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 fled from the store. A total of $539.78 was taken.
9. The final offence took place on 18 January 2019. The offender facilitated the entry of a co-offender into a 7-Eleven store in Melba. The co-offender was armed with a large kitchen knife. He threatened an employee and left with $1,384.27 made up of a combination of cash and cigarettes.
10. The offender played a small roll in this robbery, but was equally complicit in its occurrence. I would assess the first and third offences as being below medium objective severity, but the second as being of medium objective severity.
11. Although there were no Victim Impact Statements, I have no doubt that the threatened employees were terrified by their experiences. Facing the open blade of a long knife must be a horrifying event.
12. Both the offender and the Crown agreed that, subject to the wide variation of subjective circumstances, offences of this type generally attract a term of imprisonment of between
three and six years. Both parties referred to the ‘Henry’ guidelines as being applicable
(R v Henry [2007] NSWCCA 90).
13. The offender was born in South Australia in 1996. He was taken into foster care at
18 months of age with his sister. This arose from his mother’s use of drugs and lifestyle.
When he was 14, the offender ran away to live with his mother but this was not successful. He then lived with his father. He has maintained regular contact with his parents and grandmother and siblings.
14. The offender left school after Year 11, but he went on to complete Year 12. He has had
a number of short-term jobs in retail and has also worked in his father’s roofing company.
15. The offender has a long history of alcohol and drug use. He has had attempts at rehabilitation but also has been in hospital as a result of an overdose. He blames a lot of his criminal conduct on drug use and says he is willing to continue to try and address both his alcohol and drug use.
16. Not surprisingly the offender has mental health issues which he attributes to his drug use. He is on medication. He is compliant with the taking of the medication.
17. The Pre-Sentence Report says that the offender has a medium to high risk of reoffending. He certainly has done a good deal of offending before. He has a criminal record spanning both the ACT and New South Wales.
It is difficult to describe the offender’s background as anything other than a litany of
tragedy. I think a letter from his grandmother best sums up the history. Here are some
excerpts:[LM] was placed in Foster Care at approximately 18 months of age, along with his sister, [S].
This placement was due to his mother and father having been drug users for many years.
…
[LM] and [S’s] placements never lasted long and consequently, from memory, they were
moved approx 30 times in approx 3 years…
…
There were many other reports made to FSA including a male Foster Carer bashing [LM’s]
head against the Roo Bar of his vehicle, being poorly fed and forced to clean toilets and other
disgusting duties, at the age of six!!
…
His sister [S], was sexually abused by the father of her Carer and I have no doubt [LM] would have witnessed this.
…
[L], my daughter, has had a drug addiction since the age of approx 15. In the early years, [L] spent approx 5 years, be it all off and on, in Prison for drug-related charges. Since her children were taken from her, she made no contact with them until at age 34 when she did get off the drugs, studied and got a job, and [LM] went to live with her and her new partner.
Once again [LM] wasn’t treated nicely. [L] and her partner were very punitive to say the least,
a haircut amongst other things, had to be earned. I guess the bond between a mother and
child is broken, or maybe it was never formed, when you haven’t had contact with your
children for so long. [LM] didn’t have the skills to form relationships, he had always been
rejected.
…
Consequently, [LM’s] relationship with [L] broke down and he moved to Canberra to live with
his [father]. [His father] had come from a very abusive home where beatings from his father were the norm. He assaulted [L] many times over the years and went to prison for assaulting
[S]…I have learnt since, he had assaulted [LM] on many occasions causing black eyes
among other things. [LM] was so scared of him, he never spoke up. [LM] told me he would hide in the wardrobe when he came home as he had a drinking problem which caused him to get very aggressive.
The offender’s father was in court today. Presumably he has resolved his own problems
and will now be in a position to provide the support that has been missing for almost the
entire span of the offender’s life.
20. The tragic, and almost never-ending, appalling circumstances that have surrounded this
offender’s life I think entitle me to apply a degree of leniency which would not otherwise
be appropriate.
21. There was some confusion about the amount of time the offender has spent in custody for these offences. Each separate Statement of Facts says he has been in custody for
449 days “solely” for the subject offence. This is obviously incorrect.
22. The offender submitted that I should backdate his sentence to 16 February 2019. The
Crown said the appropriate date was 13 March 2019. There isn’t much difference
between the two suggestions but I will accept that from the Crown as there have been
some periods since 2019 when the offender was not in custody.23. Generally speaking it is important that I take into account the provisions of the Crimes (Sentencing) Act 2005 (ACT) and in particular s 6, 7 and 33. Section 10 is not applicable because full-time imprisonment is inevitable.
24. Although the offences occurred over about a three-month period I think there needs to be a degree of concurrency in order to avoid a crushing sentence.
25. It is also relevant that as a result of the cancellation of a previous parole order on 1 September 2020, the offender is due to remain in custody until 2 May 2022.
26. In respect of the breaches of the Good Behaviour Orders, the parties agreed that I should take no further action.
Orders:
27. I make the following orders:
(i) Attempted aggravated robbery: The offender is sentenced to imprisonment for a period of 18 months (reduced from 24 months) to commence on 13 March 2019 and end on 12 September 2020.
(ii) Aggravated robbery: The offender is sentenced to 3 years’ imprisonment
(reduced from 4 years) to commence on 13 March 2020 and end on 12
March 2023.(iii) Aid and abet aggravated robbery: The offender is sentenced to 2 years
and 3 months’ imprisonment (reduced from three years) to commence on
12 September 2021 and end on 11 December 2023.
(iv) The total period of imprisonment is 4 years, 8 months and 29 days, commencing on 13 March 2019 and ending on 11 December 2023.
(v) I set a nonparole period of 2 years and 10 months, to commence on 13 March 2019 and end on 12 January 2022.
(vi) I take no further action on the breaches of Good Behaviour Order imposed in the Magistrates Court on 14 December 2018.
I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim.
Associate:
Date: 27 April 2021
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