R v Boardman
[2019] ACTSC 128
•25 January 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Boardman |
Citation: | [2019] ACTSC 128 |
Hearing Date: | 21 January 2019 |
DecisionDate: | 25 January 2019 |
Before: | Burns J |
Decision: | See [21]-[24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – plea of guilty – on conditional liberty – resentence – substantial criminal history – drug abuse – need for specific deterrence – need to demonstrate the community’s disapproval of this type of offending behaviour |
Legislation Cited: | Criminal Code 2002 (ACT) s 310 |
Parties: | The Queen (Crown) Matthew Charles Boardman (Offender) |
Representation: | Counsel S McFarland (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 244 of 2018; SCC 141 of 2016 |
BURNS J
Matthew Boardman, you have pleaded guilty to an offence of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT). The maximum penalty for the offence is 25 years' imprisonment, a fine of $375,000 or both.
On 21 July 2018 you appeared before the Magistrates Court on the first occasion in relation to this charge, and bail was refused. On 14 August 2018 you made a further bail application which was also refused. On 14 September 2018 you pleaded guilty to the charge and you were committed for sentence to this Court.
A full Statement of Facts has been placed before the Court. I will not recite the Statement of Facts. It is sufficient to note that on 20 July 2018 the victim withdrew $800 from an ATM. You approached the victim with an uncapped syringe containing a red liquid and demanded that he provide you with the money, and the victim gave you the $800. You were subsequently located in a nearby club. As I understand it, you say that the money was used partially to gamble on poker machines but also in order to obtain heroin.
It is accepted that the offence of aggravated robbery is a very serious offence. The maximum penalty provided for the offence demonstrates this fact. The fact that you were on conditional liberty is a significant aggravating circumstance.
The amount of money stolen was significant and the incident was undoubtedly frightening for the victim. There was a limited degree of planning involved. The victim, who was using an ATM late at night, was vulnerable. I accept that the duration of the incident was relatively short and that it was opportunistic. The Crown has submitted that this is essentially a typical aggravated robbery, an assessment with which I agree.
I note that you are 44 years old. You have a very lengthy and substantial criminal history. You have multiple prior convictions for offences of violence and dishonesty. In 2007 you were sentenced to terms of imprisonment in this Court for offences of robbery. On 28 July 2017 I sentenced you to 18 months' imprisonment for an offence of arson, of which 12 months and 20 days was suspended with a Good Behaviour Order for a period of 18 months, and with conditions directed towards addressing mental health issues and drug abuse.
The present offence was committed close to 12 months after the offender entered into the Good Behaviour Order. Your prior criminal history not only disentitles you to any leniency in sentencing for the present offence but it also speaks of the need for specific deterrence and the need to protect the public.
I accept that your plea of guilty was an early plea. It was entered in the Magistrates Court on the fifth mention and you were committed for sentence. Whilst the Crown case was strong, it was not overwhelmingly so. I propose to reduce the otherwise appropriate sentence by 25 per cent in order to reflect your plea of guilty.
The Pre-Sentence Report prepared for the sentence hearing notes that your past response to Corrections' supervision has been inconsistent and generally unsatisfactory. Your behaviour in your present period of remand has been described as generally satisfactory.
You had a difficult and unsettled upbringing. You have two children who live in the ACT with whom you have limited contact. You appear to have little family or other support in the community. This is largely due to your mental health and your ongoing drug abuse. You apparently have some prosocial acquaintances that you have met through church and rehabilitation programs.
You have a longstanding history of drug abuse. You reported using a gram of heroin a day at the time of this offence. I note that you have been given multiple opportunities in the past to address your drug addiction but these have been largely unsuccessful. It is in your favour that in 2013 and into 2014 you completed the program at Canberra Recovery Services over a period of 249 days, however, it appears clear that you subsequently relapsed into drug abuse. I also note that during your present period in custody you have successfully weaned yourself off methadone.
You also have a history of mental illness. You have been the subject of multiple diagnoses including depression, anxiety, schizophrenia and schizoaffective disorder. You have been prescribed medication but you do not always comply with your medication regime. The continued use of illicit drugs has complicated your treatment.
On 15 July 2018, five days before this offence, you were voluntarily admitted to the Canberra Hospital, presenting with depression in the context of having ceased taking your prescribed medication combined with daily heroin use. You were discharged on 17 July 2018. At the time of your discharge you were described as oriented in person and place, and insightful into your depressive episode.
There is nothing in the material before me to suggest that your mental illness was a contributing factor to the commission of the present offence such that your moral culpability would be diminished. There is also no suggestion that the Verdins principles are otherwise engaged.
Through your counsel you expressed a willingness to address your drug addiction by attending a residential rehabilitation program in Queensland. Unfortunately, you have expressed similar intentions in the past but you have not always maintained your commitment whilst in a non-custodial setting. I presently can have little confidence that you would complete such a program if you were released at this time.
Your prospects for rehabilitation, in my opinion, are guarded. You are only likely to avoid further criminal offending if you cease illicit drug use and comply with your prescription medication regime. You have proven unwilling, to this point, to address either of these issues consistently. Until you do so you remain at high risk of offending and present as a serious danger to the community.
I note your success in ceasing methadone whilst in the AMC which demonstrates that you are still working towards drug rehabilitation. That is a matter which I take into account in your favour, however, your ability to retain your commitment to drug rehabilitation in the community is still problematic.
I take into account the contents of the testimonials that were put before me. It is clear from that material that you have the capacity to be a good person and to contribute, to some extent, to the community.
I accept that you have demonstrated remorse with respect to this offence and have also demonstrated a degree of victim empathy. It is a matter that I give significant weight to that you have participated in a Restorative Justice Process with respect to this offence and, ultimately, reached a conclusion with the victim.
I am satisfied that nothing less than an immediate term of imprisonment will be adequate to address the sentencing considerations with respect to this matter. The predominant sentencing considerations are general and specific deterrence and the need to demonstrate the community's disapproval of this type of offending behaviour.
I record a conviction on the charge of aggravated robbery and you are, therefore, in breach of the Good Behaviour Order that I imposed on 28 July 2017. I will cancel that Good Behaviour Order. The options which I have are, therefore, to either impose the part of the sentence that was suspended or to resentence you. I propose, bearing in mind the period of time that you were subject to the Good Behaviour Order before you committed this offence, to resentence you to a period of six months' imprisonment commencing on 20 July 2018, which was the date that you were arrested and taken into custody, and expiring on 19 January 2019.
With regard to the offence of aggravated robbery (CC2018/9225), my starting point is four years' imprisonment. I will reduce that to three years by reason of your plea of guilty. You will be sentenced to three years' imprisonment commencing on 20 January 2019 and expiring on 19 January 2022.
The aggregate sentence which I have imposed is, therefore, one of three years and six months' imprisonment commencing on 20 July 2018 and expiring on 19 January 2022.
I set a non-parole period of two years and two months, commencing on 20 July 2018 and expiring on 19 September 2020.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: |
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