R v kN
[2020] ACTSC 56
•12 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KN |
Citation: | [2020] ACTSC 56 |
Hearing Dates: | 25 November 2019 and 12 February 2020 |
DecisionDate: | 12 February 2020 |
Before: | Ashford AJ |
Decision: | See [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted aggravated robbery – aggravated robbery – theft – common assault – young offender – early pleas – prior criminal history – not suitable for an intensive correction order – sentence of imprisonment |
Legislation Cited: | Criminal Code 2002 (ACT), ss 308, 310(b), 311 |
Parties: | The Queen (Crown) KN (Accused) |
Representation: | Counsel R Khazma (Crown) H Hayunga (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 255 of 2019 SCC 256 of 2019 SCC 29 of 2020 |
ASHFORD AJ:
Introduction
KN appears before me today for sentence in respect of a number of offences. He was previously before me on 25 November 2019 and on that occasion, following some submissions, I decided to refer him for assessment in relation to a possible intensive correction order. I now have that report, which is to the effect that he is deemed unsuitable for such an order; the reason being on the recommendation that he has a lack of suitable accommodation. That seems clear having read the report.
He had proposed that he could live at his mother's home, but apparently she is not willing to have him at her property because of his past antisocial behaviours. He thus appears today in relation to sentence. In the interim, a further charge has been referred from the Magistrates Court which relates to a different offence, which I shall come to shortly.
The initial offences for which he came before the court were four-fold:
1. Attempted aggravated robbery on 16 September 2019 pursuant to s 310(b) of the Criminal Code 2002 (ACT), the offence being on 16 September 2019. The maximum penalty for such an offence is 25 years’ imprisonment or $400,000 or both.
2. The second charge related to an aggravated robbery, also on 16 September 2019 pursuant to s 310(b) of the Criminal Code.
3. The third charge was that of theft pursuant to s 308 of the Criminal Code, the offence being on 16 September 2019 again. The penalty is 10 years or $160,000 or both.
4. The fourth charge was that of common assault on 16 September 2019, the penalty for which is two years’ imprisonment.
A further offence for which he is now to be sentenced is that of burglary pursuant to s 311 of the Criminal Code, the offence being committed on 10 October 2018. The maximum penalty for that offence is 14 years' imprisonment or a $224,000 fine or both. I note that in relation to that charge, on the first mention for the matter in the Magistrates Court, the offender pleaded guilty, and he is thus entitled to a reduction in sentence because of that early plea.
In relation to the other matters there was also a plea made on 1 October 2019, as I understand it, which again is a fairly early plea in relation to all the charges.
The offender has been in custody since 16 September 2019 in respect of the aggravated robbery charges, the theft and common assault, but not in relation to the charges of burglary. Coincidentally, he is serving a period of time as a result of a different offence; that term commencing on 9 December 2019 and expiring on 15 February 2020. That matter has nothing to do with the present offences before me.
Facts
I have had the benefit of helpful submissions from each of the parties, and the assistance of a number of authorities and the provision of the pre-sentence report. An agreed statement of facts has been tendered in each matter.
16 September 2019
In relation to the aggravated robbery charges, the offences of 16 September 2019, the summary of fact is as follows.
The offender used a knife in an attempted robbery of a cafe in Belconnen, and whilst there succeeded in robbing another customer in that café. Using a credit card from the stolen wallet, he made two attempts to buy an angle grinder from a nearby hardware store. When those transactions were unsuccessful, he stole the angle grinder. During his later arrest, he spat at a police officer. As noted, he pleaded guilty to those initial charges on 1 October 2019. That was on the second mention apparently but is still an early plea in my view.
In relation to the attempted aggravated robbery and the aggravated robbery, the facts are as follows. The offender entered Studio No.7 cafe at 57 Benjamin Way, Belconnen shortly after 11.35am on Monday, 16 September 2019. He was wearing a dark hooded jumper. He bought a bottle of soft drink and was served by Ms IL. She remembered the offender because he asked to buy the drink for $2.10 rather than its price of $2.50.
At approximately 1.55pm, the offender returned to Studio No.7 Cafe and sat in the centre of the cafe facing south towards the other customer, Mr EM. EM noted that the offender had one hand under his hooded jumper and one in the front pocket of that jumper. IL approached the offender and asked him if he would like to order anything. He replied to the effect of, “No, I'm just waiting for a mate” and she moved behind the counter.
A short time later, the offender stood and walked behind the counter. He removed a large silver bladed knife with a black handle from under his jumper and he pointed the knife at her and said words to the effect of, “I need the money. Give it to me”. She was holding a pair of scissors behind the counter. As she saw the offender’s knife, she reached for a nearby knife, yelling, “Oh, my God, help”. The offender then turned towards EM and pointed the knife directly at him. The offender moved towards him and took his wallet from the table where he had been sitting. The offender ran from the café.
At approximately 2.25pm, the offender entered Bunnings Warehouse on Lathlain Street, Belconnen. He was wearing blue denim jeans, a maroon long sleeved shirt and a pair of white Nike sneakers. Inside that store, he made two unsuccessful attempts to purchase an Ozito branded cordless angle grinder valued at $59 with EM's stolen Commonwealth Bank debit card. He then removed the angle grinder from its box and stuffed it down his pants and he left the store without paying. The offender's attempt to use EM’s credit card and the theft of the angle grinder were recorded by CCTV cameras inside the store.
At approximately 2.41pm, the offender was located by police, arrested and searched. Police found the Commonwealth Bank debit card in EM’s name and a red Ozito branded cordless angle grinder and associated parts. Neither the knife nor EM's wallet or contents were recovered. The offender was asked to sit on the ground as the police attempted to speak with him. The offender spat at Senior Constable Paul Stewart and his saliva struck Senior Constable Stewart on the legs. The offender was arrested on 16 September 2019.
10 October 2018
In relation to the fresh charge, the statement of facts as agreed is as follows. On 10 October 2018, Mr TC, the victim, secured his home and left his residence. The offender damaged the victim's rear glass door and rummaged through the home. The offender entered the home with intent to commit theft of property within the residence. He pleaded guilty, as I've noted before, on 10 February 2020 which was the first mention before the Magistrates Court.
At approximately 8.45am on 10 October 2018, TC secured and locked his residence at 11 Heighway Street in Macgregor before leaving for the day. Sometime between 8.45am and 11.25pm, the offender entered the rear yard of the residence. The offender broke the rear sliding glass door and managed to slide open the door and enter the residence.
Once inside the home, the offender entered the master bedroom. He moved an evaporative cooler to gain access to TC's bedside drawer. The offender rummaged through the drawer as well as other cupboards and drawers. A drop of blood was found on the evaporative cooler. The offender also entered the lounge room and garage. A drop of blood was also detected on the light switch of the garage. The victim had known the offender to be a previous next-door neighbour but had never invited him into his home.
Bloodstaining was observed on the evaporative cooler unit within the master bedroom. On 11 October 2018, swabs were taken of the blood staining. On 18 September 2019, a mouth swab sample was taken from the offender upon intake into custody for offences currently before the court. On 7 November 2019, a comparison of the bloodstaining and the offender's mouth swab sample was compared and forensic analysis determined the blood was 100 billion times more likely to originate from the offender than any unknown individual related to the offender.
Objective seriousness
At the time of those offences, he was subject to a good behaviour order which had expired three days before that offence.
No oral evidence has been given by the offender. I have noted the maximum penalties which are legislated for each of the offences. I am required to assess the objective seriousness of each offence and to have regard to the harm occasioned by each offence. I am also required to look at any degree of preparation or deliberation involved in each offence in determining an appropriate sentence for each of the offences.
In my view, the use of a knife is not an aggravating factor but part of the offence of aggravated robbery, although I note that there may well have been some aggravation by the offender producing that weapon.
In respect of the attempted robbery, clearly this is not as serious as if there had been a completed action and, of course, this depends on the circumstances of the actions by the offender. In this offence, the offender pointed the knife at IL who in turn produced a pair of scissors, diverting the offender towards another person, EM, and he then pointed the knife at him. He then stole that person's wallet which was on a table.
The effect of the offender's actions on IL are set out in her victim impact statement which I have read. She still experiences some fears for her safety as a result of the offence and I accept her distress continues. She has clearly enumerated her problems which she feels have arisen as a result of being involved in this action.
In relation to the later offence, being that of burglary, I have had the benefit of a victim impact statement of TC read out by the Crown and it is clear that this offending behaviour has caused him some difficulties, not only in monetary terms in upgrading the security of his house, but also in his feelings that his property and belongings were not secure after such a break in. He also experiences some emotional impact as a result of the offence and he feels that his personal space has been invaded and his place was no longer secure and a sanctuary. He has also, at a prior time, been diagnosed with anxiety and depression and he takes medication for that condition and this has heightened his need for a period of time following the offence.
All of that is quite understandable. There is no doubt that each of the offences committed are upsetting and have an impact upon victims which can readily be understood. Offences of this kind are all prevalent in our society and are matters which are rightly of concern to the general populace and are matters which call for general and specific deterrence. I accept there to have been a small degree of planning for the offence in relation to the attempted aggravated robberies and theft, being the first set of charges, noting that the offender initially entered the shop and bought a drink. He then sat for a while and later returned to the premises having determined that he was going to commit the offence, apparently. He then produced the knife and took the wallet. I do not consider there was a great deal of planning or pre-mediation, but clearly there was some planning in relation to his action.
In respect of the assault, the offender spat at police in the course of his arrest. His spit landed on the policeman's trousers apparently. This is a degrading and disgusting act but constitutes a lesser degree of aggravation than had it been directed at the policeman's face, for example.
The offender's representative has submitted to me that the offences are relatively unsophisticated and whilst there was a threat of violence there was no actual use of force. The offence occurred in daylight hours and it is considered that there is a strong prosecution case, the offender being apprehended shortly after committing those offences. In looking to the objective seriousness of those charges, I am of the view that whilst serious they come into a lower range, taking into account all the factors of the offence.
In relation to the burglary charge, again, this is a serious matter, although in terms of objective seriousness, again, I believe this to have been not in the most serious category but below the mid-range of objective seriousness.
Subjective circumstances
In relation to subjective matters, I have the benefit of a pre-sentence report. This offender is 18 years of age. The offences were committed some two weeks after he turned 18 and I am referring now to the initial offences. He is clearly a young man with great problems. He has a prior criminal history dating back many years as a juvenile. The pre-sentence report noted him to have had a stable childhood. His mother apparently visits him in custody and was present in court at each of his sentencing hearings.
In respect of his personal circumstances, it is noted that he has been using drugs for some time. He has some mental health issues. He has no present accommodation. He has been in a relationship with his girlfriend who apparently also uses drugs. He has no employment. He has an antisocial attitude which is reflected in his incidents in prison and all in all, he seems to me to be a young man who desperately needs some rehabilitation and some treatment in relation to his drug and mental health issues. However, noting that he has not been accepted into any facility and also noting that he is unsuitable for an intensive corrections order, it seems to me that there is no alternative for this young man at the present time than to be subjected to full-time custody, having considered all alternatives.
He apparently left school at Year 10. He receives a Centrelink payment. He clearly needs some assessment by a psychiatrist, and I assess him to be a medium to high risk of re-offending, noting the reports which have been prepared both in the intensive corrections order assessment and in the pre-sentence report. The nature of all the offences, in my view, lead me to consider any alternatives to full-time imprisonment and noting his problems and his inability to engage in an intensive corrections order, I am of the opinion I have no alternative but to sentence him to full-time custody.
Consideration
General deterrence and specific deterrence, as I have said, are matters which require the community to denounce such behaviour. Principles of totality apply, of course. I understand that he has been in custody now since 16 September 2019. The offences committed on 16 September 2019 are all within a short space of time during that day and I am prepared to commence each of those sentences on 16 September 2019. In relation to the other matter, this was committed at some stage prior to, in fact, the year before although there was no charge laid until a much later date.
[KN], I convict you on the charge of attempted aggravated robbery on 16 September 2019, the aggravated robbery also committed on 16 September 2019, and in relation to the charge of theft on 16 September 2019, and I also convict you in relation to the common assault on 16 September 2019. In relation to the charge of burglary, you are also convicted, that offence having been committed on 10 October 2018.
In relation to the first three charges, I intend to impose a custodial sentence of two years, each of those concurrent, commencing on 16 September 2019. I afford a 20% discount in respect of the early plea. In relation to the charge of burglary, I impose a sentence of one year, which will commence six months following 16 September 2019. Again I afford a 20% discount for the early plea. In relation to the common assault, I impose a term of imprisonment of one month, commencing on 16 September 2019. I set a non-parole period of 14 months.
I make recommendations that the offender be afforded the benefit of drug and alcohol programs whilst in prison and also the benefit of some mental health assistance, including a consultation by a psychiatrist. Clearly he needs to break the cycle into which he appears to have fallen. He is 18 years of age. He clearly needs some help. Those conditions should also apply when on parole.
Orders
The orders of the Court are:
1.On the charges of attempt aggravated robbery (CC19/10205), aggravated robbery (CC19/10206) and theft (CC19/10207) the offender is sentenced to two years’ imprisonment, served concurrently, from 16 September 2019 until 15 September 2021. To this I apply a 20% discount. That reduces the sentence by approximately five months. The end date of the sentence is therefore 21 April 2021.
2.On the charge of burglary (CCCAN1175/19) the offender is sentenced to one year of imprisonment, commencing 16 March 2020 and ending on 15 March 2021. To this I apply a 20% discount. That reduces the sentence by approximately two months. The end date of the sentence is therefore 2 January 2021.
3.On the charge of common assault (CAN10208/19) the offender is sentenced to one month imprisonment, commencing 16 September 2019 and ending on 15 October 2019.
4.The non-parole period is 14 months, ending on 15 November 2020.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Ashford. Associate: Date: 11 March 2020 |
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