R v Kirchner
[2015] ACTSC 194
•13 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kirchner |
Citation: | [2015] ACTSC 194 |
Hearing Date(s): | 23 April 2013; 15 November 2013; 27 February 2015; 13 July 2015 |
DecisionDate: | 13 July 2015 |
Before: | Burns J |
Decision: | See [1] – [18] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – aggravated robbery – breach of deferred sentence order. |
Parties: | The Queen(Crown) Daniel Kirchner (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 249 of 2012 |
BURNS J:
Background
Daniel Kirchner, on 10 December 2012, you entered a plea of guilty in the Magistrates Court to one charge of aggravated robbery which occurred on 12 November 2012 and you were committed for sentence to this Court on that day.
I will not recite the facts which are contained in the Agreed Statement of Facts tendered at the sentence hearing on 23 April 2013. It is sufficient to note that you robbed a suburban supermarket whilst in possession of a knife. The knife was used as a threat only and no harm was occasioned to your victim, a female supermarket employee. Nevertheless, it would have been a frightening experience.
You surrendered yourself to police on 18 November 2012 and made a full confession. It is doubtful whether the police would have had sufficient evidence to charge you with this offence if you had not surrendered yourself and made such a confession. In the course of your confession, you told police that you were addicted to drugs.
On 23 April 2013, I recorded a conviction and imposed a Deferred Sentence Order requiring you to appear before me on 16 October 2013 for sentence. I made it clear that I would likely impose a further six month deferred sentence order in October 2013 if you complied with the terms of the Order that I made on 23 April that year. I also made it clear that any breach of the Deferred Sentence Order would likely result in imprisonment. I granted you bail on 23 April 2013, the terms of which reflected my expectations of you during the period of that Order. The principle bail conditions were:
(a)that you accept supervision of ACT Corrective Services and obey all reasonable directions of that service;
(b)that you enter and complete a residential rehabilitation program as directed by ACT Corrective Services;
(c)that you not use illicit drugs; and
(d)that you undertake random urine analysis as directed by ACT Corrective Services.
These conditions were directed towards your rehabilitation from illicit drug use, which was a reason for your offending and also placed you at great risk of re-offending.
On 15 November 2013, you again appeared before me and I imposed a further Deferred Sentence Order requiring you to appear for sentence on 20 May 2014. Bail was granted in similar terms to that which I granted on 23 April 2013, except that the requirement to attend a residential rehabilitation program was omitted. I note that you had attended Triple Care Farm from 15 July 2013 to 24 October 2013, a total of 102 days.
On 27 February 2014, you appeared before me on a breach of bail. You had tested positive to cannabis, amphetamine, and methamphetamine use. I viewed the breach as serious, but I noted that other urine analysis results had been negative and that you had obtained employment. On balance, I decided to continue bail and order a Bail Progress Report be prepared for 20 May 2014.
On 11 March 2014, you surrendered yourself to the Court with respect to a further breach of bail constituted by failing to attend for supervision appointments with Corrective Services. I continued bail and warned you that you were not doing yourself any favours by not complying with your bail conditions.
On 20 May last year, you appeared for sentence. In the light of the two bail breaches which I referred to a moment ago, I imposed a further Deferred Sentence Order for a period of three months requiring you to appear for sentence on 19 August 2014. I indicated that, if there were no further breaches at that time, I would finalise the matter with a suspended sentence order, but if there were any further breaches of bail I would cancel the Deferred Sentence Order and impose a sentence of imprisonment.
On 19 August 2014, you failed to appear for sentence and I ordered that a warrant was to issue for your arrest. You were arrested on that warrant on 29 May this year.
Consideration
An updated Pre Sentence Report has been placed before me today. I note that you are currently 24 years old, but that you were 21 at the time of this offence. You are currently in a stable relationship, but you are estranged from your parents, ex-partner and son. You told the author of the Report that you have employment prospects. You also indicated that you have been reliant on Centrelink benefits for some time.
You have continued to use illicit drugs. Urine analysis on your entry at the Alexander Maconochie Centre revealed the use of cannabis, amphetamine, methamphetamine and benzodiazepines, although your counsel has told me today that the result for benzodiazepines may be a result of the use of prescription drugs. The author of the Pre Sentence Report said that you appeared to be motivated to lead a pro-social life. In that regard, I note that there has been no offending alleged since 2012. It is, however, of significance that you continued to use illicit drugs and therefore you remain at risk of reoffending. The Pre Sentence Report assessed you as at medium to high risk of reoffending.
I am satisfied that you have reasonable prospects for rehabilitation, but you must address your drug use. In the light of previous non-compliance with the Deferred Sentence Order and with bail conditions, I see little point in imposing a suspended sentence at this time. In my opinion, the appropriate course is to impose a term of imprisonment with a non-parole period. The advantage of this course is that, when you are released on parole, if there is any breach of parole, then your parole may be automatically cancelled by the Sentence Administration Board and you may be returned to custody immediately.
I do take into account in determining the appropriate sentence that you voluntarily surrendered yourself to police and made a confession at a time when the police would have had no other evidence to convict you of this offence. I am satisfied that this behaviour on your part demonstrated contrition and it also had a very significant utilitarian value. I also take into account your early plea of guilty with respect to this matter. I will reduce by 25 percent the sentence that I would otherwise have imposed in order to reflect your plea of guilty. I will further reduce the sentence by 15 percent to allow for your surrender to the police and the confession that you made to them. I will therefore reduce the otherwise appropriate sentence by 40 percent.
I take into account your age at the time of the offending, which was 21, and note that you are still quite young, so of course rehabilitation is a very significant sentencing issue.
I also take into account the fact that you have spent 157 days in custody before you were released on bail on the Deferred Sentence Order. I will allow a further 51 days for the time that you spent at Triple Care Farm. Plus, you have spent a further 46 days since you were arrested on the warrant. That is a total of 254 days.
I would start with a sentence of three years' imprisonment. I have reduced that by 40 percent and rounded that down to 21 months' imprisonment.
Sentence
I note that I have already imposed a conviction in the matter.
There will be a sentence of 21 months’ imprisonment, commencing on 1 November 2014 to allow for the 254 days that you have already served. I will set a non-parole period of 254 days that is expiring today, so that you are immediately eligible to apply for release on parole.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 27 July 2015 |
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