R v Fisher
[2019] ACTSC 370
•20 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fisher |
Citation: | [2019] ACTSC 370 |
Hearing Date: | 10 December 2019 |
DecisionDate: | 20 December 2019 |
Before: | Burns J |
Decision: | See [45]-[46] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aiding and abetting aggravated robbery – plea of guilty – guarded prospects for rehabilitation – consideration of general deterrence |
Legislation Cited: | Criminal Code ACT (2002), ss 45, 310 |
Cases Cited: | R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 R v Henry [1999] NSWCCA 111; 106 A Crim R 149 |
Parties: | The Queen (Crown) Toby Allan Fisher (Offender) |
Representation: | Counsel S Janackovic (Crown) J Moffet (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) | |
File Number: | SCC 8 of 2019 |
BURNS J
Toby Fisher, on 1 October 2019, you entered a plea of guilty to one charge [SCCAN 3770/2019] alleging that on 18 October 2017, you aided and abetted Aren Apps to commit robbery with an offensive weapon, contrary to ss 310 and 45 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 25 years' imprisonment, 2,500 penalty units, or both.
The Facts
An agreed Statement of Facts was tendered on 1 October 2019. On 18 October 2017, you met the victim at the city bus interchange and invited him to your co-offender’s apartment in Turner. You were wearing a red jumper at the time.
You would often associate with your co-offender, Mr Apps, at his mother's apartment in Turner. Your co-offender stayed in the apartment with his mother, his then girlfriend, and his mother's then partner, Shane Sebbens. You and your co-offender have been friends for over 13 years since school age.
After leaving the city interchange, you and the victim walked towards the apartment in Turner where you came across your co-offender. The three of you then walked towards the apartment in Turner. You then met up with your co-offender's mother and his then girlfriend. The five of you all walked towards the apartment. Sometime before 1.00 pm, the group of you entered your co-offender's mother's flat and the front door was locked after you entered. Mr Sebbens was in the apartment at the time.
The victim sat down at the kitchen table. Your co-offender said to you, “Let's rob this guy”. You picked up an aluminium baseball bat, approached the victim and struck him on the forehead with the bat, leaving a laceration to his head. The laceration started bleeding down his face, onto his shirt and onto the kitchen floor.
Meanwhile, your co-offender had armed himself with a metal pole in one hand and a knife in the other hand. The co-offender demanded that the victim hand over his money. He used the pole to hit the victim on the forearm and said, “I'm going to kill you, I'm going to kill you. Give me your money, give me your money”. You said to the victim, “You better give him what he wants and get the fuck out”.
The victim took out his wallet and handed over about $150 before moving to the front door and unlocking it. Your co-offender followed the victim to the front door with the knife still in his hand. The victim opened the front door and ran outside. He then called police with his mobile phone.
After the victim had left the apartment, your co-offender's girlfriend told you to mop up the blood off the kitchen floor. You used a mop with bleach to clean the blood off the floor. You mopped up the blood because you were aware that you had hit the victim with the baseball bat causing him to bleed.
After mopping the floor, you went outside and threw the mop into the carpark garage. The five of you then left the flat and walked along Northbourne Avenue towards Dickson. Once outside, you took off your red jumper and threw it on the ground on the nature strip.
Victim Impact Statement
The victim of the aggravated robbery, William Stevens, provided a
Victim Impact Statement which speaks of his continuing to feel unsafe in Canberra after this offence. For some time, he suffered severe headaches and also back pain. The headaches caused him nausea, blurred vision and some vomiting. He felt depressed and anxious.
For months after the incident, he experienced excruciating headaches and migraines. He experienced a high level of anxiety and became depressed to the point that some days he could not leave his unit. When he did leave his unit, he felt hypervigilant. Since the incident, he has had trouble sleeping, trusting people, going out in public, and his mental health has deteriorated. He has been in and out of hospital suffering bouts of depression and other health issues.
After he was told by police that you had pleaded not guilty to the charge and he would be required to give evidence, it triggered his anxiety and depression. He felt angry when he heard that both you and your co-offender had pleaded not guilty and he was required to relive one of the worst experiences in his life. He said that the incident has changed his life dramatically and he does not feel as if he will ever be the person he once was.
Subjective Features
You have a reasonably significant criminal history, including prior convictions for dishonesty and violence. You are not entitled to any leniency in the present proceeding on the basis of your prior criminal history.
A Pre-Sentence Report dated 26 November 2019 was prepared for the sentence hearing. You have been known to ACT Corrective Services for a number of years and you have been supervised on a number of Good Behaviour and Bail Orders. Your compliance with these Orders is described as poor. You have been subject to a number of breaches as a result of failing to engage with supervision and you have
re-offended during periods when you have been subject to
community-based Orders.
You have been in custody since 21 March 2018 for other matters. You were assessed as suitable for an Intensive Correction Order in relation to those matters. You were ultimately sentenced to a custodial sentence which expired on 3 June 2019.
The Report notes that you have been subject to six disciplinary incidents during your current custodial period for a number of reasons, including being disrespectful to custodial officers, possession of prohibited items, failing to provide urine samples as directed, and assaulting another detainee. Your Counsel informed me that these occurred principally at the time that you first entered custody and that you have subsequently settled into custody. ACT Police informed the author of the Report that you have outstanding arrest warrants in New South Wales.
The Report notes that you were born in New South Wales and identify as Aboriginal. You are one of eight siblings, with your mother having children to six different partners. You have one older sister and a further six half-siblings. You have limited contact with many of your siblings.
You described an unstable childhood in which you lived away from your mother from when you were 12 years of age. You have previously reported living in refuges in various locations [redacted]. You have had no relationship with your father throughout your life.
In January 2018, you were subject to an Order which prevented you from contacting your mother. This Order has now expired. Your mother remains supportive of you, but raised concerns about your drug use, antisocial companions, mental health, and your capacity to remain compliant with your mental health medication when living in the community. You told the author of the Report you intend to live with your mother at her property in New South Wales or with one of your sisters in Canberra when you are released from custody.
You are single, with previous relationships having ended due to domestic violence and substance abuse. You have one child aged approximately eight years of age with whom you have had weekly contact whilst in custody.
You left school prior to completing Year 8 and describe your literacy and numeracy skills as limited. You reported a very limited employment history, and you were receiving the Disability Support Pension when last living in the community.
The author of the Report noted that service records suggest that you have been inconsistent in your self-reporting of your alcohol and drug use. Your mother told the author of the Report that your behaviour and actions change considerably when you are under the influence of drugs or alcohol. You have previously reported use of cannabis from 12 years of age and commencement of the use of methamphetamine at 16 years of age. You reported injecting methamphetamine on a weekly basis in the past and you have attributed your offending behaviour to your illicit substance use.
You stated that your longest period of abstinence from illicit substance use was
two years, and you attributed this abstinence to undertaking alcohol and drug counselling and attending Self Management and Recovery Training (SMART) recovery sessions regularly. You stated that you returned to illicit substance use when you began associating with antisocial peers.
You told the author of the Report that you had applied for and been accepted into residential rehabilitation programs previously, however, you had not been able to complete these programs due to ongoing legal matters. You told the author of the Report that you did not feel that you needed a rehabilitation program now. You said that you felt being on methadone and having contact with your child is sufficient motivation to avoid relapse to illicit substance use. I am satisfied that this is a naïve approach on your part. Neither the fact that you have a child nor your use of methadone has stopped you from offending on this occasion.
The Report notes that information from ACT Health states that you have been diagnosed with schizophrenia. In the past you have threatened self-harm. During your most recent contact with Forensic Mental Health Services, you denied current suicidal ideation. You are currently prescribed oral medication for your mental health, as well as methadone.
You told the author of the Report you agree with the Statement of Facts, and stated you had attended the address where the offence took place with your co-offender to use illicit substances and the offence was not planned. You acknowledged that your drug use had contributed to your offending behaviour and you showed some victim insight, stating that you would not like the offence done to you.
You were assessed as at high risk of general re-offending. It was the opinion of the author of the Report that your capacity to avoid relapse into illicit substance use, and remain compliant with prescribed mental health medication, would be limited without the support of relevant mental health services in the community, and undertaking further interventions to address your history of substance use.
A Psychiatric Report, dated 26 September 2018, was tendered on your behalf. The Report was prepared by Dr Owen Samuels, a consultant forensic psychiatrist working in Forensic Mental Health Services in the ACT. The Report was prepared for sentencing with respect to the offences in the ACT Magistrates Court in 2018.
Dr Samuels sets out a relatively detailed family history, involving neglect by your mother and behavioural difficulties on your part resulting in you spending considerable time in refuges. The Report notes that your mother and sister have also been diagnosed with schizophrenia. The Report also notes that you commenced the use of cannabis at
age 14 years. It also refers to a history of heroin abuse.
I take into account, without setting out in detail, the psychiatric history contained in the report. Dr Samuels expressed the opinion you suffer from a psychotic disorder, namely, schizophrenia. This is a mental disorder characterised by fundamental distortions of thinking and perception, as well as negative symptoms such as apathy, being self-absorbed and pre-occupied.
Dr Samuels said that your predominant symptoms of schizophrenia included auditory hallucinations. You demonstrate negative symptoms of the illness, characterised by a restrictive affect and emotionality, and he was of the opinion that your history was suggestive of psychosocial decline. Dr Samuels suggested that your subtle negative symptoms of schizophrenia, such as the ability to accurately appraise and exercise judgment, would be seen to impact on your offending at the time of the offences for which you were being sentenced in the ACT Magistrates Court.
Schizophrenia may cause impairment of higher intellectual functions and influence a person's ability to make calm and rational decisions about a situation. It may result in the person acting impulsively and lacking the ability to shift between cognitive tasks when problem solving. Dr Samuels noted that your symptoms were currently well managed on oral antipsychotic medication.
The report of Dr Samuels did not, of course, address the present offence. It is not possible to say, based upon that Report, that your moral culpability for the present offence is significantly diminished by reason of your mental illness. I take the Report into account as general background information relating to your health.
Other Considerations
You entered your plea of guilty to this charge during the course of your trial. After the victim gave evidence, your Counsel spoke to you and obtained instructions from you to enter a plea of guilty. The plea of guilty cannot be described as an early plea, but I do accept that it nevertheless had some utilitarian value. I also accept that while the victim was required to relive the events by giving evidence in-chief, he was not
cross-examined. I will reduce the otherwise appropriate sentence for this offence by
10 per cent in order to reflect your plea of guilty.
In R v Henry [1999] NSWCCA 111; 106 A Crim R 149 (R v Henry), the New South Wales Court of Criminal Appeal handed down a guideline judgment regarding sentencing for offences of armed robbery in New South Wales. The maximum penalty applicable to the offence of armed robbery in that State at that time was
20 years' imprisonment. The Court identified, at [162], a number of factors or circumstances which were commonly found in sentence proceedings for offences of armed robbery. Those circumstances were:
(i) young offender with little or no criminal history;
(ii) weapon like a knife, capable of killing or inflicting serious injury;
(iii) limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) small amount taken;
(vii) plea of guilty, the significance of which is limited by a strong Crown case.
The guideline judgment provided that sentences for offences that fall within these circumstances should usually be between four and five years for the full term. I should note that the Crown directed me to the decision of the New South Wales Court of Criminal Appeal in R v Goundar [2001] NSWCCA 198; 127 A Crim R 331, which determined that the principles set out in R v Henry were relevant in sentencing for an offence of aiding and abetting armed robbery. This was not challenged in these proceedings.
You have pleaded guilty to aiding and abetting your co-offender to commit the offence of armed robbery. This does not necessarily lead to a conclusion that your involvement in the offence was significantly less than that of your co-offender or deserving of a significantly different penalty. Your involvement in the present offence was quite significant. You inflicted the first violence on the victim, striking him with a baseball bat and causing the most significant of his injuries. You also encouraged him to give his money to your co-offender. The Crown accepted that you may be considered marginally less culpable than your co-offender, a proposition which I accept.
At the time of this offence, you were on Good Behaviour Orders attached to suspended sentences. I note that these Good Behaviour Orders have subsequently been cancelled.
I accept that there was little, if any, premeditation or planning involved in the present offence. The present offence in some ways is more serious than the type of offence which was the subject of the guideline judgment in R v Henry. In this case, there was actual violence as well as the threat of violence. I note that you are also not a young offender and that you have a not insignificant criminal history.
It is difficult to assess your prospects for rehabilitation. It is heartening to note that in 2018 you were apparently prepared to undertake residential rehabilitation as part of an Intensive Correction Order if that was required. Your Counsel informed me that you have been subject to urinalysis in the Alexander Maconochie Centre (AMC), which has returned negative results. This is also positive, although I do note that one of the matters which resulted in disciplinary action in the AMC was a failure to provide a urine sample as directed.
I have no doubt that your prospects for rehabilitation would be enhanced by you undertaking appropriate programs and counselling for alcohol and drug abuse, anger management and mental health issue while in custody. At the present time, your prospects for rehabilitation are guarded.
The predominant sentencing consideration for offences of this nature is general deterrence. Courts must impose sentences designed to bring home to others who may be inclined to commit offences of violence, such as aggravated robbery, that real punishments will be imposed. Specific deterrence is also relevant in this case.
I am not satisfied that either specific deterrence or general deterrence should, in the particular circumstances of this case, be moderated by reason of your underlying mental health condition. In my opinion, nothing less than an immediate term of imprisonment will be adequate to satisfy the sentencing requirements for this offence.
It has been agreed that you were remanded in custody for this offence, as well as unrelated offences, from 28 September 2018. The number of days between
28 September 2018 and the sentence hearing on 10 December 2019 is 438 days. However, you were sentenced to a term of imprisonment of 440 days for unrelated offences in the ACT Magistrates Court commencing on 20 March 2018 and expiring on 3 June 2019. In setting a commencement date for the sentence for the present offence, it is important to ensure that totality is taken into account. In my opinion, the sentence should commence on 20 January 2019.
Sentence
My starting point is a sentence of four years' imprisonment. I will reduce this by
five months because of your plea of guilty. You are convicted and sentenced to
three years and seven months' imprisonment, commencing on 20 January 2019 and expiring on 19 August 2022.
I set a non-parole period of two years and four months' imprisonment, commencing on 20 January 2019 and expiring on 19 May 2021.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |