R v Goward
[2017] ACTSC 157
•15 June 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Goward |
Citation: | [2017] ACTSC 157 |
Hearing Dates: | 11 May and 9 June 2017 |
DecisionDate: | 15 June 2017 |
Before: | Burns J |
Decision: | See [20]-[25]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two series of offences – aggravated robbery – co-offender – trafficking in a controlled drug, other than cannabis, namely heroin – unauthorised possession of a prohibited weapon – pleas of guilty – extensive criminal history – drug use – assistance to authorities – lesser role – totality – sentences of imprisonment imposed. |
Legislation Cited: | Criminal Code 2002 (ACT) ss 45A, 310, 603(7) ProhibitedWeapons Act 1996 (ACT) s 5 |
Parties: | The Queen (Crown) Dwayne Goward (Offender) |
Representation: | Counsel Mr Fernandez (Crown) Mr Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Numbers: | SCC 217A of 2016; SCC 217B of 2016 |
BURNS J:
Dwayne Goward, you appear before me this afternoon for sentence with respect to two series of offences. The first series involves an offence of aggravated robbery, which was committed on 30 June 2016. On that date, you and your co-offender Dean Vaughan, rode a motorcycle to the vicinity of the Australia Post branch at Fyshwick. Your co-offender entered the Fyshwick Australia Post office, in possession of a shortened firearm and demanded money. He then exited the Fyshwick Australia Post shop, and joined you while you were waiting on the motorcycle. You and your co‑offender then fled the area on the motorcycle.
I note that the maximum penalty for the offence of aggravated robbery, contrary to s 310 and s 45A of the Criminal Code 2002 (ACT)(the Criminal Code), is 25 years imprisonment, a fine of $375,000 or both. With respect to your plea dates, on 21 February 2017, you pleaded guilty in this Court to the charge. You first appeared in the Magistrates Court on 1 July 2016 on this charge. On 22 September 2016, that charge was committed for trial to this court. On 17 November 2016, the Crown filed an indictment charging you with one count of aggravated robbery (CC2016/6867). On 12 December 2016, the matter was listed for trial on 13 June 2017. As I have said, on 21 February this year, you pleaded guilty to the charge.
The second series of offences occurred on 24 October 2014. You have pleaded guilty to two offences with respect to this series of offences. The first of these is an offence of trafficking in a controlled drug, other than cannabis, namely heroin (CC2015/4458), and the second offence is one of unauthorised possession of a prohibited weapon (CC2015/5567). In sentencing you for the offence of trafficking in a controlled drug, you also ask that I take into account an additional offence, of possession of a drug of dependence, namely methylamphetamine. With regard to these offences, on 24 October 2014, police executed a search warrant at premises occupied by you, and subsequently strip searched you.
During those searches, police located methylamphetamine and a trafficable quantity of heroin, together with a conducted energy weapon, commonly known as a taser, and items consistent with the sale and supply of drugs. A total of 6.997 grams of powder containing heroin was located, and 2.954 grams of powder containing methylamphetamine.
The maximum penalty for the offence of trafficking in a controlled drug other than cannabis, contrary to s 603(7) of the Criminal Code, is 10 years imprisonment, a fine of $150,000, or both. The maximum penalty for the offence of unauthorised possession of a prohibited weapon, contrary to s 5 of the ProhibitedWeapons Act 1996 (ACT), is five years imprisonment, a fine of $75,000 or both.
With respect to your pleas in these matters, on 21 February this year, you pleaded guilty in this court, to these charges. You first appeared in the Magistrates Court in relation to this matter on 1 July 2016, and you were committed for trial to this Court on 22 September 2016. The matter had been listed for a pre-trial application on 21 February 2017, however following negotiations as to the charges, you entered pleas to the present charges.
I note that the second series of offences occurred in 2014. From my reading of the papers, it appears that summonses were issued in relation to the offences in the second series, but that police were unable to serve those summonses on you, and accordingly, that explains the delay in bringing these proceedings before the court.
Unfortunately, you have a very extensive criminal history, which disentitles you to any significant leniency in these proceedings. I do note, however, that there were no offences between 2011 and the offences in 2014, which is part of series two, and it doesn’t appear that there were any further offences then between 2014 and 30 June 2016, when the aggravated robbery offence was committed.
I note that you are 29 years old, and that you had a disadvantaged childhood. You were exposed to substance abuse by both of your parents, and you had little parental support or supervision when you were young. You commenced alcohol use at age 14, but ceased its use about 12 months later.
You used cannabis sporadically, from ages 14 to 21, and then used it daily until you were aged 26. You also engaged in sporadic use of heroin as a teenager, and you began to use that substance regularly when you were 21. You were using heroin regularly before the aggravated robbery offence. You also have a history of amphetamine use from an early age. A drug abuse screening tool which was administered by the author of the Pre-Sentence Report, indicated that you were using drugs at a severe level in the 12 months prior to being remanded in custody. I note that you have recommenced methadone treatment whilst you are in custody.
You indicated to the author of the Pre-Sentence Report that you are willing to attend residential rehabilitation upon release from custody, but it was noted that your options may be limited by reason of the fact that you are under methadone treatment. I am satisfied that you have demonstrated a somewhat ambivalent attitude towards rehabilitation services that are available to you whilst you are in custody.
You have a history of non-compliance with community-based orders. Since being remanded in custody on these matters, you have been subject to disciplinary action on three occasions. On two occasions, for possession of non-prescribed medications and on one occasion for refusing to supply a sample for urinalysis drug testing.
I note that you presently have good relationships with your parents and siblings. You can reside with your grandmother when you are released. You had a limited education, and you left school before the end of Year 7, but you later completed Year 10 at TAFE. You have an intermittent history of employment. You told the author of the report that you had planned to work in general maintenance at a hotel when you are released. Your prospective employer is supportive. According to the Pre-Sentence Report, there are no significant physical or mental health issues.
You told the author of the report that the offences were motivated by drug use. I will observe at this point, that the desire to obtain drugs, or to obtain money for the purchase of drugs, is in most cases not a significant mitigating factor with respect to serious criminal offending. Some amelioration of that general principle, however, is warranted in circumstances where an offender commenced drug use at an early age, so that they should not be considered as responsible for the consequences of drug abuse as somebody who has commenced such use at a more mature age.
You were assessed by the author of the Pre-Sentence Report as at high risk of reoffending, which could be reduced by addressing a number of factors, chief amongst which were substance abuse and antisocial values and attitudes. I note that I also take into account the contents of the CADAS Report, which confirms the extent of your drug addiction. I take into account the contents of a letter, written by you, which was tendered on 11 May 2017. In that letter, you have expressed remorse for what you did. You said that you and your partner had broken up, after the death of your young daughter, which resulted in you recommencing drug use. You expressed a desire to rehabilitate, to obtain employment, and to change associates.
I take into account and give significant weight to the letter from Mrs Thorn, who is your prospective employer. She speaks of your increasing maturity, your work ethic and generosity. She confirms that employment will be available to you upon your release.
On 16 May 2017, you participated in a taped record of interview, with members of the Australian Federal Police, about your role and that of your co-offender in the offence of aggravated robbery. I am satisfied that you were generally honest in providing information to the police. At that time, your co-offender was awaiting trial for that offence, but he has subsequently entered a plea of guilty, after being provided with a copy of your interview.
I infer that the information you provided to police, and your expressed willingness to give evidence at his trial, was a significant factor in your co-offender’s decision to plead guilty. Your assistance to the authorities persuades me that I should give weight to your professed desire to rehabilitate and to lead a normal productive life. I am therefore satisfied that you have reasonable prospects for rehabilitation. You will of course, still have a very long road ahead of you, particularly in dealing with what is clearly an entrenched drug addiction. Your plea of guilty with respect to the aggravated robbery offence was not at the earliest opportunity, but it nevertheless had significant utilitarian value.
Similarly, your pleas of guilty with respect to the trafficking in a controlled drug charge, and the weapons offence, were not entered at the earliest opportunity, but they also had significant utilitarian value. In each case, I will reduce the otherwise appropriate sentences by 15%, in order to reflect your pleas of guilty.
The aggravated robbery offence was objectively a serious example of this type of offending. Whilst I accept that a replica firearm was used, and accordingly, there was no danger of any injury to any of the victims of the robbery by reason of the firearm being discharged, those who were threatened by the firearm were not to know that it was a replica firearm.
Clearly, the whole point of brandishing such a firearm in the course of a robbery, is to persuade those who are being robbed that the firearm is in fact genuine and capable of being discharged. I do, however, accept that you were not the instigator of this offence. I also accept that you played a lesser role in the commission of this offence, in that you did not physically participate in the actual robbery, and you did not at any time use or brandish the firearm. With respect to the offence of trafficking in a controlled drug other than cannabis, in my opinion, the evidence establishes that you were what might be referred to as a subsistence dealer, who was involved in the trafficking of drugs in order to maintain your own drug addiction.
I will impose sentences of imprisonment with respect to these matters. I will take into account the principal of totality, by making the sentences to a degree concurrent. Whilst in the light of the fact that your co-offender has entered a plea of guilty to the charge of aggravated robbery, it is probably unnecessary for me to specifically designate a portion of the reduction in sentence, which is appropriate with respect to your assistance to authorities. In my opinion, it is still desirable in the present case to do so, and I will.
Sentence
With respect to the offence of aggravated robbery (CC2016/6867), my starting point, but for your plea of guilty, and also your assistance to the authorities, would be a sentence of four years imprisonment.
I will reduce that to three years and four months, in order to reflect your plea of guilty. I will further reduce that to two years and six months, to reflect your assistance to the authorities. I will therefore record a conviction and you are sentenced to two years and six months imprisonment, commencing on 30 June 2016, which is the day that you were arrested, and since when you have been held in custody, and expiring on 29 December 2018.
With respect to the charge of trafficking in a controlled drug (CC2015/4458), I take into account the offence which is contained on the list of additional offences. My starting point, but for your plea of guilty in that matter, would have been a sentence of two years imprisonment. I will reduce that to one year and eight months, in order to reflect your plea of guilty.
You will be convicted on that matter, and you will be sentenced to one year and eight months imprisonment, commencing on 30 October 2017, and expiring on 29 June 2019.
With respect to the charge of unauthorised possession of a prohibited weapon (CC2015/5567), my starting point on that matter, but for your plea of guilty, would have been one of 12 months imprisonment. I will reduce that to one of 10 months imprisonment, in order to reflect your plea of guilty. You will therefore be convicted and sentenced to 10 months imprisonment, commencing on 30 October 2018, and expiring on 29 August 2019.
Therefore, there will be an aggregate sentence of three years and two months imprisonment, commencing on 30 June 2016, and expiring on 29 August 2019.
I will set a non-parole period of 22 months, commencing on 30 June 2016, and expiring on 29 April 2018.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 7 July 2017 |
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