R v Collins (No 2)
[2018] ACTSC 294
•29 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collins (No 2) |
Citation: | [2018] ACTSC 294 |
Hearing Date: | 15 October 2018 |
DecisionDate: | 29 October 2018 |
Before: | Mossop J |
Decision: | See [53] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – knowingly concerned in aggravated robbery – aggravated robbery with knife – significant criminal history – whether deferred sentence available when offender serving a suspended sentence – deferred sentence not appropriate in the circumstances – reparation order – custodial sentence |
Legislation Cited: | Crimes (Sentence Administration Act) 2005 (ACT), ss 110(2), 140 Crimes (Sentencing) Act 2005 (ACT), ss 9, 10, 19, 27, 65, 66, 78, 80, 108(1), 110(2) Legislation Act 2001 (ACT), s 127, Table 142 item 1 |
Cases Cited: | R v Collins [2018] ACTSC 204 Zhao v The Queen [2018] ACTCA 38 |
Parties: | The Queen (Crown) Brett Norman Collins (Offender) |
Representation: | Counsel T Hickey (Crown) S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 280A of 2017 SCC 280B of 2017 |
MOSSOP J:
Introduction
Brett Norman Collins was found guilty after a trial by judge alone of aggravated robbery contrary to s 310(b) of the Criminal Code2002 (ACT). He has also pleaded guilty to being knowingly concerned in a robbery. The maximum penalty for each offence is 25 years imprisonment or a fine of $375,000 or both.
Facts
The first in time offence is that of being knowingly concerned in the commission of the robbery on two women, who I will refer to as NI and UA. This offence occurred on 25 February 2017. On that day the offender and two unknown persons drove to Mitchell in a blue Commodore. The offender was a passenger in the vehicle. Shortly before 6pm one of the other occupants of the vehicle got out of the vehicle and entered the “Ewe Canberra” health store on Lysaght Street in Mitchell. One of the unknown persons went into the store, brandished a knife that was about 30cm long and approached UA, a customer in the store, and demanded her car key from her. UA did not understand what he was saying. NI, who was serving her in the shop, explained that he was demanding her key. The unknown person repeated the demand for the key several times and then told NI to put her phones in UA’s handbag and give it to him. UA placed one mobile phone and $1300 cash inside the handbag but refused to give him the other phone. After a brief struggle, the unknown person left the store carrying the handbag and UA followed behind him. The unknown person got into her red Toyota Lexus. UA opened the passenger side door and the unknown person told her to help him start the car. UA left the vehicle and found a brick nearby before approaching the car again. The unknown person could not start the car and ran away, being picked up by the blue Holden Commodore. The offender, Mr Collins, was in the vehicle and the unknown person handed him the handbag, a branded key ring, a wallet, lipstick and a car remote.
Police subsequently found each of these items at the home of the offender’s then partner who said that the offender had given each of those items, except for the car remote, to her as a gift in late February 2017.
NI, who was working in the shop at the time of the robbery, prepared a victim impact statement which was tendered in evidence. Understandably, as a result of the offending conduct she has increased fear of being in public places. She has become fearful of catching a bus without someone with her and suffers increased anxiety when in public places such as the bus interchange.
The circumstances of the aggravated robbery which occurred on 7 April 2017 are set out in my reasons for finding the offence proven: see R v Collins [2018] ACTSC 204. In short, the offender stole a Holden Maloo vehicle and a mobile phone by threatening its owner at a time when he had a knife in his possession. He made threats to the victim at the time of the robbery. He had come into contact with the victim at a time when he was meant to be exchanging a ring, which was in the possession of the victim, for money that had been lent by the victim and was being repaid. At the time of this offence the offender was a regular ice user.
The victim of the aggravated robbery prepared a victim impact statement and it was tendered in the sentence proceedings. Immediately after the robbery, by reason of the threats made to him, he was fearful that he would be attacked. It also affected his partner as she too was fearful of being attacked.
The robbery also had a significant financial impact upon him because a considerable amount of money was still owing upon the vehicle. The vehicle had been purchased pursuant to a hire-purchase agreement, the total cost of which was approximately $110,000.
While at the time of the offending conduct the victim was an executive chef with a salary of a hundred thousand dollars per annum, as a consequence of the impact of the accident his employment was terminated and he has had to obtain work as a casual employee and has been unable to return to full-time work. For at least nine months after the robbery he described himself as being consumed with attempts to try to recover the car. It was only after about 12 months that he began to accept the reality that the vehicle was gone. The financial loss that he suffered has impacted upon his capacity to purchase a house and has also affected the financial security of his parents who had lent him money for the purposes of involvement in the business from which his employment was terminated.
Objective seriousness
In relation to the first offence, the offender was in the getaway car as a passenger. He accepted the stolen goods and subsequently disposed of most of them to his partner at the time, keeping the car key himself. He did not enter the shop. He did not interact with the victims. He did not attempt to steal the car. Section 45 of the Criminal Code covers aiding, abetting, counselling, and procuring, as well as being knowingly concerned in an offence. The objective seriousness of an offence committed by reason of s 45 must involve an assessment of the objective seriousness of the principal offence as well as the nature and extent of the offender’s involvement. In the present case, the offence is a serious one involving threatening victims with a knife and an attempt to steal valuable property in the form of a Toyota Lexus motor vehicle. However, the offender had only very limited involvement, being in the getaway car and taking possession of the stolen property. I therefore assess the objective seriousness of this offence as being in the low to mid range of objective seriousness for the offence of aggravated robbery committed pursuant to s 45.
The second offence is clearly more serious. The offender committed the offence himself. While there was limited planning, the crime involved very serious threats to the victim and the theft of a valuable asset, his motor vehicle. There was no actual violence involved. The threat arising from the use of the knife was implied rather than express. In my view, this fits within the mid range of objective seriousness for an aggravated robbery.
Subjective circumstances
The offender is a 31-year-old man of Aboriginal descent from Griffith in New South Wales. He is the second of five children of his parents. He experienced a difficult upbringing, marred by his mother’s alcohol issues and her physical and emotional abuse of him.
He has three children with his ex-partner. They also had another child who died suddenly in 2013. Two of the remaining children are subject to orders of the Childrens Court and are placed with family New South Wales. The youngest child is approximately two years old and remains in the care of the offender’s ex-partner.
He lost his father to a drug related death in 2013 which he witnessed. His mother was also seriously ill as a result of the same drug incident. Although she recovered, she passed away in 2017. He provided support to his mother and sister prior to his mother’s death. He has lost other friends to accidents or drug related deaths.
He commenced a new relationship in October 2017 with a woman who has two children. He is clearly important to her and her children. A letter from her tendered on sentence demonstrates not only his importance to her but also the progress that the offender has made since ceasing drug use.
He has not worked for seven years. He receives Centrelink payments.
He has some prosocial family supports but, unsurprisingly, some of his friends and associates in Canberra are involved in criminal activity and drug use. He says that he has distanced himself from these negative influences. He has made a number of attempts at rehabilitation.
He attended the Orana Haven drug rehabilitation program from 4 August 2017 until 4 September 2017 when he was discharged.
On 11 December 2017, he attended the Canberra Recovery Services (CRS) rehabilitation program. He was discharged for disciplinary reasons on 19 February 2018.
He re-entered the program on 13 March 2018 and was discharged again for disciplinary reasons on 19 March 2018.
He was engaged with the Ngunnawal Bush Healing Farm from June to July 2018. This is a cultural healing program.
Following that he re-entered the CRS program. Daniel Ross the officer in charge of the program gave evidence, which I accept, that notwithstanding previously being exited from the program he was motivated to return as he has done. He has participated well in the program and has been a positive influence within the program. Mr Ross explained that the offender needed another six months to complete the program and that there would be another six months of supported accommodation available after that.
The offender acknowledged and took full responsibility for his actions, identifying that he would not have offended if he had not been using illicit substances. He expressed a wish to apologise to the victims and others affected by his offending.
He is assessed by the author of the pre-sentence report as being at a medium risk of reoffending with his criminogenic risks being drug addiction, unresolved grief and trauma, and antisocial attitudes. The author of the pre‑sentence report assesses him as being committed to his long-term rehabilitation.
Criminal history
The offender has a significant criminal history over the last 10 years. In 2008 he committed an assault occasioning actual bodily harm as well as some driving offences. He committed further driving offences in 2009. In 2013 he committed a common assault and was given a sentence of eight months imprisonment. He was convicted of failing to appear. He was convicted of a number of offences which occurred in June 2013: possessing ammunition, possession of stolen property and unauthorised possession or use of firearms. He served two months of a six-month sentence on the latter charge. In August 2013 he committed driving offences. In September 2013 he committed the offence of failing to appear after a bail undertaking and was given a custodial sentence.
He was convicted of two driving offences committed in October 2013 and a failure to appear in February 2014. He was convicted of five driving offences as well as the offence of possession of methamphetamine committed in June 2015. One of the driving offences led to a one-month sentence of imprisonment. In July 2015 he committed further offences including aggravated burglary, possession of stolen property and possession of methamphetamine for which he received an aggregate term of eight months imprisonment. In April 2018 he was convicted of 18 offences committed in May and July 2017. These involved a variety of property related offences but postdate the offences for which he is presently being sentenced. He received suspended sentences. This appears to have been in order to allow him to continue with residential rehabilitation for his drug use.
Plea of guilty
He entered a plea of guilty to the charge relating to the robbery in Mitchell on the morning the trial was to commence.
I do not accept the submissions made on behalf of the offender that he is entitled to have this plea treated as an early plea because it came shortly after negotiations about the facts. He obtained the benefit of a plea based upon facts which significantly limited his involvement in the offending. He is not entitled to benefit from a more favourable agreement about the facts as well as a significant discount for an early plea of guilty: see Zhao v The Queen [2018] ACTCA 38. However his plea of guilty, even at this late stage, had utilitarian value and I will allow a discount of 10 per cent.
At the trial on the aggravated robbery charge, the offender admitted that he had committed the robbery but denied that it was aggravated by the presence of a knife, denied that a mobile phone was taken and denied that he made threats to the complainant at the time of the offence. I do not place significant weight on the fact that the issues in the trial related to the aggravated robbery were limited because he admitted the robbery. Having regard to the evidence available, particular the closed-circuit television (CCTV) evidence, the Crown case on the robbery simpliciter was extremely strong and therefore the admission of robbery was not of significant value. That was especially the case because, having regard to the matters that were in issue, the evidence required to be called at the hearing was not significantly reduced.
Time in custody
The offender has spent 22 days in custody (12 July 2017 - 3 August 2017) solely attributable to these offences. He spent an additional 51 days in custody prior to sentencing by Magistrate Hunter for other offences. I sentence him on the basis that this time in custody prior to being sentenced in the Magistrates Court was taken into account by the magistrate even though that is not made express in the limited record contained in the criminal history.
Other sentences for aggravated robbery
Counsel for the Crown identified three decisions of the Court of Appeal relating to sentences for aggravated robbery. First, R v Chatfield [2012] ACTCA 32 involved an aggravated robbery in the course of a violent attempted sexual assault. The property stolen was $70 in cash. The offender had an “atrocious” criminal history. The Court of Appeal increased the sentence for this offence from two years to two years and eight months. That incorporated a 10 per cent reduction on account of the plea of guilty. The total head sentence imposed for the series of offences involved in the incident was seven years and nine months imprisonment.
Barrett v The Queen [2016] ACTCA 38 involved an attempted aggravated robbery. The victim had parked his car and left the keys in the ignition. He walked a short distance away and then turned and saw the offender sitting in the driver’s seat. The offender said that he needed the car. The victim seized the car keys from the ignition. The offender approached the victim, holding a metal pole and demanding the keys. The offender subsequently ran away. He pleaded guilty and received a 25 per cent discount because of that. He was sentenced to two years and three months imprisonment as part of a sentence for nine offences for which he received a head sentence of four years and five months imprisonment. He came from a dysfunctional and disadvantaged background. He had a lengthy criminal record. The appeal was dismissed.
In Thompson v The Queen [2018] ACTCA 2, the Court of Appeal dismissed an appeal against a sentence of four years and six months imprisonment for an aggravated robbery. The sentence incorporated a 25 per cent discount on the sentence because of a plea of guilty. The robbery was aggravated by reason of it being in company. The robbery was of a liquor store. The appellant had threatened the shop attendant with a firearm and during the course of the robbery poked the attendant in the back with it two times. The value of cash and cigarettes stolen was in excess of $4000. The offender had a substantial criminal history involving 69 prior criminal convictions. He had a difficult childhood and was introduced early to alcohol and drugs. His co-offender was sentenced to two years and three months imprisonment. An appeal against the severity of the sentence based on parity with the co-offender was dismissed.
Availability of deferred sentence
One of the submissions made by the offender was that the Court should make a deferred sentence order pending completion by the offender of a residential rehabilitation program and a follow up period of supported accommodation. Section 27 is the provision of the Crime (Sentencing) Act 2005 (ACT) (the Sentencing Act) which relates to deferred sentence orders. One of the conditions for the application of that section is that “the offender is neither serving, nor liable to serve, a term of imprisonment for another offence”.
The parties made competing submissions as to whether or not the expression “serving, nor liable to serve, a term of imprisonment for another offence” captured a sentence of imprisonment which was suspended by reason of the making of a suspended sentence order. If it did encompass a suspended sentence then a deferred sentence for the present offences would not be available because the offender is presently serving a suspended sentence of imprisonment for the offences committed in May and July 2017 for which he was sentenced in April 2018.
In written submissions filed following the hearing counsel for the Crown made the following points:
(a)The phrase “term of imprisonment” is not defined; the phrase “term of imprisonment” is used in other provisions of the Sentencing Act, namely, ss 65, 66, 78 and 80.
(b)The use in s 65 (which relates to the setting of non-parole periods) provides: “If the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section.” That language is consistent with the proposition that the phrase “term of imprisonment” would otherwise be broad enough to cover a suspended period of imprisonment. There is no such carve out from the scope of the expression in s 27.
(c)Section 10 of the Sentencing Act makes it clear that where a court “sentences the offender to imprisonment” that is to be served by full-time detention unless the court makes, for example, an intensive correction order or a suspended sentence order. Counsel therefore submitted that a sentence of imprisonment may be served in a number of ways and hence the expression in s 27 should be interpreted as including any of those ways.
(d)The decision of Penfold J in R v CK [2014] ACTSC 188 at [22] was consistent with her Honour proceeding on the basis that she could only make a deferred sentence order if she ensured that she imposed the sentence for a previously suspended sentence in a manner that had it expire prior to the imposition of the deferred sentence order.
Counsel for the accused pointed to the drafting of the note to s 9 of the Sentencing Act which appears to draw a distinction between serving sentences by full-time detention or intensive correction and the suspension of a sentence of imprisonment. (However, notes are not part of an Act: see Legislation Act 2001 (ACT), s 127. They can, however, be taken into account as extrinsic material: see Legislation Act, Table 142 item 1.)
Next he pointed to the terms of s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) which refers to the court deciding to “impose the suspended sentence imposed for the offence”. This language was said to be consistent with the proposition that the suspended sentence of imprisonment was not imposed until after there had been a breach of the good behaviour order.
He pointed to the fact that if a person was serving a term of imprisonment when their sentence was suspended then they would be serving a sentence of imprisonment for the whole of the period of the good behaviour order which may extend well beyond the length of the period of imprisonment.
He also pointed to the provisions relating to parole Crimes (Sentence Administration) Act, s 140) which provide that a person is not taken to have served any part of the sentence of imprisonment unless the parole order ends without being cancelled.
Finally, he pointed to a decision of Penfold J to the opposite effect of her decision in R v CK: R v Ross (unreported, Penfold J, 5 November 2012). In that case no submission was made to the effect that a deferred sentence was not available where the offender was serving a sentence involving a term of imprisonment that was suspended. In those circumstances, her Honour was prepared to act on the basis that the person was not liable to serve a term of imprisonment for the purposes of s 27.
The submissions on this point appear to be finely balanced. It is unnecessary to attempt to determine the issue. For discretionary reasons, even if such an order was open to be made, I would not make one for the reasons given later in these reasons.
Had the objective seriousness and criminal history of the offender been less then there would have been a better case for avoiding the requirement to serve any period of full‑time detention if a deferred sentence order was made and he was successful in his steps towards rehabilitation. However, as will be clear from what I have already said, the offences are serious and his criminal history is poor.
In those circumstances it is unnecessary to reach a final decision about whether or not a deferred sentence order would be available as a matter of law. Given that it is unnecessary to reach a conclusion on the issue, it is undesirable to do so.
Reparation order
The Crown applied for a reparation order under s 19 of the Sentencing Act. Although there was some dispute about the value of the motor vehicle that was stolen, the prosecution ultimately tendered a “Red Book” valuation which gave a value of between $35,100 and $45,400 for a vehicle of that make and year. In the light of that valuation, counsel for the offender indicated that he did not wish to be further heard. I admitted that document as Exhibit 3. Given that there is no formal agreement about the amount the offender is to be ordered to pay under the reparation order, the Court must decide the amount: Sentencing Act, s 108(1). The “available documents” extend to “any other relevant written documents” (Sentencing Act, s 110(2)), which includes the valuation which was admitted without objection. I therefore determine the amount of the loss as being the value of the motor vehicle at the time which I will take as being in the mid range of the figures disclosed on the valuation document, namely, $40,000.
Consideration
The offender has a poor criminal history. The more serious offending postdates 2013 which was clearly a bad year for him. His offending conduct was associated with methamphetamine use. He has made significant efforts to commence his rehabilitation. He appears motivated to continue to do so. He has expressed remorse for his conduct. He has not gone so far as to identify the co-offender in the robbery in Mitchell.
Counsel for the offender has submitted that it would be appropriate to give the offender a deferred sentence in order that he continue with his rehabilitation. He pointed to the fact that the evidence disclosed that the offender was likely to spend around another six months at the CRS residential rehabilitation program and then have available to him another six months of supported accommodation. Assuming that he successfully completed the CRS program, counsel for the offender submitted that it would be possible to give him either an intensive correction order or a suspended sentence.
I accept that so far as the evidence discloses, the offender is motivated to address his drug addiction and motivated to return to a law-abiding life free of drugs. It is not possible to say whether that motivation will be maintained when the pressure associated with an impending sentence is removed. Clearly, the deferral of sentence pursuant to a deferred sentence order would assist in maintaining that pressure and hence be a significant encouragement towards rehabilitation.
The difficulty is that the offending is very serious. It is in the mid range of offending conduct for the offence of aggravated robbery. The court is obliged to have regard to the maximum penalty of imprisonment which is 25 years. The submissions made by the offender would have been more persuasive if the court was dealing with offences which carried custodial penalties of under 10 years. However, because of the nature of the offence, its maximum penalty and the offender’s criminal history, a significant period of full-time custody cannot be avoided. Because of that, a deferred sentence pending rehabilitation is not appropriate. That is because if a deferred sentence was imposed the offender would still be required to spend a period in custody after completion of his rehabilitation program. This would tend to be counter‑productive and reduce the incentives associated with rehabilitation. The deferred sentence proposal would really only be appropriate if, following the completion of a period of rehabilitation, it was possible to give the offender a sentence which did not involve any further period of full‑time detention. That is not the case.
I have taken into account the opinions of his partner and sister that a further period of imprisonment, as opposed to a further period in residential rehabilitation, will impede his rehabilitation. I have also taken into account the impact of imprisonment on his partner and his family more generally. I accept that imprisonment carries with it the risk that his rehabilitation will not be as effective as a further period of residential rehabilitation. However, rehabilitation is not the only relevant sentencing consideration. The offending conduct was very serious and deterrence, denunciation and punishment are also significant considerations. Unfortunately, as indicated above, no sentences other than significant sentences of full time imprisonment are appropriate.
In relation to his involvement in the aggravated robbery at Mitchell, I will impose a sentence of imprisonment of 11 months reduced from 12 months on account of the plea of guilty. On the aggravated robbery involving the theft of the vehicle, I will impose a sentence of imprisonment of three years and three months. That gives an aggregate sentence of four years and two months imprisonment. I will set a non-parole period of 22 months. This represents 44 per cent of the head sentence. The reason that I have imposed a shorter than usual non-parole period is that it leaves open the potential that if the offender demonstrates motivation towards rehabilitation and there is the prospect of continuing that rehabilitation during the period that he serves a sentence on parole, then it may be appropriate to release him on parole at that earlier than usual point of his sentence. I have not partially suspended the sentence because whether or not it is appropriate for him to be released will be dependent upon an assessment at the time of his progress while in custody, the opportunities available to continue his rehabilitation out of custody and his motivation to do so.
I will make a reparation order as sought by the Director of Public Prosecutions in the sum of $40,000. I will make it in favour of the victim of the offence who was the guarantor of the loan to the company and who was being pursued for payment of outstanding amounts in relation to the loan used to purchase the vehicle. Having regard to the limited means of the accused and the limited enforceability of such an order under the Crimes (Sentence Administration) Act, the value of such an order may be limited, I think it is nevertheless appropriate to make that order. I do not consider that it would be useful in the circumstances to make an order for payment by instalments.
The sentence will be backdated to take into account the 22 days in custody.
Orders
The orders of the Court are:
1. On the charge of being knowingly concerned in an aggravated robbery committed on 25 February 2017, the offender is convicted and sentenced to imprisonment for a period of 11 months commencing on 7 October 2018 and ending on 6 September 2019.
2. On the charge of aggravated robbery committed on 7 April 2017:
i. the offender is convicted and sentenced to three years and three months imprisonment commencing on 7 September 2019 and ending on 6 December 2022.
ii. the offender is ordered to make reparation to [redacted] by way of a payment of $40,000.
3. The non-parole period commences on 7 October 2018 and ends on 6 August 2020.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 20 February 2019 |
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