R v Lander
[2016] ACTSC 197
•15 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lander |
Citation: | [2016] ACTSC 197 |
Hearing Dates: | 19 May, 14 and 15 July 2016 |
DecisionDate: | 15 July 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 25 months’ imprisonment with a nonparole period of 15 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – assessed unsuitable for intensive corrections order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 7 Criminal Code 2002 (ACT) s 310 |
Parties: | The Queen (Crown) Warren Lander (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Self-represented (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Self-represented (Offender) | |
File Number(s): | SCC 278 of 2015 |
MURRELL CJ:
Proceedings on 19 May 2016
The offender adhered to a plea of guilty entered at the earliest reasonable opportunity to the offence that he committed an aggravated robbery on 3 December 2015, contrary to s 310(b) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of 25 years' imprisonment and/or a substantial fine.
Facts
On 30 October 2015, after serving the whole of a lengthy sentence for murder in Victoria (he had not applied to be released on parole), the offender was released from imprisonment.
On 10 November 2015, he arrived in the ACT and took up residence at Samaritan House, a men’s shelter in Hackett.
On 3 December 2015, the acting case manager at Samaritan House, Mr Clancy, was sitting at his desk when the offender entered his office. Mr Clancy asked the offender if he required any assistance. The offender responded, "[n]o, but I need your wallet." The offender produced a black-handled 10-centimetre long, flat-bladed knife. The victim feared for his safety and relinquished his wallet. The offender removed about $25 or $30 and handed the wallet back to the victim. The offender turned around, put the knife in his pants and headed in the direction of the Hackett shops.
The police were called. They located the offender in the vicinity of the Hackett shops. He had consumed three pre-mixed bourbon and cola drinks. He told the police that he had placed the knife in a nearby flowerbed, behind the bench that he had been sitting on. Police located the knife, which they photographed.
At the sentence hearing, the offender stated from the bar table that, after he was released from custody, he had no supervision or support in the community. He travelled to the ACT with the intention of starting a new life, but found his circumstances very challenging. He was not in a financial position to obtain secure accommodation and was forced to take up accommodation at Samaritan House. Nor was he well placed to obtain employment. He became stressed and depressed. He began to drink excessively.
On the day of the offence, he was intoxicated and felt depressed. He decided to commit the robbery, at least partly, to ensure that he would be arrested, convicted and returned to prison. Prison is the only secure environment that he has known for most of his adult life.
Objective seriousness
In relation to the objective seriousness of the offence, it is relevant to note that, although a weapon was produced, it was not used. The weapon was a knife rather than a more dangerous weapon such as a gun. No threats were made and there was no physical altercation. The incident was brief. There was no surrounding aggravating behaviour. The offence was unplanned and spontaneous. The offender did not attempt to conceal his identity and, as he was a resident at Samaritan House, he was well known to the victim. The offence was committed when the offender was drunk and desperate. The offender cooperated with police, including indicating the location of the knife. However, any offence of this nature is very serious, as indicated by the maximum penalty of 25 years' imprisonment.
Subjective circumstances
The offender is now 36 years of age. He was 35 years old at the date of the offence.
The offender has a very significant prior criminal history, including matters of robbery. The most recent robbery offence occurred on 20 August 2010. There are other serious matters on his criminal history. The most serious matter is the offence of murder for which he was sentenced on 6 October 1999 to 14 years’ imprisonment with a 10-year nonparole period. As stated above, he decided that he would not seek parole, and would serve out the sentence together with miscellaneous sentences that were largely concurrent. On 30 October 2015, the offender was released to parole.
There is limited information about the offender’s background.
The pre-sentence report states that the offender had a chaotic upbringing and was a ward of the state from 11 years of age. He has no contact with his mother or siblings, and he has never met his father.
He completed high school in custody. Because he has spent almost all of his adult life in custody, he has no history of employment.
For the same reason, he does not have an established drug and alcohol problem. However, he does resort to heavy use of alcohol when in the community as a way of addressing stress and anxiety.
The offender says that he has memory problems, which he believes originated when he was struck in the head while a prisoner in Victoria. He did not report the incident because of the possible ramifications and because he only vaguely recalls it. He thinks that his recall is vague because he suffered a head injury when he was hit.
The pre-sentence report refers to the fact that the offender has mental health problems. The offender said that, at one stage, he was diagnosed with schizophrenia. However, more recently, a psychiatrist found that he was not suffering from schizophrenia. He has experienced depression and has attempted self-harm.
Other considerations
The offence is of relatively low objective seriousness. Although any offence of this type is serious and this offence must have been very frightening for the victim, when one looks at the spectrum of such offences, this offence is towards the lower end. On the other hand, the offender has a very significant criminal history and he has no community support, such as family support, stable accommodation or employment prospects. There is a question about whether he needs treatment for mental health problems and whether his memory problems are attributable to a head injury.
The sentence must address relevant sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT), including punishment, accountability and denunciation, and should enable the offender to re-enter the community in a way that protects the community.
There is no dispute that a sentence of imprisonment is appropriate. The offender should not be released to the community except under intensive supervision. He should be assessed for an intensive corrections order.
The offender has been in custody since 3 December 2015. I consider that the starting point for a sentence is about three years’ imprisonment, from which I would deduct 25% for the plea of guilty. I consider that a sentence of 25 months is appropriate.
Proceedings on 15 July 2016
The offender was remanded (and assessed) for an intensive corrections order while he remained in custody.
As at July 2016, the offender has spent more than seven months in custody.
The intensive corrections assessment reported that the offender has no suitable place to reside. ACT Corrective Services considered a youth hostel and the alternative proposed address, Samaritan House, to be inappropriate. The victim of the robbery still works at Samaritan House. Consequently, there is nowhere for the offender to reside while serving an intensive corrections order.
The intensive correction assessment report states that, after the problems with accommodation were identified, the offender decided, "not to pursue an intensive corrections order". The reasons for that are not clear from the report, but it would seem that the offender is opposed to accepting intensive supervision and does not wish to reside in the ACT, particularly if required to do so under intensive supervision. Consequently, there is no point pursuing an intensive corrections order as a means of serving the sentence.
On 19 May 2016, I indicated that, after allowing for all relevant objective and subjective features and having referred to other sentencing considerations, including a 25% discount for the plea of guilty, the offender should be sentenced to 25 months' imprisonment from the date that the offender went into custody.
Sentence
The offender is sentenced to 25 months' imprisonment from 3 December 2015 to 2 January 2018. I fix a nonparole period of 15 months' imprisonment, which will expire on 2 March 2017. Parole is subject to the condition that the offender accepts the supervision of ACT Corrective Services and submits to their directions for as long as they consider necessary.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: 3 August 2016 |
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