R v Hall (No 2)

[2022] ACTSC 22

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Hall (No 2)

Citation:

[2022] ACTSC 22

Hearing Dates:

14 February 2022

DecisionDate:

14 February 2022

Before:

Elkaim ACJ

Decision:

See [26]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – where offender asks the Court to take in account an attempted aggravated burglary – guilty plea

Legislation Cited:

Criminal Code 2002 (ACT) s 310

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

R v Batcheldor [2021] ACTSC 208
R v Forrest (No 2) [2021] ACTSC 259
R v Hall (No 2) [2020] ACTSC 63

R v Sheather [2021] ACTSC 290

Parties:

The Queen ( Crown)

Marley Hall ( Offender)

Representation:

Counsel

P Dixon ( Crown)

R Thomas ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Paul Edmonds & Associates ( Offender)

File Numbers:

SCC 141; 142; 143 of 2021

ELKAIM J:

1. On 24 November 2021 the offender plead guilty to the charge of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT). This offence carries a maximum penalty of 25 years imprisonment and/or a fine of $400,000.

1. The offender has also asked me to take into account an attempted aggravated burglary [CC2021/5246]. In addition, there are two transfer charges.

1. The facts of the offending are set out in the Agreed Statement of Facts. The following is a summary. On 12 August 2020 the offender and two other persons tried to force their way into a premises in Narrabundah. They were armed with a shot gun, a sword and a knife. The attempt failed and they fled. This is the offence I am asked to take into account.

1. The effect of taking a matter into account is to diminish the degree of leniency that can be exercised in the primary sentencing. This is an important point here where the submissions on behalf of the offender primarily revolved around the exercise of leniency.

1. The primary offence occurred later on the same morning when the same three offenders entered a home unit in Gordon while the occupant was asleep. Once again, they were armed. They threatened to kill the occupant. They ransacked the unit and took a lot of property away with them.

1. There is a Victim Impact Statement from the occupant of the unit. She was then a 25-year-old woman, living alone in the unit. She was woken up by the offenders, one of whom, this offender, was threatening her dog with a long knife. After she pushed the knife away, he then held it to her neck. She says:

I still remember the cold sharp feeling of the metal against my skin and the voices of demands.

1. The victim goes on to describe what she has been through since the offence. She has spent months in therapy with psychiatrists and psychologists. She was unable to leave her home. At one stage she had to sleep in her parents’ bedroom. This lasted for months. Seeing people in masks, due to COVID-19, has brought back many memories. The victim says that the offender saw her partially naked, and this memory has remained with her.

1. It is difficult to describe the terror she must have felt. I am not surprised at her extended period of suffering. No doubt the offenders had absolutely no thought for the welfare of their victim when they committed the crime.

1. The offender was born in 1995 and has already accumulated a significant criminal record. The record extends to New South Wales. I have previously dealt with him for a number of offences: R v Hall(No 2) [2020] ACTSC 63.

1. Mr Hall was in fact on parole when he committed the offences. He was also in breach of bail which I had granted to him on 2 July 2020.

1. I sentenced him to 3 years and 5 months imprisonment to commence on 1 June 2020 and end on 31 October 2023. I set a non-parole period of 22 months to end on 31 March 2022. The non-parole period is no longer relevant, but the length of the sentence which he is now serving is important.

1. Mr Thomas, on behalf of the offender, has asked me to impose a non-parole period which is shorter than might otherwise be the case. He says that the rehabilitation of the offender is significant, and he relies on the High Court case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 as a basis for his plea of leniency.

1. The Crown did not dispute the application of Bugmy but said that there were other factors to be taken into account. There was primarily general deterrence and the protection of the public. The Crown said that the public was entitled to a break from the criminal exploits of Mr Hall.

1. In my earlier judgment I referred to his background and concluded, at [20]:

Clearly, he is a man with a very disadvantaged background who has not been able to break away from the perils of being subjected to abuse and falling under the spells of alcohol and drugs. The mitigatory principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 seem immediately applicable.

1. It is extremely difficult to be lenient when all previous offers of leniency have been ignored. Mr Thomas submitted that this history in fact emphasised the application of Bugmy and the need to endeavour to bring Mr Hall into society as a contributor not a criminal.

1. The Crown emphasised the very serious nature of the offending. Elements included the use of the weapon, the threats and terror inflicted upon a young person and the circumstances of a home invasion. I agree that all of these factors are aggravating and amount to an offence of more than medium objective seriousness.

1. In addition, there is the offender’s criminal history and disregard for opportunities for rehabilitation that have been afforded to him in the past.

1. His current sentence will end in October 2023. The sentence for this offence must be lengthy, but to make it entirely cumulative upon the existing sentence will have a result which ignores principles of totality.

1. The offender pleaded guilty about a week before his trial was due to begin. Normally I would regard this as a late plea but I note that in the present case negotiations were long-standing and involved the co-offenders. I think a discount of 15 per cent is appropriate.

1. I also note that the co-offenders were referred to the Drug and Alcohol List so that questions of parity do not arise.

1. The transfer offences are relatively minor. They include a joint commission taking of a motor vehicle and a joint commission theft. The two offences were part of the same criminal enterprise which involved stealing a handbag and then stealing a car using an access card that had been found in the handbag.

1. The Crown referred me to some comparative cases, but observed that in each of these cases the offending was less serious. I agree with the Crown’s assessment of the comparative seriousness of the cases. They were R v Sheather [2021] ACTSC 290, R v Batcheldor [2021] ACTSC 208 and R v Forrest (No 2) [2021] ACTSC 259.

1. I am ultimately left with this quandary. The offender is a relatively young person whose subjective factors require the application of a degree of leniency. On the other hand, he has a long criminal history which has included disregarding all previous attempts at providing him with leniency and opportunities for rehabilitation.

1. I do agree with Mr Thomas that, perhaps in an application of reverse logic, the offender’s history still cries out for an opportunity for rehabilitation. But there must be limits imposed by his criminal history.

1. In relation to accumulation, I think the starting point for the offences must be earlier than the end of the current sentence in October 2023. I intend to commence the sentence today, which of itself is an exercise of a degree of leniency. I also intend to include the transfer charges’ sentences within the sentence that I impose.

1. I make the following orders:

(i)For the offence of aggravated robbery [CAN2021/91] the offender is sentenced to imprisonment for five years and one month (reduced from six years) commencing today and ending on 13 March 2027.

(ii)I set a non-parole period of three years and six months commencing today and ending on 13 August 2025.

(iii)For the offence of joint commission taking of a motor vehicle [CAN 12649/20], the offender is sentenced to 3 months imprisonment to commence today and end on 13 May 2022.

(iv)For the offence of joint commission theft [CAN 12650/20], the offender is sentenced to 3 months imprisonment to commence today and end on 13 May 2022.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Elkaim.

Associate:

Date: 14 February 2022