R v Bobbine
[2019] ACTSC 133
•23 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bobbine |
Citation: | [2019] ACTSC 133 |
Hearing Dates: | 30 January 2019 and 23 May 2019 |
DecisionDate: | 23 May 2019 |
Before: | Mossop J |
Decision: | See [22] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – make a demand with threat – aggravated robbery – actual use of force against victim – disparity in age and size between victim and offender – sentencing of four co-offenders – intimidatory effect of co‑offenders in a group – offending conduct recorded – good prospects of rehabilitation – sentences fully suspended – imposition of good behaviour order – reparation order |
Legislation Cited: | Criminal Code 2002 (ACT), ss 310, 403 |
Cases Cited: | R v O’Connor [2019] ACTSC 132 The Queen v Campbell [2010] ACTCA 20 |
Parties: | The Queen (Crown) Caleb Bobbine (Offender) |
Representation: | Counsel P Dixon (Crown) J Stewart (30 January 2019) S Boxall (23 May 2019) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Number: | SCC 81 of 2018 |
MOSSOP J:
Introduction
Caleb Bobbine has pleaded guilty to one count of aggravated robbery (CC2018/4902), contrary to s 310 of the Criminal Code 2002 (ACT). He has also asked the court to take into account a charge of property damage contrary to s 403 of the Criminal Code. The maximum penalty is imprisonment for 25 years imprisonment or a fine of up to 2000 penalty units or both.
In sentencing the offender I have taken into account the property damage charge in the manner required by The Queen v Campbell [2010] ACTCA 20 at [42]-[53].
Facts
I have set out the facts relating to the aggravated robbery charge and the property damage charge in my reasons in R v O’Connor [2019] ACTSC 132.
Count 2
6.On 20 November 2017, KE was at a residence in Belconnen with three of his friends including the second victim of the offending conduct, who I will refer to as CC.
7.At about 5:45pm, CC asked to borrow KE’s bike to drop off one of the other friends at the bus interchange. He wanted the bike in case he saw Mr O’Connor, UB or Mr Bobbine so that he would be able to get away more quickly. KE lent him his bike. At around 6.00pm, CC and the other friend arrived at Belconnen bus interchange and sat out in one of the bus shelters. CC had the BMX bike with him. Soon after, he was approached by Mr O’Connor and UB. Mr O’Connor told CC that KE owed them money and that he and UB were going to take the bike as “collateral”. CC told them that it was not his bike to give away. Mr O’Connor did most of the talking during this interaction.
8.The friend who CC had accompanied to the bus stop, boarded a bus and left during this conversation. He communicated with the other friend, who I will refer to as KU, who had been with CC and KE at the house. He told KU that he had seen a group walking towards CC. KU then told his mother who drove to the mall to look for CC. KU and KE set out on foot with the same intention.
9.In the meantime, Mr Bobbine, Mr Westbrook and two unknown females approached CC, Mr O’Connor and UB. Mr Bobbine was almost 21 years old at the time. Mr Westbrook had just turned 18. At this time CC was seated alone in an enclosed bus shelter in the middle of the bus interchange. Mr Bobbine sat on his left, Mr Westbrook sat on his right. CC was told that they were going to take the bike and if he resisted they would bash him. Mr O’Connor took the lead in this discussion. His co-offenders were demanding and aggressive during the conversation. CC felt that he would be physically assaulted one way or the other and did not believe that he could escape by riding away. CC attempted to negotiate with the offenders as he did not want to willingly surrender the bike. He knew the bike had been given to KE by his deceased father. CC agreed to a proposal that he would fight for the bike and if he won he could keep the bike. CC believed that he would only be fighting with one person, namely UB.
10.Mr O’Connor then took the bike and CC the other offenders and the two unknown females went to a rear walkway behind the Hoyts Cinemas. This area was chosen because it was not covered by closed circuit television (CCTV) cameras. There, CC had individual fights with UB, Mr Westbrook and Mr Bobbine. The fights were filmed by Mr O’Connor and Mr Westbrook. The films taken on Mr O’Connor’s phone were tendered. They showed the nature of the fights. UB fought first with CC. UB struck CC in the face numerous times. UB was ultimately struck in the throat by CC. He became tired and pulled out of the fight. Contrary to CC’s expectation, other members of the group then fought him. Mr Westbrook, who had one arm in plaster, fought with CC. He struck CC in the face before becoming tired and pulling out of the fight. Mr Bobbine then fought with CC. He was obviously significantly taller than CC. He struck CC in the face multiple times. CC told Mr Bobbine to stop the fight and said that they could have the bike.
11.Mr O’Connor took the bike. CC was told that if KE paid them $100 then they could get his bike back. The offenders then walked away and entered Westfield Belconnen. During this period UB rode the bike, Mr O’Connor pushed the bike and Mr Bobbine pushed and sat on the bike.
12.After the fights, CC felt dizzy and lightheaded. His face was swollen. He had a cut on his cheek and a chipped tooth. He went back to the bus interchange and into the mall. He was accompanied by two acquaintances. He saw KE and KU and told them what had happened. KU’s mother also found them. She called police and an ambulance. In the meantime, the offenders parted ways with Mr Bobbine who pushed the bike towards the mall carpark.
13.At about 6:40pm, Mr O’Connor and UB approached some seats outside the Target store in the mall where KE and two others were standing. KE asked Mr O’Connor and UB about his bike. Mr O’Connor falsely denied knowing anything about it. Soon after, CC approached them with KU’s mother. She filmed Mr O’Connor and UB for identification purposes. Mr O’Connor and UB subsequently left the area. Police attended and spoke to KE and CC who advised what had happened. KU’s mother took CC to Calvary Hospital.
14.It is this conduct which give rise to the charges against Mr O’Connor, UB and Mr Bobbine that they jointly committed aggravated robbery and the charge against Mr Westbrook that he aided abetted the aggravated robbery. In relation to Mr Westbrook, he pleaded guilty on the basis that he intended to commit an assault, that the commission of the assault in fact aided and abetted the commission of the theft by the other three and that he was reckless about the commission of the theft.
Property damage
20.There is also a charge of property damage which Mr Bobbine asks to be taken into account in relation to the sentence for aggravated robbery.
21.In relation to that charge, Mr Bobbine took the stolen BMX bike to his home in Giralang on the evening of 20 November 2017. On 29 November 2017, police executed a search warrant at Mr Bobbine’s house. The BMX bike was found in a shed at the property and seized. Between 20 November 2017 and the time of its seizure, Mr Bobbine had pulled apart the stolen bike and replaced some of its parts. On 30 November 2017, KE and CC both identified the bike seized from the shed as the stolen bike. The bike had been significantly damaged since it had been taken on 20 November 2017. There was damage to the paintwork, the stickers and the handlebar grips. The bike had been pulled apart and several parts including the wheels and chain had been replaced. The cost of returning the bike to its original condition was estimated at $1488.39.
22.The conduct of Mr Bobbine gives rise to the charge of property damage contrary to s 403 of the Criminal Code which is a scheduled offence in relation to the principal offence of aggravated robbery. The penalty for a contravention of s 403 is imprisonment for 10 years or 1000 penalty units or both.
Objective seriousness
The objective seriousness of the aggravated robbery charge is affected by the overall circumstances of the robbery, as well as the extent of Mr Bobbine’s participation in that robbery. So far as the agreed facts disclose, Mr Bobbine was not initially involved in the interaction with CC at the bus interchange but joined in by sitting next to the victim so as to cooperate with Mr O’Connor and UB in intimidating him. He then participated in the fighting as the third combatant on the robbers’ side until CC indicated that he would not resist their attempts to take his bike. His conduct is made more serious because he was older and taller than the victim and only joined in after the victim had fended off his two previous opponents. As indicated in my reasons in R v O’Connor, I assess the aggravated robbery as being at the lower end of the mid range of objective seriousness for the offence and I treat the offender’s culpability as being somewhat less than Mr O’Connor’s but equivalent to that of the other offenders.
Victim impact statement
A victim impact statement was prepared by CC and read to the court. I summarised the content of it in R v O’Connor and I take that statement into account in sentencing Mr Bobbine.
23. A victim impact statement prepared by CC was read to the court by counsel for the Crown. The court is obliged to consider the victim impact statement in deciding how the offender should be sentenced: see Crimes (Sentencing) Act 2005 (ACT), s 53. CC had known the offenders since about early 2016. He had previously been harassed and bullied (although the statement does not indicate that this was by the offenders). He had previously moved school in order to avoid bullying. He had been proud to do well at school and obtain his Year 10 certificate. He described that during the fighting he felt threatened, feared for his life and thought he would end up dead. He was sore and upset and embarrassed at the loss of the bike which had been lent to him. He feared what would happen to him in the future. The incident brought up past bullying traumas for him. Since the incident, he has suffered from fear and anxiety when out in Belconnen and elsewhere. He has seen the offenders around and tries to avoid being in places that they frequent. As a result of the assaults, he suffered two chipped front teeth, bruising to his face, chest and neck and concussion that caused him nausea affecting his speech, balance and motor skills for several days.
24. The victim impact statement is consistent with what one would expect from such a violent, bullying, standover exercise. CC however appears to have been more vulnerable to significant consequences from the incident as a result of his previous history of being bullied. I have taken into account the statement in deciding how Mr O’Connor and the other offenders should be sentenced.
Subjective circumstances
Mr Bobbine gave oral evidence about his personal circumstances. He was born in 1996 and at the time of the offending was a few days short of his 21st birthday. He is presently 22 years old.
He was born in Cooma and lived there until the age of 11. He then lived in other country towns before coming to Canberra where he completed Year 12. He has a previous conviction for assault occasioning actual bodily harm.
At the time of the offending conduct, he was living in a share house in Giralang which he described as a “party house”. He was using illicit substances and barely working at all. From his current perspective he would describe himself at the time as being “a horrible person”.
At the time of sentencing submissions, he was employed as a signwriter. A reference from his employer attests to him becoming a valued employee during the months where he has been employed there. He was studying part-time at the University of Canberra doing a Bachelor of Writing and Bachelor of Business with the intention of working in journalism. It is not clear how this relates to the statement in the reference from his mother that he has started a course to become a qualified psychologist. However, the obtaining of tertiary qualifications is clearly a positive sign.
At the time that sentencing submissions were made his partner was just about to give birth. The letter from his mother and from his friend Steven de Smet both attest to the positive effect that his partner’s pregnancy had upon him. However, tragically, following the adjournment of the proceedings the child was stillborn. Following that, he and his partner have separated.
He said that he had put money away to compensate KE for the damage to his bicycle and at the time of the sentencing submissions identified an amount of $800 as being available for that, although he intended to pay the whole amount identified in the evidence.
He described the time that he had spent in the Alexander Maconochie Centre, a period of 13 days, as being a “wake-up call”.
Prior to the events in question, Mr Bobbine’s evidence was that he had not met CC. He described his decision to be involved as a spur of the moment one. His relationship with the other offenders and why he was prepared to cooperate with them was not clear.
He was referred to, and participated in restorative justice. He participated in a restorative justice conference with the victim of the aggravated robbery.
He has been assessed as suitable for community service work.
Criminal history
He has a conviction for assault occasioning actual bodily harm committed in July 2016. He was subject to a good behaviour order imposed as part of a suspended sentence for that offence. At about the same time, he also committed the offence of affray in New South Wales for which he was given a bond of 12 months. The bond contained conditions relating to participation in a program related to anger management. His evidence in relation to the assault was that he had punched a person at a Flip Out which I understand is a trampolining activity centre of some sort. He pleaded guilty to that offence.
Plea of guilty
The offender’s trial was set to commence in the week commencing 19 November 2018. On 14 November 2018, he pleaded guilty on an indictment which included only the aggravated robbery charge. Prior to that the indictment had included a charge of assault as well as the damage property charge which has now been scheduled. The plea of guilty was a late one but still had utilitarian value. I will allow a discount of 10% on account of the plea of guilty.
Consideration
As indicated in my reasons in R v O’Connor, the aggravated robbery involved a serious exploitation of violence and power over an individual. So far as the offenders were concerned, it had about it the characteristic of violent sport. Mr Bobbine’s involvement was less than that of Mr O’Connor. It was not premeditated, but there was plenty of opportunity for him to cease his involvement and to choose not to engage in the physical fight. His conduct in fighting CC was made more serious by the fact that he joined in after the others had worn down CC in circumstances where he was older and significantly taller than CC.
The offender has clearly made considerable progress in his life. He appears to be motivated to do something with his life. He has enrolled at university and the evidence indicates that the prospect of fatherhood had a salutary effect. The experience of potential fatherhood and then loss of the child is one which the evidence discloses was an unfortunate life experience which is likely to have given Mr Bobbine a different perspective on the world and reduced the likelihood of further offending conduct in the future.
So far as the significance of the scheduled offence is concerned, he has consented to the making of a reparation order. However as indicated in Campbell, the scheduled offence warrants an increase in the significance of personal deterrence and the entitlement of the community to punish the offender.
The appropriate starting point on the aggravated robbery charge is a sentence of imprisonment of 14 months reduced to 12 months and 15 days on account of the plea of guilty. The sentence will be backdated to take into account the 13 days spent in custody. I consider it appropriate to suspend the sentence from today upon entry into a good behaviour order which includes a period of community service. I will make the reparation order which was consented to.
Orders
On the charge of aggravated robbery:
1.The offender is convicted and sentenced to 12 months and 15 days imprisonment commencing on 10 May 2019 and ending on 25 May 2020.
2.The sentence is to be suspended forthwith upon the offender entering into an undertaking to be of good behaviour for a period of 12 months, which in addition to the core conditions, is to be subject to the following additional conditions:
a) That he be subject to supervision during the whole of the period or such lesser period as determined by the Director-General.
b) That he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General.
c) That he supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing as required by a corrections officer.
d) That he perform 100 hours of community service.
e) That he comply with the reparation order made today.
3.A reparation order requiring the offender to make reparation to [KE] by payment of the sum of $1488.39, such payment to be made to the Registrar of the court for payment out to [KE] of [redacted for legal reasons].
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 31 July 2019 |
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