R v Lucas
[2015] ACTSC 210
•20 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lucas |
Citation: | [2015] ACTSC 210 |
Hearing Date: | 20 July 2015 |
DecisionDate: | 20 July 2015 |
Before: | Murrell CJ |
Decision: | Sentenced to total effective term of 44 months’ imprisonment. Non-parole period of 26 months’ imprisonment. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – attempted robbery – common assault – youth – rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 Criminal Code 2002 (ACT) ss 44, 309 |
Parties: | The Queen (Crown) Tony Lucas (Offender) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 70 of 2014; SCC 83 of 2014 |
MURRELL CJ:
The Offences
The offender is before the Court for sentence for three offences that occurred on 20 September 2013. The offences are:
(a)Attempted robbery, contrary to s 309 (by virtue of s 44) of the Criminal Code 2002 (ACT). The maximum penalty is 14 years’ imprisonment and/or a fine of $210,000.
(b)Common assault, contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty is two years’ imprisonment.
(c)Common assault, contrary to s 26 of the Crimes Act. The maximum penalty is two years’ imprisonment.
The offender was committed for trial to the Supreme Court on attempted robbery and a more serious charge. On the Wednesday prior to the week fixed for the trial, he entered a plea of guilty to the offence of attempted robbery. The plea was accepted in full discharge of the indictment. A plea to the charge attempted robbery had been offered about three weeks prior to the date when it was entered.
The offender entered pleas of guilty to the common assault matters on the fifth occasion when the matters came before the Magistrates Court.
In these circumstances, the offender is entitled to a discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). For the plea of guilty on the attempted robbery, the discount should be approximately 15%. For the pleas of guilty on the two counts of common assault, the discount should be approximately 20%. The discounts reflect the relatively strong prosecution case and the timing of the pleas. The plea to the attempted robbery had significant utilitarian value though it was relatively late.
Facts
At about 6.45 pm on 20 September 2013, the offender and a companion were in a unit complex at Mawson where the victim, his partner and their seven year old son resided. The victim left his apartment to put rubbish in a bin. The offender approached the victim as the victim stepped outside. The victim ignored the offender, placed the rubbish in the bin and attempted to return to his apartment. However, the offender shouted at the victim, accusing him of staring at the offender. The victim was attempting to return to his unit when the offender ran towards him and started to push him. The offender said words to the effect of, “I have a knife in my pocket. I’m going to stab you. Give me all your money.” At that time, the offender had his hand on his pocket. It was later ascertained that the offender did not have a knife, but the victim would have believed that he may have had a knife at the time that the threat was made. This constituted the attempted aggravated robbery.
The victim told the offender that he did not have any money. The victim began to run away. The offender punched the victim to the head five to 10 times. The offender called for help from the companion who was with him. The offender and his companion then moved away. This constituted the first common assault. The victim tried to push the offender away and shouted for help while the first common assault occurred. The offender had a can of alcohol in his hand. He spilled alcohol on the victim.
The offender and his companion began to walk away. However, the offender then turned back to the victim. He again punched the victim in the head and face five to 10 times. The offender said to the victim, “I’m coming back to kill you and your family.” This constituted the second common assault.
The victim’s partner heard the victim calling for help and rang 000. The victim returned to his apartment. He was bleeding from the mouth and his head was hurting. Later, he developed bruises around his head and face. The police attended the victim’s residence. They observed that he had a cut and bruised lower lip, a swollen face and a bruised right ear.
Soon afterwards, the offender and his companion were arrested at the Woden Bus Interchange. The offender told police that he had consumed about half a bottle of Jägermeister. Initially, the offender agreed to participate in a record of interview. During the interview, police observed that the knuckles on the offender’s right hand were red and swollen. Later, the offender said that he wanted to postpone the interview. He agreed to return on the following day.
However, the offender failed to return to the police station. Attempts to locate him were unsuccessful. He was arrested on 12 December 2013. He was granted bail, which he breached several times. On 17 September 2014 his bail was revoked. The revocation occurred after the offender was arrested on 12 September 2014 in connection with other offences that had occurred in August 2014. Subsequently, sentences were imposed for those offences.
The offender has spent three days in custody with respect to these offences.
Objective Seriousness
The prosecution accepts that the offence of attempted robbery was of relatively low but significant seriousness. It involved a physical pushing and not merely a verbal threat. Moreover, the verbal threat was of a very serious nature, being a threat to kill. The offender led the victim to believe that he was in possession of a knife and was in a position to carry out the physical threat.
The common assaults were objectively serious. They involved the gratuitous punching of the victim to the face and head area; a vulnerable part of the body. All incidents occurred close to the victim’s home and within the hearing of family members. The family members were traumatised by what they heard and saw when the victim returned to his apartment with obvious injuries.
Victim Impact
The prosecution tendered victim impact statements from the victim, his partner and their child, who was seven years old at the time of the incidents. The episode was shocking, confusing and ultimately depressing for the victim’s son.
For the victim’s partner, the incident was quite shocking and caused her anxiety to the extent that she postponed her university studies. The postponement of study was associated with considerable expense as both the victim and his partner are international students. Their son is also an international student and his parents have to pay for his schooling.
The victim and his wife had to take time off work because of the stress associated with the incident. The victim remained fearful that the offender would return. As a result, he moved the family to new accommodation. This caused further financial loss.
The Court acknowledges the significant psychological and financial impact on the victim, his partner and their son.
Subjective Circumstances
The offender is now 22 years of age. He was 20 years of age at the date of the offences. He has a poor criminal history for such a young person. There are a number of offences of a like nature (serious offences of dishonesty) on the offender’s history. There are also many lesser matters of dishonesty.
On 22 February 2015, the Magistrates Court sentenced the offender for unrelated offences committed in August 2014. The offences were four theft offences, an intentional damage to property offence and an offence of aiding and abetting a burglary. The Magistrates Court imposed concurrent sentences. The longest sentence was 18 months’ imprisonment for the offence of aiding and abetting the burglary. The offender was to serve 12 months of that sentence from 12 September 2014 to 11 September 2015. The remaining six months was suspended upon the offender entering into a good behaviour order for a period of two years.
The offender served a sentence of imprisonment imposed in 2011 by the Supreme Court. It was a sentence of two years and six months, dating from July 2010. The sentenced was suspended from April 2011 upon the offender entering into good behaviour order for a period of two years.
The offender was not on conditional liberty when these offences were committed.
The offender is one of four children. He had a supportive although strict upbringing. He is on reasonably good terms with his mother. Despite recently undergoing treatment for cancer, she has offered him short term accommodation upon his release from custody.
The offender left home at 14 years of age to escape the strict requirements of his home life. He chose to live with extended family members whom he has described as “criminals”. From that point, his life became chaotic and unstable. He left school. He was then in Year 8. Prior to that, he had engaged in disruptive and aggressive behaviour at school. He has poor literacy and numeracy skills. He has attempted educational courses while in custody but his attendance has been irregular. To date, he has not managed to complete Year 10.
The offender has two children, now aged about one and two years. They are from a relationship that ended in 2014 due to his drug use. His children visit him at the Alexander Maconochie Centre.
The offender has a poor employment history. He has had short periods of employment. He attempted a hairdressing course while in custody. However, his attendance was sporadic. He has debts of about $14,000.
The offender began to abuse alcohol and drugs at about 14 years of age. He was a frequent binge drinker and he consumed cannabis from about 14 years of age. He began to consume methylamphetamines when he was 16 years old. He was injecting ice intravenously for about six months leading up to his arrest in about September 2014. He was also consuming cannabis on a daily basis.
The offender has been ambivalent about drug rehabilitation. At one stage he was interested in pursuing residential rehabilitation. However, he now believes that he does not require residential rehabilitation. He has agreed to undertake alcohol and drug counselling in custody and has completed a SMART Recovery Program while in custody. Nevertheless, his commitment to rehabilitation is not wholehearted.
The offender has a history of psychological problems of uncertain aetiology. He has been medicated in the community but his compliance has been poor. He receives anti-psychotic medication in custody. His history of poor compliance with medication while in the community suggests that future compliance will be problematic.
The overall picture is of someone who has a very poor criminal history spanning a decade, associated with serious polysubstance abuse. He is somewhat motivated to address the substance abuse problems, but not completely committed. His somewhat ambivalent attitude is probably at least, in part, a reflection of his youth and immaturity. It is difficult to predict what his attitude to rehabilitation will be when the time comes for his release.
The offender’s mother says that he has gained some insight into his situation and that his attitude to life has improved since he was arrested. The offender is motivated to develop a better relationship with his children and to gain a full time job on his release.
Other Sentencing Considerations
These offences involved random assaults on innocent members of the public who were going about their business in the vicinity of their homes. It is therefore necessary for the Court to impose significant penalties to reflect the sentencing purposes of general and specific deterrence, accountability, denunciation and recognition of harm to the individual victims concerned and the community generally.
These sentencing purposes need to be balanced with consideration for rehabilitation. Despite the uncertain prospects for rehabilitation, given the offender’s youth it is important for the Court to give weight to the possibility of rehabilitation.
In sentencing the offender, the Court must take into account those factors listed in s 33 of the Sentencing Act, as are known to the Court and relevant. I believe that I have considered the relevant matters above.
Sentence
The offender is convicted of each matter.
For the offence of attempted robbery, I would have imposed a sentence of two and a half years’ imprisonment but that is reduced to two years’ and one month imprisonment for the plea of guilty. The offender is sentenced to imprisonment from 9 April 2016 to 8 May 2018.
For the first common assault, I would have imposed a sentence of six months’ imprisonment but that is reduced to four months’ imprisonment for the plea of guilty. The offender is sentenced to imprisonment from 9 September 2015 to 8 January 2016.
For the second offence of common assault, I would have imposed a sentence of 10 months’ imprisonment, but that is reduced to eight months’ imprisonment for the plea of guilty. The offender is sentenced to imprisonment from 9 December 2015 to the 8 August 2016.
The effective period of imprisonment, taking into account the current period of imprisonment that the offender is serving, is from 12 September 2014 to 8 May 2018. That is a period of about 44 months. I fix a non-parole period of two years and two months from 12 September 2014 to 11 November 2016. The offender is eligible for release to parole on 11 November 2016.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 31 July 2015 |
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