R v King
[2022] ACTSC 183
•21 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v King |
Citation: | [2022] ACTSC 183 |
Hearing Date: | 21 July 2022 |
DecisionDate: | 21 July 2022 |
Before: | Elkaim J |
Decision: | (a) The conviction is confirmed. (b) For the offence of attempted aggravated robbery, the offender is sentenced to imprisonment for 4 years and 8 months. The sentence will commence on 19 August 2021 and end on 18 April 2026. (c) A non-parole period of two years and six months is set, to commence on 19 August 2021 and end on 18 February 2024. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated robbery – where aggravated factor was use of firearm – where offender neglected as a child – where offender has disability, disadvantage and relative youth |
Legislation Cited: | Criminal Code 2002 (ACT) ss 44, 310 |
Cases Cited: | R v Forrest (No 2) [2021] ACTSC 259 R v Rowland [2016] ACTSC 192 |
Parties: | The Queen (Crown) Kasey Tyson King (Offender) |
Representation: | Counsel M Howe (Crown) J Cooper (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender) | |
File Number: | SCC 294 of 2021 |
Elkaim J
On 21 April 2022, the offender pleaded guilty to the offence of attempted aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) by virtue of s 44 of the Criminal Code. The maximum penalty is 25 years’ imprisonment and/or a fine of $400,000.
There is an agreed statement of facts in Exhibit A. The following paragraphs summarise the background to the offending.
6. At around 9:15am that morning, [the victim] entered the carpark from an elevator along with his carer, [the victim’s carer], and his dog [Rover (a pseudonym)]. As they did so, [the victim’s carer] observed the offender walking away from her gold Mazda 3, which was parked across the carpark. [The victim] and [the victim’s carer] walked towards the Mazda 3 and, as they did so, noticed that the passenger side rear quarter panel window of the car had been smashed and there was glass on the ground.
7. [The victim] called [Rover] back to him to prevent his walking in the broken glass. The offender, who was standing at a set of escalators separate to the ones [the victim’s carer] and [the victim] had entered the carpark though (sic), turned and asked ‘Are you talking to me?’. [The victim] responded ‘You’ve broken into the car, mate’ as the offender walked towards him in an aggressive manner and produced a handgun from his pants. The handgun appeared to be a sawn off .22 rifle. It had a dark brown wooden handle with a silver barrel with a dark steel coloured trigger and trigger guard, and a small round metal attachment protruding from the top of the barrel.
8. [The victim’s carer] screamed ‘He’s got a gun’, and [the victim] passed [Rover]’s lead to her and told her to get into the elevator, which she did. Before doing so, she threw the keys to the Mazda 3 towards the back of the vehicle.
9. The offender cocked the handgun and pointed it at [the victim]’s head, repeatedly threatening in an abusive tone to shoot [the victim] if he did not give him the keys to the Mazda 3. [The victim] could see that the offender’s pupils were dilated and his body was shaking.
10. [The victim] walked forwards towards where the exit was in an attempt to remove himself from the location and show the offender where the exit was. During this interaction, [the victim] felt fearful. The offender then told [the victim] ‘I’m going to fucking kill you’ before pointing the gun down and deliberately firing it, shooting [the victim] in the lower left leg from a distance of one to one and a half metres away.
11. [The victim] fell to the ground as a result of the gunshot and crawled towards the Mazda 3 with the offender following him. The offender told [the victim] that he was going to kill him. [The victim] thought there was more ammunition in the gun and he could be shot again. [The victim] pulled himself into the front passenger seat of the Mazda 3 and dialled triple-0, telling the operator that he had been shot in Belconnen carpark and that the offender had tried to take the keys from [the victim’s carer].
The offender has not been charged with any firearms offences. However the parties have agreed that the use of the firearm should be taken into account in the attempted robbery charge. This aggravation significantly affects the objective seriousness of the offending. The Crown suggested that the objective seriousness was more than existed in R v Forrest (No 2) [2021] ACTSC 259 (Forrest). Mr Cooper, for the offender, countered that in Forrest the victim had been shot in the neck.
There are obviously a number of ways of rationalising the comparison between the two offenders. I do not think it takes the matter any further. In my view this is an objectively very serious offence.
The victim was taken to hospital where he required immediate treatment. He was admitted and remained an inpatient until 7 September 2021. The path of the bullet had fractured the victim’s left proximal tibia. At one stage emergency surgery was necessary to deal with complications arising from the injury. The scarring will be permanent.
There is a victim impact statement from the person who was shot. He described his injuries and their effects. These are felt every day. The whole of his life has been significantly affected. He is anxious and paranoid. He feels unsafe at home and has difficulty even going into the suburb of Belconnen. Because of his nervousness he has had CCTV installed at his own cost. He needs physiotherapy and pain medication in order to cope.
The offender was born in 2000 in Sydney. He is of Indigenous and Tongan heritage. At school he had learning difficulties. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and received stimulant medication for a period.
The offender made it through to Year 11 but his schooling was hampered by bad behaviour and learning difficulties. He also started using drugs at an early age.
He told Dr Furst that he regretted his actions. He was under the influence of ice and alcohol at the time. He expressed sympathy for the victim.
Both of the offender’s parents were alcoholics. They neglected him and there was some violence at home.
The offender has been in a relationship, on an off-and-on basis, over a number of years. There are three children. The oldest is six.
There is a letter from the mother of the children. It is a plea for mitigation expressed in moving and compelling terms:
Focusing more on his current situation and the charges at hand now; things seem bleak in Mr King’s defence. I believe all these acts have been an act of recklessness, with no forethought of the probability of consequence. I think that is the case with all his current and past charges; it was simply an act formed out of a cocktail of substances and unhealed trauma responses.
As I’ve mentioned previously, Mr King grew up in a “criminal environment”. Some of his siblings had been charged for cases just as, if not more - serious in the past and I’ve witnessed them completely turn their lives around and start working 9 to 5 jobs, staying substance free. I believe means of rehabilitation is not beyond repair for Mr King and staying in jail for a maximum sentence would not be beneficial to him either.
I see his best opportunity to be looking at rehabilitation, proper mental-health evaluations, working over the course of his sentence to be integrated back into the community (this time with proper supports), and lastly for his place of residence to be safe and stable. Multiple years in jail would ultimately strip this young man of what may be his last opportunity to maintain what innocence he has left, before he gets stuck in an unforgiving cycle of drugs and incarceration.
Dr Furst, who is a forensic psychiatrist, identified substance use disorders, ADHD and a borderline intellectual disability or a mild intellectual disability. The doctor thinks that he needs treatment for his addictions and he should be taking anti-depressant medication. He is taking the latter. He needs regular reviews with psychiatric practitioners.
The Crown submitted that “only a lengthy period of imprisonment can adequately meet the purposes of sentencing”. The Crown, correctly, pointed to the need for punishment, specific deterrence, protection of the community and recognising the harm to the victim. The Crown however did accept that rehabilitation remained an important factor.
Mr Cooper thought the starting point for sentencing was approaching six years but this figure should be reduced to take into account the offender’s “disability, disadvantage and relative youth”.
The offender has a significant criminal history. His age, now 22, and prospects of rehabilitation must be taken into account.
The six years referred to by Mr Cooper is perhaps derived from the decision of Murrell CJ in R v Rowland [2016] ACTSC 192 at [49]:
In this jurisdiction, sentences in the range of 3–4 years’ imprisonment are often imposed in “typical” cases, i.e. where a robbery is committed by one offender who is relatively young, has a limited criminal history and is armed with a weapon like a knife. In cases that are more serious, either because the objective circumstances are more serious or because the offender’s subjective circumstances (including prior criminal history) do not allow for significant leniency, the starting point is often at least six years’ imprisonment. In the most serious cases, the starting point can be significantly higher. This is not to say that the starting points for the sentences that have been imposed in other cases are necessarily correct, but the pattern of sentencing in other cases does provide a “yardstick” against which to assess the appropriate sentences in this case.
The Crown drew my attention to the phrase “at least six years imprisonment”.
On my assessment of the objective seriousness of this matter, and in particular taking into account the extent of injury to the victim and the need for public deterrence, I think a starting point of six years and six months is appropriate.
However, I agree with Mr Cooper that this starting point should be reduced to take into account the offender’s youth, his disadvantaged upbringing and his personal limitations, such as learning difficulties. For these reasons I will decrease the imprisonment to 5 years and 10 months.
He is also entitled to a discount for his plea of guilty. The plea was entered before the criminal case conference. I think it should be 20 per cent. This brings the total down to 4 years and eight months.
In relation to the non-parole period, the dominating factor is rehabilitation. The sentiments described in the above letter of support are relevant here. He needs to have a target to look forward to when he can continue with rehabilitation and devoting himself to society and in particular his young family in a productive manner.
Mr Cooper also emphasised the need for the offender to tackle his drug problem, which will be assisted by a non-parole period closer to the bottom of the ‘normal’ range of 50 per cent to 70 per cent. I did not understand the Crown to particularly challenge Mr Cooper’s suggestions, which I think are appropriate
I intend to set a non-parole period of two years and six months. This is about 54 per cent of the total prison term.
In respect of the breach offence, the Crown, fairly, suggested that no further action be taken. I will adopt that approach.
The parties have agreed that the sentencing should take into account 337 days of pre-sentence custody. Accordingly the sentence and non-parole period will commence on 19 August 2021.
I make the following orders:
(i)The conviction is confirmed.
(ii)For the offence of attempted aggravated robbery, the offender is sentenced to imprisonment for 4 years and 8 months. The sentence will commence on 19 August 2021 and end on 18 April 2026.
(iii)A non-parole period of two years and six months is set, to commence on 19 August 2021 and end on 18 February 2024.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
3
2
1