R v Holt

[2020] ACTSC 311

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Holt
Citation:	[2020] ACTSC 311
Hearing Date:	13 October 2020
Decision Date:	19 October 2020
Before:	Burns J
Decision:	See [40]–[44]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated robbery – plea of guilty – consideration of drug abuse and mental health issues on moral culpability – relevance of offender’s youth – consideration of Intensive
Correction Order
Legislation Cited:	Criminal Code 2002 (ACT) ss 44, 310
Parties:	The Queen (Crown) James Daniel Michael Holt (Offender)
Representation:	Counsel
M Dyason (Crown) C Brown (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender)
File Number:	SCC 161 of 2020
BURNS J:

1. James Holt, on 17 July 2020 you entered a plea of guilty to one charge of attempted aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 44 of the Criminal Code. That offence carries a maximum penalty

of 25 years’ imprisonment, a fine of $400,000, or both.

2.       You entered your plea of guilty in the ACT Magistrates Court and I accept that it is an early plea of guilty entitling you to significant discount because of its utilitarian value. I will reduce the otherwise appropriate sentence by approximately 25 per cent because of your plea of guilty. A conviction on this charge will place you in breach of Good Behaviour Orders imposed in the ACT Magistrates Court.

The facts

3.       At about 8:55 pm on 21 June 2020, you and another male approached the victim in a suburban car park while she was placing groceries in her car. She was on her own and it was dark. You were armed with a knife and your co-offender was armed with a piece of copper pipe about 30 centimetres in length.

4.       Your co-offender demanded that the victim hand over her property saying something

like, “[g]ive me your money”. He grabbed at the victim's right hand. The victim said, “[n]o, get away from me” but your co-offender repeated his demand and again lunged

at her grabbing her right arm.

5.       The victim then hit back at your co-offender and started yelling, “[d]on't touch me”. At

that time, you were standing slightly behind your co-offender and you were holding a flick knife in your left hand. The knife had a blade of about 5 to 7 centimetres in length. You were wearing a grey hooded top with the hood up and a dark face covering.

6.       When the victim saw the knife, she began to back away. You then began to make slashing movements near the rear of her car. The victim then ran at you and your co-offender yelling at you to get away. You and your co-offender then ran away and entered a blue Suzuki Swift parked about 20 to 25 metres away.

7.       About 9:49 am on 22 June 2020, you participated in a recorded interview with police. You acknowledged that you were with other persons in the blue Suzuki Swift on the evening of 21 June 2020, but you denied any knowledge of this incident or having been in the area where the offence occurred. About 10:17 am on 2 July 2020, you participated in a further recorded interview with police in which you made admissions to wielding the knife while your co-offender attacked the victim.

Consideration

8.       I accept that you are entitled to a degree of leniency because of the fact that you provided information and admissions to police when you were interviewed on 2 July 2020. Your co-offender was a juvenile at the time of this offence. He has subsequently been sentenced in the ACT Childrens Court. A further person who was allegedly present in the Suzuki Swift has also been charged with attempted aggravated robbery and has entered a plea of not guilty in the ACT Magistrates Court.

9.       The offence of aggravated robbery may be committed by virtue of one of two circumstances of aggravation. That is, being in possession of an offensive weapon or being in company with another. Both circumstances of aggravation exist in the present offence. In assessing the objective seriousness of this offence, I take into account that both circumstances of aggravation were present.

10.    The victim was a female and vulnerable because she was alone at night in a suburban car park and that actual violence was used in the course of the offence. The weapon which you possessed, a knife, was one capable of inflicting lethal injuries. Some degree of planning and premeditation was involved. The only reason that you are charged with attempted aggravated robbery and not the offence of aggravated robbery itself is that the victim refused to hand over the property that was demanded of her. From the perspective of you and your co-offender, you had done virtually everything that you could do to commit the substantive offence.

11.     It is clear from the Victim Impact Statement that this offence has had significant and ongoing effects both physically and psychologically on the victim.

12.     It is a seriously aggravating circumstance that only three days before you committed this offence, you appeared in the ACT Magistrates Court and were sentenced for offences of drug driving, possession of a prohibited weapon, minor theft, assault, damaging property and failing to appear in accordance with a bail undertaking. You were convicted of those offences and entered into Good Behaviour Orders for a period of 12 months. As such you were on conditional liberty at the time that you committed the present offence.

13.     I would place the present offence in the lower end of the mid-range of such offences.

Subjective features

14.     You are currently 19 years of age, having turned 19 in May 2020. You have a not insignificant criminal history which commenced over one year ago.

15.     As part of the preparation for your sentence hearing, an assessment for an Intensive Correction Order was obtained. The Report notes that you have a long history of cannabis use and you have also tested positive for methamphetamine this year. You suggested to the author of that Report that medication you are taking may have contributed to the positive result for methamphetamine but this appears unlikely.

16.    I note that in a report dated 25 September 2020, Dr Richard Furst, a forensic psychiatrist, stated that you have used MDMA, LSD and methylamphetamines sporadically in the past. I presume that you were the source of this information. The author of the Intensive Correction Order Assessment Report notes that during supervision over the past 12 months you have repeatedly been offered referrals to residential rehabilitation programs and you have expressed an unwillingness to attend. The Report says that you have been referred to Directions on numerous occasions, however, you had not attended any appointments to address your drug use.

17.     That information in the Report appears to be somewhat inaccurate as a letter dated 21 September 2020 from Directions indicates that you accessed that program on 4 June 2020 for an assessment and assistance regarding substance use. However, you attended only one more counselling session on 17 June 2020. To be fair, it appears that you made a further appointment but you were unable to attend because you were arrested and remanded in custody with regard to the present offence.

18.     You provided two samples for urinalysis testing during the assessment period, both of which were negative for the presence of any illicit drugs. The author of the Report states that such drugs may not have been as readily available to you in custody as in the community. From long experience in these courts, I have no doubt that drugs are available within the Alexander Maconachie Centre (AMC) to those who seek them out.

19.     I accept that it is positive that you have not had any positive results for drugs whilst in the AMC and also that you had commenced counselling with Directions before the present offence occurred. The Report notes that your response to community-based orders in the past has been poor. The author of the Report states that when you were sentenced in the ACT Magistrates Court on 18 June 2020, you were warned that any further offending would likely result in a sentence of imprisonment.

20.     You have been unemployed since January 2019. You have occasionally expressed a desire to find employment, but you have not reported applying for any jobs. You told the author of the Report that your offending usually involves antisocial peers and that you act on their suggestions. You said that you would not associate with these people if released from custody, but the Report notes that these antisocial associates have apparently been placed on your contact list at the AMC.

21.     The Report suggests that your upbringing was marred to some extent by domestic violence and alcohol abuse by at least one of your parents. Your mother voiced concerns about your behaviour when you were living at home with her. Regarding the present offence, you told the author of the Report that you regretted your actions

because “five months in jail was not worth it”. You stated the main contributor to the

offence was peer pressure. You also acknowledged that the victim may have felt
scared, angry and upset.

22.     You were assessed as a high risk of re-offending due to your drug use, mental health issues, attitude, peers, unemployment, family relationships and accommodation. The author of the Report expressed the opinion that you may benefit from undertaking a residential rehabilitation program and noted that you have the option of applying to undertake the Solaris Therapeutic Program in the AMC once you are a sentenced prisoner.

23.    You were assessed as unsuitable for an Intensive Correction Order due to your previous inability to comply with community-based orders and possible ongoing drug use when in the community.

24.     In his report, Dr Furst notes that you were conceived by IVF and that you have not had any contact with your biological father.

25.     You have a lengthy history of emotional and behavioural difficulties. You found it difficult to sit still and concentrate at school. You were reported to be restless and demonstrated poor attention. You got into trouble at school. You commenced smoking cannabis when you were 13 years old, a habit that continued throughout your teenage years and up until early in 2020. As I have already noted, you reported sporadic use of other drugs.

26.    You told Dr Furst that you believed that you had Attention Deficit Hyperactivity Disorder (ADHD) but you have never been formally diagnosed. Emotional problems over recent years have included mood swings, depressive symptoms and anxiety. You were prescribed an antidepressant and Risperidone in 2019, but you were not taking any medication at the time of your offending.

27.     You have engaged in some drug and alcohol counselling at Court Alcohol and Drug Assessment Service (CADAS) and at the AMC over the last 12 months. You told Dr Furst that your mother suffers from frequent mood swings and is aggressive towards you on occasions. Dr Furst expressed the opinion that she probably also has an unstable personality structure. He noted that it was reported that your brother is also mentally unstable.

28.     You told Dr Furst that you smoked cannabis with friends on the day that this offence occurred. You stated that the attempted robbery was not your idea and that you always have trouble saying no. When asked about your attitude to your offending,

you reported stated, “I suppose now I'm regretting it. Every time I think about it, it
makes me angry… I'm sick of being in jail”.

29.     Dr Furst expressed the opinion that you have a lengthy history of emotional and behavioural problems, most likely indicative of an unstable temperament, impulsivity, emotional volatility, ADHD and conduct problems. He believes that you meet diagnostic criteria for mental disorders being Substance Use Disorder (Cannabis Dependence), ADHD and Conduct Disorder. The onset of these conditions was in your childhood, predating your offending.

30.     Dr Furst expressed the opinion that your temperamental problems, Conduct Disorder, poor emotional control, Substance Use Disorder, ADHD and negative peer associations have been the most significant contributing factors to your offending behaviour over the last 12 months. He believed that psychological assessment and therapy would likely assist you, especially in relation to your poor coping skills, temperamental problems and to assist you to develop better coping skills under stress.

31.    Ongoing treatment with appropriate medication will also likely assist with mood stabilisation. When released from custody, Dr Furst recommends that you engage in drug and alcohol counselling with a focus on relapse prevention. The preferred option would be a residential rehabilitation placement given the chronicity and severity of your drug use. He also recommended referral to a clinical psychologist pursuant to a mental health care plan. Referral to a psychiatrist is also recommended for further assessment and treatment of ADHD symptoms.

32.    I note that you have completed several programs whilst in the AMC. I take into account the contents of the letter which you wrote which was placed before me at the sentence hearing. It speaks of a desire to be released from prison and to rehabilitate yourself in the community.

33.    Sadly, your past performance regarding compliance with community-based orders casts doubt upon your ability to return directly to the community without first addressing drug abuse and mental health issues which are likely to lead to you re- offending. In my opinion, a structured return to the community through a period in an appropriate residential rehabilitation program, accompanied by appropriate treatment for mental health issues, will provide you with your best opportunity to avoid future offending.

34.     Your prospects for rehabilitation are reasonable if you address drug addiction and mental health issues. In any event, the report by Dr Furst, whilst drawing a connection between your mental health issues and your offending, does not really address the extent to which your mental health issues impaired your ability to understand that what you were doing was wrong, to make appropriate judgements about engaging in the offending behaviour and to control your behaviour.

35.     I accept that based on the report of Dr Furst it is appropriate to mitigate somewhat your moral culpability for this offence, but I do not accept that the report justifies a significant mitigation. The report also does not suggest that your mental health issues are such as to make you a completely inappropriate vehicle for general deterrence. I accept that you commenced drug use at an early age, such that you should not now be held as accountable for the consequences of addiction as you would be had you commenced drug use as an adult.

36.     The offence of aggravated robbery is one of the most serious criminal offences that come before these courts. The present offence is no less serious because it is an attempted aggravated robbery. Such offences almost inevitably call for a sentence of imprisonment. It was suggested that the Court should consider the imposition of an Intensive Correction Order, notwithstanding your failure to previously comply with community-based orders.

37.     An Intensive Correction Order involves a significant degree of leniency compared to a sentence of full-time imprisonment. In my opinion, considering the nature and circumstances of the offence, and your history of non-compliance with community-based orders, an Intensive Correction Order would not be an appropriate disposition. In sentencing you to a term of imprisonment, I take into account that this is the first sentence of imprisonment to which you have been subject.

38.     I also take into account the relatively onerous conditions currently existing within the AMC because of COVID-19 restrictions. There does not appear to me to be any reason to conclude that you are at any greater risk of contracting the COVID-19 virus within the AMC than you would be if you were at liberty in the general community. However, the Crown accepts that restrictions exist on visitors attending the AMC.

39.     Due to your age, rehabilitation must be a prominent sentencing consideration and I will attempt to foster your rehabilitation by allowing for early release from custody into a rehabilitation program depending upon an assessment by the Sentence Administration Board of your progress in custody prior to any application for release on parole.

Sentence

40.    On the charge of attempted aggravated robbery (CAN 75078/2020), I record a

conviction and you are sentenced to two years’ imprisonment, which I have reduced

from two years and eight months because of your plea of guilty, commencing on 22 June 2020 and expiring on 21 June 2022. I have backdated the commencement of the sentence to 22 June 2020 to take into account pre-sentence custody.

41.    The recording of this conviction means that you are in breach of the Good Behaviour Orders imposed in the ACT Magistrates Court on 18 June 2020. As the learned Magistrate did not consider it appropriate to impose sentences of imprisonment for those offences, I do not now consider it appropriate for me to do so.

42.     I will direct that no further action be taken on the breach in respect of each of the Good Behaviour Orders. I acknowledge that this means that those Good Behaviour Orders will effectively be rendered nugatory. However, in circumstances where it is inappropriate to impose sentences of imprisonment, any sentence which I impose is likely to be ineffectual.

43.    I will set a non-parole period of 10 months, commencing on 22 June 2020 and expiring on 21 April 2021.

44.     I recommend to the Sentence Administration Board that any early release to parole be accompanied by a requirement that you undertake an appropriate drug rehabilitation program and that structures be put in place for treatment for mental health issues prior to your release.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

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