R v Lovelock
[2014] ACTSC 229
•30 June 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lovelock |
Citation: | [2014] ACTSC 229 |
Hearing Date: | 30 June 2014 |
DecisionDate: | 30 June 2014 |
Before: | Murrell CJ |
Decision: | Fined and effective sentence of 3 years and 10 months’ imprisonment imposed, with a non-parole period of 2 years and 7 months. For individual sentences see [31] to [38] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – theft – take motor vehicle without consent – dishonestly appropriate postal articles – intentionally damage postal articles – drive with prescribed drug in oral fluid – aggravated robbery – guilty plea |
Legislation Cited: | Crimes (Sentencing)Act2005 (ACT) ss 7, 33, 35 |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 R v Henry (1999) 46 NSWLR 346 R v Robertson (2009) 174 ACTR 32 |
Parties: | The Queen (Crown) Daniel Mark Lovelock (Offender) |
Representation: | Counsel Mr M Thomas (Crown) Mr H Jorgensen (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 81 of 2014 |
MURRELL CJ:
The offender adheres to pleas of guilty entered at an early opportunity in the Magistrates Court to six charges. The dates of the offences, nature of the offences and maximum available penalties are as follows:
(a)On 25 February 2014, theft of fuel valued at $58.34, ten years’ imprisonment;
(b)On 26 February 2014, take a motor vehicle without consent, five years’ imprisonment;
(c)On 26 February 2014, dishonestly appropriate postal articles, ten years’ imprisonment;
(d)On 26 February 2014, intentionally damage postal articles, ten years’ imprisonment;
(e)On 26 February 2014, drive with a prescribed drug in oral fluid, fine of 10 penalty units for a first offence (20 penalty units for a subsequent offence); and
(f)On 8 March 2014, aggravated robbery of fuel and soft drinks valued at about $50, twenty-five years’ imprisonment.
The offences
At about 1.42 pm on 25 February 2014, the offender parked his vehicle at a Coles service station, filled it with $58.34 worth of petrol and then drove away without paying for the fuel. The incident was recorded on CCTV camera.
At about 5.30 am on Wednesday, 26 February 2014, an Australia Post employee loaded his 2007 Toyota HiAce van with 227 post articles. At about 9.03 am that same day, the offender parked his vehicle outside the Jamison Centre shops in the vicinity of the Jamison Newsagency and was loitering in that area, apparently under the influence of drugs. At 9.19 am the Australia Post employee parked beside the Jamison Newsagency, and left his vehicle unlocked and the keys in the ignition while he ran into the Newsagency to deliver a package. The offender entered the HiAce van, and drove it a distance of about 250 metres. At that point, the offender stopped and opened a number of the parcels that were in the van. The parcels contained some valuable items, including two platinum and diamond wedding rings and other jewellery, with a total value of over $4,000. The offender appropriated that property and left the van, which was discovered later that day.
The offender's fingerprints were found on items in the van.
At about 3.25 pm on 26 February 2014, the offender was seen driving his vehicle. He held a probationary ACT driver's licence. He was required to undertake a drug-screening test, which returned a positive result. He supplied oral fluid, which was analysed and found to contain cannabis and methylamphetamine.
The final and most serious offence occurred at about 6 am on 8 March 2014, at the Coles Express store, Charnwood. The offender parked his vehicle at a pump and placed $40.04 worth of fuel into the vehicle. He entered the store, walked to the refrigerators and removed two soft drinks. He walked towards the counter, where the victim was located. When he was a few metres from the counter, he reached into the front of his waistband and removed a knife from a sheath. The victim immediately stepped backwards, fearing for his safety. The offender waved the knife from side to side three or four times over the top of the counter, pointing the tip of the blade in the direction of the victim. The offender said, "Give me the money, give me the money." The victim did not respond to that demand. The offender then turned around and walked out the door, taking the soft drink with him. He placed the knife in its sheath and returned it to his waistband. He then drove away. CCTV captured the incident.
Later, fingerprints were developed from the items that the offender had touched in the store.
That evening, police attended the residence of the offender's ex‑partner. The offender's vehicle was parked at the residence. They searched the premises and located the offender inside a wardrobe in the main bedroom.
The following day, a search warrant was executed on the offender's residence. The knife was located, as were items of clothing that had been worn by the offender at the time of some of the offences.
Objective seriousness of aggravated robbery offence
10. I turn to the objective seriousness of the aggravated robbery on 8 March 2014. The maximum available penalty of 25 years' imprisonment indicates that any offence of this nature is necessarily serious. The victim was somewhat vulnerable, as the attendant at the Coles Express shop at 6 am, a time when few people were likely to be in the vicinity.
11. Although any offence of this nature is serious, within the range of conduct covered by the offence, the offender's conduct was not particularly serious. The weapon that he had was a knife, and he did wave it in the direction of the victim, but he did not actually touch the victim and the brandishing of the weapon occupied a matter of seconds. When the victim did not respond to the demand for money, the offender turned and walked away.
12. Nevertheless, the victim impact statement indicated that the impact on the victim was substantial. The incident has led to the victim suffering from anxiety, a loss of self-confidence, an erosion of feelings of safety, emotional distress and it has affected his ability to undertake work without feeling fear. He has also experienced flashbacks.
13. I have referred the legal representatives to the ACT sentencing statistics, which indicate that a common sentence for matters of this nature is about three years' imprisonment, consistent with the two cases to which the Crown has helpfully referred: Auld v The Queen [2013] ACTCA 21 and R v Robertson (2009) 174 ACTR 32. In each of those cases, a sentence of a little less than three years was imposed for an offence with a similar level of objective seriousness to that under consideration in the present case.
14. The Court is aware of the New South Wales guideline judgment in the matter of R v Henry (1999) 46 NSWLR 346. A guideline judgment in New South Wales is not a guideline judgment in this jurisdiction. Nevertheless, it indicates the sorts of matters that a sentencing court should take into account when determining the objective seriousness of offences of this type. I note that in the ACT the maximum available penalty is 25 years’ imprisonment, whereas the maximum penalty under consideration in the Henry case was 20 years’ imprisonment.
Objective seriousness of steal postal articles offence
15. The offence of stealing the postal articles is an offence of considerable objective seriousness. The articles were stolen in a deliberate way, but I accept that the offence was opportunistic. However, the vehicle was driven a short distance, parcels were opened and articles of considerable value were taken. Although it is not entirely clear, It would appear that the total value of the items taken was in the range of $6,000 or $7,000.
Objective seriousness of other offences
16. The other matters before the Court are of a relatively minor nature. The taking of the Australia Post vehicle should be seen as incidental to the theft of the articles in the vehicle. It seems that the only reason that the van was taken and moved a distance of about 250 metres was for the purpose of opening and taking the contents. The offender has given evidence, which I accept, that he sold the jewellery in the parcels for the purpose of purchasing drugs.
Subjective circumstances
17. The offender is 31 years of age. He has been in custody for these matters since 10 March 2014, and the sentences should date from that date.
18. He has a significant criminal history. In the ACT, it dates back to about 2002. A number of matters of burglary are recorded against him. He has received sentences of imprisonment for matters of burglary and for other matters, including other matters of dishonesty. In 2010–11, he spent about 15 months in custody, including a sentence for a matter of burglary, and he was eligible for release on 14 July 2011. From September 2012 he served a further period of imprisonment and was released to parole in March 2013. The sentences expired in June 2013.
19. At the time that he committed the offences before this Court he was on bail for matters in New South Wales with which he had been charged in January 2014. Those matters included having custody of an offensive implement in a public place.
20. The offender had a disadvantaged upbringing in a household that was marred by alcohol abuse and violence. He is one of four children. His father is now abstinent from alcohol, and the offender now enjoys a good relationship with him. Indeed, at the time of the subject offences he was undertaking occasional work as a fencer for his father.
21. The offender has no natural children, but he lived for some years with a woman and he raised her three children as though they were his own. The relationship ceased due to mutual drug use and because there was a domestic violence order protecting the offender's former partner.
22. At the time of the offences the offender was living in government housing.
23. He was schooled to Year 9 and he has undertaken labouring and relatively unskilled work since that time. He was receiving a Centrelink benefit at the time of the offences.
24. The offender has mental health problems, although the nature and extent of those problems are not clear from the material before the Court. It would seem that he suffers from depression and anxiety.
25. The offender has a longstanding problem of substance abuse. He was a binge drinker from 15 years of age and a daily abuser of alcohol from 20 years of age. He commenced using heroin at 16 years of age. In the last five to seven years he has not used heroin, but has been using methylamphetamines.
26. At the time of the offences he was under the influence of methylamphetamine. He says that, at least in relation to one of the offences, he had taken a cocktail of drugs that involved amphetamines and Xanax, a prescribed medication to which the offender had access because of anxiety and depression, but that he abused.
27. In the past, the offender has made minimal attempts to address his substance abuse problems. He is now interested in entering Wayback, which appears to be a suitable program, but he has not yet been assessed and it is far from clear whether or when he will gain access to the program.
28. He also suffers from a gambling addiction. He has debts of about $30,000, largely related to this addiction.
Sentencing considerations
29. I am mindful of the sentencing purposes in s 7 of the Crimes (Sentencing)Act2005 (ACT) (Sentencing Act). These include ensuring that the offender is adequately punished, general and specific deterrence, protection of the community, accountability, denunciation and recognition of harm to the victim. Rehabilitation of the offender is also a matter of significance and, in my view, in this case it is best recognised in relation to the setting of the nonparole period.
30. Insofar as they are known to me and relevant to the sentencing exercise, I have considered the matters set out in s 33 of the Sentencing Act. I have taken into account the plea of guilty under s 35 of the Sentencing Act. The primary consideration in relation to the discount for the plea of guilty is the timing of the plea and the associated utilitarian value. In my view, the offender should receive a s 35 discount of 25%.
Conclusion
31. I record a conviction for each of these matters and impose the following sentences.
32. For the offence of driving with the prescribed drug in oral fluid on 26 February 2014, the offender is fined $500 and disqualified from driving for three years.
33. For the offence of theft of fuel valued at $58.34 on 25 February 2014, the offender is sentenced to three months' imprisonment from 10 March 2014 to 9 June 2014. That sentence has been discounted from four months’ imprisonment to three months’ imprisonment for the plea of guilty.
34. For the offence of taking the Australia Post vehicle without consent on 26 February 2014, the offender is sentenced to 12 months' imprisonment from 10 April 2014 to 9 April 2015. That sentence has been discounted from 16 months’ imprisonment to 12 months' imprisonment for the plea of guilty.
35. For the offence of dishonestly appropriating postal articles on 26 February 2014, the offender is sentenced to 18 months' imprisonment from 10 April 2014 to 9 October 2015. That sentence has been discounted from two years' imprisonment to 18 months’ imprisonment for the plea of guilty.
36. For the offence of intentionally damaging postal articles on 26 February 2014, the offender is sentenced to six months’ imprisonment from 10 April 2014 to 9 October 2014. That sentence has been discounted from eight months’ imprisonment to six months’ imprisonment for the guilty plea.
37. For the offence of aggravated robbery on 8 March 2014, the offender is sentenced to three years' imprisonment from 10 January 2015 to 9 January 2018. That sentence has been discounted from a sentence of four years’ imprisonment to three years’ imprisonment for the guilty plea.
38. The total effective sentence is three years and 10 months’ imprisonment. I fix a nonparole period of two years and seven months, to start on 10 March 2014 and expire on 9 October 2016.
| I certify that the preceding thirty-nine [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
16
0
1