R v Dobbs
[2020] ACTSC 290
•14 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dobbs |
Citation: | [2020] ACTSC 290 |
Hearing Date: | 14 October 2020 |
DecisionDate: | 14 October 2020 |
Before: | Mossop J |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – damaging property – robbery of a liquor store – offender committed an offence the following day in a different jurisdiction – on parole for those offences when charged with these offences – issue of totality – low to mid range of objective seriousness – mental health issues – alcohol and illicit substance abuse – limited criminal history – not suitable for an intensive correction order due to residing in NSW – wholly suspended sentences |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 10 Criminal Code 2002 (ACT), ss 310(b), 403 |
Cases Cited: | R v Dobbs (Unreported, District Court of New South Wales, Judge Hoy SC, 31 August 2018) |
Parties: | The Queen (Crown) Michael Dobbs (Offender) |
Representation: | Counsel M Smith (Crown) H Hayunga (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 182 of 2020 |
MOSSOP J:
Introduction
The offender, Michael Dobbs, has pleaded guilty to the following offences:
(a)aggravated robbery (CC2020/2325), which is contrary to s 310(b) of the Criminal Code 2002 (ACT) and has a maximum penalty of 25 years’ imprisonment, a fine of $400,000 or both; and
(b)damaging property (CC2020/2326), which is contrary to s 403(1) of the Criminal Code and has a maximum penalty of 10 years’ imprisonment, a fine of $160,000 or both.
At the time of the commission of these offences the offender was on conditional liberty, in that he was subject to a 10 month good behaviour bond which had been imposed on 10 February 2018 by the Queanbeyan Local Court in relation to an offence of common assault.
Facts
The facts were agreed and are as follows. At about 1:54pm on Friday, 23 March 2018, the offender walked towards the front door of Vintage Cellars in Oaks Estate. He was carrying a small black bag in his right hand and a hammer in his left hand. At this time the sales assistant, who was working alone in the store, was in the office. This room was opposite the sales counter and beside the main entrance. There were no other customers in the store.
When the sales assistant heard the door chime he walked out of the office. The offender walked behind the sales counter and attempted to open one of the two cash registers on the counter. The sales assistant yelled out “Who are you?” and the offender responded “Fuck off. Get out.” The sales assistant went out the main door and tried to close it to trap the offender inside the store. The offender ran around the counter towards the sales assistant with the hammer raised threateningly. The sales assistant ran out onto the road and called out “Help, robbery!”
The offender stopped at the doorway briefly before returning to behind the counter. He placed the hammer on the counter, lifted one of the cash registers with both arms and walked out the door. The cables attached to the register dragged many items off the counter including the second cash register, which was damaged as it hit the floor. The offender re-entered the store to pull the cables free and then ran from the store.
CCTV footage captured the offender’s approach to the store, his behaviour inside the store and his exit from the store.
A cash reconciliation, conducted by a director of the company that ran the liquor store, showed that $2,172.74 was stolen during the robbery. The director also advised that it cost $13,194.50 to replace the stolen and damaged cash registers, although I was told that this amount also included the $2,172.74.
On 24 March 2018 NSW Police advised ACT Police investigators that they had arrested the offender for an aggravated robbery committed that day in NSW. The offender was found to be wearing identical clothing to that seen in this robbery. Later that day the car seen being driven by the offender in the CCTV footage from Vintage Cellars was located in Queanbeyan and was registered to the offender.
Objective seriousness
The aggravated robbery carries a maximum penalty of 25 years’ imprisonment. The offending involved some planning but was unsophisticated. The weapon aggravating the robbery was a hammer. The liquor store was an obvious and vulnerable target. The offending did not involve any actual violence or express threats of violence. It did not involve any gratuitous threats or wanton damage to property. It involved theft of a significant amount of money, but that must be assessed in the context of the unlimited scope of the offence provision. The offender was on conditional liberty at the time of the offending. It is in the low to mid range of objective seriousness for this offence.
The damage property charge arises from the cables attached to the cash register, taken by the offender, dragging many items off the counter, including the second cash register. It does not relate to the first cash register which was stolen. This makes the assessment of the cost of the damaged property more difficult to assess. However, in the range of conduct covered by s 403, this offending is at the low, but obviously not the lowest, end of objective seriousness, having regard to the extent of damage to the property and the fact that it was done recklessly rather than intentionally.
Subjective circumstances
The subjective circumstances of the offender are outlined in a pre-sentence report by ACT Corrective Services dated 9 October 2020.
He is currently 40 years old. He was born and raised in the ACT and is one of three children born to his parents. He described his upbringing positively and reported that he continues to have a strong familial unit. He disclosed that his parents and two sisters remain supportive, however, he did acknowledge the strain that his criminal behaviour places on his family.
He completed Year 12. He then commenced a baking apprenticeship, which he did not complete. He subsequently completed a chef’s apprenticeship shortly after and worked in this industry for 16 years in various positions. He advised that he has been unemployed for the previous two years when in the community but said he is actively looking for employment as a cook. This was confirmed by Queanbeyan Community Corrections who said he had recently attended a job interview. He currently receives Centrelink and described his financial situation as stable.
He informed the author of the pre-sentence report that he moved to Western Australia when he was 26 years old. He lived there for approximately 10 years with his now ex‑partner. They then moved to Moruya in NSW for approximately 18 months before he finally moved to Queanbeyan after his relationship broke down. The offender told the author of the report that his relationship breakdown impacted him greatly and was the catalyst for an escalation of drug use and subsequent criminal behaviour.
He currently resides alone in Queanbeyan in accommodation provided through the Saint Benedict’s Community Centre, who he said provide him with occasional support. He has lived in this accommodation since his release from custody in NSW, arising out of an aggravated robbery committed the day after the present offence. He is single and has no dependents.
He disclosed a history of problematic alcohol use which commenced when he was approximately 20 years old. He said at his peak he was consuming a bottle of spirits daily. He acknowledged that this alcohol consumption negatively impacted his employment responsibilities in the past but said that he no longer has issues with alcohol. He also reported that he started using cannabis when he was 18 years old and heroin at the age of 20. He identified heroin as his “drug of choice” and disclosed using approximately $50 to $200 worth of heroin per day in the past. Queanbeyan Community Corrections confirmed that the offender is currently prescribed suboxone. On 2 October 2020 Queanbeyan Community Corrections reported that the offender returned a positive test for cannabis use in 2019. He was referred to the South Area Alcohol and Other Drug (AOD) Service and he completed counselling sessions. It was noted that there have been no signs of drug use since that time.
He reported an intention to commence engagement with a men’s church group once per week through his housing support service, as well as a desire to enquire about setting up a cooking school at the church to teach people life skills.
The offender disclosed a history of significant mental health concerns including schizophrenia and post-traumatic stress disorder. He reported suffering from post‑traumatic stress disorder as a result of being subject to sexual abuse during his early teenage years. On 2 October 2020 Queanbeyan Community Corrections said that the offender was referred to Grand Pacific Health for psychological counselling, which he has engaged in over the past six months. The offender also reported that he had previously attended the Chisholm Ross Centre in Goulburn for mental health treatment.
He informed the author of the pre-sentence report that he committed the offences because he owed people money and required funds to reconcile his debts. He also disclosed that he was under the influence of drugs at the time and described feeling “revolted” when thinking of the offences now he is sober. He said he felt remorse for the victim, the victim’s family and his own family. The author of the pre-sentence report noted that the offender appeared visibly emotional when discussing the offences and did not attempt to minimise or justify his behaviour.
The opinion of the author of the pre-sentence report was that:
Despite reaping the benefits of a family-oriented upbringing and strong familial unit, it is apparent that [the offender] experienced traumatic events by way of sexual abuse and a significant relationship breakdown, which appear to have impacted his illicit substance use, mental health, periods of unemployment and subsequent engagement in criminal activity.
It is noted that the current offences before the Court occurred prior to [the offender’s] two‑year period of incarceration in NSW. Information provided by Queanbeyan Community Corrections indicate that he has made successful attempts to rehabilitate himself with the support of mental health, AOD and accommodation services, in addition to meaningful engagement and support throughout his current Parole period.
He was assessed as suitable for a good behaviour order but not for a community service work condition or an intensive correction order (ICO), due to his lack of accommodation within the ACT.
The offender also gave evidence. The evidence was substantially consistent with the evidence in the pre-sentence report. It indicated that the motivation for the offending was the repayment of drug-related debts. He gave further evidence about suffering from anxiety, depression and post-traumatic stress disorder. He also gave evidence that he has been diagnosed with a mild form of schizophrenia. He takes antianxiety and antipsychotic medication. He hopes in the future to return to paid employment. He plays music in a band and is in the process of writing a children’s book. He gave evidence about the possible availability of accommodation in the ACT that might make him better able to be found suitable for an ICO. The evidence was to the effect that he would be unlikely to be able to be accommodated with his parents or sisters or one of his close friends. He also gave evidence about his time in custody in NSW during which he was accommodated at a number of different correctional centres, and was stood over and assaulted on two occasions.
Father Michael Cockayne, who is responsible for running the Saint Benedict’s Community Centre in Queanbeyan, provided evidence of the assistance that the centre has been able to provide to the offender in finding accommodation and also its ongoing assistance in providing informal counselling and a support group.
The offender also tendered two reference letters from long-term friends who attested to the fact that the offending is generally out of character and to the personal qualities of the offender.
Criminal history
The offender was arrested on 24 March 2018 in NSW for committing a robbery armed with an offensive weapon, resisting an officer in the execution of his duty and assaulting a police officer in the execution of his duty. On 31 August 2018 he was sentenced in the Queanbeyan District Court for these offences to an aggregate sentence of three years and one month’s imprisonment, with a non-parole period of 12 months. This commenced on 24 March 2018 and will expire on 23 April 2021. He was in fact released upon parole on 23 March 2019 after having served 12 months, not the two years referred to in the pre-sentence report.
His criminal history in the ACT includes a spate of offending in 2000, which occurred over a three month period, but not any offending of significance since that time. He has one other minor offence in NSW committed in early 2018.
He presents as somebody who has for 18 years been free of offending, only returning to offending as he re-entered the downward spiral as a result of the breakdown of his long-term relationship and alcohol and illicit drug use.
Plea of guilty
Notwithstanding that the offender was released from NSW custody on 23 March 2019, he was only charged with the present offences in February 2020 and only first before the court on 26 March 2020, by which time he had spent one year on NSW parole.
He pleaded guilty to both charges on 12 August 2020 in the Magistrates Court. This was at the third mention. The delay between the first appearance and the plea of guilty is explained by a vacation of a listing due to the COVID-19 pandemic and the need for him to obtain Legal Aid. I therefore treat it as a plea of guilty at the earliest reasonably possible stage.
Time in custody
The offender has not spent any time in custody solely referable to these offences. However, the time he spent in custody in NSW for the offences committed on 24 March 2018 is relevant to the issue of totality.
Consideration
In considering how to sentence the offender, the starting point must be that the s 10 threshold under the Crimes (Sentencing) Act 2005 (ACT) has been passed. Plainly, issues of denunciation, deterrence and recognition of the harm done by this sort of conduct must be significant in any sentences imposed. The significant issues are the length of any custodial sentence, how it should be served and the issue of totality, having regard to the sentence imposed by Judge Hoy SC of the NSW District Court in relation to similar offending that occurred on the following day.
I have had the benefit of the detailed reasons given by Judge Hoy for sentencing the offender in relation to an armed robbery of a supermarket in Queanbeyan, which was effected using a syringe filled with red Gatorade, as well as counts of resisting police and assaulting police arising out of violence committed by the offender during the course of his apprehension: R v Dobbs (Unreported, District Court of New South Wales, Judge Hoy SC, 31 August 2018). Judge Hoy imposed an aggregate sentence of three years and one month. He indicated that the sentences he would have otherwise imposed for each of the offences would be three years for the aggravated robbery, one month for resisting police and two months for assaulting police. His Honour’s reasons paint a picture, which I accept, of a person who had been able to live a lawful life for 18 years while he was employed and had the benefit of a long-term relationship. There was then a downward spiral into alcohol and drug use, which was contributed to by the offender’s mental health. Although the offender did not completely disclose his circumstances at the time of the offending in the proceedings before Judge Hoy, his evidence before me makes it clear that he was desperate to repay drug debts which had accumulated. The reasons of Judge Hoy also make reference to the terror that the offender had experienced in the NSW prison system, during what was his first time in full-time custody.
Had the offender been sentenced on a single occasion for the separate incidents committed in the different jurisdictions one day apart it is likely that, notwithstanding that they were clearly separate and unrelated offending, a degree of concurrency would have been introduced into the sentences. The offender is entitled to have the issue of totality dealt with in the same way as if he was being sentenced on a single occasion. The complication is that, because of the delay in bringing the proceedings in this court, he is to be sentenced after he has completed the non-parole period of the NSW sentence and a substantial portion of his time on parole. The position is, therefore, that he faces the prospect of being returned to custody in the ACT notwithstanding that, had he been sentenced at the same time, he would have served a single period in custody before being released on parole.
It is also relevant to take into account the fact that, for reasons which are unexplained, police did not charge the offender with the offence until after he had not only served a year in prison in NSW but had also completed one year on parole. Had he been charged prior to, or immediately after, having served the non-parole period of his NSW sentence then he would not have been put in the position of being released back into the community and then facing the prospect of being subsequently sent back to prison to serve a further period of imprisonment arising out of events on adjoining days.
Having had the benefit of seeing and hearing the offender give evidence, the impression that he gives is of an anxious man who found his period of full-time detention pursuant to the NSW sentence absolutely terrifying. Although there is always a risk of a person who has had substantial difficulties with alcohol or illicit drugs relapsing into heavy use, and the criminal activity that is associated with it, so far as motivation is concerned, the offender is very well motivated to avoid that. He appears to be on the road to re‑establishing his life in a functional and relatively drug free manner. That recovery seems to have reasonable prospects. It is a recovery which is fundamentally in the interests of the community to encourage.
Because he lives in Queanbeyan, he is not eligible to perform community service work as part of a combination sentence. Further, he is unlikely to be assessed as suitable for an ICO because of his residence in NSW and the inability to readily obtain accommodation in the ACT. These two circumstances reduce the sentencing options that are available. They otherwise might usefully have been deployed in the circumstances. That, of course, makes the sentencing options somewhat starker, either a return to a period of full-time imprisonment or a wholly suspended sentence.
Notwithstanding the gravity of the offending, I consider that, in the circumstances of this case it is appropriate to deal with both offences by way of wholly suspended sentences. The particular matters that are of significance in reaching this conclusion are the reduced need for specific deterrence, the mental health conditions of the offender and the delay in charging him with the present offending, which has prevented him from being able to serve any ACT sentence in a manner contiguous with his NSW sentence.
In relation to the aggravated robbery, I consider that it is appropriate to impose a sentence of 24 months’ imprisonment, reduced from two years and eight months’ imprisonment on account of the plea of guilty, but to wholly suspend that sentence upon the offender entering into an undertaking to comply with his good behaviour obligations for a period of 24 months with a probation condition.
In relation to the damage property charge, it is appropriate to impose a sentence of six months’ imprisonment, reduced from eight months on account of the plea of guilty, but to wholly suspend that sentence subject to the offender entering into a good behaviour order for a period of six months with a similar probation condition.
Had I considered that it was not possible to dispose of the matter in this way, then I would have adjourned the proceedings so as to permit further investigation of the possibility that the offender could obtain accommodation in ACT so as to make him more likely to be eligible for an ICO.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery (CC2020/2325) the offender is convicted and sentenced to imprisonment for 24 months, which sentence is to be wholly suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 24 months subject to a probation condition for a period of 24 months or such shorter period as deemed appropriate by the Director-General.
2. On the charge of damage property (CC2020/2326) the offender is convicted and sentenced to imprisonment for six months, which sentence is to be wholly suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months subject to a probation condition for a period of six months or such shorter period as deemed appropriate by the Director-General.
| 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: 22 October 2020 |
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