R v LM - [2021] ACTSC 71

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v LM
Citation:	[2021] ACTSC 71
Hearing Date:	27 April 2021
Decision Date:	27 April 2021
Before:	Elkaim J
Decision:	See [27]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – significant subjective history
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 Criminal Code 2002 (ACT) ss 310(b), 44, 45
Cases Cited:	R v Henry [2007] NSWCCA 90
Parties:	The Queen (Crown)
LM (Offender)
Representation:	Counsel
C Wanigaratne (Crown) S McLaughlin (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 195 of 2019; SCC 223 of 2019; SCC 224 of 2019
ELKAIM J:

1. On 4 December 2020 the offender pleaded guilty to three offences in three indictments each dated 9 September 2019. The offences and their maximum penalties are:

(a) Attempt aggravated robbery, contrary to s 310(b) of the Criminal Code 2002
(ACT) by virtue of s 44 of the Criminal Code. The maximum penalty is 25 years’
imprisonment, a fine of $400,000 or both.

(b) Aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT) by
virtue of s 44 of the Criminal Code. The maximum penalty is 25 years’
imprisonment, a fine of $400,000 or both.

(c) Aid and abet aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT) by virtue of s 45 of the Criminal Code. The maximum penalty is 25
years’ imprisonment, a fine of $400,000 or both.

2.       The commission of the current offences also places the offender in breach of Good Behaviour Orders imposed in the Magistrates Court on 14 December 2018.
3.       The pleas of guilty were entered after a criminal case conference. They attract a discount which I assess at 25%.
4.       The facts of the offences are dealt with in detail in the Statement of Facts. There are a range of matters, varying in severity. The following is a summary.
5.       The attempted aggravated robbery occurred on 3 October 2018. A few minutes before 8pm the offender entered a grocery store in the suburb of Cook. He was disguised. He
pointed a knife at an employee and stated that “This is a robbery”. The employee’s

mother came into the store at about the same time. She asked the offender to repeat
what he had just said. He obliged.
6.       The mother told him to go away or she would call the police. He obliged again. He ran away.
7.       The following evening the offender came back to the grocery store. This led to his identification because he was wearing the same shoes.
8.       Shortly after 11:00pm on 15 December 2018 the offender, again disguised, entered a
Domino’s pizza store in Dickson. He was armed with a long bladed knife. He pointed the
knife and demanded money from the female employee. She gave him the money from the till and also from the safe. The offender…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v LM

Details

AGLC: R v LM [2021] ACTSC 71
Case: [2021] ACTSC 71
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v LM was heard and decided on 27 April 2021. The offender, LM, had pleaded guilty to three serious offences: attempted aggravated robbery, aggravated robbery, and aiding and abetting aggravated robbery. The court was required to determine the appropriate sentence for these offences, taking into account the maximum penalties, the plea discounts, and the subjective circumstances of the offender. LM had a significant history of alcohol and drug use, mental health issues, and a troubled background marked by abuse and neglect. The court was tasked with balancing the severity of the offences and the need for punishment with the offender's personal circumstances and the possibility of rehabilitation.

The court considered the objective and subjective severity of the offences, the plea discounts, and the offender's criminal history. It took into account the aggravating factors, such as the use of a knife and the impact on the victims, as well as the mitigating factors, such as the offender's young age, his troubled background, and his willingness to address his drug and alcohol issues. The court also considered the need for deterrence and the risk of reoffending. In light of these factors, the court decided to impose concurrent sentences for the offences, with a total period of imprisonment of 4 years, 8 months and 29 days, and a nonparole period of 2 years and 10 months.

The court's decision reflects a balanced approach to sentencing, taking into account the seriousness of the offences, the offender's personal circumstances, and the need for punishment, deterrence, and rehabilitation. The court recognised the significant challenges that LM had faced in his life and the impact that they had had on his offending behaviour. At the same time, the court emphasised the need to protect the community and to hold LM accountable for his actions. The sentence imposed reflects a degree of leniency that would not otherwise be appropriate, but also sends a clear message that such offences will be met with a firm response from the courts.

Orders