R v Kristiansen
[2020] ACTSC 14
•29 January 2020 and 7 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kristiansen |
Citation: | [2020] ACTSC 14 |
Hearing Dates: | 29 January 2020 and 7 April 2020 |
DecisionDates: | 29 January 2020 and 7 April 2020 |
Before: | Mossop J |
Decision: | See [45] and [51] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated attempted burglary – possessing drug of dependence – committed whilst subject to good behaviour orders – context of significant illicit substance use – good prospects for rehabilitation – good family support – custodial sentence to be served by intensive correction order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110 Crimes (Sentencing) Act 2005 (ACT), ss 63, 80 Drugs of Dependence Act 1989 (ACT), s 169 |
Cases Cited: | R v Lock [2016] ACTSC 319 |
Parties: | The Queen (Crown) Lee Alexander Kristiansen (Offender) |
Representation: | Counsel C Wanigaratne (Crown) J Robertson (Offender) |
| Solicitors ACT Director of Public Prosecution (Crown) Sharman Robertson (Offender) | |
File Numbers: | SCC 297 of 2019 SCC 298 of 2019 |
Mossop J:
Introduction
The offender, Lee Alexander Kristiansen, pleaded guilty in the Magistrates Court to the following offence: one count of attempt aggravated robbery using force contrary to s 310(b) of the Criminal Code 2002 (ACT), the maximum penalty being 25 years’ imprisonment, 2500 penalty units or both (CC2019/10081).
He also pleaded guilty to the following related summary offence: one count of possessing a drug of dependence contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT), the maximum penalty being two years’ imprisonment, 50 penalty units or both.
Facts
On 12 September 2019, the victim of the offending, who I will refer to as DB, attended Lonsdale Street in Braddon and chain-locked his Trek electric bike to a bicycle stand. He then went to Rye Café across the road.
Attempt aggravated robbery using force
At approximately 9.25am, whilst still at the café, DB observed a male riding his bicycle near where the Trek bike was parked. The male then stopped his bike and pulled out a pair of bolt cutters and attempted to cut the chain lock. The male was Caucasian and wore dark blue track suit pants and a high-vis orange hooded jacket. He was later identified as the offender.
DB ran towards the offender and yelled at him to stop. The offender got back on his bicycle and rode south along Lonsdale Street. DB followed him on foot and shouted to members of the public to call the police. He caught up to the offender near the BP Service Station, located on the corner of Lonsdale Street and Cooyong Street. A physical altercation subsequently ensued. DB pushed the offender off his bicycle, and the offender then swung the bolt cutters towards DB and struck him in the mouth. This caused DB to receive a small cut to the inside of his bottom lip, and he suffered pain and minor bleeding. During this altercation the offender’s wallet fell out of his trouser pocket and onto the ground.
The offender began to run away, but then returned and confronted DB. Putting his right hand into his trouser pockets, the offender said “yeah, you want this!” Fearing for his safety, DB once again called out to members of the public to call the police.
The offender ran behind the BP Service Station towards a residential fence. Despite DB trying to stop him by pulling on his leg, the offender got over the fence and proceeded onto Torrens Street.
Soon after, police attended and spoke to DB and other witnesses. DB handed over the offender’s wallet, which contained a number of cards including the offender’s driver’s licence and proof of age card. After conducting mobile patrols around the area, police spotted the offender on the corner of Torrens and Elouera Streets. Police observed that the offender was talking on the phone and appeared to be in a dishevelled state, covered in grass clippings. After approaching him, the police cautioned and arrested him.
After searching the surrounding area, the police found an orange hooded hi-vis jacket, brown gloves and a pair of bolt cutters behind the building at 5 Torrens Street. This building was approximately 150 metres from where police had apprehended the offender, and approximately 20 metres from where DB had witnessed the offender jump over the fence near the BP Service Station.
Possess drug of dependence charge
The offender was taken to the ACT Watch-House, where upon being searched by police a clip-seal bag containing methamphetamine was found in his wallet. The methamphetamine weighed 0.6 grams.
Objective seriousness
The offending was an unsophisticated attempt to steal valuable property in order to fund a drug habit. It involved sufficient premeditation for the offender to arm himself with a bolt cutter. It was unsophisticated and consistent with the high risk behaviour common among drug users in that it was attempted during business hours on a busy street near the centre of Canberra when other people were clearly present.
It is an aggravating feature that the offender was on conditional liberty at the time, being subject to good behaviour orders, including one which was the condition upon which a sentence of imprisonment was suspended.
Having regard to the range of offending that may be encompassed within the offence of aggravated robbery it is, like in R v Lock [2016] ACTSC 319 (Lock), on the border of the low to mid-range of offending. While the offending in Lock, which involved a replica firearm, was different to the present case, it did not involve the actual deployment of that weapon so as to apply force to the victim as occurred here.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report prepared by ACT Community Corrections.
The offender has been known to Community Corrections since 2015. He has been remanded in custody at the Alexander Maconochie Centre since 13 September 2019, and his behaviour in custody has been considered satisfactory.
The offender is 25 years old. He was born and raised in the Australian Capital Territory and is one of three children. He reported having a positive upbringing but acknowledged that his parents’ separation when he was 10 years old caused him distress. The offender’s mother reported that she was subsequently diagnosed with a chronic illness, and the offender became her predominant carer, which caused him added disruption and stress. His mother also reported a number of traumatic events which occurred during the offender’s late teens and early twenties which appear to have had a long-lasting negative impact.
The offender reported that he maintains positive familial relations, however noted that his father decreases contact with him when he engages in criminal or drug related behaviour.
The offender reported completing Year 10 at school. His mother reported that he suffered bullying while at school, causing him to change schools and thereafter meet antisocial companions and engage in antisocial behaviour.
The offender reported that since school he has had multiple jobs in various industries, estimating that he has changed jobs approximately every 12 to 24 months. He reported being unemployed for the three years prior to his current period of remand, however he disclosed his intention to seek employment in the construction industry post-release.
He reported being single with no dependents. His previous relationship of two and a half years recently broke down. His partner was also known to ACT Corrective Services, and he indicated his intention to remain separated from her if she continues to make decisions which conflict with his rehabilitation.
He lives with his mother and brother when in the community and described this accommodation as stable. His mother confirmed that he could live in the family home upon being released from custody.
Prior to entering custody, the offender received Centrelink benefits and described his financial situation as stable. It is not clear what ‘stable’ means in the context of significant illicit drug use.
The offender disclosed an intention to disconnect from antisocial friends and acquaintances, acknowledging that this is a significant factor in his successful rehabilitation. He reported that he would like to rebuild the positive relationships that he had previously held with school friends and work colleagues, noting that these prosocial friends had ceased contact with him when he engaged in criminal and drug related activities.
He denied any past or present issues with alcohol. He reported that he began smoking methamphetamine approximately five years ago. He described his initial use as sporadic. It became problematic approximately three years ago when he began to inject it daily.
His level of his methamphetamine use was dictated by his financial circumstances. He estimated that he used $400 worth of methamphetamine per day when he was financially stable. The offender’s drug use became the focal point of his recreational activities. He acknowledged that prior to committing the offences he had used methamphetamine and also consumed heroin for the first time.
During his period of remand, he completed an Alcohol and other Drug (AOD) program. His attendance was consistent and he engaged meaningfully in the process.
He also engaged fortnightly with Every Man Australia whilst in custody, attending a number of counselling sessions since October 2019.
The author of the report assessed the offender as being at a medium risk of general reoffending. The opinion of the author of the pre-sentence report is as follows:
[The offender] has been assessed as a medium-risk of general re-offending. Although he benefits from strong familial relationships and stable accommodation, he appears to have experienced several traumatic events during his adolescence which continue to impact him negatively. It is concerning that he has a significant history of employment instability, ongoing engagement with anti-social associates and activities, a history of drug related offending and daily illicit substance abuse. To his credit, [the offender] has demonstrated a willingness to engage with AOD interventions which has been evidenced during his current period of remand. It is also commended that [the offender] appeared to be upfront and honest regarding the significance of his illicit substance use and the intent behind his offending behaviour.
The author assessed the offender as being suitable for a good behaviour order but not for community service work, due to his illicit substance abuse.
A letter from his father which was tendered indicates that his father has perceived a change in his attitude and an improvement in his relations with him. A letter from the education provider within the Alexander Maconochie Centre describes the offender’s positive engagement with and attitude towards vocational education within the prison. Both of these are positive signs for the offender’s rehabilitation.
Criminal history
The offender has a criminal history in both New South Wales and the Australian Capital Territory. From 2015 the offender has convictions for possessing a drug of dependence and a number of driving offences. In New South Wales he has several possess a prohibited drug offences and failures to appear. In 2016 he received an 18 month term of imprisonment for supply of a prohibited drug, which was suspended upon entering into a bond.
At the time of the present offences, the offender was subject to two good behaviour orders. One related to an offence of failing to appear. He was sentenced to a three month term of imprisonment, suspended upon entering into a 12 month good behaviour order. One was for an offence of driving while licence suspended, where he was sentenced to a 12 month good behaviour order.
Plea of guilty
The offender indicated pleas of guilty to both charges in the Magistrates Court on 18 October 2019, the third mention. However, he also indicated that there was a factual dispute. On 11 November 2019 the offender withdrew any contention in relation to the facts and pleaded guilty to both charges.
Time in custody
He has spent 139 days in custody prior to today which is attributable solely to these offences.
Consideration
A custodial sentence is clearly warranted for the attempted aggravated robbery. The offending was serious and brazen, involving a young man whose involvement with illicit drugs has led him to such criminal behaviour. There are, however, positive signs that he may be at a point in his life where he is open to rehabilitation.
Mr Robertson, who appeared for the offender, submitted that the sentence for the attempted aggravated robbery imposed in Lock was relevantly comparable. That was a sentence of 24 months reduced from 30 months on account of the plea of guilty. The offender was younger than the offender in the present case and had a more disrupted upbringing. He does not appear to have had a criminal history as an adult. He was sentenced also for two counts of aggravated robbery, obtaining property by deception and dishonestly riding in a motor vehicle. The aggregate head sentence was four years and two months reflecting a substantial degree of concurrency to accommodate issues of totality.
The appropriate starting point in the present case is a sentence of 36 months. Having regard to the entry of a relatively early guilty plea in the Magistrates Court a discount of 25% is appropriate to reflect the utilitarian value of that plea and the offender’s acceptance of responsibility. That gives a head sentence of 27 months.
So far as the possession of a drug of dependence is concerned, this obviously reflects the offender’s illicit drug use and hence is related to the attempted aggravated robbery. Given the quantity involved and the relationship to his more serious offending, the appropriate sentence is a sentence of two months’ imprisonment, one month of which is to be cumulative upon the sentence for attempted aggravated robbery.
There is also the suspended sentence of imprisonment of three months arising from his failure to appear on 14 June 2018. This sentence was imposed on 12 April 2019 but suspended upon entry into a good behaviour order for 12 months. On the same date a drive while suspended charge was dealt with by a 12 month good behaviour order. On the suspended sentence it is necessary to either impose the suspended sentence or resentence the offender: see Crimes (Sentence Administration) Act 2005 (ACT) (CSA Act) s 110(2). In my view the appropriate course is to resentence him. No particular aggravating features of the offending were identified in the statement of facts or otherwise by the Crown. The nature of a failure to appear is such that in the absence of some extenuating circumstances a custodial sentence needs to be imposed. The sentence must recognise the fundamental nature of the undertaking to appear for the administration of justice and provide an appropriate level of both specific and general deterrence for failing to comply with it. In those circumstances I consider an appropriate sentence is a custodial sentence of one month. It will be cumulative upon the other sentences.
So far as the good behaviour simpliciter is concerned the appropriate disposition is to take no further action pursuant to s 108(2)(a) of CSA Act. There is no reason why this breach should not be finalised today.
The issue is how the custodial sentences should be served. A wholly suspended sentence would not be an appropriate disposition in relation to the attempted aggravated robbery as it would fail to reflect the gravity of the offending. The options are therefore full-time imprisonment, a partially suspended sentence or an intensive correction order (ICO).
In my view, the case is a suitable one in which to have the offender assessed for suitability for an ICO. That is because the offender is still a young man, the offending is associated with a methamphetamine addiction, the offender appears to have some family support and there are indications that he has insight into his offending and drug use. It may therefore be a case in which the discipline of an intensive correction order would promote his rehabilitation and hence provide a more durable guarantee of community protection than a sentence involving any further period of full-time detention.
I observe that having regard to the restrictions on imposing ICOs in s 80 of the Crimes (Sentencing) Act 2005 (ACT) (CS Act), the fact that the offender has spent time in custody and will spend further time in custody on remand whilst the assessment is carried out has the effect of increasing the likelihood of a disposal of the matter by way of an ICO. The potential objection to the making of such an order is that by not requiring a period of full-time detention it fails to give adequate weight to the sentencing purposes of deterrence, denunciation and punishment. However, that potential objection is lessened if in fact the offender has spent time in custody prior to sentencing. That period must be taken into account in sentencing by backdating or otherwise: see CS Act s 63.
I will therefore direct an ICO assessment be prepared under Pt 4.2A of the CS Act and adjourn the proceedings to allow that to occur. Once that is prepared I will determine how the custodial sentence should be served.
Orders
The orders of the Court are:
1. In relation to the charges of attempted aggravated robbery (CC2019/10081), possessing a drug of dependence (CC2019/10082) and breach of good behaviour order on CC2018/13644, the court orders:
(a) an intensive correction assessment be prepared in relation to the offender;
(b) the proceedings be adjourned until 7 April 2020 at 9:15am so as to permit the assessment to be prepared; and
(c) the Director-General is to provide a copy of the assessment to the court.
2. In relation to the breach of the good behaviour order imposed on charge CC2016/7984 the court, pursuant to s 108(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) takes no further action.
Reasons given on 7 April 2020
In this matter I have previously indicated the sentences that I would impose, which amounted to a total aggregate sentence of 29 months’ imprisonment. The issue that I deferred was how that sentence should be served, and in particular, whether it should be served by way of an ICO. For that reason, I ordered an ICO assessment.
The ICO assessment report has indicated that the offender is suitable for an ICO. It records that he demonstrated a “positive and engaging attitude” in interviews. It does disclose that he, on one occasion, failed to provide a urinalysis sample, and that on another occasion the urinalysis sample was negative. It is not necessary for the present purposes, having regard to the overall assessment, to reach any conclusion as to the reasons for the failure to provide the urinalysis sample.
The report repeats his stated good intentions in relation to rehabilitation and his desire to avoid antisocial contacts, including his desire to avoid re-establishing a relationship with his former partner if she continues to engage in antisocial behaviour. Obviously, those statements of intention will be proved to be correct or incorrect by the offender’s actions in the future.
The report repeats that he is assessed as being a medium risk of general reoffending. It does suggest that a curfew condition be imposed on any ICO. It makes a number of suggestions about proposed additional conditions. While I do propose to impose an ICO, I make the following two observations about the drafting of the proposed additional conditions. First, they use the word “engage”, which is a word of uncertain content and in my view, unsuitable to be included in conditions such as conditions of an ICO, the breach of which may result in a return to imprisonment. Second, they make reference to not associating with “antisocial peers”. Once again, who is an antisocial peer is a matter of some uncertainty and, in my view, not a suitable condition to impose in circumstances where a breach of that condition may result in imprisonment. In my view, it is more appropriate to impose conditions in general terms which give the power to ACT Corrective Services to make directions which must be complied with. The compliance with those directions may then be assessed for the purposes of determining whether or not there has been a breach.
Overall, it is a reasonably clear case in which it is appropriate to dispose of the sentences by way of making an ICO.
Orders
The orders of the Court are:
1. On the charge of attempted aggravated robbery (CC2019/10081), the offender is convicted and sentenced to imprisonment for 27 months from 13 September 2019 to 12 December 2021.
2. On the charge of possessing a drug of dependence (CC2019/10082), the offender is convicted and sentenced to imprisonment for two months from 13 November 2021 until 12 January 2022.
3. In relation to the breach of the good behaviour order and suspended sentence on the charge of failing to appear (CC2018/13644), the offender is resentenced to one month’s imprisonment from 13 January 2022 until 12 February 2022.
4. Each of the three sentences is to be served by way of intensive correction with the following additional conditions:
1. During the period commencing 7 April 2020 and ending 6 July 2020, the offender be present at his residence between 10pm and 6am the following day and present himself to an officer of ACT Corrective Services or a police officer upon request.
2. That the offender undertake medical treatment and supervision as directed by a corrections officer.
3. The offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer.
4. That the offender attend educational, vocational, psychological, psychiatric or other programs for counselling as directed by a corrections officer.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 20 April 2020 |
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