R v Hall; R v Barker
[2016] ACTSC 11
•4 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hall; R v Barker |
Citation: | [2016] ACTSC 11 |
Hearing Date(s): | 4 February 2016 |
DecisionDate: | 4 February 2016 |
Before: | Murrell CJ |
Decision: | Hall sentenced/ resentenced to an effective term of nine years and nine months’ imprisonment with a non parole period of five years and nine months’ imprisonment Barker sentenced to an effective term of seven years and five months' imprisonment with a non parole period of three years and nine months’ imprisonment |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – co-offenders – aggravated robbery – attempted aggravated robbery – pleas of guilty – parity |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 108 Criminal Code 2002 (ACT) s 310 |
Parties: | The Queen (Crown) Howard Hall (First Offender) Albert Barker (Second Offender) |
Representation: | Counsel Ms McKenzie (Crown) Mr J Sabharwal (First Offender) Mr T Quilter (Second Offender ) |
File Number(s): | SCC 168 of 2015; SCC 169 of 2015 |
MURRELL CJ:
Each offender adhered to pleas of guilty to two offences of aggravated robbery and one offence of attempted aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). Sections 44 and 44A are also relevant to the attempted aggravated robbery.
The maximum available penalty for each offence is 25 years' imprisonment.
The aggravated robberies occurred on 27 December 2014 and 5 January 2015, and the attempted aggravated robbery occurred on 6 January 2015. In each case, there was a s 310 aggravating feature. At the time of each offence, the offender was both in the company of the other offender and in possession of an offensive weapon. Whichever one of those features is taken to be the s 310 aggravating feature, the other feature must be taken into account as an additional aggravating feature.
The pleas of guilty were entered in the Supreme Court after the offenders had been committed for trial, but before a trial date had been set. A discount for the pleas should take into account both the stage at which the pleas were entered, and the fact that the Crown case was a reasonably strong circumstantial case. In those circumstances, the appropriate discount is 15% plus, but less than 20%.
Facts
First offence
At about 4.40 am on 27 December 2014, a taxi pick-up was requested for the suburb of Garran. When the taxi arrived at the requested address, the offenders approached the taxi. Each was partially disguised. One wore a jacket that partially covered his face, a beanie and light pink woollen gloves. He carried a red handled hammer. The other offender wore a black sweatshirt and held a 20-centimetre long kitchen knife. Later, the knife was located at the scene. One offender entered the front passenger seat of the taxi, put the taxi gears into the park position and demanded money from the driver. Simultaneously, the other entered the rear seat and held the knife to the driver’s throat. Repeated demands were made for money. The taxi driver relinquished about $400 in cash and the offenders fled from the scene.
Second offence
At about 11.15 pm on 5 January 2015, Mr Hall’s partner telephoned for a taxi from a telephone used by Mr Barker’s partner. When the taxi approached the relevant location in Rivett, the same modus operandi was employed by the offenders. Again, each was dressed in a manner that tended to disguise his identity. One offender entered the front passenger seat and pushed the gear stick into the park position. The other entered the rear seat and held a knife to the driver’s throat. Demands were made for money, and when the driver supplied some money, a further demand was made. The offender in the front seat placed his hands in the driver’s shirt pockets, removing about $200. The driver was very frightened and handed the offenders a further sum of cash in an envelope. The offenders exited the taxi and walked away.
A few hours later, a knife matching the description of the one used in the robbery was found in a car that the offenders had been using that night. Forensic analysis of the knife revealed a DNA profile that matched that of Mr Hall.
Third offence
The third offence occurred about one hour later, following a call for a taxi to attend an address in Giralang. The operator became suspicious and alerted police. Police drove to the address for which the taxi had been requested. As the police vehicle approached the address with its high-beam headlights illuminated, the offenders approached the police vehicle, with Mr Hall coming to the front passenger side of the car and Mr Barker approaching the driver's side. Police arrested the offenders.
Police searched a car belonging to Mr Barker's partner and, in the boot of the car, they located the knife referred to above and a brown wallet containing identification documents relating to Mr Barker.
. A search of the area yielded a knife and a DNA profile taken from the knife matched that of Mr Barker. It is the Crown case that one of the offenders threw the knife away when he realised that the car that was approaching was a police car rather than a taxi.
Mr Barker
Mr Barker was born in Sydney in 1980. He is now 35 years old. He is an Aboriginal man. His parents separated when he was about one year old, but he says that he had a stable childhood. He has three children of two relationships. The children reside in Dubbo. The offender has spent much of his life in Dubbo and Brewarrina, and some time in Parkes.
He was educated to Year 9 at school, after which he completed an apprenticeship as a painter, qualifying as a painter in about 2006. He worked as a painter and in related industries in Dubbo and Brewarrina before moving to Parkes, where he trained to become a housing officer responsible for checking on the quality of building work.
In 2011, he left Parkes to admit himself to a rehabilitation program in Orange. By that stage his drug use was very heavy and he required rehabilitation.
The offender has had a problem with polysubstance abuse for many years. His descent into serious drug abuse was associated with the breakdown of a relationship that was on and off from 2005 to 2009. Thereafter, the offender formed a new relationship and, in December 2013, 12 months before these offences were committed, he and his new partner moved to Canberra. The offender was unable to obtain work in Canberra. He began to use heroin, a drug that he had not used often prior to coming to Canberra because it was not readily available in the country areas where he had been living. His heroin use escalated.
When the offender was admitted to the Alexander Maconochie Centre (AMC), drug testing showed methylamphetamine use. The offender’s drug abuse was assessed as severe. While in custody the offender has given one positive drug test (in May 2015). He has displayed an interest in pursuing drug rehabilitation, but it is not easy for him to access rehabilitation while he is an un-sentenced prisoner. He accepts responsibility for his conduct and recognises the link between drug use and offending behaviour.
The offender has a number of matters on his criminal history. Between 1999 and 2005 he was dealt with for street offences, driving offences and some property offences. The only full-time sentence of imprisonment was imposed in 2001, when the offender received a sentence of 12 months' imprisonment, with a five month non-parole period for an offence of break, enter and steal. That offence is probably the most serious matter on his criminal record.
There was then a break in offending behaviour from 2005 until 2014, when the offender committed a common assault in the ACT that led to the imposition of a $500 fine. The next criminal event was the first offence before this Court.
The offender is motivated to reconnect with his children. As they reside in Dubbo, they have not visited him in the AMC. The offender wishes to obtain employment upon his release. He believes that employment is a stabilising factor and lack of work was one matter that resulted in his drug abuse and related commission of the offences.
A matter of significant concern is that the offender's girlfriend was complicit in the offender's drug use and related criminal behaviour. I have mentioned her involvement in relation to some of the offences before the Court. Further, on one occasion while he was in custody, she supplied drugs to him. In evidence, the offender said that she had observed him taking drugs on many occasions.
The offender is described as at medium to high risk of reoffending. He has shown some insight into his offending behaviour. He has also indicated some remorse. He has prospects of rehabilitation in that his criminal history, while extensive, is generally not very serious. He has demonstrated interest in drug rehabilitation.
Mr Hall
Mr Hall was born in 1987. He is now 28 years old. His criminal history is much more serious than that of Mr Barker; there are more matters on his criminal record and those matters are more serious. Mr Hall has a pattern of going in and out of custody. The records of ACT Corrective Services show that his compliance with previous community based orders has been unsatisfactory and, since January 2015 when he went into custody, three disciplinary actions have been taken against him.
Mr Hall has a number of offences of break, enter and steal upon his criminal record. He has received sentences of imprisonment, albeit he has not been required to serve long periods of time in custody, with non parole periods of six or nine months often imposed. The offender has on his criminal history a prior matter of robbery in company. In 2014, he committed an offence of attempting to choke and thereby render insensible his partner. That resulted in a 12 month sentence of which the offender was required to serve six months and the remaining six months was suspended on a 12 month good behaviour order from 24 September 2014.
The offences before the Court were committed three months into that good behaviour order, and it is an aggravating feature that the offender was on conditional liberty for an offence of violence when he committed the subject offences.
Mr Hall is an Aboriginal man. He was raised in the Dubbo area. Mr Hall's parents divorced in his early childhood, and he was raised by his mother and stepfather. Although he is close to both, he alleged past domestic violence by his stepfather.
The offender completed most of his formal studies while incarcerated. Generally, during his adult life, when not in custody, he has been dependent on social welfare payments.
According to the Pre-sentence Report (PSR):
Mr Hall has many acquaintances and some family members who would be considered antisocial and are known to ACT Corrective Services. Additionally, his partner of four years is currently on remand in the Alexander Maconochie Centre.
Like Mr Barker, Mr Hall has a long history of polydrug abuse. He was introduced to cannabis at 11 years of age and was a heavy and regular user of cannabis until his late teens. Following a motorcycle accident in 2010, he resorted to self-medication, using heroin when it was available. He has also used methamphetamine and amphetamines for some years. When he was admitted to the AMC he tested positive for methamphetamines. He has been placed on methadone. Like Mr Barker, Mr Hall has been assessed as having a "severe level of drug dependency".
Mr Hall has reported a history of mental health issues associated with depression, although he has been assessed by the Forensic Mental Health Team as requiring no follow-up by Mental Health Services.
Mr Hall has a chronic medical condition. In addition he has been prescribed medication, including OxyContin, for pain related to the motorbike accident to which I have referred. Mr Hall says that it was the prescription of OxyContin that led to his illegal use of opioids.
Mr Hall has displayed some victim empathy and acknowledged poor judgment, although he also sought to justify his actions, asserting that Mr Barker had placed pressure on him. I find that assertion difficult to accept. When one compares the criminal history of Mr Hall with that of Mr Barker, it can be seen that Mr Hall has had a much stronger association with serious criminal activity than Mr Barker.
Mr Hall has said that he intends to sever contact with antisocial peers and pursue drug rehabilitation.
It is unsurprising that the offender has been assessed as having a high risk of reoffending.
Objective seriousness
The offences involving the taxi drivers were objectively serious. In each case a knife was held at the throat of the taxi driver; there was not merely a threat through the possession of a weapon, but the use of the weapon in a frightening way. It has been mentioned that, for there to be an aggravated robbery, there needs to be a feature of “in company” or “being armed with an offensive weapon”. In this case, both features were present.
In each case, the taxi driver was a vulnerable victim. He was operating alone, late at night or in the early hours of the morning, responding to a call from someone whom he did not know, and he was required to attend a dark and isolated place. The Crown submitted that in each case the taxi driver was “lured” to the location where the offence occurred, and that is probably not unduly colourful.
I have not received victim impact statements, but I can only assume that the taxi driver victims were very much affected psychologically by the incidents. Having a knife held to your throat when you are alone, in a dark place late at night and when two fairly large men are threatening you, must be horrific.
I accept the submission that, in relation to each of the offences, there was not a high level of planning. However, the taxi drivers were "lured" to the relevant location. It was not just an opportunistic offence, and the same modus operandi was followed in each case.
The third offence (the attempt offence) was committed only a matter of about an hour after the second offence. Fortunately for the offenders and the prospective victim, there was no actual victim.
Parity
I can discern no difference between the roles played by each offender. Each offender approached and entered the taxis (or, on the third occasion, intended to enter the taxi) and each played a very significant role in the robbery. In relation to the first and second offences, both offenders threatened the victim. In relation to the first offence, both offenders were armed.
However, there are very significant differences in their subjective circumstances. While Mr. Barker’s record is long in terms of the number of pages involved, it is far less serious than that of Mr. Hall. Most significantly there was only one offence between 2005 and the commission of these offences; that being what must have been a relatively minor common assault in 2014 because it resulted in a fine of only $500. Mr Hall has committed a prior robbery as well as other offences of violence, and numerous serious dishonesty offences. Mr Hall committed an offence of violence in 2014, shortly before these offences were committed. As a result, he was on conditional liberty at the time of these offences and had only been in the community for about three months. Mr Hall’s prospects of rehabilitation are hard to characterise, but they are certainly less than those of Mr Barker; he has a high risk of reoffending.
Sentence
Mr Hall is formally convicted of each offence and the following sentences are imposed.
(a)The commission of these offences constitutes a breach of the good behaviour order imposed for the 2014 attempt choke offence. The breach is dealt with under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT). The good behaviour order is cancelled and the offender is resentenced to six months' imprisonment from 6 January 2015 to 5 July 2015.
(b)In relation to the attempted aggravated robbery offence, but for the plea of guilty the offender would have received a sentence of four years' imprisonment. It is reduced by eight months, resulting in a sentence of three years and four months' imprisonment. That sentence will run from 6 April 2015 to 5 August 2018.
(c)In relation to the second offence (5 January 2015), but for the plea of guilty the offender would have received a sentence of six and a half years' imprisonment. It is reduced by one year, resulting in a sentence of five years and six months' imprisonment. That sentence will run from 6 July 2016 to 5 January 2022.
(d)In relation to the first offence (27 December 2014), but for the plea of guilty the offender would have received a sentence of six and a half years' imprisonment. It is reduced by one year, resulting in a sentence of five years and six months' imprisonment. That sentence will run from 6 April 2019 to 5 October 2024.
Including the resentencing, that is a total period of nine years and nine months’ imprisonment. I impose a non-parole period of about 60%, being five years and nine months’ imprisonment from 6 January 2015 to 5 October 2020. Mr Hall will be eligible for release to parole on that date.
Mr Barker is formally convicted of each offence and the following sentences are imposed.
(a)In relation to the attempted aggravated robbery offence, but for the plea of guilty the offender would have received a sentence of three and a half years' imprisonment. It is reduced by seven months, resulting in a sentence of two years and 11 months' imprisonment. That sentence will run from 6 January 2015 to 5 December 2017.
(b)In relation to the second offence (5 January 2015), but for the plea of guilty the offender would have received a sentence of five years' imprisonment. It is reduced by nine months, resulting in a sentence of four years and three months’ imprisonment. That sentence will start on 6 January 2016 and run to 5 April 2020.
(c)In relation to the first offence (27 December 2014), but for the plea of guilty the offender would have received a sentence of five years' imprisonment. It is reduced by nine months, resulting in a sentence of four years and three months’ imprisonment. It will start on 6 March 2018 and run to 5 June 2022.
The effective sentence is seven years and five months' imprisonment. I impose a non-parole period of three years and nine months’ imprisonment from 6 January 2015 to 5 October 2018. Mr Barker will be eligible for release to parole on that date.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: 25 February 2016 |
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