 of 2014; SCC 66 of 2014 |
MURRELL CJ:
Offences
The offender entered a plea of guilty at the earliest reasonable opportunity to a raft of offences, and other matters were transferred into this court for sentence. A further matter has been placed on a schedule and is to be taken into account in relation to the offence of aggravated robbery, to which the offender pleaded guilty.
The offender was arrested on 20 February 2014, and he has been in custody, bail refused, since that date. Meanwhile, he has been sentenced for a prior offence of assault occasioning actual bodily harm to eight months' imprisonment from 2 June 2014.
Chronologically, the first matter for which I am to sentence the offender is one to which I will refer as offence 7. It is an offence of causing property damage on 20 June 2013 contrary to s 403 of the Criminal Code 2002 (ACT) (Criminal Code). That offence is punishable by 10 years’ imprisonment.
The facts are that on Thursday, 20 June 2013, the victim drove her vehicle to the Westfield Belconnen shopping centre and attempted to enter a car park. The ticket machine that she attempted to use was not dispensing a ticket in the usual way, and she was unable to enter the car park. The offender was in a vehicle that pulled up behind the victim's vehicle. In the context that the victim was unable to move her vehicle forward through the car park entrance, an argument ensued between the offender and the victim. Without warning, the offender hit the victim's car, striking the driver's side door forcefully. He behaved very aggressively towards the victim, making her quite frightened. His companion then drove through another entrance into the car park. When the victim arrived home, she observed two dents to her driver's side door and the paintwork around the dents was cracked. The repair cost was $1,459.15.
The remaining offences before the Court occurred on 20 February 2014. They are as follows:
(a)One offence of unlawfully abandoning a child contrary to s 41 of the Crimes Act 1900 (ACT) (Crimes Act) that carries a maximum available penalty of five years' imprisonment.
(b)An offence of burglary at a residential address in Palmerston (first Palmerston address) contrary to s 311 of the Criminal Code that carries a maximum available penalty of 14 years’ imprisonment.
(c)An associated offence of theft of items valued at $2,080 contrary to s 308 of the Criminal Code that carries a maximum available penalty of 10 years' imprisonment.
(d)One offence of aggravated robbery contrary to s 310 of the Criminal Code that carries a maximum available penalty of 25 years' imprisonment.
(e)Two offences of dishonestly obtaining property by deception contrary to s 326 of the Criminal Code, each of which carries a maximum available penalty of 10 years’ imprisonment.
(f)One offence of dishonestly taking a motor vehicle, being a silver Mazda, contrary to s 318 of the Criminal Code that carries a maximum available penalty of five years' imprisonment.
(g)A further offence of burglary at a second residential address in Palmerston (second Palmerston address) contrary to s 311 of the Criminal Code that carries a maximum available penalty of 14 years' imprisonment
(h)An associated offence of stealing a motor vehicle, a white Mazda, from the second Palmerston address, contrary to s 308 of the Criminal Code that carries a maximum available penalty of 10 years' imprisonment.
The transferred matters are two offences of driving with licence suspended contrary to s 31A of the Road Transport (Driver Licensing) Act 1999 (ACT) (each of which carries a maximum available penalty of 20 penalty units) and one offence of failing to obey police direction contrary to r 304 of the Australian Road Rules (which carries a maximum available penalty of 20 penalty units). There is a scheduled matter, being an offence on 18 February 2014 of the theft of a Nokia mobile telephone valued at $499. This offence is to be taken into account when I sentence the offender in relation to the aggravated robbery matter.
Facts
In summary, the events of 20 February 2014 were as follows. At about 1.25 pm on the afternoon of Thursday 20 February 2014, the offender sought assistance with starting a friend's car using jumper leads. The car was in a garage. The offender was intoxicated. An approach having being rejected by one young woman, the offender then approached the victim, Ms T. She had her seven-month-old son with her. She agreed to assist the offender to jump start his car. She placed her belongings and her son into her silver Mazda vehicle, secured her son and closed the door. She positioned her vehicle outside the garage in which the other vehicle was located. She opened the bonnet of her car and adjusted the position of her car to assist the offender. There was some difficulty in getting the connection to work. The offender entered the victim's car and revved the engine, then suddenly reversed quickly out of the driveway. As the driver's side door was not fully closed, it was bent and almost broke off when the vehicle hit an obstruction.
In evidence, the offender agreed that, at that stage, he formed an intention to take the victim's vehicle. He said that he was “hanging out” for drugs and/or his methadone dose and urgently required a vehicle for the purpose of getting to Canberra Hospital to collect his methadone dose.
The victim started screaming. She was concerned not so much at the damage to her vehicle, although that was bad enough, but rather at the prospect that the offender was about to depart with her seven month old child. The offender stopped the vehicle in the middle of the street. He began to complain that he had hit his head. The victim rendered assistance by dialling 000 and requesting an ambulance to assist the offender.
While she was on the telephone, she saw the offender re-enter her vehicle and attempt to start it. He then got out of the vehicle and started swearing. He slammed the bonnet down. Fortunately, a witness took a photograph of the offender with her mobile telephone and called the police. The offender then drove away in the victim's car, driving very fast with the victim's son still in the vehicle. Understandably, the victim became hysterical.
The offender was seen driving erratically along Gungahlin Drive in Ngunnawal heading towards Palmerston. He was observed to reach over to the back seat of the car. In evidence, the offender agreed that he had reached over to the back seat. He said that he had done so for the purpose of taking a cord so that he could tie the damaged driver's side door to the frame of the vehicle. The offender said that it was when he turned to the back seat that he first realised that the child was in the vehicle. After seizing the cord, he proceeded further along Gungahlin Drive towards Palmerston, driving erratically and causing other vehicles to take evasive action.
The offender gave uncontested evidence that soon thereafter he arrived at the premises where he intended to leave the child. This was the first Palmerston address. The offender removed the child from the vehicle. He said that he intended to leave the child safely inside someone’s premises. However, that is not what occurred. He cut the child's capsule out of the back of the vehicle, searched the boot of the vehicle, located a pram and placed the child in the pram under a pergola in the backyard. He strapped the child into the pram.
It was then that the offender decided to commit a burglary at the premises. He removed a flyscreen window and took a small number of items from the premises, including a Visa credit card, cash and keys.
He left the premises, and committed a second burglary nearby, at the second Palmerston address. He forced his way into those premises through the rear door. His purpose in entering those premises was to obtain a vehicle to drive away from the scene. He believed that police were in close proximity because he could hear sirens. He stole keys and drove away in a white Mazda vehicle that had been parked in the driveway of the second Palmerston address. The offender proceeded to the Jamison Centre, where he used the stolen Visa credit card to purchase alcohol and a carton of cigarettes. These two purchases constitute the offences of dishonestly obtaining property by deception.
At about 3.40 pm, about two hours after the baby was taken, police received information which caused them to go to the Palmerston area. There they located the victim's vehicle in the driveway of the first Palmerston address. They heard a baby and followed the sound to the backyard, where they found the baby strapped into his pram under the pergola. Fortunately, the baby was in good health. He was returned to his parents.
The offender remained at the Jamison Centre for a period of time. He stated in his evidence that he went into a Woolworths Store, where he obtained a knife. At about 6.50 pm he entered a pharmacy at the Jamison Centre. He said that he was, at least in part, motivated to enter the pharmacy because he felt in desperate need of drugs as he had not taken his methadone dose and he desired a drug of some description. The store was occupied by a front service counter attendant, the pharmacist and a customer. The offender approached the assistant and demanded “the 50's and the 20's”. He handed a plastic bag to her and then produced the knife. She felt scared. She removed bank notes from the drawer and placed them in the offender's bag. The offender began to remove boxes of Valium and Temazepam from the shelf in the dispensary. He then demanded more money, and when none was forthcoming he removed coins from the change drawer. He demanded some Oxycontin, a synthetic opiate that can produce an effect similar to that produced by heroin. The pharmacist pressed the in-store hold-up alarm. The customer who was present advised the offender, “It's not worth it. Don't do it, man. He's not going to give it to you.” Once it became apparent that the pharmacist would not provide him with Oxycontin, the offender ran from the store.
After he left the store, the offender consumed the Temazepam and the alcohol that he had obtained at the Jamison Centre. He does not recall the events thereafter as he was highly intoxicated.
At about 8.30 pm, police observed the offender driving the Mazda that had been stolen from the second Palmerston address. They signalled for him to stop, activating emergency lights and sirens, but the offender failed to do so. Police gave pursuit.
At one stage, the offender travelled towards the police at low speed and the police manoeuvred to block the vehicle, which came to a stop. They approached the offender, who refused to comply with police directions. They repeatedly demanded that he raise his hands, but the offender reached for the ignition of the vehicle. The police had to physically struggle with him to remove the ignition key from the offender.
The offender and the vehicle were searched. Police located the stolen Visa card, other items that had been stolen, the kitchen knife that had been used in the robbery and a surgical mask that had been worn by the defendant in the course of the robbery. They found a little over $1,300 in cash (the bulk of which must have been the proceeds of the robbery) and a handwritten note, which was tendered in evidence and became Exhibit B. The note was addressed to the offender's former partner, in essence expressing remorse at his activities and saying that he wanted to see his son "before he handed himself in".
The offender participated in a record of interview, making full admissions and attributing his offending conduct to a desperate need to obtain money for drugs.
Objective seriousness
I will refer very briefly to the objective seriousness of the various offences before I turn to consider the offender's subjective circumstances, particularly addressing the more serious matters.
The offence contrary to s 41 of the Crimes Act of unlawfully abandoning the child relates to children less than two years of age. In this case, the child was seven months old. The child was vulnerable, as is any child of that age. The child was left alone for a period of about two hours. The circumstances in which the child was left alone posed no immediate danger in that he was left under shelter and he was strapped into a pram. However, it was by good fortune that he was located within a reasonable period of time. The offender made no attempt to advise any authority of the child’s whereabouts. The taking of the child should be considered in the context of the offence of taking his mother's vehicle. The child was, in effect, included in part of that taking because he was inside the vehicle. The offender's assertion that he did not at first appreciate that the child was in the vehicle is accepted; the Crown has not proved that he acquired the knowledge at an earlier time. Nevertheless, from the victim’s point of view it was extremely serious. In her victim impact statement she described it as a “parent's worst nightmare”. She was very concerned about harm that might befall the child, and the trauma has had very serious ongoing consequences for her.
The taking of the motor vehicle alone was a very serious matter. There was a relatively high level of culpability on the part of the offender. The victim was acting as a Good Samaritan towards the offender in more than one way. First, she attempted to assist him to jump start the motor vehicle, although he must have presented an unattractive picture, being visibly intoxicated at the time. Further, when he hit his head by reversing the vehicle too quickly, she assisted by telephoning for an ambulance. In that context, the offender chose to take her vehicle, although at the time she was screaming and it must have been obvious that she was very distressed, at least because of the loss of her vehicle. It was an objectively serious offence.
In relation to the first burglary, I accept the submission of Mr Hopkins for the offender that the offender's initial motive in approaching the premises was to find a safe place to deposit the child, and that it was only after he arrived that he decided to help himself to items of value at the premises for the purpose of purchasing drugs. The decision to enter the premises for the purpose of stealing was taken at the last minute.
I accept that the second burglary was largely motivated by a desire to obtain a vehicle, but that does not make it any less serious. The offence was a typical burglary, although the motive was somewhat unusual. Fortunately, in relation to the burglary offences (although not in relation to the child abandonment offence) there was nobody home. The burglaries were committed in daylight hours. There was no particular aggravating feature associated with the burglaries.
The aggravated robbery is the most serious matter before the Court as it carries much the highest maximum penalty (25 years’ imprisonment); otherwise the highest maximum penalties relate to the burglary matters (14 years’ imprisonment). In relation to aggravated robbery, the New South Wales decision in R v Henry (1999) 46 NSWLR 346 (Henry) is a guideline judgment in that state. I considered the significance of that decision for the ACT in R v Meyboom (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 14 February 2014). At [19] I observed that, although Henry is not a guideline judgment in the ACT, the analysis in Henry provides some assistance because the decision concerned an appropriate sentence for an armed robbery in what was described as a typical case. I noted at [20] that, in the ACT, sentencing patterns generally disclose range of sentences that is lower than that for similar matters in New South Wales, even where the maximum penalties are similar.
Mr Hopkins provided me with the ACT Sentencing Database statistics for aggravated robbery, which show that sentences are typically in the range of three to five years’ imprisonment and sentences of three to four years' imprisonment are very often imposed.
In this case, the aggravated robbery was not entirely a typical case in the Henry sense. There was no vulnerable victim. The incident occurred during business hours when there were a number of people present in the pharmacy. It was not a case, for example, of the victim working alone and in isolation from others. The weapon was a knife, a typical weapon. There was no evidence that it was brandished in any particularly menacing way, nor was there evidence of verbal threats or actual or attempted violence. There was minimal planning.
Victim impact
The Court received victim impact statements from Ms T and the pharmacist.
Ms T described her nightmare experience and the deep impression that the experience has left upon her. She has since suffered from extreme depression and anxiety, including severe panic attacks. There has been a very significant financial impact on her family and a dramatic impact on her relationships and general lifestyle. Because of the psychological impact, she was unable to cope at work in the short term, and that had a very significant financial impact on her family. All this is in the context that she was acting as a Good Samaritan.
The pharmacist very decently said that, while the incident was traumatic at the time, it has had no ongoing psychological impact beyond a heightened alertness and awareness that such situations may arise. As a health professional he has the background and training that enables him to take a more detached attitude to the incident, for which the offender should be grateful.
Subjective circumstances
The offender is now 28 years of age. He was the victim of intergenerational drug abuse and had a very deprived background.
He had a dysfunctional childhood. His mother was a heroin addict. He lost his mother to a heroin overdose when he was 13 years of age. He remembers her using drugs and attempting to commit suicide before he was eight years of age. From about eight years of age, he was placed in foster homes or with his grandparents. When he was fostered, his parents separated. He has not seen or heard of his father since that time. Some of the foster placements were less than satisfactory. In one placement, he was introduced to cannabis. He was about 13 years old.
He was schooled to Year 10. Thereafter, he was employed as a labourer until he suffered a significant injury, fracturing his tibia and fibula in a car accident.
He left home at 16 years of age and went to Sydney. At about 18 years of age he moved to Canberra. He was in a de facto relationship for about five years, and there is a two-year-old son of that relationship. The relationship ended about 12 months ago, and the child resides with the parents of his former de facto partner. In the period leading up to the offences he was separated, he was homeless and he was using drugs to a significant extent. He was using drugs heavily in the six month period leading up to these offences.
He has had a polysubstance abuse problem since 13 years of age, including the use of alcohol. He was heroin dependent from about 16 to 19 years of age. He has been on methadone treatment. He has not engaged significantly with drug and alcohol treatment while in custody and he has not yet taken responsibility for his own recovery.
The offender gave evidence that there was a brief period in his life in 2011 when he was subject to a good behaviour order and he led a much brighter and happier life. He was residing with his former de facto partner and her parents, and then with his former de facto partner. He was working as a labourer and earning good money, and it was during that period that his son was born. That period of stability gave him a glimpse into the benefits that can attach to a stable and law-abiding lifestyle. Regrettably, the situation broke down well before the commission of these offences.
The offender read a letter to the Court in which he apologised to Ms T and her family. He said that, as a father, he understands the pain that she would have suffered.
The offender has undertaken courses in custody. He is willing to make recompense to the victim, to the limited extent that he is capable of doing so.
Because of his ongoing problem of polysubstance abuse and for other reasons, he is considered to be at a high risk of reoffending. I accept that he is at high risk of reoffending. Nevertheless, the prospects in that regard are somewhat unclear. He will spend a very significant period in custody, and it is hard, indeed impossible to predict the impact upon him of that time. One simply does not know if or when he will begin to properly engage with programs and acquire the skills that may enable him to live a law-abiding lifestyle upon his release.
His criminal history, while quite extensive, does not contain matters as serious as the most serious matter before me today. The volume of matters that was committed on 20 February does not reflect his prior criminal history. There are matters on his criminal history for assault and theft, and a burglary matter. There is also a robbery in company, but that was committed many years ago and did not result in a significant penalty. There are other minor matters of dishonesty. As far as I can understand it, in the past the offender has spent about four short periods in custody, each comprising a few months. This will be his first significant period in custody.
In sentencing the offender I am required to have regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Different sentencing purposes apply to different offences before the Court, but general deterrence is a very relevant sentencing objective relating to most of the matters, as are punishment, accountability and denunciation. Denunciation is particularly significant in relation to the abandonment matter and the associated dishonest taking of the motor vehicle.
Rehabilitation is important. While one cannot say with any degree of certainty that the offender is capable of rehabilitation, nor can one say with any certainty that he is incapable of rehabilitation. It is to be hoped that, with adequate support, the offender will achieve rehabilitation. The Court is required to take into account the relevant considerations in s 33 of the Sentencing Act. I believe that I have referred to most of them. Remorse was referred to in submissions. I accept that the offender is remorseful in relation to the offences generally, but specifically in relation to the offences involving the child abandonment and the taking of Ms T's motor vehicle.
Because of the early pleas, it is appropriate that a 25 per cent discount be applied to the sentences that would otherwise have been imposed. The discount recognises the high utilitarian value of the pleas and also takes account of the other matters referred to in s 35 of the Sentencing Act.
I record a conviction for each of these matters, and I impose the following sentences.
(a)For offences 5 and 6, the two matters involving use of the Visa card to obtain property by deception, being alcohol and cigarettes, in each case I sentence the offender to one month of imprisonment. Those sentences will be served concurrently from 20 June to 19 July 2014.
(b)For the 2013 offence of property damage, the starting point for the sentence is 12 months’ imprisonment, less 25 per cent is nine months’ imprisonment, and that sentence will run from 20 July 2014 to 19 April 2015.
(c)For the offence of child abandonment, the starting point for the sentence is two years’ imprisonment, less 25 per cent is 18 months' imprisonment, and the sentence will run from 20 December 2014 to 19 June 2016.
(d)For the offence of dishonestly taking the silver Mazda belonging to Ms T, the starting point for the sentence is three years and six months’ imprisonment, less 25 per cent is two years and eight months imprisonment, and the sentence will run from 20 September 2015 to 19 May 2018.
(e)For the offence of burglary at the first Palmerston address, the starting point is two years' imprisonment, less 25 per cent is 18 months’ imprisonment, and the sentence will run from 20 September 2016 to 19 March 2018.
(f)For the associated offence of theft, the starting point is 16 months' imprisonment, less 25 per cent is 12 months’ imprisonment, and the sentence will run from 20 September 2016 to 19 September 2017.
(g)For the offence of burglary at the second Palmerston address, the starting point is two years and eight months’ imprisonment, less eight months is two years’ imprisonment, and the sentence will run from 20 April 2017 to 19 April 2019.
(h)For the associated offence of theft of motor vehicle, the starting point is 16 months' imprisonment, less 25 per cent is 12 months' imprisonment, and the sentence will run from 20 April 2017 to 19 April 2018.
(i)For the offence of aggravated robbery, taking into account the matter on the schedule, the starting point is four and a half years' imprisonment, less 14 months, or about 25 per cent, is three years and four months' imprisonment, and the sentence will run from 20 January 2018 to 19 May 2021.
The offender will be imprisoned from 20 February 2014 (although that is not the commencement date mentioned in any of the sentences) to 19 May 2021, a period of seven years and three months. The total period of imprisonment for these offences is 6 years and 11 months, from 20 June 2014 to 19 May 2021.
Taking into account the remorse the offender has expressed and the fact that he has not previously served a significant sentence of imprisonment, I consider that an overall nonparole period of a little less than 60 per cent is appropriate. I fix a nonparole period of four years and three months from 20 February 2014 to 19 May 2018. The offender will be eligible for release to parole on 20 May 2018.
For each of the two transferred matters of drive whilst suspended, I impose a fine of $500. In relation to the offence of failing to obey a direction of a police officer, I impose a fine of $1500.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 19 November 2014 |
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