R v HD
[2014] ACTSC 214
•24 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v HD |
Citation: | [2014] ACTSC 214 |
Hearing Date: | 24 July 2014 |
DecisionDate: | 24 July 2014 |
Before: | Penfold J |
Decision: | See [18] to [21] below |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced on delayed guilty plea for offence of being knowingly concerned in attempted aggravated robbery committed at age 18 – offender acted as lookout for three armed co-offenders who tried to enter a club to commit robbery – offender’s difficult childhood and adolescence – mother’s involvement in criminal activity – parity – offender sentenced to 20 months imprisonment, backdated and remainder suspended. |
Legislation Cited: | Criminal Code 2002 (ACT), ss 44, 310 Crimes (Sentence Administration) Act 2005 (ACT) |
Parties: | The Crown (Crown) HD (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Number: | SCC 108 of 2012 |
HD has pleaded guilty to one count of being knowingly concerned in an attempted aggravated robbery committed in December 2011.
The offence arises under ss 44 and 310 of the Criminal Code 2002 (ACT) and carries a maximum penalty including imprisonment for up to 25 years.
HD was concerned in an attempt by three other men to rob the Burns Club in Canberra. A week before the attempt, HD signed the three men into the Burns Club as his guests; they used the visit to observe aspects of the club. On the day of the offence, the three other offenders left HD’s home in Kambah riding bicycles that they had earlier stored at his house. HD and another man travelled in HD’s car to the Burns Club, drove slowly by and then stopped 200 m away, from where HD undertook a “lookout” role. When the three other offenders tried to enter the club wearing hooded disposable overalls, masks and gloves, and carrying weapons, they were arrested by police who had been monitoring the activities of one of the offenders under a telecommunications interception warrant. HD drove away immediately but was stopped by police a short time afterwards.
HD was charged and released on bail, but since then he has spent a total of 59 days in custody in three periods, most recently since being remanded in custody on 20 June this year.
HD pleaded guilty to the charge in the Supreme Court on 10 January 2014, 20 months after the matter had been committed to this court for trial. His sentencing was delayed by his failure to co-operate with Corrective Services in the preparation of a pre-sentence report, and more recently there was an abortive attempt to withdraw the guilty plea.
Having regard to the planning that went into this offence, the weapons being carried by the three would-be robbers (a hatchet, a large kitchen knife and a meat cleaver), and the fact that one of the offenders was carrying 25 cable ties with him, it is apparent that this was both a serious attempt and an attempt to commit a serious robbery. HD’s role in the incident was in some ways less serious, but in the absence of any suggestion that he had been unaware of the arrangements for the robbery, or indeed that he had only a peripheral involvement in the planning of the matter, I see no reason to treat him as other than an informed participant in an attempt to commit a serious aggravated robbery.
HD is now 21; he was 18 when this offence was committed. Before that, he had been dealt with for an assault occasioning actual bodily harm committed when he was 14 and an attempted aggravated robbery committed when he was 16. No conviction was recorded for either offence so I assume that in each case they were at the lower end of the spectrum of seriousness for such offences. Since this offence, he has been convicted of two traffic offences constituted by driving while suspended and driving while disqualified. He is currently facing charges in the Magistrates Court of failing to appear (the offence which caused him to be remanded in custody in June this year) and possession of methylamphetamine which was discovered when he was arrested. However, I note also that there has been no equivalently serious offending since the attempted aggravated robbery two and a half years ago.
HD has declined to discuss the offence with the Pre-Sentence Report author or otherwise for the purpose of these proceedings – accordingly, he has expressed no remorse or insight into his offending.
HD provided no information about his family circumstances to the Pre-Sentence Report author, but I am aware from previous matters that, as noted by counsel for HD, HD’s mother has had a long-term involvement in the criminal justice system, and in 2011 was sentenced for a drug-related unlawful confinement offence that had been carried out in her home several years earlier and in which the presence of HD, then only 16, was identified as an aggravating feature. HD’s mother spent over two years in custody in respect of that offence and although HD was provided with a care placement, it was not entirely satisfactory.
10. HD has had no diagnosed mental health problems, but has received some attention from ACT Mental Health after it emerged that his failure to appear in court in June resulted from a suicide attempt he had made using benzodiazepines.
11. HD has an offer of employment as a labourer from a tradesman for whom he has previously worked. The offer, importantly, includes the provision of transport to and from work. HD is confident of his ability to keep out of trouble if he accepts an offer to return briefly to his mother’s home, but has applied for independent accommodation.
12. Although it is clear that HD has used drugs, including methylamphetamine and benzodiazepines, the extent of his drug use is not clear, and there is no claim that it was a factor in the current offence.
13. Three of HD’s co-offenders, the ones who attempted to enter the Burns Club, have been sentenced for their parts in the attempted aggravated robbery:
(a)WJ, who had a supportive childhood and a minor criminal history, but was also being sentenced for two aggravated robberies and another attempted aggravated robbery, was sentenced to 22 months imprisonment reduced from 28 months for his plea of guilty, with a non-parole period of 30 months in a total five-year sentence.
(b)LH, who had a disrupted childhood and a substantial juvenile criminal history, was also sentenced to 22 months imprisonment reduced from 28 months, with 12 months to be served in full-time custody and the rest suspended on a three-year good behaviour order.
(c)The third offender, BJ, like HD, had only a juvenile criminal record involving offences that appear to have been relatively minor. Although having a more supportive background than HD in many ways, he had in the months before the offence been living without family support and seems to have been effectively homeless. He was sentenced to 18 months imprisonment reduced from two years for his plea of guilty; roughly 10 months had already been served in pre-sentence custody, and the remainder of the sentence was immediately suspended subject to a three-year good behaviour order.
14. All three co-offenders had made much earlier pleas of guilty than had HD.
15. I am satisfied that no penalty other than imprisonment is appropriate for this offence. General deterrence is important in relation to this offence, and it is also necessary to provide adequate personal deterrence to HD, although much of that can on this occasion, I consider, be provided by the threat rather than the actuality of further time in prison.
16. HD’s plea of guilty came roughly two years after he was charged and 20 months after he was committed to this court for trial. As noted, after entering the plea, he did not co-operate in the preparation of a pre-sentence report and then indicated a wish to withdraw his guilty plea, which was however not pursued. The guilty plea still has utilitarian value and will entitle HD to some discount, but it will not be substantial.
17. HD, please stand.
18. I record a conviction on the charge of being knowingly concerned in an attempted aggravated robbery.
19. I now sentence you to imprisonment for 20 months, reduced from 22 months for your plea of guilty.
The sentence will be backdated to 26 May 2014 to reflect time in custody and so it would run until 25 January 2016.
21. Having regard to your youth, your relatively minor criminal record despite the challenges you faced in your childhood and adolescence, the opportunity you currently have for work, your expressed willingness to accept mental health support, and what appear to be general prospects of rehabilitation, the sentence will be suspended with effect from today, 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 three years. The good behaviour order is subject to the conditions that:
(a)for such period not exceeding three years as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or delegate;
(b)you undertake such counselling, courses, programs or treatments as directed by your supervising officer, in particular those relating to your mental health and to alcohol and drug abuse;
(c)that you be assessed and, if found suitable, you undertake the Men’s Cognitive Self-Change Program; and
(d)that you submit to urinalysis testing as and when required by Corrective Services.
22. You will be given a written copy of that good behaviour order and it will be explained to you by court officials. In short, it means that for the next three years, you need to keep out of trouble, keep in contact with Corrective Services as required and if appropriate, participate in the Cognitive Self-Change Program. If you commit another offence during that time, you may find yourself back before this court to be re-sentenced for this offence and HD, if any further offending was serious, you could easily find yourself back in the AMC serving another much longer chunk of this current sentence and, of course, you have still got over 18 months of this sentence outstanding.
23. If you have any particular questions about that order, please ask the court officials or Mr Doig who will be happy to talk to you about it.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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