R v Eichmann
[2019] ACTSC 212
•9 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eichmann |
Citation: | [2019] ACTSC 212 |
Hearing Dates: | 29 April 2019, 15 July 2019, 9 August 2019 |
DecisionDate: | 9 August 2019 |
Before: | Murrell CJ |
Decision: | See [52]–[54]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Drive motor vehicle without consent – Aggravated dangerous driving – Drug driving – Fail to stop for police – Trespass – Offender has limited criminal history and strong prospects for rehabilitation – Whether intensive corrections order is appropriate |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 11, 35 Criminal Code2002 (ACT) ss 310, 318(2) Road Transport (Safety and Traffic Management) Act1999 (ACT) ss 5C, 7(1)(a) |
Cases Cited: | R v Hawkins [2019] ACTSC 10 R v Henry [1999] NSWCCA 107; 346 NSWLR 367 R v Sullivan [2019] ACTSC 38 |
Parties: | The Queen (Crown) Kiran James Eichmann (Offender) |
Representation: | Counsel Mr B Ngugi (Crown) Ms B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Numbers: | SCC 14 of 2019; SCC 15 of 2019 |
Murrell CJ
The offender is to be sentenced for the following offences that occurred on 5 December 2018:
(a) Aggravated robbery, an offence against s 310 of the Criminal Code2002 (ACT) (Criminal Code) that carries a maximum penalty of 25 years’ imprisonment.
(b) Dishonestly and without consent driving a motor vehicle belonging to another, an offence against s 318(2) of the Criminal Code that carries a maximum penalty of five years’ imprisonment.
(c) Aggravated dangerous driving (exceeding the speed limit by more than 30 per cent), an offence contrary to s 7(1)(a) of the Road Transport (Safety and Traffic Management) Act1999 (ACT) that carries a maximum penalty of three years’ imprisonment.
(d) Drive a motor vehicle with a prescribed drug in his oral fluid, an offence against s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) that carries a maximum penalty of three months’ imprisonment and licence disqualification (five years automatic, 12 months’ minimum disqualification). This matter was transferred from the Magistrates Court.
(e) Fail to stop for police (in an incident involving an officer on a motorcycle) contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), an offence that carries a maximum penalty of one year’s imprisonment and three months’ automatic licence disqualification. This matter was transferred from the Magistrates Court.
(f) Fail to stop for police (incident involving officers in a motor vehicle). This matter was transferred from the Magistrates Court.
(g) Trespass, contrary to s 11(1) of Public Order (Protection of Persons and Property) Act 1971 (Cth), an offence for which the maximum penalty is a fine of $1600. This matter was transferred from the Magistrates Court.
In relation to the offences other than trespass, a fine may be imposed as well as, or in lieu of, a sentence of imprisonment.
In all matters, a plea of guilty was entered on 1 February 2019 in the Magistrates Court, before a brief of evidence had been prepared. Although the prosecution case was strong, the pleas have high utilitarian value and pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I will discount the sentences that would otherwise have been imposed by 25 per cent.
Except for a period of six weeks, referable to unrelated offences of driving with a prescribed drug in his oral fluid (see below), the offender has been in custody for these offences since his arrest on 5 December 2018. The sentences will reflect the period of imprisonment to date, taking into account the unrelated sentences.
Facts
Shortly prior to the commission of the subject offences, on 9 September and on 4 and 5 November 2018, the offender committed offences of driving with a prescribed drug in his oral fluid respectively. The drugs in question were cannabis and methamphetamine. As at 5 December 2018, he was on bail for those offences and subject to a bail condition that he not use illegal drugs.
Between 3:30 PM on Friday, 16 November and 7:30 AM on Saturday, 17 November 2018, a gold Mazda hatchback was removed from the driveway of a residence. The theft was reported to police.
At 10:10 AM on 5 December 2018, the offender drove the stolen vehicle into the carpark of a liquor store in Condor, ACT. At the time, the principal victim, Mr Smith, was working as a cashier in the store. Also present in the store were the store manager, Mr Soma and his two young children. There is no suggestion that the offender was aware that the children were present.
The offender entered the store partially disguised by a hood that was pulled over his head, a black cap and black sunglasses. He was carrying a large kitchen knife about six to eight inches in length.
While the offender was in the store, he kept his head down to limit the available view of his facial features. He approached Mr Smith, who was standing in an aisle, and demanded money while pointing the blade of the knife at Mr Smith. He directed Mr Smith to the cash register and followed him, holding the knife.
10. A civilian, Mr Cameron, entered the store and went to the counter. The offender was startled by Mr Cameron and pointed the knife at him. The offender appeared agitated and aggressive, and was dancing about holding the knife.
11. The offender continued to demand money from Mr Smith, whose hands were raised. Mr Smith shouted, attracting the attention of Mr Soma.
12. Mr Smith and Mr Cameron asked the offender to leave. When he did not leave they seized bottles of beer with which to defend themselves. The offender behaved aggressively and began to move towards them, shifting the knife between his hands.
13. On reaching the counter the offender removed two $5 notes from the cash register and fled from the store, re-entering the gold Mazda vehicle.
14. Mr Cameron and Mr Soma followed and threw the beer bottles at the vehicle, breaking the rear windows. They were joined by another witness, Mr Watt. The offender reversed the vehicle out of the carpark and sped off.
15. His dangerous driving was reported by the occupants of another vehicle, who followed him towards the Lanyon Viking Club and then towards a primary school with a sign-posted speed limit of 40 kilometres per hour. The offender drove at an estimated speed of more than 110 kilometres per hour in the 40 kilometre per hour speed zone. While driving at this speed, the vehicle skidded when it impacted with a speed bump. There were children present at the school, although they were not in the immediate vicinity of the Mazda vehicle.
16. Members of the public observed the offender continuing to drive at an excessive speed. At one stage the vehicle mounted a left-hand gutter and proceeded through a roundabout, causing a small vehicle to break heavily to avoid a collision. Police observed the offender to drive the Mazda vehicle through a 40 kilometre speed zone that was associated with a second school, at a speed of at least 80 kilometres per hour.
17. A uniformed officer on a marked police motorcycle activated emergency warning lights and signalled for the offender to stop the Mazda vehicle, but the offender accelerated away, looking at the officer while defiantly gesturing towards him. This is the first offence of failing to stop for police.
18. The Mazda vehicle was followed by a fully marked police vehicle and the occupants observed the offender to accelerate to a speed of more than 80 kilometres per hour. The officers signalled for the offender to stop but he did not do so. This is the second offence of failing to stop for police.
19. The offender lost control of his vehicle, which came to a halt when it collided with a large pot plant. The offender exited the vehicle. Police pursued the offender for a short distance before apprehending him. The offender was hiding in a garage of a private property; this is the trespass offence.
20. An oral fluid sample indicated the presence of methamphetamine, MDMA or ecstasy and delta-9-tetrahydrocannabinol (cannabis). The offender admitted that he had consumed, “meth, pot and siboxon”.
Objective seriousness
21. The offence of aggravated robbery was, of its nature, a serious matter. In many respects, it was typical of such offences. It was relatively unsophisticated, but involved some level of planning: the stolen vehicle was used; the offender was partially disguised; and he kept his head low throughout the incident. A knife was wielded and little money was taken. Unlike many such offences, the incident occurred in daylight when persons other than the store attendant were about. The immediate victim was not especially vulnerable by reason of isolation.
22. On the other hand, the incident involved multiple victims: the store attendant, the manager and two customers, one of whom was directly threatened with the knife. There was also a potential threat to two young children, although the offender was not aware of their presence and one would not expect children to be present in a liquor store, especially at that time of day.
23. The offence involving driving a motor vehicle without consent was of some seriousness because it was associated with the commission of the first offence, but the period of driving was brief.
24. The aggravated driving matter was a serious matter as it involved driving at an excessive speed near two schools at a time of day when a significant number of pedestrians and drivers were on and in the vicinity of the road. The driving posed a substantial risk to the public. The period for which the dangerous driving continued is not known, but it would appear that it was neither very short nor very lengthy. It may have been roughly in the vicinity of five or 10 minutes. However, that is not an inconsiderable period to be driving dangerously in the presence of multiple potential victims.
25. The drug driving matter was serious because, at the time that it occurred, the offender was on bail for three similar matters.
26. The failures to stop for the police are typical matters of their type, but the gratuitous gesture towards the officer involved in the first offence and the repeated failure to stop constituted by the second offence adds seriousness to these matters.
27. The trespass matter was a brief and minor offence.
Subjective circumstances
28. The offender was 28 years old at the time of the offences. The offender's Queensland criminal history includes drug offences in 2007 to 2009. In 2009, he served one month’s imprisonment in relation to drug matters. In 2012, he was sentenced to five years’ imprisonment for an offence of wounding with intent to cause grievous bodily harm and other offences and was eligible for release in February 2014. In 2017, he was convicted of a number of dishonesty matters and restitution orders were made but no other penalty was imposed. In 2017, he was convicted of two relatively minor drug matters for which he was fined.
29. There is no history of serious matters of dishonesty.
30. The offender’s traffic history is not particularly remarkable, except that his licence was suspended from May 2018 and again in December 2018, presumably in relation to the subject offences or the earlier drug driving offences in the ACT. As described above, he had recently committed three drug driving offences in the ACT. The three offences of driving with a prescribed drug in his oral fluid were committed in September and November 2018. The offender was fined $450 and $800, respectively, for the first two matters, and imprisoned for six weeks from 17 April to 29 May 2019 in relation to the third matter.
31. The offender is the second of three children. He described a close, supportive upbringing free from drug abuse and violence.
32. Since leaving school, he has been employed more or less continuously in landscaping and as a home insulator and machine operator. He completed a Certificate II in land management while in custody in Queensland. He describes a strong work ethic.
33. At 17 to 19 years of age, he commenced using illicit substances including crystal methamphetamine, on a casual basis. His level of use increased, except for periods when he was in custody and while he was in a relationship with a partner who opposed drug use. As an adult, he frequently associated with antisocial peers.
34. In January 2018, the offender moved to Canberra with his then partner, largely in an attempt to break his ties with antisocial peers. However, when the relationship itself broke down in August 2018, the offender quickly resumed poor relationships and relapsed into associated drug abuse.
35. The offender has not previously engaged in residential rehabilitation but he has expressed interest in doing so. He is interested in the Solaris program within the AMC, which is not available to remand prisoners.
36. Referees described the offender as a good-hearted person who has suffered from low self-esteem and loneliness in Canberra. He has been treated for anxiety in custody.
37. Upon release, the offender hopes to reside with his ex-partner in Canberra. While the relationship has ended, she continues to offer support to him. He is highly motivated to resume employment.
38. The offender has expressed remorse and empathy for the victims of the robbery as well as a desire to rehabilitate and become a productive member of society.
39. The offender has been assessed as at medium risk of re-offending, but it is noted that he is motivated to engage in drug rehabilitation and to obtain stable employment. If he does so, this will strongly support rehabilitation. The author of the pre-sentence report observed that the offender has had a propensity to fraternise with antisocial peers. The offender’s obvious intelligence and commitment to rehabilitation should stand him in good stead, provided that he can avoid antisocial peers and substance abuse. His ex-partner and family will continue to provide strong prosocial support to him.
Comparable cases
40. In relation to the offence of aggravated robbery, in R v Hawkins [2019] ACTSC 10 (Hawkins), I discussed this jurisdiction’s application of the NSW guideline judgment of R v Henry [1999] NSWCCA 107; 346 NSWLR 367, which considered the appropriate sentence for a typical case of armed robbery (an offence that carries a maximum penalty of 25 years’ imprisonment in NSW) and I considered a number of ACT sentences for the offence of aggravated robbery: Hawkins at [17]–[18].
41. In Hawkins, I sentenced a 25-year-old disadvantaged Aboriginal man with an extensive criminal record for similar matters, but with reasonably good prospects of rehabilitation, for the offence of aggravated robbery, from a starting point of four years and four months’ imprisonment.
42. I was also taken to the sentencing remarks of Mossop J in R v Sullivan [2019] ACTSC 38. In that case, a 23-year-old drug user with a substantial criminal history for similar matters, who was on conditional liberty at the time for an offence of aggravated robbery, and who had served six and three-quarter months in custody, was sentenced to 30 months’ imprisonment (reduced from 40 months’ imprisonment), with the outstanding sentence to be undertaken by way of intensive correction in the community.
Other sentencing considerations
43. In relation to the aggravated robbery offence, important sentencing considerations are the imposition of adequate punishment, general deterrence, accountability, denunciation, and recognition of the harm to the particular victims of the offence. Although the Court was not furnished with victim impact statements I infer that the victims, particularly the store attendant, would have been significantly traumatised by the events of 5 December.
44. In relation to the aggravated driving offence and the drug driving offence, important sentencing considerations are general deterrence, personal deterrence, accountability, denunciation, and recognition of the harm to the community that is posed by such offences.
45. Both parties agree that the only appropriate sentence for the principal offences are sentences of imprisonment, and I agree. In my view, sentencing purposes such as general and personal deterrence, accountability, and denunciation require that some period of fulltime imprisonment be served.
46. However, given the offender’s relatively limited criminal history for offences of this nature and commitment to rehabilitation, I am prepared to consider service of most of the period by way of intensive correction in the community. Accordingly, on 29 April 2019, I indicated the sentences I intend to impose, and requested an Intensive Corrections Order Assessment Report (ICOAR).
ICOAR
47. An ICOAR dated 8 July 2019 assessed the offender as not suitable for intensive corrections, primarily for the reason that the offender’s ex-partner was no longer willing to accommodate the offender, and in any event the accommodation option was assessed as unsuitable. At the urging of parties, I further adjourned the proceedings so that the offender may attempt to secure alternative accommodation. An updated ICOAR dated 5 August 2019 indicated that the offender remains unable to canvass potential accommodation options that are suitable for intensive corrections.
48. Suitable accommodation is core to the ability of the court to impose an Intensive Correction Order. Accordingly, I am not satisfied that such an order is appropriate.
49. In addition to the accommodation issue, the offender's longstanding substance abuse problem remains of concern. The updated ICOAR suggests that he is currently engaged well with the Solaris program within the Alexander Maconochie Centre, which I hope that will provide a very good start to his recovery. However, whether he is able to maintain recovery once he re-enters the community is another question.
50. Given that he is currently engaged in the Solaris program, I am prepared to impose a low non-parole period, affording the parole authority the capacity to release him relatively early should they consider that he is suitable for such release.
Sentences
51. Given that the offender’s 6-week sentence associated with his earlier driving offences (see above at [30]) would otherwise be wholly subsumed in the sentences that I impose for the present matters, I will back date the present sentences to commence on 5 January 2019 instead of 5 December 2018, in order to reflect the total criminality.
52. Consequently, I convict the offender of all offences and impose the following sentences:
(a) For aggravated dangerous driving, a sentence of 12 months’ imprisonment, reduced by 25 per cent to nine months’ imprisonment, from 5 January 2019 to 4 October 2019.
(b) For the offence of aggravated robbery, a sentence of 40 months’ imprisonment, reduced by 25 per cent to 30 months’ imprisonment, from 5 July 2019 to 4 January 2022.
(c) For the offence of drive motor vehicle without consent, a sentence of eight months’ imprisonment, reduced by 25 per cent to six months’ imprisonment, from 5 July 2019 to 4 January 2020.
(d) For the offence of drive with prescribed drug in oral fluid, a sentence of eight weeks’ imprisonment, reduced by 25 per cent to six weeks’ imprisonment, from 5 January 2019 to 16 February 2019.
(e) For each of the offences of failing to stop for the police, a sentence of four months’ imprisonment, reduced by 25 per cent to three months’ imprisonment in each case, the sentences to be served concurrently, from 5 January 2019 to 4 April 2019.
(f) For the offence of trespass, I impose a fine of $250.
53. The total period of imprisonment will be three years’ imprisonment, from 5 January 2019 to 4 January 2022 (or three years and one month if taken from 5 December 2019). I fix a non-parole period to expire on 4 July 2020.
54. I impose the following driving disqualification periods:
(a) For the offences of aggravated dangerous driving and drive a motor vehicle with a prescribed drug, in each case I impose disqualification periods of 15 months, to be served concurrently, from 17 April 2020 to 16 July 2021.
(b) For the offences of failing to stop for police, I impose the automatic disqualification period of three months, from 17 April 2020 to 16 July 2020, to be served concurrently with the above disqualification period.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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