R v Jacka
[2017] ACTSC 225
•15 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Jacka |
Citation: | [2017] ACTSC 225 |
Hearing Date: | 15 August 2017 |
DecisionDate: | 15 August 2017 |
Before: | Elkaim J |
Decision: | See paragraph [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – pleas of guilty. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 |
Cases Cited: | Hall v R; Barker v R [2017] ACTCA 16 |
Parties: | The Queen (Crown) Mitchell Jacka (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr R Davies (Offender) |
| Solicitors Office of the ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Number: | SCC 111 of 2017 |
ELKAIM J:
The offender was born in 1989. He has been known to ACT Corrective Services since 2008. Since then, he has tried most of the services offered. He has been subject to Good Behaviour Orders, periods on bail, terms of periodic detention and full-time detention. He has not been deterred from returning to criminal activity.
On 10 May 2017, the offender pleaded guilty in the Magistrates Court to five counts of aggravated robbery and one count of aggravated burglary. The former offence carries a maximum penalty of a fine of $375,000 and/or 25 years imprisonment. The latter offence carries a maximum penalty of a fine of $300,000 and/or 20 years imprisonment.
The offender’s pleas of guilty were entered at the earliest opportunity. He is entitled to a discount for the pleas.
The offences are described in the Statement of Facts. In summary, on 29 April 2017, the offender and his colleagues broke into the ACT Rugby Union Club in Turner. Their attempts to open a cash box failed. They fled when the security alarm sounded.
I would describe this offence as being of medium objective seriousness.
The second offence took place at 2.55 am on 29 April 2017. On this occasion, the offender and three other men approached two men who were operating a food truck. Two of the men were carrying sawn-off shotguns and the other two were carrying knives. They asked one of the employees to hand over the takings for the evening. The employee invited them to leave; adopting a phrase in which a word sometimes used to describe “the sexual act was substituted for a verb of motion”.
Instead of leaving, one of the men pointed a shotgun at the employee’s head and again asked for the money. The employee took the men to his personal motor vehicle and gave them about $5,000. They were not content with this and also took the employee’s wallet.
The use of the gun and the threats made to the employee make this offence objectively very serious.
The third offence took place on 1 May 2017, when the offender and another male, both wearing motorcycle helmets, pointed firearms at an employee of the Belconnen Soccer Club and demanded money. The employee told them that there was no money so they then went to the bar. They pointed their weapons at a bartender and demanded she provide them with money. She complied, giving them about $500.
This offence also involves the use of a gun and the terrorising of a victim. I characterise its objective seriousness in a similar way.
The fourth offence occurred the following day, when the offender entered a liquor store in the Nicholls shopping centre. He was wearing a motorcycle helmet and carrying a shotgun. He pointed the gun at the store clerk and demanded money. She complied and placed money in a bag provided by the offender. He also stole cigarettes.
Once again, and for the same reasons, I assess this as being an objectively very serious offence.
The fifth offence occurred about 20 minutes later when the offender entered a supermarket on the University of Canberra campus. He was still wearing his motorcycle helmet and carrying the shotgun. He threatened an employee with his gun. She gave him about $2,000 and he fled. The same level of objective seriousness applies.
The sixth offence occurred on 7 May 2017. The offender, again wearing a motorcycle helmet, entered a supermarket in Dunlop and, using a gun, threatened an employee. She initially gave him $1,190 but after further threats she added $1,350 from another cash register. The offender fled the scene.
The offender was arrested on 8 May 2017 and has been in custody since then. His sentence will commence on this date.
Although the offender told the authors of the pre-sentence report that he had a stable and supportive relationship with his mother and siblings, he also said that, from the age of about eight, he moved between his family home, youth refuges and remand centres for assorted behavioural issues. His parents found him difficult to manage. His father was abusive. The circumstances of his childhood interfered with his progress at school. I will take his deprived upbringing into account.
The offender started using alcohol at a young age and continued to drink to excess until he was 24. He was also introduced to illegal drugs at a young age and continued to use amphetamines and methylamphetamines until he was arrested.
A screening test suggested that he requires intensive intervention to address his drug problems. He has attempted some programs while in custody and has indicated that he would like to recommence a program.
The offender has mental health issues, including a diagnosis of depression for which he takes anti-depressant medication.
The offender has two children from a relationship that has existed for about five years. Both children are in care. The offender does not see them. He also has two older children from a previous relationship. He does not see them either.
The offender blames his use of drugs for his offending in that they contributed to “his poor decision-making”. The use of drugs does not provide any excuse although I can, and will, take into account his introduction to drugs at a young age leading him into a condition in which he found it difficult to deal with his need for illicit substances.
With the above background, the offender has been assessed as being at a high risk of re-offending.
Sentencing requires a consideration of the principles and objects set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10, which is normally important, tells the Court that imprisonment should only be imposed where there is no other option. There is no other option in this case. The offences are far too serious, the offender’s record is far too extensive and the demands of the public for general deterrence leave the Court with no choice but to impose terms of imprisonment.
In relation to his record, I acknowledge that the current offences are not typical, the most similar dating back to 2006.
The Crown drew my attention to Hall v R; Barker v R [2017] ACTCA 16 (Hall) in which the Court of Appeal said that the guideline judgment of the New South Wales Court of Appeal in R v Henry (1999) 46 NSWLR 346 should be regarded as persuasive, although not binding, in the Australian Capital Territory. The Crown pointed out that the characteristics listed in paragraph [49] of Hall were applicable here except that this offender was not young and did not have a minor criminal history. In other words, said the Crown, the guideline sentence should be regarded as a starting point in this case.
The Crown also cautioned me to avoid an excessive head sentence, as described in Hall at paragraph [39].
Where there are multiple offences, it can be difficult to avoid an overly long head sentence if accumulation of sentences is applied. On the other hand, the offender must be seen to be punished for each of the offences he has committed and the victims must be reassured that the offences committed against them individually produce a punishment that can be related to the suffering they have endured.
I have no doubt that every one of the victims felt the effects of being threatened by a sawn off shotgun.
I assessed all of the aggravated robberies as being of a similar objective seriousness. The Crown suggested that the two robberies involving co-accused should be seen as more serious. Although this is a valid argument, my assessment was based on the terror inflicted upon the individual victims.
Two victim impact statements were tendered. One was read out by the victim. She described the 60 seconds which changed her life when she was faced with a man pointing a gun at different parts of her body and shouting at her. She described her feelings of guilt because she was managing the store and she feels as if she is responsible for the loss to the store owner. This feeling is of course unjustified but reflects the extent of damage that is done in such a short time by an unthinking, violent criminal.
The other victim impact statement also describes the terror of the night but, as a reflection of the decency of the victim, she ends her statement with this message to the offender:
I hope that you can find the strength to overcome what is going on for you. You didn’t have the right to do what you did. I understand that you are an addict, and don’t hold it against you as a person, you have a disease, and addiction - it was a horrible thing you did, and I want you to do the time you deserve, but hope your family can support you through getting better.
Notwithstanding the bleak prospects of rehabilitation, the offender must be given the opportunity to improve his life and this will be taken into account in sentencing.
The first offence, the burglary, will attract a lesser sentence because its maximum penalty is less and there was no one in the Club at the time of the offence.
Because I have assessed the robberies as being of equal objective seriousness, they will each attract the same penalty. However, there will be a degree of accumulation to reflect the matters I have stated above. I have also taken into account the principle of totality in order to avoid an overly long head sentence. In addition, the discount for the pleas of guilty will be assessed at 25%.
I think that the burglary offence should attract a term of imprisonment of two years, reduced from two years and eight months. Each robbery will carry a term of imprisonment of three years, reduced from four years. There will be accumulation in respect of each offence to a degree leading to a head sentence of seven years. The non-parole period will be four years.
I make the following orders:
(i)For the offence of aggravated burglary (CC 17/5178), the offender is sentenced to a term of imprisonment of two years to commence on 8 May 2017 and end on 7 May 2019.
(ii)For the offence of aggravated robbery (CC 17/5179), the offender is sentenced to a term of imprisonment of three years to commence on 8 May 2017 and end on 7 May 2020.
(iii)For the offence of aggravated robbery (CC 17/5180), the offender is sentenced to a term of imprisonment of three years to commence on 8 May 2018 and end on 7 May 2021.
(iv)For the offence of aggravated robbery (CC 17/5181), the offender is sentenced to a term of imprisonment of three years to commence on 8 May 2019 and end on 7 May 2022.
(v)For the offence of aggravated robbery (CC 17/5182), the offender is sentenced to a term of imprisonment of three years to commence on 8 May 2020 and end on 7 May 2023.
(vi)For the offence of aggravated robbery (CC 17/5183), the offender is sentenced to a term of imprisonment of three years to commence on 8 May 2021 and end on 7 May 2024.
(vii)The head sentence is seven years which will end on 7 May 2024.
(viii)I set a non-parole period of four years to commence on 8 May 2017 and end on 7 May 2021.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 15 August 2017 |
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