R v CG
[2017] ACTSC 326
•20 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CG |
Citation: | [2017] ACTSC 326 |
Hearing Date: | 19 April 2017 |
DecisionDate: | 20 April 2017 |
Before: | Mossop J |
Decision: | See [44] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtaining property by deception – joint commission – additional offence to be taken into account –unlawfully possess property that was reasonably suspected of being stolen or unlawfully obtained – guilty plea – assistance to authorities – young offender – no previous convictions |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45A, 310, 324(1), 326 Crimes (Sentence Administration) Act 2005 (ACT), ss 7(1), 133C, 133D, 133G, pt 4.4 Crimes (Sentencing) Act 2005 (ACT) |
Parties: | The Queen (Crown) CG (Offender) |
Representation: | Counsel S Gul (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Numbers: | SCC 289 of 2016 SCC 73 of 2017 |
MOSSOP J:
Introduction
CG, the offender, who is 17 years old has pleaded guilty to:
(a) Two counts of aggravated robbery being an offence of joint commission under s 45A of the Criminal Code 2002 (ACT) (charges CH2016/671 and CH2016/672). The maximum penalty for aggravated robbery contrary to s 310 of the Criminal Code is 25 years’ imprisonment or a fine of $375,000 or both.
(b) Two counts of obtaining property by deception being offences of joint commission under s 45A of the Criminal Code (charges CH2017/272 and CH2017/274). The maximum penalty for obtaining property by deception contrary to s 326 of the Criminal Code is 10 years’ imprisonment or a fine of $150,000 or both.
Additional offences to be taken into account
The offender has also asked the Court to take into account the following additional offence in sentencing her on the offence of aggravated robbery in company (charge CH2016/671), that on 2 November 2016 she unlawfully possessed property that was reasonably suspected of being stolen or unlawfully obtained (charge CH2017/278). The maximum penalty for this offence which is a contravention of s 324(1) of the Criminal Code is six months’ imprisonment, a fine of $7500 or both.
Facts
The facts are set out in a document dated 18 April 2017 which became Exhibit 1. These facts are admitted by the offender.
Aggravated robbery (charge CH2016/671)
At about 8:00pm on 28 October 2016 the offender drove co-offenders DM and Darren Scott to the Australian National University (‘ANU’) in her Kia Rio vehicle. At about 8:15pm Samuel Toyer was approached and punched by DM. Mr Scott took his smart phone. DM demanded his wallet which he did not have. DM and Mr Scott then took Mr Toyer’s backpack and smart phone. Mr Toyer’s backpack contained his laptop computer.
Aggravated robbery (charge CH2016/672)
About 10 minutes later, Nathan Attrill was riding his bike at the ANU near the ANU tennis courts. He was approached by DM and Mr Scott. As Mr Attrill rode past DM and Mr Scott one of them punched him in the mouth knocking him off his bicycle. They demanded his wallet which he gave them. They demanded his phone which, after being kicked, he produced.
Obtain property by deception (charge CH2017 272)
At 8:36pm either DM or Mr Scott used Mr Atrill’s ANZ bank debit card to purchase cigarettes for $19.99 and fuel for the offender’s vehicle in the amount of $30.02. The offender had put the fuel in the car. She then drove the vehicle to a McDonald’s restaurant on Mort Street and she used Mr Attrill’s ANZ bank debit card to purchase $27.95 worth of food.
Obtain property by deception (charge CH2017/274)
At about 10:00pm on Sunday 30 October 2016, Michael Pormida was pushing a shopping trolley containing his groceries along the streets of Belconnen. As he was crossing the wooden bridge near the Lighthouse Pub DM approached him, grabbed him by the jacket and punched him in the face. DM and Mr Scott stole his groceries and a black-coloured backpack including a Lenovo charger, USB mouse, paperwork and a Lenovo I 5-series laptop. At about 10:57pm the offender drove her vehicle into the Woolworths petrol station at Luxton Street Belconnen. DM got out of the car and used Mr Pormida’s debit bankcard to purchase cigarettes using the card’s “pay wave” feature. He then purchased a further packet of cigarettes. At about 10:59pm Mr DM used another debit bankcard from Mr Pormida to pay for 22.97 litres of unleaded petrol that the offender had put into her car. He then also purchased a further packet of cigarettes using the card. This charge relates to the obtaining of property by deception rather than any involvement on the offender’s part in the aggravated robbery of Mr Pormida.
The scheduled charge (charge CH2017/278)
Charge CH2017/278 is a charge of unlawful possession of stolen property. It is included in a schedule, undated but signed by the ACT Director of Public Prosecutions and the offender.
This charge arises because, on 2 November 2016, police attended the offender’s house and executed a search warrant and found the Lenovo charger, USB mouse and paperwork located in the spare-tyre well of her vehicle. These were the items that Mr Pormida had in his backpack. This charge, which is a summary offence, is to be taken into account pursuant to pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT).
Objective seriousness
In relation to the counts of aggravated robbery I assess the objective seriousness of the offender’s conduct in the low-to-mid range. That is because while each of the aggravated robberies is, having regard to the circumstances, extremely serious, her involvement was only as a driver and she had no connection with those features of the offending conduct which made it so serious. She knew that DM and Mr Scott were going to rob people. There is no evidence that she was aware of the precise manner in which the robbery would take place. Her participation was by way of driving the vehicle which made possible each of the robberies. I consider her position to be very different from that of the other offenders: there is no evidence that she initiated the offences, there is no evidence that she was a beneficiary of the robbery other than in the manner disclosed in the obtain property by deception charges.
In relation to the charge of obtaining property by deception (CH2017/272), the objective seriousness is at the low end of the spectrum having regard to the amount obtained and the lack of aggravating features.
Similarly, the charge of obtaining property by deception (CH2017/274) is at the low end of the spectrum having regard to the fact that the offender participated jointly in the offence only by filling her car with petrol. She was not involved in the aggravated robbery which preceded it or the actual use of the stolen bank cards.
In relation to the scheduled charge, this is at the low-to-mid range of objective seriousness having regard to the nature of the stolen goods found in her possession.
Discount for plea of guilty
The offender pleaded guilty at or close to the earliest opportunity. She also made admissions to police when they executed a search warrant at her residence. In my view she is entitled to a discount of 25 per cent on the custodial sentence that I would otherwise have imposed. I have also taken into account her plea of guilty in determining how her custodial sentence should be served.
Subjective circumstances
The circumstances of the offender are set out in a Pre-Sentence Report dated 25 January 2017. The offender was born in 1999 and is now 17 years old. She has no prior criminal history. Her parents are separated. She lives with her paternal grandmother. She has a younger brother and an older stepsister. She and her younger brother live with her paternal grandmother. Her older sister resides with her mother, whose whereabouts as at the date of the Pre-Sentence Report were unknown, but who was present in court during the sentencing submissions. Her father lives separately. The family history has involved a number of interventions by the Child and Youth Protection Services section of the ACT government. Her grandmother has provided a source of security and stability. The offender has lived with her since she was two years old. Her mother has had, in the past, an unsatisfactory relationship with her and appears not to have taken steps to maintain a secure relationship with her daughter.
The offender has partially completed Year 11. She could not be assessed for a number of subjects due to her poor attendance. When she did attend she was polite and applied herself to her work. Notwithstanding her poor attendance she has been permitted to proceed to Year 12 and hopes to obtain a form of modified Year-12 certificate.
Documentation prepared by a school psychologist indicates that she has been assessed as having a mild intellectual disability. The psychologist reported her deficits in intellectual functioning to mean that she has difficulty assessing the consequences of her own actions and decisions. It also records that she was easily led by other students and her judgment was observed to be influenced by others.
The offender told the author of the Pre-Sentence Report that she wishes to obtain her Year-12 certificate. Her grandmother reported that she began truanting from school last year and had never behaved like that before until other students who truant had persuaded her to join them. The offender also mentioned that she had been bullied at school.
As at January 2017 she had organised a gardening position with her father’s employer and intended to complete her Year-12 certificate after hours. That situation subsequently changed and she is now enrolled in Year 12 full-time. She also had made some enquiries as to the qualifications necessary for a traffic-controller’s position. She has been employed in the retail industry since the age of 15.
She does not have an adverse drug or alcohol history.
Many of her peer associations are negative because her best friends are the co‑offenders and the rest of her friends are involved in antisocial activities. This is assessed as creating a significant risk for further offending.
She is identified as having risks arising from her personality and behaviour because of her short attention span and tendency to act impulsively without thinking things through.
She reports being absolutely ashamed for having become involved in the offences. However, her grandmother reported that she had recently been refusing to follow her directions. As a consequence she was assessed as having a moderate risk in relation to her attitudes and orientation.
The Pre-Sentence Report author considered that there may be some utility in restorative justice so far as the offender is concerned but given that she had no contact with the victims of the robberies it may not be considered beneficial for the victims.
She has not been assessed for suitability for community service work because of the fees involved in getting a medical assessment.
The Pre-Sentence Report makes recommendations in relation to the contents of any Good Behaviour Order suggesting, in particular the utility of completion of a program referred to as CHART, Changing Habits and Reaching Targets, a cognitive behaviour program which explores the level of risk involved in a young person’s thinking.
Other evidence
The offender tendered and I have taken into account:
(a) a letter from a learning support teacher at her school dated 9 December 20,16 in relation to her prospects at secondary school;
(b) a letter from the offender’s mother dated 24 January 2017;
(c) a letter from Kim Munro who has known her for a period of 13 years; and
(d) a reference from Shakira Reinpacher, the wife of a relative of the offender’s, who has known the offender for a period of 10 years.
These documents emphasise the point made in the Pre-Sentence Report that the offender is easily influenced by others and hence her association with antisocial persons can readily have adverse effects on the choices that she makes.
Assistance to authorities
Having admitted the facts set out in the Statement of Facts that became Exhibit 1 she also gave a written undertaking to confirm the accuracy of the facts in a taped record of conversation with the AFP and to give evidence at the trial of the co-offenders consistent with the facts that she has admitted.
There are five reasons why the offender in the present case is entitled to the benefit of significant leniency:
First, she is a young offender and the provisions of the Crimes (Sentencing) Act make it clear that a particular approach is to be adopted. Section 133C requires the Court to consider and must give more weight to promoting rehabilitation than it gives to any other purpose in s 7(1). Section 133D requires the Court to consider her culpability having regard to her state of maturity, state of development and family circumstances. Section 133G provides that if a young offender is sentenced to imprisonment then that must be a last resort and for the shortest appropriate term. The Court must consider a combination of imprisonment plus a Good Behaviour Order and supervision.
Second, she pleaded guilty at a very early stage.
Third, she has no previous convictions.
Fourth, her intellectual capacity and friend group is such that I accept that she has fallen-in with the wrong crowd and has been significantly influenced by the persons with whom she associates. While with an adult one might say that if you lie down with dogs you get up with fleas, with a young person greater recognition must be given to the fact that people are more susceptible to the influence of others and hence should be given the opportunity to establish themselves with law-abiding peers who are less likely to lead them astray.
Fifth, she has given an undertaking to provide assistance to law enforcement authorities in proceedings in relation to the offences alleged to have been committed by DM and Mr Scott.
The offences of aggravated robbery are, however, extremely serious offences. The circumstances of the two offences are of the type of lawlessness and violence that law-abiding citizens would not expect to occur in this day and age. While her role in the offending conduct was at the periphery rather than the centre of the offending conduct, for the purposes of sentencing in s 7(1), even as qualified by s 133C, the magnitude of the maximum penalty and the objective gravity of the offences indicate that no sentence other than a sentence of imprisonment is appropriate. However, having regard to the factors that I have referred to above, and the requirements of s 133G, I consider that it is appropriate to only impose a modest sentence of imprisonment on each of those charges and to wholly suspend those sentences. In my view, the suspension of the sentences in combination with a Good Behaviour Order with a supervision condition will provide, consistently with s 133C of the Crimes (Sentencing) Act, a regime which will maximise the incentives for the offender to conduct herself lawfully during her completion of Year 12 and transition to adult life.
The offender will only ever get one opportunity to be treated with such leniency. That is because of the combination of factors I have referred to above. She will never again have the benefit of a clean record. It appears to me to be reasonably clear that her future prospects will largely be determined by those with whom she associates and whether she is able to maintain employment and complete her schooling. Of those the first is the most significant. The likelihood is that if she does associate with an antisocial peer group then she will fall once again into the offending conduct and in those circumstances she has poor long‑-term prospects. However, if, as her father indicated to the author of the Pre-Sentence Report, getting in trouble in relation to these serious offences has given her a “good scare” then there is some prospect that with appropriate support she will make a choice about the direction that she takes in life which is consistent with law-abiding behaviour in the future.
In sentencing the offender as I will on charge CH2016/671 I have taken into account the scheduled charge CH2017/278. Having regard to the sentence that I would impose in any event on charge CH2016/671, the nature of the scheduled offence and the totality of the sentences that I will impose, I do not propose to increase the penalty beyond that which I will impose on the aggravated robbery charge not involving the scheduled offence.
In relation to the two counts of aggravated robbery I will impose a period of imprisonment of two months reduced from three months on account of the plea of guilty. Both sentences will be suspended upon entry into Good Behaviour Orders which will operate for a period of two years.
In relation to each of the charges of obtain property by deception I will require the offender to enter a Good Behaviour Order. Those will expire after one year. Having them expire after this time will mean that so long as they are complied with the offender will make progress after that period in putting these matters behind her.
The orders that I make are:
1. The offender is convicted of aggravated robbery by virtue of s 45A of the Criminal Code (charge CH 2016/671) and sentenced to a period of two months’ imprisonment which is to be suspended upon her signing an undertaking to comply with her good‑behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period of two years with the following conditions:
a.A supervision condition that she be under the supervision of the Director-General and obey all reasonable directions of that person. The supervision condition is for a period of two years or such lesser period as the Director-General considers appropriate.
b.A condition that she participate in any program attend and complete any course or program that she is directed to attend by the Director-General supervising her.
2. The offender is convicted of aggravated robbery by virtue of s 45A of the Criminal Code (charge CH2016/672) and sentenced to a period of two months’ imprisonment which is to be suspended upon her signing an undertaking to comply with her good‑behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period of two years with the following conditions:
a.A supervision condition that she be under the supervision of the Director-General and obey all reasonable directions of that person. The supervision condition is for a period of two years or such lesser period as the Director‑General considers appropriate.
b.A condition that she attend and complete any course or program that she is directed to attend by the Director-General supervising her.
3. On charge CH2017/272 the offender is convicted of obtaining property by deception and required to sign an undertaking to comply with her good‑behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period of 12 months.
4. On charge CH2017/274 the offender is convicted of obtaining property by deception and required to sign an undertaking to comply with her good‑behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period of 12 months.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 3 November 2017 |
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