R v KX
[2020] ACTSC 349
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v KX |
| Citation: | [2020] ACTSC 349 |
| Hearing Date: | 16 December 2020 |
| Decision Date: | 16 December 2020 |
| Before: | Mossop J |
| Decision: | See [57] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – two counts of aggravated robbery by joint commission – robberies of retail stores – below mid range and mid range of objective seriousness – aiding and abetting an aggravated robbery – robbery of a residential premises – mid range of objective seriousness – young offender – disadvantaged background – no criminal record – high risk of reoffending – access to community supports – sentence of imprisonment – good behaviour orders |
| imposed | |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 133G Criminal Code 2002 (ACT), ss 45, 45A, 310 Court Procedures Act 2004 (ACT), s 74M |
| Parties: | The Queen (Crown) |
| KX (Offender) | |
| Representation: | Counsel |
| S Janackovic (Crown) | |
| J Cooper (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
| File Numbers: | SCC 126 of 2020 |
| SCC 146 of 2020 SCC 147 of 2020 | |
| MOSSOP J: | |
| Introduction |
1. The offender, who is a young person, pleaded guilty to two counts of aggravated robbery by joint commission, contrary to s 310 of the Criminal Code 2002 (ACT) by virtue of s 45A. He has also pleaded guilty to one count of aiding and abetting an aggravated robbery, contrary to s 310 of the Criminal Code by virtue of s 45. The maximum penalty
for these offences is 25 years’ imprisonment, a fine of $400,000 or both.
Facts and objective seriousness
2. The facts are identified in an agreed Statement of Facts which was admitted without objection. The Crown also tendered CCTV of the first and second robberies. In submissions counsel for the offender made some reference to exculpatory statements made by the offender to the authors of the pre-sentence report but I have not placed weight on those statements as they are uncorroborated and untested assertions made by the offender and I am not satisfied that they are reliable. In summary, the facts and my assessment of the objective seriousness of each offence is as follows.
3 November 2018 – aggravated robbery by joint commission
3. On 3 November 2018 at approximately 9:10am the offender and an unknown person entered a jewellery store in Holt. The owner of the store, who I will refer to as BQ, and his employee, who I will refer to as IX, were both present. The unknown co-offender pulled a black cloth over his face and was holding a knife.
4. The offender placed his hand on the glass countertop, which was near the staff entrance, and jumped over the counter. Once he was behind the counter the offender opened the glass display cabinet and took items of jewellery valued at $3048. Meanwhile, the unknown co-offender directed BQ to lie down on the ground and IX to open the safe, while waving his knife. The unknown co-offender removed approximately $5000 worth of 18 karat gold pieces from the safe and then opened the till and took $375 in cash.
5. During this, IX walked around the offender and the unknown co-offender to the counter swing door before she began running for the front door. The unknown co-offender
shouted words to the effect, “I will stab you, you bitch”. Both the offender and the
unknown co-offender began to run behind IX towards the front door. As IX ran out of the store she turned and began closing the front door. The offender kicked open the front door which caused the glass panel to crack and IX to fall over. This caused pain to her knee. The offender and the unknown co-offender then ran out of the store.
6. The damage to the glass panel door cost $390 to repair.
7. Police obtained CCTV footage which depicted the incident and the offender’s face. The offender’s fingerprints were found at the scene.
8. The robbery of the jewellery store involved very limited planning. The offender was not wearing any gloves or face covering. It was carried out during the day. The co-offender, rather than the offender, wielded the knife and threatened the victims, although the offender participated fully in the removal of items of jewellery. It is below the mid range of objective seriousness for this offence.
12 September 2019 – aggravated robbery by joint commission
9. On 12 September 2019 shortly after 10:50pm the offender and two other young persons,
NC and MC, attended Domino’s Pizza in Holt. The offender was wearing a black hooded jumper with “PUMA” written across the chest in white writing, navy Adidas trackpants
with three white lines running down each leg, black sneakers with white edging around the sole and a white windbreaker-type jacket. Co-offender NC was carrying a black machete and co-offender MC was carrying a black bum-bag and a double barrel shotgun. The manager of the store, who I will refer to as BT, was alone in the store and was in the back area cleaning.
10. The offender and the two co-offenders entered through the rear door of the store. The offender and NC moved to the front part of the store whilst MC stayed in the back with BT. MC pointed the shotgun towards BT and BT crouched down on the floor. One of the
offenders said “Where’s the money? Where’s the money?”. MC gestured towards the front of the store while looking at BT and then grabbed BT’s left shirt sleeve and pulled
him to his feet. MC then pushed BT towards the front of the store and followed behind him while pointing the shotgun towards his back. MC pushed BT in the back with the shotgun.
11. NC used the blade of the machete to open one of the store tills that was on the front counter. The offender stood nearby watching before he moved to another area of the store. NC started to remove currency from the till and dropped various denominations on the floor in the process, as well as the machete. He then placed a handful of notes and coins into his pant pockets.
12. While NC was taking money, MC pushed BT towards a safe that was positioned under the front counter. BT had his hands in the air and MC pointed the shotgun alongside him. BT used a code to open the safe and the three offenders all reached inside. BT told them
“Just take all the money and there you go”. MC said “turn around”. The offender took
various bags of currency from the safe while MC continued to point the shotgun at BT. NC grabbed the machete off the floor and picked up a bag of currency that had fallen from the safe. MC continued to point the shotgun at BT whilst BT crouched down and turned away from the till and the safe. The offender and NC left the front counter area. MC reached inside the safe again before pointing the shotgun back at BT. MC then left the front counter area.
13. After being in the store for approximately 50 seconds the three offenders then ran out the rear door of the store. In total, they stole $952.
14. CCTV cameras from the store captured the offending. Police executed a search warrant
at the offender’s residence, where the co-offenders were also staying, and located a
number of items connected with the robbery, including the weapons and items of clothing worn by the offenders. Photographs uploaded to Facebook by profiles connected to the offenders also depicted weapons that matched those used during the offending, and the offender uploaded a photograph where he can be seen in clothing that matches what he was wearing in the CCTV footage.
The robbery at Domino’s Pizza was more serious than the robbery of the jewellery shop
in that it involved the use of a shotgun and involved direct threats to a victim during the course of the robbery. This is in the mid range of objective seriousness for an aggravated robbery. The role of the offender was, however, a lesser one than his co-offenders as he did not carry a weapon or make threats to the victim. He did, however, remove money from the safe when it was opened.
20 January 2020 – aiding and abetting an aggravated robbery
16. On 20 January 2020 at around 9:20pm the offender and two other young persons, CC and FN, entered a residential property in Latham without permission via an unsecured side door. A person, who I will refer to as CP, resided at the property with his three siblings and his mother. CP knew the three offenders from attending school with them and other activities.
17. The offenders went through the laundry and into the hallway, where they were observed
by CP’s mother, who I will refer to as LX. LX had been showering but upon hearing
people entering the residence had left the bathroom. She observed them entering CP’s
bedroom. LX recognised co-offenders CC and FN as friends of her son, CP. She told CC
that CP was asleep, which he acknowledged.18. Once inside the room CC and FN walked further into the room and approached CP, who was asleep in his bed. The offender waited by the door holding a six pack of beer and a satchel bag. CC produced a ballistic knife and FN produced a box cutter knife. They each
held their knife to CP’s throat, causing him to wake up and sit up. CC pulled his knife away while FN continued to hold the box cutter knife to CP’s neck and threatened him
as follows:
Co-offender FN: Give us all your shit cunt.
CP: What do you mean?
Co-offender FN: Don’t play fucking dumb with us. Don’t make us slit your throat open right
now. Open your safe.
CP: Okay.
19. CP began to cry and shake with fear. He got up and walked towards the safe. As he did
this, CC and FN walked with him and placed pressure on CP’s neck with their knives.
FN continued to threaten CP telling him that if he reported the incident, him and his parents would be stabbed or killed. During this time the offender remained at the bedroom door and was consuming one of the beers from the six pack.
20. CP entered the code into his safe and grabbed his wallet. One of the co-offenders took it from his hand and took between $300 and $600. The offender then approached and
grabbed CP’s gym pass from his wallet and placed it next to the safe. Each of the
offenders tried to find more items in the wallet but were unable to find anything and placed it back down. One of the offenders took a gram of marijuana from a Ziploc bag in the safe. The offender rummaged through a container near the safe and all the offenders
looked through the cupboard where CP’s safe was located but were unable to locate anything else. The offender said “He’s got nothing left. Let’s just go”. The offenders then
fled the house.
21. LX subsequently entered CP’s bedroom and saw he was pale, shaking and crying. He
was also grabbing his throat and gulping. Whilst initially hesitant to tell his mother what
had occurred, he ended up disclosing the events to her.22. Later that night CP and LX reported the incident to police. Police subsequently held two interviews with CC in which he made a number of admissions implicating himself, FN and the offender.
23. At the time of this offence the offender was on bail in relation to the two other aggravated robberies. One of the bail conditions required the offender to be at his place of residence between 7pm and 7am each night, unless in the company of his parents.
24. This this was a very serious robbery involving confronting a sleeping victim in his home and putting knives to his neck. I would assess it as being in the mid range of objective seriousness for an aggravated robbery. However, the involvement of the offender is as an aider and abetter. He was not involved with the threats to the victim or the placing of knives at the neck of the victim and appears to have played a supporting role by his presence and some minor role in searching for items to steal.
Victim impact statements
25. Victim impact statements were provided by the victims of the first and third robberies. I have taken this material into account in making the assessment of the objective seriousness of the offending, which I have set out.
26. In relation to the first robbery, both BQ and IX provided victim impact statements which were read by the prosecutor. BQ recorded that the robbery has left him nervous and insecure and that he has become increasingly cautious in relation to the security at his shop. It has also affected his approach at home, increasing his level of security and becoming very cautious about checking and rechecking points of entry to his dwelling.
27. IX initially thought that she was coping after the incident. However, she keeps having thoughts going back to the invasion of her personal space on that day. She suffers anxiety when seeing people wearing hoodies, tends to regard customers with suspicion and considers that her workplace is unsafe.
28. The victim of the third robbery, CP, identified that he is only 16 years old. He stated that since the incident he has been unable to sleep. He is afraid to leave the house and feels afraid in his own home. He constantly feels anxious and is worried about his little brothers who were in the next room. He described being unable to catch public transport now due to fears that the offenders will get people to harm him. His mother has cut her work hours to drive him to and from school. He feels socially isolated. He is getting counselling from various organisations due to the trauma he suffers and the effects on his mental health.
29. I have taken into account the impacts described by the victims in their victim impact statements. They are consistent with the impacts that would be expected of serious offending of the type demonstrated in this case.
30. Although there was not a victim impact statement from the victim of the Domino’s
robbery, the CCTV footage of the incident demonstrates that it was of a nature likely to have long-term effects upon the victim due to the presence of the shotgun and the terrifying manner in which it was deployed.
Subjective circumstances
31. The subjective circumstances of the offender are outlined in a pre-sentence report that was prepared by Child and Youth Protection Services (CYPS) and in some additional material tendered on behalf of the offender.
32. The offender is currently 17 years old. At the time of the offences he was 15, 16 and 17. He has a younger brother and three younger sisters. He has a significant history of childhood trauma due to parental mental health and drug use. He was exposed to
domestic violence and was removed from his parents’ care by CYPS in September 2012.
In October 2014 his maternal grandmother was granted full parental responsibility. He returned to living with his mother in early 2017 which he said he enjoyed, and he expressed a strong desire to return to live with her and his siblings.
33. He is part of a large extended family and many of his family members have been involved in criminality and have been incarcerated. CYPS has received 27 child protection reports in relation to the offender. CYPS received information about an incident on 1 December
2017 where it was reported that the offender’s father assaulted him by punching him in
the hand and shaking him. At the time, the offender’s hand was in a cast due to him
breaking it three weeks prior. His father was subsequently arrested, refused bail and
remanded in custody. The offender denied his father has ever assaulted him.34. He reported that he relies heavily on his mother for emotional support and guidance. While on remand at Bimberi Youth Justice Centre (Bimberi) he would become distressed
if he could not contact her. CYPS records suggest that the offender’s mother has a
history of being emotionally and verbally abusive and has been a person responsible for causing him harm in the past. She has recently moved into a suitable residence in preparation to have the offender return to her care.
35. Prior to entering custody in April 2020, the offender was enrolled to complete Year 10, however, he did not attend school as he went to work with his dad. While in Bimberi he has engaged with the Murrumbidgee Education Centre and was working on attaining his Year 10 certificate. He has expressed a desire to further his education and staff from the education centre have advised that he has made steady improvement.
36. While at Bimberi he explored options for future employment, such as becoming a park ranger. He expressed that he wanted to work with his dad. Since being released on bail, the offender has refused opportunities to improve his employment options, such as attending the day course to obtain his white card. He has not wanted to attend Centrelink
with staff from Narrabundah House, and it is the author of the pre-sentence report’s view
that he does not intend to utilise the support of his current placement there. He currently receives no financial assistance. He advised that one of his motivators for offending was to obtain money to purchase shoes.
Despite informing CYPS that he has had trouble focusing sometimes because his “head
is too full and too busy”, he refused the support of Forensic Mental Health while in
custody. He was also not willing to engage with the Allied Health pilot program at
Bimberi.38. He has consistently denied the use of alcohol and drugs. However, in relation to the
offence on 20 January 2020 he said he intended on going to the victim’s house “to score”,
which suggests he participates in drug taking.
39. The offender knows many young people also known to CYPS and involved in the criminal justice system. The three offences for which he is being sentenced were committed with
peers and he blamed his peers for his offending. He has advised that he is “Just going
to keep to himself and hang with his family” to address his offending behaviours.
40. He has not been attending school or engaging in any activities since he returned to Canberra in 2017. He has expressed an interest in playing rugby and having his paintings displayed.
41. While on remand at Bimberi, the offender was reported as being overall compliant. He
did struggle with his use of inappropriate language and was directed to ‘time out’ on
several occasions for being verbally threatening towards staff and other residents of the
centre. He received one behavioural breach whilst in custody.
The offender informed the author of the report that he “felt bad” for the victims and
reflected on how his offences would have affected them. However, he also considered himself a victim of police. He reported making a conscious effort to distance himself from negative peers.
43. The author of the report expressed the following opinion:
… [The offender] has demonstrated limited insight into his offending behaviour, blaming his
co-offenders and describing himself as a victim in relation to his own involvement in the offences. Whilst [the offender] can articulate empathy and remorse towards the victims of the offences he describes his involvement as an observer only, and that his co-offenders are ultimately responsible for any harm caused to the victims. If [the offender] continues to display these types of thoughts and attitudes it is likely he will find himself in trouble with Police and/or courts in the future.
44. The offender tendered a report from the education centre conducted within Bimberi, which shows that in some areas of learning he has done well or excelled. Also tendered was evidence of his artistic work created within Bimberi and the support that can be provided by Mr Dale Huddleston at the Gugan Gulwan Youth Aboriginal Corporation. There was also evidence that he has been accepted into the Justice Reinvestment program conducted by the Winnunga Nimmityjah Aboriginal Health and Community Services. These two matters are clearly positive steps and would appear to be of significant assistance to the offender if he remains engaged with them.
45. I accept that the risk of recidivism associated with peer associations and his attitude and orientation, as assessed by the author of the pre-sentence report, is high. While his grandmother seems to have been a source of stability and gave rise to the potential for a law-abiding life, the attitude and role models provided by his parents seem to involve significant risks. So too does his selection of associates. While within the highly structured environment of detention at Bimberi there are areas where he is able to demonstrate some capacity and enthusiasm, his actions since being released on bail appear to indicate that outside such a highly structured environment he may have difficulty focusing on lawful and productive activities. It is in that context that remaining engaged with art and the guidance provided through the Justice Reinvestment Program would be very significant.
Criminal history
46. The offender has no criminal history prior to the commission of these offences. At the time of the third offence he was on conditional liberty for the first two offences.
Plea of guilty
47. The offender pleaded guilty to all three offences in the Supreme Court on 11 November
2020. This was following the criminal case conference. The offender’s trial for one of the
matters was due to commence in the week of 23 November 2020. I have taken into
account his guilty pleas in relation to each of the offences.
Time in custody
48. The offender has spent a total of 250 days in custody in relation to these offences, which has not yet been taken into account with respect to any sentencing proceedings. I have taken into account this period both in relation to the custodial and non-custodial sentences that I will impose.
Consideration
49. The offender has committed three very serious offences. He is to be sentenced as a young person, not an adult. The offences were committed when he was 15, 16 and 17 years of age. He has no other criminal history. He has spent a substantial amount of time in custody on remand. He gets the benefit of the provisions of the Crimes (Sentencing) Act 2005 (ACT) directed to the sentencing of young people. In particular, he gets the benefit of s 133G which provides that a sentence of imprisonment must be a last resort and for the shortest appropriate term. In each case, his involvement in the offending was less than the involvement of his co-offenders. He has a disadvantaged background. He has shown some promise within the very structured environment of detention on remand. His pattern of peer associations and his family background give rise to significant risks of reoffending. He has available to him structured supports within the community that have the potential to put him on a path towards a stable and lawful life. However, having regard to his upbringing, the prognosis must be guarded.
50. In relation to the Domino’s robbery, MC, the co-offender who carried the shotgun, had a significant criminal history, pleaded guilty in the Children’s Court, had “a most awful
upbringing”, and suffered from significant mental health conditions but seemed to the
sentencing judge “to recognise his wrongdoings and wishes to make an effort to change
the path of his life”. He was given a sentence of 12 months’ imprisonment (reduced from
15 months) which was suspended after approximately eight months. NC, the other co-offender who carried the machete, had the charge dismissed pursuant to s 74M of the Court Procedures Act 2004 (ACT) which allows charges to be dismissed if care and protection action is more appropriate.
51. The two co-offenders for the Latham robbery were both given non-conviction orders and good behaviour orders for a period of 18 months and 24 months with conditions. Neither had any criminal history. Both had favourable subjective circumstances including post-offence conduct suggestive of reasonable prospects of rehabilitation. These were clearly very lenient dispositions.
52. Because of his youth, his lack of a criminal history and the very strong interest that the community has in diverting him from further offending, appropriate sentences for this offending do not involve him spending any further time in custody.
53. So far as the first offence is concerned, having regard to his youth at the time and the fact that it is his first offence, that is a matter which is appropriately dealt with by recording a conviction and requiring him to enter into a good behaviour order for a period of 18 months, along with a period of supervision on probation. In relation to the probation condition I, along with counsel for the Crown and counsel for the offender, have proceeded on the basis that supervision by the Director-General may include directions requiring participation in the Justice Reinvestment Program run by Winnunga Nimmityjah Aboriginal Health and Community Services. Without intending to constrain the discretion of the Director-General, my impression is that a regime of programs or supervision delivered by Aboriginal people is more likely to be successful with the offender than other programs.
54. So far as the second offence is concerned, this was a very serious offence. The terrifying and confronting nature of the offending is made clear by the CCTV material.
Notwithstanding the offender’s subordinate role and the fact that he was not an adult at
the time, it is a case in which only a sentence of imprisonment would be appropriate. Regard must be had to the sentence imposed on his co-offender who deployed the weapon and who had a significant criminal history. In my view, the starting point is a period of imprisonment of five months, reduced to four months and seven days on account of the plea of guilty. Having regard to the time spent in custody on remand, the sentence will be backdated and has been fully served.
55. So far as the third offence is concerned, by this stage the offender had committed two previous offences. Although he was on bail in relation to them, he had not been sentenced for them. Thus, while the earlier offending can be taken into account, it is not a case where a punishment has been previously imposed and the specific deterrence effectuated by that punishment has proved to be inadequate. His role was clearly subordinate to those of the co-offenders. He is not shown to have been involved in the instigation or planning of the robbery. He played a limited role in the robbery and his role did not involve the threat of violence or abuse of the victim. Clearly, parity must be a significant consideration given the very lenient disposition by a magistrate in relation to the charges against his co-offenders. While I accept that the subjective circumstances of the co-offenders may have given rise to greater optimism about the prospect of rehabilitation of those offenders, the leniency of those sentences must be considered when imposing a penalty for conduct by the offender who was clearly less culpable. In relation to that charge, the appropriate sentence is a conviction and good behaviour order in the same terms as in relation to the first offence.
56. These are undoubtedly lenient sentences but, in my view, appropriate having regard to the statutory provisions relating to sentences imposed on young people and the fact that this is the first time that the offender is being sentenced for offending. He will never again get the benefit of being a first time offender. Having regard to his age (17 years and 11 months), for the purposes of any further offending he will be treated as an adult. Both of those factors will mean that the leniency afforded in these sentences is very unlikely to be afforded for any further offending.
Orders
57. The orders of the Court are:
1. On the charge of aggravated robbery (CH2019/938), the offender is convicted and required to enter into a good behaviour order for a period of 18 months with the additional condition that he be subject to supervision on parole by the Director-General for a period of 18 months or such shorter period as determined by the Director-General and obey all reasonable directions of the Director-General.
2. On the charge of aggravated robbery (CH2019/901), the offender is convicted and sentenced to imprisonment for a period of four months and seven days commencing on 9 August 2020 and ending on 15 December 2020, which sentence has been fully served.
3. On the charge of aiding and abetting aggravated robbery (SCCAN2020/180), the offender is convicted and required to enter into a good behaviour order for a period of 18 months with the additional condition that he be subject to supervision on parole by the Director-General for a period of 18 months or such shorter period as determined by the Director-General and obey all reasonable directions of the Director-General.
I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 1 February 2021
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