R v Bresnan
[2017] ACTSC 18
•30 January 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bresnan |
Citation: | [2017] ACTSC 18 |
Hearing Date: | 30 January 2017 |
DecisionDate: | 30 January 2017 |
Before: | Burns J |
Decision: | See [16]-[18] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated robbery – offensive weapon –– pleas of guilty – reasonable prospects of rehabilitation – terms of imprisonment imposed. |
Parties: | The Queen (Crown) Ricky Bresnan (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) David Butler Lawyer (Offender) | |
File Number: | SCC 243 of 2016 |
BURNS J:
Ricky Bresnan, you have pleaded guilty to two counts of aggravated robbery. Both of these offences occurred on 18 September 2016 and each involves an aggravated robbery of the BWS store in Bonner in the Australia Capital Territory.
On each occasion you stole alcohol and had an offensive weapon with you. On the first occasion that offensive weapon was a house brick or a paver. It appears to me that there was minimal real risk to the employee of the BWS store who tried to intervene after you had left the store without paying for the alcohol. I would place that offence in the low range of offences of this nature.
On the second occasion, the offensive weapon which you used was a knife. A knife is an implement which is capable of inflicting significant injury and if events had escalated, it is possible that injury may have been occasioned, again to the employee of the BWS store who sought to intervene as you were leaving with the alcohol not having paid for it. I would place that in the low to mid range of offences of that nature.
It was submitted on behalf of the Crown that that offence was aggravated in two ways. Firstly, that you had demonstrated a degree of premeditation by changing your clothes before the second offence and after committing the first offence. With respect to the Crown’s submission in that regard, I do not accept that to be the case. I do not see how a simple change of clothing, such as is revealed by the evidence, can be said to be evidence of premeditation. There was, as I understand it, no attempt to hide your face or anything of that nature.
The second area in which the Crown says there was a degree of premeditation revealed is in the obtaining of the knife. In the absence of any other reason which has been put before me for your possession of the knife at that time, I would have to accept that it has been established by the Crown that that was an element of aggravation. It appears therefore that there was a minimal degree of planning involved in respect of that matter and I take that into account when I pass sentence.
You were arrested on 18 September 2016 and, as I understand it, you have remained in custody since that time. I take into account the contents of the Pre‑Sentence Report that has been put before me. I note that you have a lengthy history of substance abuse, particularly relating to alcohol and also some forms of illicit drugs, such as amphetamines. That history is reiterated in the CADAS report.
I note that you have a criminal history which is a reasonably extensive criminal history, although I do accept the submission made by your counsel that you have not been before the courts since September 2014. This appears to coincide with the evidence which was given on your behalf by Ms Newton, in that since you have been in a relationship with her, you have ceased using illicit drugs and that you have also recognised that you have a problem with alcohol and have taken steps to try to address that.
I also take into account the contents of the Psychological Report which is placed before me. I note that you have been diagnosed with a borderline personality disorder and also an alcohol use disorder in partial remission. The author of that Report has expressed the opinion that these disorders are capable of treatment and, to a great extent, reflect trauma which you experienced in your childhood.
The evidence before me is that you were highly intoxicated at the time that you committed these offences. Ordinarily, the fact that an offender who commits this type of offence is intoxicated does not significantly mitigate the offence. I note, however, that a degree of exception to that general rule is allowed in circumstances where a person commenced substance abuse at an early age, such that they are not to be considered as responsible for substance addiction as somebody who has commenced such abuse at a later age. The evidence before me establishes that you were, to an extent, addicted to the use of alcohol at the time of these offences. In that regard I do note that you were treated for alcohol withdrawal at the time that you were admitted to the Alexander Maconachie Centre.
You are very fortunate indeed to have the continuing support of Ms Newton and also your family. It is heartening that you have attempted, both before you went into custody and since that time, to address issues which are likely to lead to further offending. However, I must say that I am concerned about the contents of the Pre‑Sentence Report concerning your failure to participate in certain programs and, in particular, the alcohol and other drugs First Steps Program, which you commenced on 9 December 2016, but from which you were exited on 7 December last year for failing to attend two sessions of the program, but I do note that that was due to medical issues. I note that you were placed on a waiting list for re-entry to the program. Perhaps of more concern is the fact that the Report indicates that on 19 January this year, you would have commenced the Smart Recovery Program but you failed to attend the first session, so there is still a lingering question about your commitment to these issues.
Bearing in mind all of the evidence, I think you have reasonable prospects for rehabilitation, particularly if you address the psychological issues referred to in the Psychologist’s Report and your drug and alcohol abuse. On the balance of probabilities, I think that you are likely to comply with directions that are given to you in that regard.
I take into account your early pleas of guilty. Your pleas were entered in the Magistrates Court and I am satisfied that they demonstrate a degree of remorse and also have significant utilitarian value. I will reduce by 25 per cent the sentences that I would otherwise have imposed in order to reflect your pleas of guilty.
It has been conceded by your counsel, and I think correctly so, that terms of imprisonment are inevitable with respect to offences of this nature. I will, however, give you an opportunity for early release by setting a shorter than usual non-parole period.
I also take into account your age. Whilst you are no longer an 18 or a 19 year old, at 25 years of age you are still a relatively young man, such that rehabilitation is still a significant sentencing consideration. However, I must pass sentences which also give weight to other sentencing considerations, such as the desirability of deterring others who may be minded to commit this type of offence and also punishing an offender in the way in which the community would expect.
In that regard, it is particularly important to bear in mind the maximum penalties for these offences and I note that the maximum penalty for each of these offences is a term of 25 years imprisonment, a fine of $375,000, or both.
Sentence
With respect to the charge CC2016/9692, you will be convicted and sentenced to two years and four months imprisonment, which I have reduced from three years in order to mark your plea of guilty. That will commence on the date that you were taken into custody, being 18 September 2016 and will expire on 17 January 2019.
With respect to charge CC2016/9691, I will record a conviction and you will be sentenced to 16 months imprisonment, which I have reduced from 20 months in order to reflect your plea of guilty. That sentence will commence on 18 May 2018 and expire on 17 September 2019.
The aggregate period that I have imposed is one of three years imprisonment commencing on 18 September 2016 and expiring on 17 September 2019. I will set a non-parole period of 18 months, commencing on 18 September 2016 and expiring on 17 March 2018.
[Speaks directly to the offender]
Now, Mr Bresnan, you obviously have the capacity to lead a lawful life, to be a useful member of the community, to be a useful member of your family and to support your partner. You have to address the issue of substance abuse, but also perhaps, the underlying issue relating to your mental health in order to be able to do that, otherwise you will simply get yourself into trouble again and again. You will be back before the courts and you will spend most of your time in prison and it is only a question of time then before those who now support you begin to lose hope in your ability to rehabilitate yourself. It is up to you now. You can start that process in custody and then when you are released from custody you will be in a position, a strong position one would hope, to be able to continue that process of rehabilitation.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 17 February 2017 |
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