R v Ford
[2017] ACTSC 19
•23 January 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ford |
Citation: | [2017] ACTSC 19 |
Hearing Date: | 12 December 2016 |
DecisionDate: | 23 January 2017 |
Before: | Burns J |
Decision: | See [31]-[37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated robbery – offensive weapon – obtain property by deception – dishonestly ride in motor vehicle – breach of Good Behaviour Order – pleas of guilty – terms of imprisonment imposed. |
Legislation Cited: | Criminal Code2002 (ACT) s 310 |
Parties: | The Queen (Crown) Jack Ford (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 87 of 2016; SCC 214 of 2016 |
BURNS J:
Jack Ford, you have entered pleas of guilty to a number of offences which occurred on 19 December 2015 and 30 December 2015. On 19 December 2015, you committed an offence of aggravated robbery. At about 5.17 am on that day, you and an unknown male co-offender walked to the 7‑Eleven service station at Giralang. You were carrying a large bladed knife and wearing black pants, a black hooded jumper, a black covering over the lower half of your face and pink washing-up style gloves. Your unknown co‑offender was carrying a long-barrel firearm and wearing dark clothing.
As you approached to the automatic glass doors of the service station your co‑offender stopped several metres back and crouched to the ground. At that time the doors were locked and the store attendant did not notice you. You waited outside the automatic glass doors for about 30 seconds. After the doors failed to open you and your co‑offender ran a short distance to a Canberra Elite taxi which was parked near the service station forecourt. The driver, Mohammed Khan, had finished his shift and was sitting in the driver's seat tallying EFTPOS receipts.
Your co‑offender banged on one of the taxi windows, opened the driver's door and pointed the firearm at Mr Khan. You, holding the knife in your right hand, said, ‘Give us the money or we will shoot you’. Mr Khan reached into his pocket and handed a small bundle of cash notes to you. Your co‑offender then said, ‘Give us a smoke’, and Mr Khan handed him a cigarette from a packet of cigarettes on the passenger seat. You both demanded more money from Mr Khan and he handed over the remainder of his takings which included cash notes in different denominations, totalling approximately $300.00. You and your co‑offender then ran away.
On Monday, 4 January 2016, police located two pink rubber gloves and a knife several hundred metres from where the robbery took place. A swab taken from the inside surface of the pink rubber glove revealed a mixed DNA profile from at least three contributors. There was extremely strong support that the major component of the DNA came from you. On 29 April 2016, police spoke to you and you agreed to be interviewed in relation to the offence. During the interview you denied any involvement in the robbery and stated that you had never seen the knife or the gloves before. Later police told you that your DNA was found on the items and you stated that someone may have robbed you and taken them out of your house.
On 13 July 2016, police received an audio file of a lawfully recorded telephone conversation between yourself and your sister. At that time you were an inmate at the Alexander Maconochie Centre. During the course of that conversation you made admissions to your sister about your involvement in this offence.
On 25 July 2016, you were charged with this offence. You pleaded not guilty and the matter was listed for case management hearing in the Magistrates Court. Police prepared a brief of evidence which was served on you.
On 8 September 2016, your legal representatives made representations to the prosecution which included pleading guilty to this charge. Those representations were not accepted. On 19 September 2016, at a case management hearing you were committed for trial. On about 9 November 2016, the prosecution reconsidered your representations and decided to accept them. On 12 December 2016, you pleaded guilty to this charge. The maximum penalty for the offence of aggravated robbery contrary to s 310 of the Criminal Code2002 (ACT) is 25 years imprisonment and a fine of $375,000.
On 30 December 2015, you committed one offence of attempted aggravated robbery, one offence of aggravated robbery, one offence of dishonestly riding in a motor vehicle without consent, two counts of obtaining property by deception and one offence of aiding and abetting Kane Lock to obtain property by deception.
Shortly before 8.00 am on Wednesday, 30 December 2015, Catherine Kuhn drove into the 7‑Eleven petrol station at Melba, filled her car with petrol and went inside to pay. Moments later she exited the store carrying her car keys and wallet. As she approached her car you and a co‑offender, Kaine Lock, ran towards her wearing dark clothing and balaclavas. You were pointing a replica pistol and your co‑offender was holding a knife. You shouted, ‘give me your wallet’. Ms Kuhn refused and your co‑offender pushed the knife against her left shoulder, forcing her to step backwards. You continued to point the pistol at her and demanded her keys. Kaine Lock said, ‘Shoot her’. Ms Kuhn refused to give you her keys and you and your co‑offender turned and ran towards the 7‑Eleven store entrance. These facts are the basis of the charge of attempted aggravated robbery, being count 1 on the indictment dated 23 June 2016 on file SCC87 of 2016 (charge CC2016/1955).
This incident was witnessed by a customer and two store attendants from inside the 7‑Eleven. As you and your co‑offender ran towards the doors, one of the attendants hit an emergency lock button to prevent your entry. You banged on the glass with the butt end of the pistol but the doors remained closed and you and your co‑offender ran away in the direction of Melba shops. You were wearing black gloves, a dark hooded jacket with a contrasting pattern, grey tracksuit pants, dark shoes with a white mid sole and light coloured underwear.
As you ran towards the Melba shops, IGA employee Craig D’Elboux was entering Melba Court driving a white Toyota Camry. He pulled into the carpark behind the shops and you and your co‑offender ran up to the car, banged on the windows and shouted, ‘Get out’. Mr D’Elboux alighted from the car, leaving his keys in the ignition. You and your co‑offender were each holding knives and wearing balaclavas and dark clothing. You pointed the knives towards Mr D’Elboux and shouted, ‘where's your wallet?’ and, ‘do you want to get stabbed?’ Mr D’Elboux said that his wallet was in the car and you and your co‑offender got into the car and drove away. Mr D’Elboux's wallet contained several bank cards, including a Commonwealth Bank debit card in his name. These facts are the basis of the charge of aggravated robbery, being count 2 on the indictment (charge CC2016/1956).
You and your co‑offender drove to Kaleen and parked at the entrance to Kaleen Plaza. Your co‑offender walked into the plaza and used Mr D’Elboux's credit card to purchase alcohol and cigarettes from Supabarn for $59.98. He then left the Supabarn and met you at the adjacent newsagency. Your co-offender then used the debit card to purchase instant scratchie tickets to the value of $35.00. The two of you then returned to the Toyota Camry and drove to the 7‑Eleven petrol station at Giralang. Your co‑offender drove the vehicle and you were a passenger in the front passenger seat. This is the basis of the charge of riding in a motor vehicle without consent, being count 3 on the indictment (charge CC2016/1957).
You approached the service station counter and used the debit card to purchase cigarettes to the value of $58.49. This is the basis of the charge of obtaining property by deception, being count 4 on the indictment (charge CC2016/1958). After purchasing the cigarettes you passed the credit card to your co‑offender who approached the service counter and used it to purchase various food items and a prepaid credit card to the value of $63.95. This is the basis of the charge of aiding and abetting Kane Lock in the commission of an offence of dishonestly obtaining property by deception, being count 5 on the indictment (charge CC2016/1959). Your co‑offender then passed the debit card back to you and you used it to purchase another packet of cigarettes and a further prepaid credit card to the value of $84.94. This is the basis of the charge of obtaining property by deception, being count 6 on the indictment (charge CC2016/1960). You and your co‑offender then returned to the car and drove away.
On 19 January 2016, Mr D’Elboux's car was recovered by police following reports of an abandoned vehicle in Gidjili Place in Giralang. Police observed that a red horizontal stripe had been painted along the side of the vehicle. The wheel rims had been painted gold and a different numberplate had been attached to the vehicle. Subsequent police investigations determined that the numberplates were properly issued to a vehicle which had been jointly purchased by your co‑offender and another person in December 2015. Local residents first noticed the vehicle in the area in early January 2016 parked outside your co‑offender's address, approximately 50 metres away from Gidjili Place. Your co‑offender's father observed you and your co‑offender arguing about the car during January 2016.
Police searched the vehicle and located a black replica pistol matching the appearance of the firearm used in the attempted robbery of Ms Kuhn together with several pay slips belonging to you and clothing matching the appearance of clothing worn by you at the time of the robbery. Your DNA was subsequently found on a number of these items of clothing. You were arrested for these offences on 9 February 2016 and remanded in custody. At the time of the offences, being 30 December 2015, you were on conditional liberty as you had been convicted on 23 December 2015 of an offence of damaging property and placed on a 12 month Good Behaviour Order.
You initially entered pleas of not guilty to those charges in the Magistrates Court and a full brief of evidence was served. On 28 April 2016, you were committed to this Court for trial. The Crown filed an indictment on 23 June 2016. You entered pleas of guilty to all counts at a directions hearing on 11 August 2016.
You have a criminal history but it is fair to say that it is not particularly extensive and the present charges are, by a considerable measure, the most serious offences that you have committed. A Pre-Sentence Report was prepared for the sentence hearing which occurred on 12 December 2016. The Report states that since being remanded in custody on 10 February 2016 you have been subject to disciplinary action on a number of occasions in the Alexander Maconochie Centre (AMC) for smoking in a common area when directed to smoke elsewhere. On 12 November 2016, you were also found by custodial staff to be in possession of medication not prescribed for you.
During your current remand you were found suitable for an anger management course which was due to commence on 23 November last year. On that date you failed to attend and did not offer a reasonable excuse for your non-attendance. On 30 November last year, you were due to attend the second session of anger management. However, you failed to attend and you were subsequently exited from the program. You have sporadically attended art classes and you have been employed within your unit as a kitchen cleaner.
I note that you are currently 20 years old and that you reported stable and supportive relationships with your mother and sister. You also reported stable relationships with your grandparents who live outside of the Australian Capital Territory. Your father passed away when you were two years old. You completed your education to Year 9 level and reported that you had been employed since the time you left school. Prior to being remanded in custody you were employed for a period of two years as a factory worker and cleaner. After this employment ceased you did not apply to receive Centrelink payments and you became financially unstable which you reported contributed to your offending behaviour. You reported willingness to obtain employment and perhaps an apprenticeship when you are released from custody.
You reported having some antisocial associates, one of whom was your co‑offender, Kaine Lock. You told the author of the Report that you plan to no longer associate with antisocial associates once you are released from custody. You reported a history of alcohol related issues as a juvenile but you claim that for a period of 12 months prior to your offending you had only consumed alcohol socially. You further reported a history of cannabis use which commenced at 15 years of age and methylamphetamine use which commenced at 19 years of age. You claimed not to be using those substances since you were remanded in custody.
You acknowledged that your drug use was a contributing factor in your offending behaviour and claimed that you were under the influence of illicit substances at the time of these offences. You told the author of the Report that you had made an application to the Therapeutic Community and the SMART Recovery program in the AMC to address your illicit substance abuse, although you had not yet commenced either program. You told the author of the Report that you had been diagnosed with depression and anxiety for which you were prescribed medication.
The Pre-Sentence Report was only prepared regarding the offences of 30 December 2015. You told the author of the Report that you accepted responsibility for your actions with regard to those offences and that you did not dispute the contents of the prosecution case statement. You acknowledged that your illicit substance use and your financial situation had contributed to your offences, although you did not attempt to blame your actions on those circumstances, nor did you attempt to minimise or justify your actions. You said that you were ashamed of your behaviour and expressed knowledge of the impact your actions may have had on the victims of the offences and on the wider community.
You were assessed as at medium to high risk of general reoffending due to your lack of employment in the community, mental health issues and unaddressed substance abuse. If you access programs and counselling to address those issues it is likely that your risk will reduce. A CADAS assessment Report was also prepared which provided further information concerning your drug use and mental health which I will not now repeat. I note that you again expressed a willingness to the author of that Report to undertake appropriate programs with respect to drug abuse while you are in the AMC. I also take into account, without here reciting, the contents of the victim impact statement prepared by Mr D’Elboux.
Consideration
In assessing the objective seriousness of the offence which occurred on 19 December 2015, I take into account the fact that you were in company and that both you and your co‑offender were armed. The victim was a taxi driver working alone in a vehicle in the early hours of the morning and, as such, was vulnerable. I would assess this offence as being in the low to mid-range of offences of this nature.
In assessing the objective seriousness of the offence of attempted aggravated robbery on 30 December 2015, I take into account the fact that you were in company and that both you and your co‑offender were armed. I note that a threat was made to shoot the victim. I accept, of course, that the pistol that you were holding at that time was a replica pistol and, as such, it could not have been discharged. The victim could not know that and this must have been a very frightening experience for her. The offence occurred in a public place and the victim was a lone female and, as such, was vulnerable. When I sentenced your co‑offender for this offence I assessed it to be on the border of the low to mid-range of offences of this nature. In your case I am justified in finding the offence somewhat more serious objectively because of the fact that it occurred whilst you were subject to a Good Behaviour Order.
With regard to the aggravated robbery that occurred on the same date, again you were in company and both you and your co‑offender were armed. There were threats made to stab the victim. In my opinion this offence falls within the mid-range of these offences but, again, I would assess the objective seriousness of this offence as slightly higher than I assessed that of your co‑offender because of the fact that you were subject to a Good Behaviour Order at that time.
The offences of obtaining property by deception or aiding and abetting the obtaining of property by deception involve the use of a debit card taken from the victim of the aggravated robbery. The property which was obtained as a consequence was of fairly slight value. In my opinion these offences fall within the low range of offences of this nature. I would assess the offence of dishonestly and without consent riding in a motor vehicle on 30 December 2015 as in the low to mid-range of offences of this nature.
As was the case with your co‑offender, I take into account in sentencing you that you are still very young and have a limited criminal history so that rehabilitation is a very important sentencing consideration. Unfortunately, aggravated robbery is an offence commonly committed by young males with limited criminal histories. I note that you had not previously been subject to a previous sentence.
Whilst I must give significant weight to rehabilitation, I must also give weight to the principles of general deterrence and punishment. I note that you have expressed willingness to address drug addiction while in custody which would enhance your prospects for rehabilitation. Your willingness to address drug addiction also reduces the need for personal deterrence in sentencing. There is still, however, a question mark over your commitment to participating in appropriate programs within the AMC. I note that it is a positive factor that you have undertaken employment within the AMC.
I take into account your pleas of guilty with respect to these charges. These pleas were not entered at the earliest opportunity but I accept that they demonstrated a degree of remorse and also had significant utilitarian value. I accept that you are remorseful for your offending and that you have reasonable prospects for rehabilitation. I reduced the sentence that I would have imposed on your co‑offender by 20 per cent to reflect his pleas of guilty but they were pleas entered in the Magistrates Court. I will reduce the otherwise appropriate sentences with respect to the present matters by approximately 15 per cent in order to reflect your pleas of guilty. I have considered all available sentencing options but I am satisfied that sentences of imprisonment are the only realistic alternatives or options with respect to these offences.
Sentence
With respect to the offence of aggravated robbery on 19 December 2015 (charge CC2016/5374), I record a conviction and you are sentenced to two years and one month imprisonment commencing on 9 February 2016 and expiring on 8 March 2018. I have reduced this from two years and six months imprisonment to reflect your plea of guilty.
With respect to the charge of attempted aggravated robbery on 30 December 2015 (charge CC2016/1955), I record a conviction and you are sentenced to two years and six months imprisonment commencing on 9 October 2016 and expiring on 8 April 2019. I have reduced this from a sentence of three years' imprisonment to reflect your plea of guilty.
With respect to the charge of aggravated robbery on the same date (charge CC2016/1956), I record a conviction and you are sentenced to three years imprisonment commencing on 9 March 2017 and expiring on 8 March 2020. I have reduced this from a sentence of three years and six months imprisonment to reflect your plea of guilty.
With respect to each of the charges of dishonestly obtaining property or aiding and abetting the offence of dishonestly obtaining property (charges CC2016/1959; CC2016/1960 and CC2016/1959), I record convictions and on each matter you will be sentenced to five months imprisonment commencing on 9 January 2020 and expiring on 8 June 2020. I have reduced these sentences from six months imprisonment to reflect your pleas of guilty.
With respect to the charge of dishonestly and without consent riding in a motor vehicle on the same date (charge CC2016/1957), I record a conviction and you are sentenced to six months imprisonment commencing on 9 March 2020 and expiring on 8 September 2020. I have reduced this from a sentence of seven months imprisonment to reflect your plea of guilty.
The aggregate term of imprisonment which I have therefore imposed is one of four years and seven months imprisonment commencing on 9 February 2016 and expiring on 8 September 2020. I will set a non-parole period of two years and four months commencing on 9 February 2016 and expiring on 8 June 2018.
As I understand it, I am also required to now deal with the breach of the Good Behaviour Order which was imposed in December 2015 in the Magistrates Court. In my opinion the offence which was before the Court that day does not warrant a term of imprisonment. I will simply direct that no action be taken with respect to the breach.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 20 February 2017 |
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