R v LB
[2015] ACTSC 165
•22 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v LB |
Citation: | [2015] ACTSC 165 |
Hearing Date(s): | 5 June 2015 |
DecisionDate: | 22 June 2015 |
Before: | Burns J |
Decision: | See [33]-[35] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – offences committed by and against young people – particular offences – property offences – aggravated robbery. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) |
Parties: | The Queen (Crown) LB (Offender) |
Representation: | Counsel Ms K Mackenzie (Crown) Mr H Jorgensen (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 89 of 2015 |
BURNS J:
Background
LB, on 24 April this year, you entered a plea of guilty in the Childrens Court to one offence of aggravated robbery, which occurred on 17 March this year. I note that you consented to the matter being dealt with in the Childrens Court but the Director of Public Prosecutions did not consent, resulting in the matter being committed for sentence to this Court. The maximum penalty for the offence of aggravated robbery is 25 years’ imprisonment, a fine of $375,000.00, or both.
On 17 March 2015 at 4.30 pm, you robbed the female part owner of the Latham Handy Mart, using a knife. You took money and property to the approximate value of $2,000.00. You were arrested by police on 19 March this year and participated in a recorded interview, in which you admitted committing the aggravated robbery. You told police that you committed the offence to pay drug debts.
Consideration
I note that you have been in custody since you were arrested on 19 March this year. You are still only 17 years old and you will not turn 18 until September this year. Nevertheless, you have a significant criminal history.
On 28 February 2011, you were given the benefit of non-conviction orders in the Childrens Court for offences of aggravated burglary and theft.
On 16 July 2012, you were convicted and placed on a Good Behaviour Order for an offence of possession of a knife without reasonable excuse. On that same day, you were also convicted of offences of aggravated burglary, resisting a Territory official, assault, taking a motor vehicle without consent, and theft of mail articles. For the offence of aggravated burglary, you were sentenced to a total term of imprisonment of six months, to be released after serving 39 days, backdated to the 8 June 2012, with a Good Behaviour Order with conditions directed towards your rehabilitation. For the offence of assault, you were sentenced to two months’ imprisonment to be served concurrently with the sentence imposed for aggravated burglary.
On 14 February, 2014 you were convicted of an offence of being knowingly concerned in an aggravated robbery, and you were also dealt with for a breach of the good behaviour orders imposed on the 16 July 2012 for the offences of aggravated burglary and assault. The Good Behaviour Order imposed for the offence of assault was cancelled and you were sentenced to two months’ imprisonment, commencing on 13 November 2013 and expiring on 12 January 2014. The Good Behaviour Order imposed for the offence of aggravated burglary was cancelled and you were sentenced to four months’ imprisonment, commencing on 13 December 2013 and expiring on 12 April 2014. For the offence of being knowingly concerned in an aggravated robbery, you were sentenced to six months’ imprisonment, commencing on 13 April 2014 and expiring on 12 October 2014. The aggregate sentence then imposed, therefore, was one of 11 months’ imprisonment. It appears from the sentence structure that you had already served the two month sentence for the offence of assault prior to being sentenced on 14 February 2014. In addition, you had served two months of the sentence of the four months imposed for the offence of aggravated burglary. As such, only two months remained to be served of the sentence imposed for the offence of aggravated burglary.
On 22 December 2014, you were dealt with for breach of the Good Behaviour Order imposed on 14 February that year for the offence of being knowingly concerned in an aggravated robbery. The Good Behaviour Order was cancelled and you were re-sentenced to a term of imprisonment of six months, which was to be suspended with a further Good Behaviour Order for a period of two years.
You committed the present offence on 17 March 2015, which means that it was committed whilst you were subject to the good behaviour orders imposed on 14 February 2014 for the offence of aggravated burglary and that which was imposed on 22 December 2014 for the offence of being knowingly concerned in the offence of aggravated robbery. It is a circumstance calling for greater punishment with respect to the present offence that you committed this offence whilst you were subject to those orders.
I have had the benefit of a number of Sentence Reports and other documents provided by Youth Justice. The first report is dated 10 August 2013. At that time, you were before the Childrens Court with respect to the charge of being knowingly concerned in the offence of aggravated robbery. You told the author of the Report that you considered your family, and in particular your mother, provided you with good support. You said you had a good relationship with your mother and your sister. You said that you had little contact with other family members over the preceding 12 months. Prior to being remanded in custody, at that time you were continuing your education through the Youth Education Program, supplemented with work experience, which involved you working with ACT Parks and Recreation. You reported that you wanted to experience other trades to assist you to decide which trade to pursue. You reported daily use of cannabis over the preceding two years. You had attended weekly drug and alcohol counselling for approximately six to eight weeks. You were assessed as suitable for entry to the Ted Noffs residential rehabilitation program. The author of the Report noted that you had been diagnosed with a major depressive disorder and you were being treated with anti-depressants.
The second report is dated 8 September 2014. At that time you were 16. You told the author of the Report that your family provided you with support and a safe place to be. You said that you had a strong relationship with your mother and that, during the bail period leading up to 8 September 2014, you resided alternately with your mother and your father. The Report noted that, whilst you had been attending the Youth Education Program at an earlier time, you apparently had not undertaken any educational programs in 2014. You were reportedly working on restoring a car with your father and you said you wanted to find an apprenticeship in car mechanics. You told the author of the Report that you had not consumed alcohol for about two years but you still consumed cannabis. You also referred to using crack cocaine in the past. You suggested that you might attend the Ted Noffs program in the future. In that regard, it is clear from the Report that you had previously engaged in the program at Ted Noffs, but, after release from that program, you continued to use cannabis and methylamphetamine. You apparently re-entered the program at Ted Noffs on 15 January 2014, however discharged yourself two days later. You said that you did not want to be there and you could not handle the staff.
On 3 February 2014, you were directed to attend the continuing Adolescent Life Management Program but within two weeks you had ceased attending. On 22 May 2014, you advised there was a bed available for you in a detoxification program, which you had agreed to attend. However, you were exited from that program when you were found to have cannabis in your belongings. You were given an opportunity to re-enter that program on the 26 May last year, however, you did not take that opportunity.
During the period between May and August last year, you were directed to undertake urinalysis testing on five occasions. All results indicated that you continued to use cannabis. On one occasion you also returned a positive result for methylamphetamine, amphetamines and alcohol. You also returned a positive result for Temazepam on two occasions but your mother was able to confirm that Temazepam was prescribed to you by your family doctor.
In July 2014, you told Youth Justice that you wanted to be referred to an interstate rehabilitation program and arrangements were made for you to attend Triple Care Farm. On 4 August last year, your mother telephoned Youth Justice and advised that you no longer wanted to attend an interstate program and that you wanted to be referred to the Ted Noffs Program in Canberra. On 26 August last year, you told Youth Justice that you did not want a referral to a rehabilitation program to be arranged at all. When interviewed for the report on 8 September last year, you said that you were not interested in returning to the Ted Noffs Program.
You also reportedly showed little by way of victim empathy towards those against who you had offended in the past.
The third Report is dated 22 December 2014 and, at that time, you were before the Childrens Court for breaching the Good Behaviour Order imposed for the offence of being knowingly concerned in an offence of aggravated robbery. You were on bail conditions requiring you to accept the supervision of Youth Justice and to comply with directions regarding drug testing or urinalysis. The Report notes that you had complied with your bail conditions and that you were punctual and polite during your supervision.
You were continuing to alternate between residing with your mother and your father. You were not undertaking any education and you were not employed, although you said you had an opportunity of working with your father.
Urinalysis undertaken on 4 November and 28 November last year tested positive for cannabis, although urinalysis on the 20 November last year was negative. You told the author of the Report that you had been managing your drug use by reducing the amounts of cannabis you used and maintaining periods of abstinence. The Report notes that you had shown a high level of commitment towards addressing drug use and you had also reportedly tried to change your peer group.
Finally, there is a Report dated the 1 June this year, which was prepared for the present matter. It notes that you are currently 17 years old and your behaviour has been problematic in custody since being remanded on 19 March this year, although your behaviour has apparently improved recently.
Forensic Mental Health Services reported that you continue to engage well and that you are working around emotional regulation. You are reported to be depressed but working well with the team. You have re-engaged with educational programs and have spoken about obtaining employment in bricklaying. You have been in regular contact with your mother and father and other members of your family.
The author of the Report states that you have poor social skills and low self-esteem, which has a negative effect on your forming positive relationships. The Report notes that, since September 2014, you have resided with your mother and older brother but you have spoken about residing with your grandparents when you are released from custody.
The author of the Report said that the separation of your parents early in your life has led to sporadic parenting and boundary setting and that you have been often left alone for long periods of time due to the necessity of your mother to work, which has led to inconsistency in parenting.
The author of the Report states that, on 14 October 2014, your urinalysis tested positive for cannabis, methylamphetamine and stimulant compounds. On 18 December last year, you failed to attend for urinalysis but on 31 March this year your urinalysis was negative. I note that, since you were remanded in custody, you have requested help to address your drug use and you are currently receiving counselling once a week. It is, however, disturbing to note that, on 26 May this year, you reported that, if you were released from custody, you would relapse into methylamphetamine use within two weeks.
You apparently expressed little if any remorse for your offending or any empathy for your victim. You told the author of the Report that you committed the robbery to pay back debts but you also used some of the money to purchase drugs. You told the author of the Report that you would do it again if you had a chance to do so.
I take into account the report from Leonie McKenna, the Acting Deputy Senior Manager of Bimberi Youth Justice Centre, which refers to your difficult behaviours in Bimberi since being remanded in custody in March this year. She states that you present as a young man who is easily influenced by others and appears eager to impress your peers by your negative behaviour.
I also take into account the report dated 1 June this year from ACT Mental Health. It notes a history of anxiety and depression associated with long-term history of substance abuse. The author of the report said that, since being remanded in custody in March this year, you were recommenced on anti-depressants due to persisting features of major depressive disorder.
I also take into account the contents of the report from the Ted Noffs Foundation of 20 May this year.
A CADAS Report dated 20 May this year was also tendered at the sentence hearing. You told the author of the Report that you are currently studying Year 11 in Bimberi but you do not plan to continue your schooling when you are released. You also said that you have no desire or plans to seek employment and you plan to spend your time staying at home. You told the author of the Report that you smoked cannabis daily before being remanded in custody and that you had been using cannabis since you were 10 years old. You also said that you were using ice daily for months prior to being remanded in custody and that you were under the influence of that drug when you committed the present offence. You said that you will find it difficult not to use ice again. Before you were remanded in custody, you were also using benzodiazepines and MDMA.
I take into account your early plea of guilty with respect to the charge of aggravated robbery. On the material before me, it is difficult to say whether your plea evidences any remorse for your behaviour or any thought for your victim. I accept that your plea does have significant utilitarian value and I will reduce by 20 percent the sentence that I would otherwise have imposed in order to reflect your plea of guilty.
I also take into account the fact that you assisted the administration of justice by participating in a recorded interview with police in which you made full admissions to this offence. I also accept that you have been honest with those who have interviewed you in the preparation of the Pre Sentence Report and the CADAS Report. Your honesty with police and with those who prepared reports for this Court appears to be somewhat inconsistent with your professed lack of remorse and it may be that the latter is simply immature bravado. It is simply not possible to say with any degree of certainty at the present time.
You are apparently a very immature, aimless and self-centred young man. It is to be hoped that, as you grow older, you will achieve a greater level of maturity and with it an ability to understand how your acts affect others. You presently do not see beyond the immediate thrill of drug-taking and perhaps the status that gives you with your peer group. You appear to have no interest in changing your way of life, and in particular addressing drug abuse.
Your prospects for rehabilitation at the present time must be seen as guarded, although it is possible, bearing in mind your age, that this may change during the term of imprisonment I intend to impose. You are to be sentenced by reference to the principles governing the sentencing of juveniles set out in the Crimes (Sentencing) Act 2005 (ACT), which means that I may give greater emphasis to your rehabilitation and I must also sentence in accordance with the common law principles of individualised justice. Other sentencing considerations, however, such as general and personal deterrence are still relevant, particularly in this case.
In my opinion, you present as at high risk of reoffending, taking into account your drug abuse, your unwillingness to address that abuse, your attitude to your offending and your lack of empathy. I have considered all sentencing options but I am satisfied that nothing less than an immediate term of imprisonment is appropriate.
Sentence
I record a conviction for the offence of aggravated robbery. You are now in breach of the two good behaviour orders to which I earlier referred. I cancel those orders and on the charge of being knowingly concerned and an offence of aggravated robbery, you are sentenced to six months’ imprisonment commencing on 19 March 2015 and expiring on 18 September 2015. On the charge of aggravated burglary, you are sentenced to two months’ imprisonment commencing on 19 August this year and expiring on 18 October this year.
On the offence of aggravated robbery, you are sentenced to 29 months’ imprisonment, which I have reduced from three years because of your plea of guilty, commencing on 19 October this year and expiring on 18 March 2018.
The aggregate sentence which I have imposed is therefore one of three years’ imprisonment commencing on 19 March this year and expiring on 18 March 2018. I direct that you be released after serving 22 months’ imprisonment commencing on 19 March 2015 and expiring on 18 January 2017 with a Good Behaviour Order for a period of two years, commencing on 18 January 2017, with a condition that you are to accept the supervision of the ACT Director-General for that period of two years or such lesser period as deemed appropriate by your supervising officer and you are to obey all reasonable directions of the ACT Director-General, particularly as to attending counselling or treatment for drug abuse. You are also to undertake such educational or vocational courses or programs as directed by officers of the ACT Director-General.
Now LB, I want to make it clear to you that, between now and when you are released on 18 January 2017, you have an opportunity to gain skills to assist you to avoid drug abuse and to find satisfying employment once you are released back into the community. But, first, you have to address your attitude towards drug abuse and criminal activity. When you do return to the community you will be over 18, meaning that you will be, in effect, an adult, at least in the eyes of the law. If you commit further serious criminal offences as an adult, you should expect to be subject to terms of imprisonment in an adult facility. If you continue to offend, you should expect that those terms of imprisonment will simply become longer and longer. Unless you address your attitude to criminal offending and to things such as drug abuse that are likely to lead you to criminal offending, you run the risk of spending most of your adult life in prison. Now is the time to take some steps to avoid that.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 20 July 2015 |
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