R v Carpenter
[2018] ACTSC 356
•31 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carpenter |
Citation: | [2018] ACTSC 356 |
Hearing Date: | 26 October 2018 |
DecisionDate: | 31 October 2018 |
Before: | Burns J |
Decision: | See [18] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by way of joint commission – plea of guilty – plea at late stage – involvement significantly less than co-offender |
Legislation Cited: | Criminal Code 2002 (ACT) ss 310, 45A |
Parties: | The Queen (Crown) Kylie Carpenter (Offender) |
Representation: | Counsel Mr J de Bruin (Crown) Ms K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Alliance Legal Services (Offender) | |
File Number: | SCC 42 of 2018 |
BURNS J:
Kylie Carpenter, on 17 October 2018 you pleaded guilty to an offence of aggravated robbery by way of joint commission pursuant to ss 310 and 45A of the Criminal Code 2002 (ACT) (CC2017/10656). At the time, the matter was listed for trial to commence on 22 October 2018. As such, the plea came at a very late stage although I accept that it was a result of some negotiations between the parties. I will nevertheless accept that it had utilitarian value and I also accept that it demonstrated a degree of remorse on your part. I will reduce by approximately 10 per cent the otherwise appropriate sentence in order to reflect your plea of guilty with respect to the matter.
On 21 September 2017 at about 10.42 am you and your co-offender attended the Anaconda store on Iron Knob Street in Fyshwick. For about 20 minutes both you and your co-offender walked around the store browsing and picking up items including several clothing items. At times you and your co-offender were together, at other times you were in different parts of the store from each other.
You and the co-offender went to the knife section. The co-offender picked up a number of knives including a ‘Tactical’ brand hunting knife. You were unaware that he had picked up any knives until later in the afternoon. You then browsed the store separately from your co offender and you picked up various items.
At about 10.42 am you and your co-offender both walked towards the exit sliding doors at the front of the store. Both of you walked past the cash register without making any attempt to pay for the items that you were carrying. You walked behind your co‑offender. You were carrying clothing and other items in your left hand. Your co‑offender was carrying an Anaconda shopping basket in his right hand and the basket was filled with clothing and other items.
As your co-offender walked past the cash registers he removed his left hand from the left side of his jumper pocket and was carrying a knife. The co-offender had taken the knife from the store. The acting store manager was standing at the cash registers at the front of the store near the exit sliding doors. Your co-offender pointed the knife at the acting store manager and told her to "fuck off" before he continued walking towards the exit doors. He continued carrying in his right hand the Anaconda shopping basket filled with items.
Meanwhile you were behind the co-offender, to his right, walking towards the exit sliding doors still carrying in your left hand items you had taken from the store. As you were walking behind the co-offender you did not see that the co-offender had a knife or had produced a knife. One of the employees within the store approached both you and your co-offender to try to stop you from leaving the store with unpaid items. Your co-offender continued to hold the knife in his left hand and he pointed the knife at the employee and threatened him by saying, "[d]on't try anything". Not unnaturally, the employee felt afraid.
You were near but behind your co-offender when he threatened the employee with the knife. You heard the co-offender say, "Don't touch me". You saw the co-offender pull out something and later that afternoon you learned that it was a knife. The two of you then left the store carrying a quantity of clothing, knives and other items. There is no value given for that property in the Statement of Facts.
On 25 September 2017 you participated in a record of interview with police. You made admissions in relation to taking the goods and to being aware that the co-offender had a knife with him before the two of you went into the store. However it appears that you were not aware of the fact that the co-offender had taken a knife and threatened the staff members with the knife until later that afternoon.
The plea as I understand it has been put forward on the basis that you knew that there was a possibility that your co-offender would use a knife in the course of stealing these items from the store. Nevertheless it is important to acknowledge, in determining the objective seriousness of the offence to which you have pleaded guilty, that your involvement was significantly less than that of your co-offender.
10. I note that you are 30 years old and you have four children the youngest of whom is currently only approximately four months old. You are currently breastfeeding that child despite the fact that you are currently in custody. Apparently your youngest child is brought to the AMC each day so that you may interact with your child and also breastfeed.
11. The material before me which has not been challenged by the Crown states that you witnessed domestic violence as a child and you were also subject to it as a teenager and young adult. You have also struggled with drug and alcohol issues since your teenage years. You have a significant criminal history such that you are not entitled to any leniency with respect to sentencing in the present matter because of your prior history.
12. I note however that the material before me establishes that since you have been in custody you have engaged in programs and with organisations including ACT Community Services to address drug and alcohol issues and also to enable you to be a good mother to your children when you are released from custody. I also accept that you have for some time now demonstrated through urinalysis that you have ceased using illicit drugs.
13. In my opinion you have taken significant steps towards rehabilitation and I am satisfied that your present prospects for rehabilitation are good. Of course you will need to demonstrate an ability to maintain that commitment to avoiding drug and alcohol abuse and also associations which are likely to lead you into committing offences once you are released from custody.
14. I note that arrangements to bring your youngest child to the AMC, as I have indicated has occurred daily up to this point, will not be able to continue after 1 November 2018. As such there is a risk that your relationship with your youngest child will suffer if you are sentenced to a significantly longer period of imprisonment.
15. You first appeared before the Magistrates Court with respect to this charge on 26 September 2017. I note that you were on bail at the time of the commission of this offence which of course is an aggravating circumstance. You have been remanded in custody on this matter since 25 September 2017. You appeared before Special Magistrate Cush on 20 December 2017 in relation to unrelated matters and his Honour sentenced you to a term of imprisonment commencing 27 December 2017 and ending 19 September 2018.
16. I note that your co-offender pleaded guilty to his involvement in this offence and was sentenced in this court on 30 January 2018. He was sentenced to 18 months' imprisonment. The sentencing Judge allowed a discount of 25 per cent for an early plea of guilty such that the starting point with regard to that particular offence was a period of two years' imprisonment.
17. Bearing in mind your lesser involvement in this particular offence my starting point is 18 months’ imprisonment. I will reduce that by two months in order to reflect your plea of guilty. That leaves a sentence of 16 months' imprisonment.
Sentence
You will be sentenced to 16 months' imprisonment which I will commence on 20 January this year, 2018, and it will expire on 19 May 2019. The period from 20 January 2018 until yesterday, 30 October 2018, is to be served by way of full-time custody. The balance of that sentence will be suspended and there will be a good behaviour order for a period of two years from today with conditions:
(a)firstly, that you are to accept the supervision of the Director-General and you are to obey all reasonable directions of the Director-General or that person's delegate for that period of two years or such lesser period as your supervisor directs;
(b)secondly, you are to undertake such counselling or treatment for alcohol or drug abuse as directed by the Director-General or that person's delegate; and
(c)thirdly you are to undertake urinalysis as directed by the Director-General or that person's delegate.
[Speaking directly to offender]
19. That means that with respect to these matters or this matter, this present charge, I have imposed a sentence of 16 months' imprisonment part of which was to be served by way of full time custody. That part finished yesterday, 30 October 2018 so that the balance is suspended and there is a good behaviour order commencing today for a period of two years.
| 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: 15 February 2019 |
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