R v GD
[2014] ACTSC 315
•4 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v GD |
Citation: | [2014] ACTSC 315 |
Hearing Date: | 30 October 2014 |
DecisionDate: | 4 November 2014 |
Before: | Penfold J |
Decision: | See [18] to [23] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – young offender to be sentenced for aggravated robbery involving theft of cigarette while presenting knife to victim – offence committed in breach of good behaviour order made in conjunction with suspending prison sentence for earlier aggravated robbery – offender already in breach of order due to drug use – new offence a very low level offence – offender re-sentenced for earlier robbery and sentenced for new robbery – sentence for earlier robbery backdated and fully served – new sentence to be suspended after three months served, with three months suspended subject to good behaviour order for six months. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 133C(1), 133G(2), 133G(3) Criminal Code 2002 (ACT), s 310 |
Parties: | The Queen (Crown) GD (Offender) |
Representation: | Counsel Ms A Jamieson-Williams (Crown) Mr J Robertson (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 15 of 2012; SCC 93 of 2014 |
Publication Restriction: | Offender’s name and identifying features |
GD has pleaded guilty to one count of aggravated robbery committed in April this year, an offence under s 310 of the Criminal Code 2002 (ACT) that carries a maximum penalty including 25 years imprisonment. That offence was a breach of a good behaviour order I made when re-sentencing GD in September 2013 for an aggravated robbery committed in 2011. That was the second time I had re-sentenced GD for that robbery, so the third separate sentencing process.
Before the new robbery was committed, GD had already breached the good behaviour order by non-compliance with conditions relating to drug use, mainly arising out of cannabis use.
The new robbery was also a breach of two other good behaviour orders made in the Magistrates Court when GD was sentenced for more minor offences.
The new aggravated robbery took place at the Belconnen Skate Park at about 7.00 pm on a Sunday. GD approached several young men at the skate park and, while showing them a knife, demanded cigarettes and money. One of the young men, then aged 16, eventually handed over a cigarette when GD approached him. In the course of the robbery, GD realised that he known the victim for some years, but said that by that stage he didn't care what happened and so was not deterred by this recognition. GD claimed he was intoxicated at the time of the robbery; there is no information before me about the circumstances in which he became intoxicated.
GD was arrested on the evening of the robbery. He was initially charged with attempted aggravated robbery and remanded custody. On 5 May 2014 he was charged with the current offence, and pleaded guilty immediately. This plea clearly came at the earliest possible opportunity, although I note the prosecutor's submission that the Crown case was strong.
GD was released on bail on 4 June 2014 and spent nearly three months at residential rehabilitation in Dubbo. Shortly after he returned to Canberra, he breached his new bail conditions by failing to reside as directed and failing to attend school as directed. There had also been alcohol and cannabis use. After about two weeks on the run, he handed himself into police and was remanded in custody on 23 September this year. He has been in custody ever since, so since the new offence, he has spent, as at today, a total of 103 days in custody.
Aggravated robbery is regarded as a serious offence, as shown by the maximum penalty including 25 years imprisonment, but it is an offence that covers a multitude of sins of varying magnitude. The statutory aggravating factor in this case was GD's possession of a knife, but the offence was also aggravated by the fact that it was committed while GD was on conditional liberty under three separate good behaviour orders. The Statement of Facts also records that the victim handed over his cigarette because he was afraid. I do not discount the effect of this offence on the victim, but I do note that given the circumstances of the offence, such a statement might have been necessary to identify the incident as involving a genuine theft rather than a voluntary offering of the cigarette to a person whom, as it turned out, the victim had known for some years.
On the other hand, it is not easy to imagine a less serious offence in terms of the property that was actually stolen (being a single cigarette). Furthermore, it appears that the offence was opportunistic and unpremeditated. All up, this is not the least serious aggravated robbery that can be imagined, but I reject the prosecutor's submission that it is an offence of mid-range seriousness.
I first sentenced GD in 2012 for an aggravated robbery committed, when he was 13, with three older boys. That robbery was committed late at night at a service station, and three of the boys, including GD, were carrying weapons. The older two boys had rifles and GD apparently had a meat cleaver. GD was sentenced to imprisonment for 18 months for his part in that robbery. He was initially released after serving 8 months of the sentence and, as already mentioned, I have re-sentenced him twice since then.
On the first occasion, the good behaviour order was cancelled because of a series of breaches of its conditions, including failures to attend school, failures to reside at his mother's house, use of alcohol and illicit drugs, and associating with one of his co-offenders from the service station robbery.
GD had served no extra time in custody at that stage, so in December 2012, the re-imposed 18-month sentence was again suspended with 10 months left to serve.
In February 2013, GD committed two new offences, one of driving or riding in a stolen motor vehicle and the other of going equipped for theft. He was sentenced in the Magistrates Court to a total term of 11 months imprisonment, some of which was to be served immediately.
In September 2013, I dealt with GD for the breach of my good behaviour order that was constituted by those new offences. By that stage, he had served a further 169 days in custody, about 150 days of which were attributable to the Magistrates Court sentencing. At that point I noted that I was going to give GD one more chance to finish the 18-month sentence originally imposed in 2012 without serving all of it in full-time custody.
In re-sentencing GD to the same 18-month term, backdated to take account of the 169 days in custody since the sentence had been last suspended, I again provided for the sentence to be suspended, this time after he had served several more weeks, taking the period served in custody to a total of 15 months of the 18-month sentence. GD was to be released on 3 November 2013 with the last three months of the sentence suspended subject to a 12-month good behaviour order.
As already mentioned, since his release in November 2013 GD has again breached the conditions of his good behaviour order, has again re-offended, has served a total of 103 days in custody, and has spend nearly three months in residential rehabilitation. When I re-sentence him in respect of the original robbery, backdating to take account of that 103 days will mean that he has finally completed the sentence on the original robbery, as well as having served about a week that is only attributable to the new offence.
In determining a sentence for that new offence, I have taken account of a number of matters:
(a)that the offence, although another aggravated robbery, is of a very different quality from the 2011 aggravated robbery: that first robbery was quite a serious one, involving as it did multiple offenders and firearms and being targeted at vulnerable employees who would have been seriously traumatised by the experience, whereas the most recent robbery, as I have indicated, was a relatively low-level example of the offence;
(b)that GD has expressed a willingness to apologise to his victim, and that his failure to do anything about this to date does not necessarily indicate insincerity, since any contact with his victim, direct or indirect, has been prohibited by his bail conditions;
(c)that GD first began using alcohol and cannabis around the age of 10, and that this seems to have been attributable simply to taking up with "the wrong people";
(d)that since the new robbery GD has completed a period of residential rehabilitation and, despite admitting to alcohol use after returning to Canberra from Dubbo, he claims in a letter he wrote to the court that he has now stopped abusing alcohol, while admitting that he is still struggling to abstain from cannabis use;
(e)that although the rehabilitation program that GD undertook has obviously not been entirely effective in bringing his drug and alcohol use to an end, the fact that he managed to complete the programme despite a difficult start provides some reason for optimism about his capacity, over time and with growing maturity, to address his alcohol and cannabis abuse;
(f)that GD has expressed a willingness to accept further alcohol and drug rehabilitation support from the Ted Noffs program while remaining within the community;
(g)that GD appears to be aware of some of the threats to his capacity to keep out of trouble, identifying both his use of alcohol and the kinds of people he associates with as risk factors;
(h)that despite being scared of going back to Bimberi after he breached his bail in September, GD had after two weeks had handed himself into police, and that he has identified this as the first time he has ever voluntarily returned to custody;
(i)that GD appears to be already at risk of becoming institutionalised; the Pre-Sentence Report indicates that he behaves well in Bimberi and at school, noting that he "has been labelled a role model by the staff at Bimberi and Galilee, especially when it comes to encouraging other young people to refrain from problematic behaviour and motivating them to complete work as a team", but it is equally clear that he still struggles to manage his own behaviour when not under strict supervision;
(j)that GD has a continuing good relationship with his mother, although his mother, who has several younger children, has difficulty providing him with adequate supervision and also apparently difficulty in asserting any authority over him;
(k)that there are problems in GD's current relationship with his father, who has a new partner and no longer lives with GD's mother; it is apparent that GD's father has his own problems, but it is a great pity that he does not appear able to provide the kind of male support and role modelling that 16‑year‑old boys, especially those who are already marginalised in society, desperately need from a father figure;
(l)that GD has been enrolled to start Year 11 at Lake Ginninderra College in February 2015, and that in the letter he wrote to the court for this sentencing he expressed a wish to be "a normal kid that goes to school, that has a job, and that is with his family, and I am working hard to get all that".
Other matters that I have taken into account are:
(a)that deterrence, particularly specific deterrence of GD, is of continuing significance, but that GD's rehabilitation is of greater long-term significance, both for him and for the community;
(b)that in sentencing a young person, I may treat rehabilitation as more important than other sentencing purposes, and that any sentence of imprisonment imposed should be as a last resort and for the shortest possible time (Crimes (Sentencing) Act 2005 (ACT), ss 133C(1) and 133G(2)); and
(c)finally, that I cannot see that the sentencing purpose of protection of the community, whose importance was emphasised by the prosecutor, can be achieved in this situation in any way other than by promoting GD's rehabilitation; no sentence that could possibly be imposed for the current offence would provide any significant protection to the community, and there is every reason to believe that a longer sentence would detract from GD's rehabilitation rather than promote it.
GD, please stand. I record a conviction on the new charge of aggravated robbery.
Next, I note the breach of the good behaviour order I made in September 2013 suspending the remainder of the 18-month sentence imposed for the 2011 aggravated robbery. I cancel the good behaviour order and I will re-sentence you for that robbery.
Noting the requirement to consider, in sentencing a young person, the possibility of a combination sentence under which part of the sentence is served in custody and part of it is suspended (Crimes (Sentencing) Act 2005 (ACT), s 133G(3)), I consider that in this particular circumstance, in which you have served 15 months of the sentence already and have spent somewhat more than three months in pre-sentence custody since that good behaviour order was made, that the fairest approach is to re-sentence you to the 18 months imprisonment, and to backdate that 18 months to take account of time previously served in custody, and time spent in custody since the good behaviour order was made, such that the sentence, being backdated to 24 April 2013, will have expired on 23 October 2014 and has therefore been completed.
I now sentence you for the 2014 aggravated robbery to imprisonment for six months, reduced from eight months to take account of your plea of guilty.
That sentence will be backdated to 24 August 2014 and so it will run until 23 February 2015. This will provide two months concurrency with the earlier aggravated robbery sentence.
The sentence will be suspended with effect from 24 November 2014, so that's in about three weeks, leaving three months still to serve, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a further six months from 24 November 2014. The good behaviour order is subject to the conditions:
(a)that you accept the supervision of ACT Youth Justice and obey all reasonable directions of your Youth Justice supervisor;
(b)that you undertake training and education, and such counselling, courses, programs or treatments, as are directed by your Youth Justice supervisor;
(c)that you live at a place directed by your Youth Justice Supervisor;
(d)that you abstain from alcohol and illicit drugs;
(e)that you submit to breath analysis and urinalysis as directed by your Youth Justice supervisor; and
(f)that you not associate with AK, DD or BW for six months from 24 November 2014.
Now, you will get, as you know, GD, a written copy of that good behaviour order, and the court officials will read it to you and, again, I expect that Mr Robertson will talk to you about it.
But, as I think you probably know, it means that for six months after you are released – so you will be released in about three weeks, and for six months after that, you need again to keep out of trouble, keep in close contact with the Youth Justice people and do as you are told by them. If you breach the order, especially by committing another offence, I could re-sentence you for this most recent aggravated robbery – the new aggravated robbery – and you could serve the last three months of that sentence in full‑time custody as well.
Now, that will give you another month before Christmas, so if you do well and keep out of trouble, you will have Christmas at home and then it will give you another month to get ready for starting college in February.
Now, what I wanted to say to you particularly was I do understand what you've said in your letter about how hard it is, and how hard you're finding it, to come off cannabis, but it is important that you really try to do so in the next few months. I want to say this – if you come back before me because you've turned in more positive results for cannabis (you'll be doing urinalysis), that won't necessarily automatically see you back in custody. What I will be looking for is evidence that you are genuinely trying to cut back on your cannabis use and that you are genuinely trying to get over it.
So what that means is just because you get one positive result, or because you're sent for testing when you know you'll show a positive result, that's not a reason for going off the rails completely, and taking off from home and all the rest of it. Just do as you're told if you're told to go in for testing, see what comes back, work it through with your supervisor, and with your alcohol and drugs counsellor that I assume you will have by then. If you do finish up back here for a breach because of cannabis use, as I have said, what I will be interested in is whether you are really trying to cut it out, not whether there's a single bit of cannabis in the test results.
So the order is that you don’t use cannabis, but what I am saying to you is that it is not the end of the world if you come back with a positive test result in that six months. You might well go back into custody if you commit another offence, but the cannabis I think can be worked through. So good luck and I hope you can make it this time.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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