R v LF
[2018] ACTSC 42
•7 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v LF |
Citation: | [2018] ACTSC 42 |
Hearing Date: | 5 February 2018 |
DecisionDate: | 7 February 2018 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – young offender – aggravated robbery in company and with weapon – riding in motor vehicle without consent – guilty plea – sentence moderated by illicit drug use commencing as child – specific deterrence – opportunity for rehabilitation – custodial sentence – good behaviour order with period of supervision |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7(1), 64(2)(f), 133C, 133C(1), 133C(2), 133G, 133G(2), 133G(3) Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 Douglas v The Queen (1995) 56 FCR 465 R v CV [2013] ACTCA 22; 233 A Crim R 67 |
Parties: | The Queen (Crown) LF (Offender) |
Representation: | Counsel M Fernandez (Crown) H Jorgensen (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 306 of 2017 SCC 307 of 2017 |
MOSSOP J:
Introduction
LF, a person under the age of 18, has pleaded guilty to a charge of aggravated robbery (CH17/860) and a charge of riding a motor vehicle without consent (CH17/859).
The maximum penalty for aggravated robbery is imprisonment of 25 years, a fine of $375,000, or both. The maximum penalty for riding in motor vehicle without consent is five years imprisonment, a fine of $75,000, or both.
The ride vehicle without consent offence occurred on 14 September 2017. The aggravated robbery occurred on 6 October 2017. Pleas of guilty to both charges were entered at an early stage.
Facts
On the night of 13-14 September 2017, a black Holden Cruze sedan was stolen from an address in Phillip in the ACT. It was recovered on 15 September 2017 and the young person’s fingerprint was located on an item in one of the rear footwells. He was first before the Court on 14 October 2017 and pleaded guilty on 30 October 2017.
About 3:10am on 6 October 2017, NN and the young person attended the 7-Eleven convenience store in Hardwick Crescent, Holt, in the ACT. Their movements within the store were captured on closed circuit television (CCTV). NN approached the store manager to buy a packet of cigarettes. The store manager refused to sell NN cigarettes without some form of identification.
The young person selected a chocolate bar and took it to the service desk. He purchased it from the store manager. While the store manager was attending to the sale of the chocolate bar, NN reached through the wire petition and grabbed the store manager’s
T-shirt and said “give me the till”. The store manager tried to back away and, in doing so, the body of his T-shirt was torn away from its collar. The young person pulled out a small, metal hatchet and lent through the wire barrier, holding it in his right hand and pointing to the cash register with his left hand. As the store manager was trying to open the cash register, NN took the hatchet from the young person and pointed it at the store manager. The cash register tray popped open and NN and young person moved away from the service area. The store manager remove the cash register tray and held it out towards NN and the young person. It contained about $250. It is the theft of the $250 which gives rise to the robbery, which is statutorily aggravated by the fact that it was in company. The young person grabbed the cash register tray and he and NN ran towards the exit door. It did not open automatically and NN struck the right hand side of the door causing it to shatter. The store manager pressed an emergency release button which opened the door and enable NN and the young person to flee from the premises. The damage to the door gave rise to the damage property charge laid against NN.
The young person participated in an electronically recorded interview following his arrest on 13 October 2017 in which he admitted his part in the robbery, that he had in his possession gloves and a hatchet which had been sharpened “like a razor”, and that he intended to do the robbery with or without NN’s assistance.
Victim impact statement
The victim of the aggravated robbery prepared a victim impact statement which was read by the prosecutor. He did not work for two weeks following the robbery because of the distress that it caused. He suffered financial loss as a result. Quite understandably, he suffers from anxiety and fear at work when customers come close to the counter, fearing that they may attack him. He suffers difficulties in sleeping and his university results have suffered when compared with the results he achieved before the robbery.
Objective seriousness
So far as the charge of dishonestly riding or driving a motor vehicle without consent is concerned, the only link to the offender is his fingerprint found on an item in a rear footwell. It is thus not possible for the Crown to establish whether he was the driver or a rider in the vehicle. While it is admitted that the vehicle was stolen, it cannot be established by whom it was stolen, or for how long, or in what circumstances the offender rode in the vehicle. It is therefore necessary to sentence him on the basis that the offence is in the low-range of objective seriousness for this offence.
The aggravated robbery falls into a different category. It is a very serious offence and the involvement of the young person is well established. It is an aggravated robbery for the purposes of the statute by reason of the robbery being in company. It is however also aggravated by the fact that the young person had in his possession an offensive weapon which he told police had earlier been sharpened so that it was “like a razor”. The robbery was clearly planned with NN, and the young person made admissions that he would have committed the robbery whether or not he was in NN’s company. It is thus not a case in which the young person may be seen to have been led down a path of criminality by an older person. I consider that the objective seriousness of this conduct puts it in the lower end of the mid-range of objective seriousness for an aggravated robbery.
Subjective circumstances
The subjective circumstances of the young person are disclosed in a very detailed
Pre-Sentence Report. It resulted from interviews with the young person on 10 days between November 2017 and January 2018, various telephone conversations with relevant persons, email correspondence with others and a variety of documentation or reports.
The Pre-Sentence Report presents a somewhat disturbing picture of the young person. He was assessed by reference to the Youth Level of Service/Case Management Inventory which identified the young person’s criminogenic risks and needs as high in all categories. Concerns were especially held in relation to negative peer influences, substance abuse, pro-criminal attitudes and overall mental health.
Since the age of 12 he has been largely “self-placing”, meaning that he has decided for himself where to live. He has had minimal contact with his biological family, instead leading what is described as a nomadic lifestyle, choosing to live for periods with different people. This has not led to any long-term stable or law-abiding placement. Members of his family have been unable to control him. He has had no involvement with his mother since he was 12 months old. He is unwilling and unable to reside with his father because his father has an apprehended violence order against him, arising from an incident when his father confronted him about being in possession of a large quantity of stolen goods and the young person physically assaulted him, lunging at him with a 21cm knife and threatening to kill him. Prior to his arrest for the present charges, he was self-placing with a 22 year old woman who was well-known to police and the Child and Youth Protection Services. The Child and Youth Protective Services hold concerns that this placement involved risks of serious substance abuse, exposure to domestic violence, criminal activity and regular access to negative peer associations. The young person’s paternal grandmother reported to the authors of the Pre-Sentence Report that numerous family members had tried their best to care for him, however no one could handle his “conflict behaviours” and that the young person placed himself with families to become part of them, then moved on and repeated process. She also advised that the entire family has cut off contact with him. That was reflected in the absence of contact with his biological family while in the Bimberi Youth Justice Centre.
He has limited education, his last year at school being Year 9. It is difficult to reach any conclusions about his mental health. The documentary history available from New South Wales Department of Family and Community Services indicated that he had a significant history of difficulty in regulating emotions, thoughts of self-harm and suicide. He has attempted suicide on several occasions resulting in hospitalisation and multiple mental health assessments. However no diagnosis has been identified in New South Wales. The young person is of the belief that he has schizophrenia as he reports he has been hearing voices for most of his life. However, as at late December 2017, he had declined interviews with mental health workers. He does suffers from asthma, a painful back and finger, depression and has attempted suicide by hanging. He has received other treatment whilst in detention.
He has a significant history of marijuana and alcohol use since the age of 14, although he reported use since the age of 11. Leading up to the aggravated robbery he described that he was heavily using methamphetamine supplied to him by a friend of the person with whom he had “self-placed”. He advised the author of the Pre-Sentence Report that he is not willing to engage in a residential drug rehabilitation program. He has some insight into the connection between methamphetamine use and adverse behaviour. He described that at the time of the robbery he was desperate for money because he was starving and did not know what else to do. He used at the least of some of the proceeds of the robbery to purchase takeaway food.
He has negative peer associations including his co-offender, NN. He has no significant leisure or recreation activities which would divert him from criminal behaviour.
He has frequently displayed verbally aggressive, non-compliant, challenging behaviours in the past and this has often resulted in placement and relationship breakdowns. Whilst in custody he has demonstrated such behaviours, threatening to stab staff members in the throat if they came into his room or in response to reasonable requests made by them. On one occasion he said to a staff member “I am having a shit day, I want to stab [a staff member] in the face until his wife doesn’t recognise him”. He has crafted weapons whilst in custody out of household objects and has threatened staff as well as threatening
self-harm. It is clear that he has difficulty regulating his emotions, in particular anger, and when angry becomes violent. Staff at the detention centre have reported that his behaviours have generally improved over time, with only sporadic incidents of poor emotional regulation and aggressive behaviours towards staff and peers.
So far as the incident is concerned, although he indicated that he would apologise to the victim of his crime and would never do it again, he described that he felt stupid about the incident because he had taken a balaclava with him but failed to put on his head in order to conceal his identity.
He expressed the view that he would not attend a residential drug rehabilitation centre and that the risk of drug use was no longer applicable because he had spent a period of time in the detention centre which had “detoxed” him. The Pre-Sentence Report states that the information available to the authors “indicates that [the young person] actively rejects help and that he prefers to be autonomous and rely on peers as opposed to community services.” It indicates that he has advised that he will not reside in a residential placement because he prefers to self-place with trusted friends. He reported to the authors of the Pre-Sentence Report that a further period of imprisonment would be significantly detrimental to his mental health. He also reported that he felt that he could comply with a community based order if it were to take into consideration his nomadic lifestyle and illicit substance use in the form of marijuana.
The assessment included the following summary:
[the young person] is a vulnerable young person with an extensive complex trauma and adversity history characterised by inconsistent family support networks, homelessness, substance misuse, truancy, negative peer influences and unaddressed mental health concerns. Consequently, [the young person] has engaged in anti-social behaviours from a young age, and often uses both his past and current circumstances as a means to rationalise his offending behaviours. While these factors may have played a role in [the young person’s] pro-criminal behaviours in the community, it is noted within this report that [the young person] has actively rejected assistance for his substance abuse, mental health concerns, schooling and accommodation.
The authors of the Pre-Sentence Report indicate that, in their assessment, he is in a very high-risk category as a custodial male for general recidivism.
The authors of the Pre-Sentence Report indicate that he may benefit from a period of supervision in the community, however note his rejection of mental health support while in custody and that he does not wish to engage in support services upon his release. At the sentencing hearing, counsel for the young person indicated that his instructions were that the young person now recognised he would benefit from supervision and would accept supervision. Notwithstanding this submission, I consider the evidence such that there is a real risk that he would not appropriately participate in a process of supervision or the provision of support services to him.
Criminal history
In 2015, he was convicted of being armed with intent to commit an indictable offence and common assault and given a bond. That was subsequently confirmed in the Nowra District Court. In May 2017, he was convicted of having an offensive implement in a public place. On three occasions he has been subject to formal police cautions in relation to shoplifting, theft, breaking and entering, and stealing.
His criminal history is thus not extensive and has not involved any period of incarceration.
Time in custody
The young person has been in custody since 13 October 2017, a period of 116 days prior to his sentence date.
Consideration
Because he is a young offender it is important to note, in particular, that the Court is obliged to consider the purpose of promoting the rehabilitation of the young offender and may give it more weight than it gives to any of the other purposes stated in s 7(1) of the Crimes (Sentencing) Act 2005 (ACT): s 133C(1). It is also necessary to pay particular regard to the common law principle of individualised justice: s 133C(2). If the Court sentences a young person to imprisonment, it “must be a last resort and for the shortest appropriate term”: s 133G(2). The Court must consider making a combination sentence consisting of a sentence of imprisonment and a good behaviour order with a supervision condition:
s 133G(3). A sentence of imprisonment imposed upon a young offender may not include a non-parole period: s 64(2)(f). It is also necessary to have regard to issues of parity having regard to the sentence imposed upon NN, his co-offender.
The difficulty in the present case is that, notwithstanding that there is no greater public interest than that the offender should ultimately become a law abiding citizen: see R v CV [2013] ACTCA 22; 233 A Crim R 67 at [42], it is difficult to see how that can be achieved because of the complex psychology and behaviour of the young person and the prospect that he will be resistant to, or uncooperative with, any supervision which might assist him in stabilising his life and permitting him to lead it in a lawful manner.
I have taken account of the fact that his drug use, which appears to have been a contributing factor to his offending conduct, commenced when he was a minor and he bears less responsibility for causally related criminal conduct: see Douglas v The Queen (1995) 56 FCR 465 at 470. I have also had regard to the summary of sentencing considerations relevant to sentencing young people set out in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]-[36].
My conclusions are as follows. First, I consider that in relation to the aggravated robbery only a custodial sentence is appropriate. That is because of the gravity of the offending conduct, being in company and involving a weapon prepared in advance by the young offender, and the unsuitability of lesser sentences by reason of the attitude and personal characteristics of the young offender. I reached that conclusion having had regard to
s 133G(2) of the Crimes (Sentencing) Act.
Second, I consider that the custodial sentence must involve a period in full-time detention. That is for the same reasons as I have given in relation to the necessity for a custodial sentence.
Third, having regard to the legislative command in ss 133C and 133G, I consider that a sentence of imprisonment of 12 months, to be suspended after five months, is appropriate. This head sentence has been reduced from 15 months on account of the plea of guilty. This combination sentence, in my view, appropriately combines punishment and deterrence and provides an opportunity for rehabilitation.
Fourth, following the suspension after five months, there will be a good behaviour order for a period of 12 months from the date of suspension, and he will be subject to a short period of a supervision. In the usual case of a youth offender, there will be a reasonable prospect of the offender benefiting from supervision and the potential to be directed to services or programs which may assist in his rehabilitation. However, in the present case, the evidence before the Court is such that there is a real risk that an overambitious supervision condition may result in little benefit to the offender and bringing him quickly back to court. Ultimately, having regard to the significance of rehabilitation for a young offender and the fact that the capacity to access rehabilitation programs is likely to be enhanced if he is subject to a supervision order, I have decided that it is appropriate to make such an order. I have, however, made it for a short period so that on the one hand the young person has access to such rehabilitation or other programs as are appropriate, but on the other, so long as he complies with his supervision requirements, he will be free of those requirements and hence gain more control over his destiny within a foreseeable period. I have adjusted the period of full-time custody prior to the suspension of the sentence to take into account the fact that after the suspension of the sentence, his liberty is to be qualified by the obligation that he is subject to supervision for a further period.
So far as the ride vehicle without consent charge is concerned, as that occurred prior to the aggravated robbery, given his youth and limited criminal history, and because it must be treated as being at the low-end of objective seriousness, that may be disposed of by way of a good behaviour order. In the circumstances of the other sentences I will impose, I consider a period of six months with only the core conditions to be appropriate.
Orders
The orders of the Court are:
(1) On the charge of aggravated robbery in company (CH2017/860), the offender is sentenced to imprisonment for a period of 12 months from 13 October 2017 until 12 October 2018.
(2) The sentence is to be suspended after five months on 12 March 2018 upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months with the following additional conditions:
(a)a supervision condition for a period of six months;
(b)a condition that the offender undertake medical treatment and supervision as directed by the Director-General;
(c)a condition that the offender supply samples of blood, breath, hair, saliva or urine for drug testing if required by a Corrections Officer; and
(d)that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling as directed by the
Director-General.
(3) On the charge of riding in a motor vehicle without consent (CH2017/859), the offender is required to enter an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of
six months.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 April 2018 |
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