R v Cringle
[2018] ACTSC 41
•8 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cringle |
Citation: | [2018] ACTSC 41 |
Hearing Date: | 6 February 2018 |
DecisionDate: | 8 February 2018 |
Before: | Mossop J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – burglary – theft – aggravated robbery with knife – guilty plea – criminal history of similar charges – possession of anabolic steroids considered in aggravated robbery sentencing – specific deterrence – custodial sentence |
Parties: | The Queen (Crown) Shane Cringle (Offender) |
Representation: | Counsel J Walker (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 264 of 2017 SCC 8 of 2018 |
MOSSOP J:
Introduction
Shane Daniel Cringle has pleaded guilty to a number of offences.
First are charges of burglary (CC2017/12172) and theft (CC2017/12173) committed on
1 September 2017. These are related to burglary of and theft from a hair and beauty salon at the Ngunnawal shops. The offender had broken through a glass pane near the door lock and stolen a cash float of about $150 and a large black suitcase containing Indian saris and other clothing worth about $1890. The offender was identified by DNA from blood left at the scene.
The maximum penalty for burglary is 14 years imprisonment, or a fine of $210,000, or both. The maximum penalty for theft is 10 years imprisonment, or a fine of up to $150,000, or both. Pleas of guilty were entered at the first possible opportunity.
Second is a charge of aggravated robbery (CC2017/9734). The substance of the charge is that on 1 September 2017 he dishonestly appropriated $2243.25 belonging to McDonald’s restaurant, Kooyong Street, Braddon, with intention of permanently depriving it of the property and, at the time of doing so, he threatened to use force on an employee at the restaurant while armed with a silver-plated kitchen knife.
The maximum penalty for the offence is imprisonment for 25 years, or a fine of $375,000, or both.
The plea of guilty was entered on the second occasion that the matter was before the Magistrates Court. It was in substance a plea of guilty at the earliest possible opportunity.
Third is a charge of possession of anabolic steroids (CC2017/7864), which occurred on 18 June 2017. This is to be taken into account in sentencing for the offence of aggravated robbery. The maximum penalty is imprisonment for six months, or a fine of $7500, or both.
Facts
I have described in summary form the facts relating to the burglary and theft above. It is necessary to say something more about the facts of the aggravated robbery having regard to the seriousness of that offence.
There is a McDonald’s restaurant located on the corner of Cooyong and Mort Streets in Braddon. At about 4:10am, the offender came to the front counter. He jumped the counter. The assistant manager told him that he was not allowed to come in. The offender showed the assistant manager a claw hammer and kitchen knife saying “open the till right now or I’m going to smash your face”. He continued to say “fucking do it right now”. The assistant manager opened the cash register and gave money to the offender. The offender said “I need more; you guys have more money in the store”. The assistant manager then opened the second cash register. The offender then asked for the manager and demanded money with the threat that he was going to “smash everyone”. The manager emptied the cash registers from the drive-through operation into the offender’s bag. The offender then demanded more money. The manager opened the safe and took four or five cash registers from the safe. Police arrived at the location and observed the offender carrying a black bag and holding a silver knife. He ran from police into an alleyway behind the Medina Apartments. The police pursued him into the alleyway. The offender turned around and faced police, holding the knife in his left hand. Police exited their vehicle and drew their weapons at close range. The offender was instructed a number of times to drop the knife. He ultimately did so and was arrested. Police found $1488 in the offender’s backpack and another $755.25 spread out between the restaurant and the point of the offender’s arrest. They also located a hammer in a garden bed in that area. The entire incident was captured on CCTV footage from the McDonald’s restaurant.
10. The offender made admissions to police about being under the influence of a range of prescription and illicit substances at the time of the offending conduct.
11. The facts relating to the possession of anabolic steroids were that the offender was located by police outside a unit in Bonython. He was roused by police and told them he had used heroin about an hour or so earlier. In the unit where he was staying there were a variety of anabolic steroids in a container. He said that he had been given them while he was at the gym several days earlier and said he was not aware that possession of steroids was illegal.
Conditional liberty
12. As at the date of his arrest, the offender was on bail granted by the Magistrates Court in relation to an earlier version of the charge of possessing anabolic steroids.
13. He was also on parole in relation to:
(a) sentences for conspiracy, for which he had been sentenced by Nield AJ to six years and six months imprisonment, which expired on 13 August 2020 with a non-parole period that expired on 13 February 2017; and
(b) sentences imposed by Burns J for theft (six months) and assault occasioning actual bodily harm (eight months), which were concurrent with the conspiracy sentence except for three months of the assault occasioning actual bodily harm sentence, giving an end date of 13 November 2020. The earlier non-parole period imposed by Nield J was extended until 13 March 2017.
14. The offender had in fact been released on parole on 13 March 2017. His parole was revoked on 24 October 2017.
Time in custody
15. He has spent a total of two months and 11 days in custody attributable to these offences: 17 days when bail was refused on a charge of possession of anabolic steroids, and 54 days from his arrest for the aggravated robbery on 1 September 2017 until the revocation of his parole on 24 October 2017.
Objective seriousness
16. The burglary and theft were in the low to mid-range of objective seriousness, being burglaries of commercial premises at night, resulting in some damage and theft of items of some value.
17. The reason that the robbery was an aggravated one was the possession of the offensive weapon, namely the silver-plated kitchen knife. The amount stolen was significant but, having regard to the unlimited scope for theft, at the low end of the potential range. The robbery occurred in a public place and put a number of people at risk. I assess the objective seriousness of the offence as being in the mid-range for this offence.
18. The possession of anabolic steroids was in the low-range for this offence, the amount of each steroid in the small vials found not being specified.
Subjective circumstances
19. The offender is 31 years old. He was born Canberra. His family moved to Western Australia at about the age of four. His family returned to Canberra when he was aged five after the death of his mother. After the death of his mother the offender’s behaviour deteriorated. It then deteriorated further when his father entered a new relationship. From the age of 14 years he lived between the family home, friend’s houses and refuges. He left home permanently at the age of 16.
20. He has a reasonable relationship with his father and stepmother. He has regular contact with his two siblings.
21. A relationship in existence at the time of his offending conduct has ended since been remanded in custody, although he continues to have ongoing contact with his
ex-partner.
22. He has few pro-social associates in the community because of the extended period that he has spent in custody. Similarly, he has a poor employment history for the same reason. Prior to his incarceration he was reliant upon Centrelink payments.
23. He used alcohol heavily between the ages of 15 and 18 years. He used cannabis from the age of 15 years, methamphetamine from the age of 16 years, and heroin from the age of 18 years. He relapsed into illicit drug use prior to his incarceration and returned a positive drug test for heroin in the week prior to the offence. He admitted that in the week leading up to the offence he was using any illicit substance available including heroin, methamphetamine and antipsychotic medication which was not prescribed for him. He reported symptoms of anxiety and depression after being released on parole.
24. Since being remanded in custody he has completed a three session Alcohol Drug Awareness and Harm Prevention Training (ADAPT) program. He has enrolled to commence a tertiary preparation program in February 2018.
25. He accepted responsibility for the offences. He expressed an interest in restorative justice.
26. He is assessed as being at a medium to high risk of general re-offending, his primary risk factors being illicit substance use, mental health and antisocial influences.
Criminal history
27. As an adult, the offender has 14 convictions for burglary. He has a conviction for an aggravated robbery for which he was sentenced to five years imprisonment. He has 13 convictions for theft. He has a variety of other convictions including those in relation to which sentences were imposed by Nield AJ and Burns J. The criminal history and the nature of the offending conduct leaves little room for leniency and reflects an ongoing need for specific deterrence and protection of the community.
Consideration
28. Clearly, having regard to the seriousness of the aggravated robbery and burglary offences, the maximum penalty provided by the legislature and the offenders criminal history, a custodial sentence is the only appropriate penalty. Further, for the same reasons, only a sentence of full-time detention is appropriate.
29. The offender has spent the majority of his adult life in custody. Unfortunately, whether by reason of that fact, his character or lack of social supports, he has been unable to conduct himself lawfully out of prison. The sentence must reflect the ongoing need for specific deterrence and protection of the community. It must also reflect, to a significant extent, the need for general deterrence of such conduct.
30. Taking into account the steroids charge as well as the aggravated robbery charge, the starting point for the sentence on the aggravated robbery charge is a sentence of four and a half years (54 months imprisonment). The sentence will be reduced by just over
10 per cent to 48 months on account of the plea of guilty. Although the plea of guilty was as early as possible, the Crown case was extremely strong.
31. On the burglary and theft charges, the starting point are sentences of 18 months and 12 months respectively, which will be reduced to 15 months and 10 and a half months on account of the plea of guilty. These two sentences will be wholly concurrent with each other. They will be cumulative upon the aggravated robbery charge except as to three months. The total sentence is therefore 60 months (or five years) imprisonment.
32. It is necessary to determine the start and end dates of the sentences and to set a
non-parole period having regard to the existing sentences that he is serving and the time in custody solely attributable to being remanded for these offences.
33. As at the date when he was released upon parole (13 March 2017), he had what appeared to be three years and eight months left to serve of his existing sentences (14 March 2017 until 13 November 2020). The certificate from the Sentence Administration Board in the Crown sentence tender bundle says he had three years, seven months and 30 days and I will adopt that figure. His parole was cancelled and he was taken back into custody on
24 October 2017, and three years, seven months and 30 days after that date, ends on
22 June 2021. However, it is also necessary to take into account the period during which the offender was on remand but still on parole, that is, the period of pre-sentence custody attributable solely to the offences for which he is now being sentenced. That period is 71 days. That may be taken into account by backdating the commencement of the present sentences and making them concurrent as to 71 days with the existing sentences. This gives a commencement date for the present sentences of 14 August 2017.
34. Taking account of the extent to which there is concurrency, the total of the head sentence imposed for the current offences and those imposed by Nield AJ and Burns J is therefore 11 years, six months and 20 days (six years and nine months in total for the sentences of conspiracy and assault occasioning actual bodily harm, and four years, nine months and 20 days for the present sentences). Maintaining a modest non-parole period similar to that imposed by Nield AJ and Burns J holds out the hope to the offender that if his future behaviour is different to his past behaviour, he may serve a substantial portion of his sentence on parole. Those sentences involved non-parole periods of just under
50 per cent of the head sentence. I will set a non-parole period of five years and 10 months which is approximately 50 per cent of the total effective sentence. Given that he had served three years and one month prior to being granted parole in March 2017, that leaves a balance of two years and nine months for his non-parole period. Starting at the date of the revocation of parole on 24 October 2017 that gives a non-parole period which ends at the end of 23 July 2020.
Orders
35. The orders of the Court are:
(1)On the charge of aggravated robbery, and taking into account the charge of possessing anabolic steroids, the offender is convicted and sentenced to imprisonment for 48 months commencing on 14 August 2017 and ending on
13 August 2021.(2)On the charge of burglary, the offender is convicted and sentenced to 15 months imprisonment commencing 14 May 2021 and ending on 13 August 2022.
(3)On the charge of theft, the offender is convicted and sentenced to 10 months and 15 days imprisonment commencing on 14 May 2021 and ending on
28 March 2022.(4)The non-parole period is set so that it commences on 24 October 2017 and ends on 23 July 2020.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 8 March 2018 |
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