R v Lau
[2020] ACTSC 120
•12 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lau |
Citation: | [2020] ACTSC 120 |
Hearing Date: | 31 January 2020 |
DecisionDate: | 12 February 2020 |
Before: | Burns J |
Decision: | See [18]–[22] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – one count of aggravated robbery by joint commission – one count of aggravated burglary by joint commission – consideration of personal and general deterrence – poor prospects for rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT) ss 310, 312, 45A |
Cases Cited: | R v Lau; R v Lutze [2019] ACTSC 353 R v Lutze [2020] ACTSC 121 |
Parties: | The Queen (Crown) William Brian Lau (Offender) |
Representation: | Counsel P Dixon (20 January 2020); M Lucero (12 February 2020) (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 92 of 2019 |
BURNS J:
William Lau, on 12 December 2019 you were found guilty, by myself, after a trial by judge alone of two offence. The first offence (CC 2019/3423) is an offence of aggravated burglary by joint commission, contrary to s 312 of the
Criminal Code 2012(ACT) (the Criminal Code) by virtue of s 45A of the Criminal Code. That offence carries a maximum penalty of 20 years’ imprisonment, a fine not exceeding $320,000, or both.
The second offence is an offence of aggravated robbery by joint commission
(CC 2019/3880), contrary to s 310 of the Criminal Code by virtue of
s 45A of the Criminal Code, which carries a maximum penalty of
25 years’ imprisonment, a fine not exceeding $400,000, or both.
I note that with regard to the period that you have spent in custody with respect to the two charges which are before me today, you were arrested on these charges on
15 December 2018, and you have remained in custody since. However, on 12 August 2019 you were sentenced in the ACT Magistrates Court to imprisonment from
12 November 2018 to 11 February 2020 on unrelated charges. I have been provided with copies of the charges and the Statement of Facts that were before the
ACT Magistrates Court when you were sentenced, and I will return to that in a moment.
The facts
My findings of fact are set out in my reasons of 12 December 2019 in which I found the offences proved: R v Lau; R v Lutze [2019] ACTSC 353. In summary, I am satisfied that on 15 December 2019, you and your co-offender, Simon Lutze, entered residential premises in Dunlop, ACT, as trespassers, with the joint intention of stealing property from those premises. You were confronted by an occupant and a screwdriver was produced by your co-offender. It was used to intimidate the victim into letting the two of you leave the premises in possession of stolen property and to desist from seeking help from a passer-by. This aggravated burglary occurred at about 1:30 pm, at a time when there were two occupants in the residence. I accept that the offence was opportunistic, and not subject to any real planning or premeditation.
I see no reason to distinguish between you and your co-offender with regard to your respective roles in the aggravated burglary. I would assess this offence as being in the lower range of such offences.
Turning to the offence of aggravated robbery, I note that the weapon used was a sharpened screwdriver. This is a weapon which is capable of inflicting serious, perhaps even lethal, harm. It is not, however, as obviously lethal a weapon as, for example, a loaded firearm or a sharp knife. I accept that your co-offender produced and brandished the weapon, but you were actively supporting his intimidation of the victim with the knife for the purpose of enabling you to leave the premises in possession of the stolen goods, and to dissuade the victim from seeking help. I would consider this to be below the
mid-range of such offences, but towards that mid-range point.
Subjective features
You have a lengthy criminal history which is more extensive than that of your
co-offender, including prior convictions for aggravated robbery with an offensive weapon, assault occasioning actual bodily harm, theft, assault, possession of an offensive weapon with intent, burglary, and serious traffic offences. You have previously served terms of imprisonment. On 12 August 2019 you were, as I have already said, sentenced to terms of imprisonment covering the period from
12 November 2018 to 11 February 2020 in the ACT Magistrates Court for offences of burglary and theft that occurred on 5 March 2018. Your criminal history disentitles you to any leniency and speaks of the need for personal deterrence in sentencing with respect to the present matters.
You are 29 years old, and you were 28 years old at the time of these offences. You have been subject to supervision by the ACT Corrective Services in the past. The
Pre-Sentence Report prepared for the sentence proceedings states that past compliance with community-based orders has been poor. During the present period in the Alexander Maconochie Centre (AMC), you have been subject to disciplinary action on three occasions.
The Report notes that your father passed away in 2000. You have been raised by your mother, and you describe that as being a positive upbringing. You left home in your early 20’s. You have not had contact with your mother for some years. You have a sister with whom you have no contact.
You have not had stable accommodation since you left home. You left school after completing Year 11. You have had short periods of employment, but you have never been able to secure long term employment. You were in receipt of Centrelink payments before you were remanded in custody.
You first used alcohol at age 13 years. Between that age and the age of 20 years, you consumed alcohol to intoxication most weekends. From ages 20 to 29 years, you consumed alcohol daily to intoxication. You first used methamphetamine at
17 years old. You told the author of the Pre-Sentence Report that you were using that substance fortnightly, but you did not view that as being problematic. You commenced using heroin at 27 years old, and you were using that substance daily at a cost of
$600 per week.
You have not undertaken any drug or alcohol treatment in the past. It was suggested to you but the author of the Report that you may care to undertake a residential rehabilitation program on your release from custody, because that would deal not only with your drug and alcohol addiction, but would also provide you with stable accommodation. You indicated some interest in that proposal, but it appears that you have not pursued it any further at this time.
You told the author of the Pre-Sentence Report that you were medicated for
Bipolar Disorder some years ago, but that you were unsure who made that diagnosis, and you have not taken any medication to treat that condition for several years. You were assessed by Forensic Mental Health Services on several occasions between February and December 2018, but no relevant concerns or diagnoses were reported.
It is a matter of concern that you continued denying responsibility for these offences to the author of the Pre-Sentence Report. The author assessed you as at high risk of reoffending. That risk, of course, could be reduced if you were to address your alcohol and drug use, mental health issues, and also your attitude to offending.
Consideration
There were no pleas of guilty with respect to the charges before the Court. You maintained pleas of not guilty at all times, and of course, that is your right. However, it does mean that you are not entitled to the discount that would have been available to you, had you entered pleas of guilty to these charges. There has been no real indication of remorse in regard to these matters. Your prospects for rehabilitation at the present time must be considered as poor. As I noted earlier, you have expressed interest in residential rehabilitation, but it appears that you have taken no further steps to do anything positive about that.
These offences call for sentences with strong personal and general deterrent effect. I have considered all available sentencing options but, in my opinion, only full-time imprisonment satisfies the requirement of sentencing. Some leniency can be shown to your co-offender by reason of his lesser criminal history and reasonable prospects for rehabilitation. Also, in his case, I am satisfied that there is no strong requirement for personal deterrence. Unfortunately, the same cannot be said in your case. Therefore, the sentences I impose on you will be somewhat longer than those which I imposed upon your co-offender: R v Lutze [2020] ACTSC 121.
I take into account the need to address totality when fixing the commencement date of the sentences which I intend to impose, and the extent of any cumulation of sentences.
Sentence
With regard to the charge of aggravated robbery (CC 2019/3880), you are convicted and sentenced to three years and six months’ imprisonment, commencing on
12 June 2019 and expiring on 11 December 2022.
With regard to the offence of aggravated burglary (CC 2019/3423), you are convicted and sentenced to two years and six months’ imprisonment, commencing
12 December 2021 and expiring on 11 June 2024.
The aggregate sentence of the two offences that I have imposed is
five years’ imprisonment, commencing on 12 June 2019 and expiring on 11 June 2024.
As the sentence imposed in the ACT Magistrates Court was one in excess of
12 months, I presume that the Magistrate set a non-parole period. I have not been advised of the length of that non-parole period, but in any event, I must set a new
non-parole period with regard to the aggregate sentences, that is, the sentences which I have imposed and the sentence that was imposed in the ACT Magistrates Court. I will set a non-parole period of approximately 60 per cent of the aggregate of the
ACT Magistrates Court sentences and the present sentences.
I set a non-parole period of three years and four months, commencing on
12 November 2018 and expiring on 11 March 2022.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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