R v Horner
[2018] ACTSC 98
•14 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Horner |
Citation: | [2018] ACTSC 98 |
Hearing Date: | 14 March 2018 |
DecisionDate: | 14 March 2018 |
Before: | Murrell CJ |
Decision: | Sentence of 26 months’ imprisonment suspended after eight months upon the offender entering into a two year good behaviour order. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Robbery in company – Offender has shown remorse – Offender has developed insight into offending – Offender has taken steps to rehabilitate – No relevant prior criminal history |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 35(4), 35A, 36 Criminal Code 2002 (ACT) s 310 |
Cases Cited: | Monfries v The Queen [2014] ACTCA 46; 245 A Crim R |
Parties: | The Queen (Crown) Robert Horner (Offender) |
Representation: | Counsel Mr J Walker (Crown) Ms T Warwick (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender) | |
File Number: | SCC 129 of 2017 |
MURRELL CJ:
On 1 January 2017, the offender committed aggravated robbery (robbery in company) with Brett Shearer, contrary to s 310 of the Criminal Code 2002 (ACT). The maximum penalty for such an offence is 25 years’ imprisonment and a fine.
The offender was arrested on 2 February 2017 and released on bail later that day.
On 28 February 2018, four weeks before the trial was scheduled to commence, the offender’s solicitor confirmed in writing that the offender would plead guilty and that he was prepared to give evidence against the co-accused. On 5 March 2018, the offender entered a plea of guilty in the Supreme Court.
On 2 February and 13 March 2018, the offender participated in records of interview, providing detail which will, no doubt, form the foundation of his evidence at the co-accused’s trial.
Facts
In the early hours of Sunday, 1 January 2017, the offender was very intoxicated. He roamed the streets on a Pokémon hunt. When he returned home, he argued with his wife. He telephoned his acquaintance, Mr Shearer, and asked Mr Shearer to collect him. Mr Shearer had been celebrating New Year’s Eve. He was on his way home when he received the offender’s message asking to be collected. He was intoxicated. The pair planned to return to Mr Shearer’s residence in Wanniassa and drink more alcohol.
At the same time, the victim was at work delivering newspapers from his vehicle to various locations in the Tuggeranong area. At about 3.50 am, he made a delivery at a Wanniassa address. As he left this address, he observed that a silver Holden Commodore displaying a red P–plate was following him. Mr Shearer was driving the Commodore. The offender was in the front passenger seat.
As Mr Shearer and the offender approached Mr Shearer’ residence in Wanniassa, Mr Shearer formed the view that the victim’s vehicle was “high beaming” his vehicle. Mr Shearer decided to run the victim’s vehicle off the road. He began to tailgate the victim’s vehicle and to flash his high beam headlights.
The victim made a number of turns in an attempt to escape Mr Shearer’s vehicle. The chase continued for a significant period of time (ten to fifteen minutes). At one stage, Mr Shearer’s vehicle accelerated, drove in front of the victim’s vehicle and came to a sudden stop. This caused the victim to stop his vehicle.
The offender and Mr Shearer left the Commodore. They came towards the victim’s vehicle. The victim reversed, did a U‑turn across the median strip and began to drive away. The offender and Mr Shearer ran back to Mr Shearer’s vehicle, entered it and followed the victim’s vehicle. Mr Shearer attempted to stop the victim’s vehicle on a second occasion by driving in front of it. He was unsuccessful.
In an endeavour to escape the pursuit, the victim drove into the driveway of a unit complex at Greenway. At the end of the driveway, he stopped his vehicle. The Commodore followed the victim’s vehicle into the complex and stopped behind the victim’s vehicle, preventing it from moving.
The offender and Mr Shearer left the Commodore and approached the driver’s window of the victim’s car. One of them banged on the window and opened the driver’s door. The victim had armed himself with what appeared to be a wrench.
One of the offenders seized the victim, threw him to the ground and stood over him. The offenders punched the victim two or three times to the head and face. The victim shouted for help. One of the offenders placed a hand over his mouth.
The victim’s cries for help were heard by residents of the unit complex who telephoned emergency services. One of the residents heard an offender swearing at the victim and threatening to kill him. She also heard what sounded like punches and kicks.
According to the offender, Mr Shearer then leaned into the victim’s vehicle and removed the victim’s wallet and its contents, his mobile telephone and a keyring holding keys to his car and house. The offender and Mr Shearer then returned to the Commodore and drove away at high speed.
Witnesses came to the aid of the victim and assisted him to cancel his bank and credit cards.
At 4.15am, police arrived. They saw redness, swelling and blood on and around the victim’s nose.
During a photo identification procedure the victim recognised neither the offender nor Mr Shearer.
On 31 January 2017, police conducted a search at Mr Shearer’s address. They located the victim’s mobile telephone. In Mr Shearer’s car, they found a credit card in the name of the offender. The police seized Mr Shearer’s mobile telephone. Several text messages on Mr Shearer’s telephone suggested that the offender had been at the scene of the robbery, although the messages were not unequivocal in that regard.
A search of the offender’s residence yielded nothing of interest.
On 2 February 2017, the offender was arrested and interviewed by police. During the interview, the offender made significant concessions. He described how the pursuit had commenced. However, the offender understated his role in the offence. He stated that on the first occasion that the Commodore forced the victim’s vehicle to stop, he did not leave the vehicle. That statement was corrected in the second interview. In the initial interview, the offender accurately described what had happened to the victim. However, he identified Mr Shearer as the perpetrator of the violence towards the victim. In the second interview, the offender conceded that it was he who had most contact with the victim, although Mr Shearer also had some contact with the victim.
DNA analysis of the shirt worn by the victim during the robbery located a DNA profile closely matching that of Mr Shearer.
Objective seriousness
All offences of aggravated robbery are very serious, as is indicated by the maximum penalty. This offence was of significant objective seriousness.
The offender did not plan to pursue the victim’s vehicle; Mr Shearer decided to do so because he believed that the victim had “high beamed” his vehicle. However, by the time that the offender left the Commodore and approached the victim after Mr Shearer caused the victim’s vehicle to stop by pulling in front of it, the offender had joined in a criminal enterprise with Mr Shearer.
When the offender and Mr Shearer approached the victim at the unit complex, both were engaged in the criminal enterprise. Both approached the vehicle. Both behaved in a threatening way, although the offender now concedes that he was the main perpetrator of actual violence against the victim. An offence of aggravated robbery need not and often does not involve the employment of actual violence but actual violence was used in this case. There was no weapon involved, but as the Crown pointed out, had there been a weapon, that would have been an aggravating circumstance.
Although he was within a motor vehicle, the victim was in a relatively vulnerable position. It was late at night. There were few people around.
Important personal items were stolen from the victim, including his car and house keys, his mobile telephone and his credit and bank cards.
Discount for plea and assistance
For three reasons, there may be a sentence discount. First, the offender entered a plea of guilty about a month before the trial was scheduled to commence. In Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47], I observed that a last minute plea commonly attracts a discount of 10 per cent. A plea entered or firmly indicated after committal and before a trial date has been set, will usually result in a discount of more than 10 per cent and commonly results in a discount of 15 per cent. In this case, the plea was entered after the trial date had been set, but weeks prior to the trial commencing.
For the plea of guilty, a discount in the range of 13 to 15 per cent is appropriate.
The Crown submitted that no significant discount should be given for the plea of guilty, because pursuant to s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the Court must not make a significant reduction if it considers that the prosecution’s case was “overwhelmingly strong”.
A number of decisions establish that s 35(4) has a limited operation. There are extremely important public and policy reasons for encouraging offenders to plead guilty and meeting their expectations as to the extent of the discount that will be afforded to them having regard to the timing of their plea. In Cranfield v The Queen [2018] ACTCA 3 at [38] the Court said:
The context and terms of s 35(2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35(2) or other circumstances, including those identified by Howie J in Borkowski.
The second discount matter arises under s 35A of the Sentencing Act. Section 35A applies if an offender is convicted or found guilty, and before or after the conviction or finding of guilt, the defence assisted in the administration of justice for the offence, including by way of pre-trial disclosure. The assistance must go beyond the mere entry of a plea of guilty.
In this case, the most important evidence against the offender, is contained in the record of interview that the offender gave on 2 February 2017. The police knew that Mr Shearer had been accompanied by a second person during the aggravated robbery and that there was a connexion between Mr Shearer and the offender. The offender’s credit card was found in Mr Shearer’s vehicle, and there were text messages that gave rise at least to a suspicion that the offender was the second person. However, in his interview on 2 February 2018, the offender confirmed that he was the second person. Consequently, he is entitled to some consideration under s 35A for the concessions that he made in that first interview.
The third matter arises under s 36 of the Sentencing Act. Section 36 applies if an offender has, inter alia, undertaken to assist law enforcement authorities in proceedings relating to the offence or any other offence. In both interviews, the offender indicated what he knew about the offence. At the time that he indicated a willingness to plead guilty, the offender indicated that he would give evidence against Mr Shearer. Mr Shearer is scheduled to be tried in less than two weeks. Today, the offender confirmed his willingness to assist by giving evidence in those proceedings.
In determining whether to impose a lesser penalty and the nature and extent of any s 36 discount, the Court must have regard to the considerations in s 36(3). The first is the effect of the offence on the victim. The offence would have had a very dramatic impact on the victim. The second matter is the significance and usefulness of the offender’s assistance. The assistance is of limited significance and usefulness. In addition to any evidence that may be given by the offender, the prosecution case against Mr Shearer is substantial. A further factor to be considered under s 36 is the truthfulness, completeness and reliability of the information provided by the offender. When the two records of interview are looked at together, it would appear that the information provided by the offender is truthful, complete and reliable, although the reliability of evidence given by any co-offender can always be called into question. Nevertheless, the evidence of a co-offender is more likely to be reliable where, as here, the offender concedes that he was the person who was primarily responsible for the physical contact with the victim. I note the other matters in s 36(3). To the extent that they are relevant, I have or will refer to them elsewhere in these reasons.
Having regard to the discounts to be considered under ss 35, 35A and 36, I consider the appropriate total discount to be about 27–28 per cent. .
Subjective circumstances
At the time of the offence, the offender was 26 years old.
The offender has no relevant criminal history. He has a conviction for an affray that occurred in 2013. However, the offence was very minor and resulted in a six-month good behaviour order). The offender has not previously come before the courts for any matter of significance.
The offender is one of four children. He resides with his wife and four children, who are aged between three months and three years. Each of the three older children has a medical problem that is not insignificant. The oldest child has ear, nose and throat problems that may explain his learning difficulties. He has been referred to the Child Development Service. The second child has a bowel issue which requires surgery. The third child has a hip problem of unknown aetiology. The medical circumstances of the family are problematic, particularly as the offender’s wife needs to undergo surgery in the relatively near future.
The offender completed Year 11 at school. He was a good student who was keen on sport. He experienced bullying at school. Later, he experienced bullying in the workplace. From time to time, particularly in more recent years, the offender has experienced depression. This may be related to the history of bullying.
Since leaving school, apart from times when he has been unable to work because of medical problems, the offender has always been employed, generally in the construction industry. He holds a number of qualifications, including qualifications that allow him to operate a vehicle loading crane and a forklift truck. He is the sole breadwinner for the family. With four young children and her own medical problems, his wife is occupied full-time with home duties and childcare.
In December 2013, the offender was injured in a workplace accident. In 2015, he underwent surgery. He has a permanent (or, at least, a semi-permanent) loss of movement in the left wrist. The injury causes chronic pain. Consequently, his work capacity is limited. In 2017, he worked full-time for some months but reduced his work hours because the wrist condition was aggravated by the work. This year, he has not worked because, on medical advice, he must completely rest his wrist in preparation for further wrist surgery in the near future. In the medium to longer term, the offender anticipates returning to the workforce, possibly as a truck driver. Given his wrist problem, there will be some limitations on the types of truck that he can operate.
The offender has a history of problematic alcohol consumption. However, this offence was a wakeup call. In about April 2017, the offender began to attend Alcoholics Anonymous (AA) meetings. He attended weekly for about six months. He ceased attending AA meetings because his bail conditions imposed a curfew and it was difficult to get home from the meetings in time to meet the curfew. In addition, he has had family responsibilities. The offender says that he has abstained from alcohol for the past 12 months.
The offender has accepted responsibility for his actions. He has acknowledged the negative impact of the offence on the victim and his own family. The offender tendered a letter to the Court in which he apologised for the incident and expressed shame and remorse. He has expressed shame and remorse to family members. He showed remorse by making full disclosure in the second police interview about the extent of his involvement in the violence against the victim. The offender has considerable insight into the impact of the offence on the victim, and the reasons for his offending behaviour. He has made efforts to address those matters.
The offender’s wife described the offender as a wonderful husband and caring father, who is always willing to help anyone in need. He spends a lot of time with his children and supports his wife by undertaking some domestic duties. For example, he takes the children to swimming classes, attends to the baby and plays with the older children.
One of the offender’s brothers is disabled. The offender maintains regular telephone contact with that brother and takes him on outings. The offender also supports his father, who suffers from depression. Referees describe the offender as a dependable friend, who is strongly committed to his family. They say that he is a quiet, trustworthy person who goes out of his way to help others. They describe the offending conduct as completely out of character.
In addition to ceasing the consumption of alcohol, the offender has changed his life in other ways. Last year, he did voluntary work for the Salvation Army; he was motivated to “give back” and help the disadvantaged. He has abandoned his relationship with Mr Shearer. Previously, the offender and his wife and family had been a great support to Mr Shearer, whom the offender considers to be a troubled young man. The offender and his family had provided Mr Shearer with a temporary home in their own house. They had assisted Mr Shearer to clean his rented accommodation and had provided emotional support and a family environment. However, since the offence, the offender has ceased contact with Mr Shearer. According to the offender and his wife, the offender has also disengaged from other negative friendships. He now spends his time with his family and friends who are family-orientated, working people.
The offender has made very significant changes. First, he is rehabilitating himself from alcohol abuse. Second, he is disassociating himself from negative peers. Third, he has reflected and gained insight into his offending conduct and is remorseful. Finally, to the extent that he is able to do so, he is pursuing employment. The offender is aware that employment is a factor that assists him to remain free of depression.
The offender has the continuing strong support of his wife, extended family and numerous friends. All these factors support rehabilitation.
In sentencing any offender, the Court is required to impose an appropriate sentence, having regard to the sentencing purposes set out in s 7 of the Sentencing Act.
Sentencing purposes
For offences of this type, the purpose of general deterrence is very important. Accountability, denunciation and recognition of harm to the victim are also very important. While the Court did not receive a victim impact statement, the offender himself acknowledged that the offence would have had a dramatic effect on the victim. The victim suffered physical injuries, but must also have suffered mental injuries of far greater importance. He was pursued by a vehicle for a significant period of time, and then cornered and physically attacked by two men.
Having regard to these matters, I see no alternative but to impose a period of time in full-time imprisonment.
However, the period of imprisonment should be kept to a minimum and the offender should be permitted to serve the bulk of his sentence in the community. The offence was very much out of character. The offender has no significant prior criminal record. He has very strong rehabilitation prospects. I am also cognisant of the needs of his wife and four young children, who have medical problems and are financially dependent upon him.
The sentence should recognise the offender’s clear demonstration of remorse, which is evident in many statements that he has made, and in the second record of interview.
The Crown has helpfully drawn my attention to a number of cases, and to the sentencing statistics. The cases provide a yardstick for the range of sentences imposed in comparable cases. As for the sentencing statistics, while the High Court repeatedly warns that sentencing statistics are not to be given significant weight, the statistics do at least show the approach that this Court has taken in the past. The maximum penalty of 25 years’ imprisonment is a critical sentencing parameter.
Sentence
Having regard to these matters, the starting point for the sentence is three years’ imprisonment. Deducting approximately 27–28 per cent, I arrive at a sentence of two years and two months’ imprisonment.
The offender is convicted. He is sentenced to 26 months’ imprisonment. I make a suspended sentence order, suspending the sentence from 14 November 2018. The offender will serve eight months by way of full-time imprisonment. The remaining 18 months will be suspended.
I make an associated good behaviour order for a period of two years. The good behaviour order will commence on 14 November 2018.
It is a condition of the good behaviour order that the offender reports to Community Corrections within two working days of release, and submits to their supervision for as long as the Service considers necessary.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 18 April 2018 |
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