R v MC
[2020] ACTSC 128
•9 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MC |
Citation: | [2020] ACTSC 128 |
Hearing Date: | 19 May 2020; 9 June 2020 |
DecisionDate: | 9 June 2020 |
Before: | Elkaim J |
Decision: | See [20] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt aggravated robbery – young person – general deterrence versus rehabilitation prospects |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 86 |
Parties: | The Queen (Crown) MC (Offender) |
Representation: | Counsel C Wanigaratne (Crown) B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 56 of 2020 |
ELKAIM J:
On 10 March 2020 the offender pleaded guilty to one charge of attempted aggravated robbery (CH2019/903) in the Magistrates Court. He was committed to the Supreme Court for sentencing. The offence is contrary to s 310, by virtue of s 44, of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment, a fine of $400,000 or both.
The details of the offence are set out in the Statement of Facts. In summary, on 12 September 2019, the offender and two other persons entered a Domino’s Pizza store in Kippax, just before 11:00pm. The offender was carrying a shortened double-barrelled shotgun. He was disguised. The offender pointed the gun at a store employee and also manhandled him. He asked him “where’s the money?”. He led the employee to the safe which the employee opened. The safe was emptied of $952.00. Before leaving the store the offender pointed a gun at the employee’s head while he was crouched down.
There can be little doubt that this would have been a most terrifying experience for the employee. The use of a firearm places this offence at about medium objective severity.
The offender has been in custody at the Bimberi Youth Detention Centre since 3 October 2019. This will be the starting date for the sentence of imprisonment I intend to impose. The sentence will be discounted by 20% to reflect the early plea of guilty.
The offender was born in 2002. He is almost 18. The offender is of Aboriginal descent. His family origins are in the Griffith area of New South Wales. He is very proud, as he should be, of his heritage.
Regrettably his upbringing has been marred by significant abuse and mistreatment. He has been subjected to domestic violence and sexual abuse. He has been exposed to drug and alcohol misuse in his own home. There are at least 80 child protection reports concerning his welfare. The offender’s father died in 2018. He has found it difficult to deal with this loss.
Not surprisingly the offender has had difficulty with his education. In 2015 he became involved in a program focusing on literacy, numeracy and cultural activities. He enjoyed the program. In 2019 the offender recommenced Year 10 studies and apparently did quite well. He has also been studying while in detention.
The offender started drinking alcohol at a young age. He also became a regular user of marijuana. He has had some experience with harder drugs, and even supplied them on occasion.
The offender has been in a relationship which led to the birth of a son in 2019. The offender is a founding member of a gang called ‘Thieves in Canberra’. No doubt their activities mirror their title. The offender, on the other hand, is interested in sports and music and these are positive elements in his life. He seems to have abandoned these elements following the death of his father.
The offender has said that he “felt sorry for the victim because he would have been scared and frightened”. This is a very different sentiment to that expressed in the material obtained from his mobile phone when he displays almost pride in his behaviour during the robbery. Hopefully his more recently expressed attitude is genuine and will stay with him. There are indications from independent persons that his remorse is genuine.
The offender told the authors of the Pre-Sentence Report that he would like to have a crime free future. I hope this aspiration comes to fruition. He seems to have been assisted by medication for mental health issues. These mental health issues are significant. Ms Edwige, a psychologist, in her report dated 4 May 2020, provided this diagnosis:
[MC] is a 17-year-old young man who meets the diagnostic criteria in the DSM-5 for Unspecified Trauma-and Stressor-Related Disorder. At the time of the offence it is my clinical opinion that [MC] was suffering from Unspecified Trauma-and Stressor-Related Disorder and meets the diagnostic criteria for such in the DSM-5. [MC] presents with behavioural and emotional symptoms that are a direct response to the trauma he experienced as a child and adolescent. He has been exposed to violence throughout his life and has normalized that behaviour. It is my opinion that [MC’s] behaviour and conduct are a direct result of the ongoing trauma he has experienced as a child and adolescent. He has been unable to process this trauma and is in a constant state of fight, flight and freeze.
Ms Edwige proposed a treatment plan involving a fairly intensive program of psychological support for a period of no less than 12 months.
Mr McCombe is a case worker at the NSW Department of Communities and Justice who has had a long-standing relationship with the offender. He gives a more extensive diagnosis, as follows:
[MC] has been diagnosed with the following disabilities; Attention Deficit Hyperactivity Disorder combined Inattention, Oppositional and Defiant Disorder, Mild Intellectual Disability, Genetic loading for cognitive/behavioural disability.
Mr McCombe ends his letter of 15 May 2020 in this way:
In my view, if [MC] was released to stay with his Uncle [F], he would have the opportunity to have the support of a family member and adult male role model that would give him the opportunity to change his behaviour and a chance to avoid future unlawful behaviour.
Uncle F, (who is actually the offender’s cousin), has provided a reference. He says:
Yes I am aware of the charges that he has been convicted of and from my opinion they ain’t great and it doesn’t sound like him at all yes I know he’s not the best kid in the world but who is I just think it was the loss of his dad that sent him off the rails but knowing that I’m here for him and willing to do what it takes to get him back on track should be enough he’s got a lot of family and great support system back home but I don’t think that would be a good idea for him to go back to Griffith not just yet and by the time he gets [out] I’ll have my own house for him to stay at if needed.
…
He seemed scared that he was charged with the charges that he’s in there for now but him being the young man he is he’s adjusted to the lifestyle as he would to any other lifestyle that he was in at the time he’s a good kid he just needs guidance and a role model and that’s what I’m here for because I know that he can do whatever he puts his mind to and from talking to him nearly every day since he’s been in there all he wants to do is to get out and work and start a life for himself.
The matter began before me on 19 May 2020 when I indicated that I thought the appropriate course to take was for there to be a term of imprisonment but suspended as soon as possible on the basis that the offender would live with Uncle F. Unfortunately, Uncle F was not then in stable accommodation. So I adjourned until today to allow the accommodation issue to be resolved. I note the Crown, fairly, did not raise any argument against the proposal that I had set out.
Regrettably, since that date, the uncle has not been able to secure appropriate accommodation. However, Mr McCombe, continuing his sterling effort on behalf of the offender has been in touch with the offender’s aunt in Griffith who has agreed that the offender can stay with her. Mr McCombe says this is stable accommodation and notes the offender’s siblings also live with the aunt.
Sentencing a person like this offender is one of the most difficult tasks faced by a sentencing judge. On the one hand a serious crime has been committed involving a firearm and the threatening of an innocent person simply trying to go about his work. On the other hand, there is an offender who has had a most awful upbringing and suffers significant mental health conditions, but is also a person who now seems to recognise his wrongdoings and wishes to make an effort to change the path of his life. He must be given every opportunity to do so.
Public deterrence is very significant in a case of this type, but so too is the rehabilitation of a young man who has a real prospect of contributing to society in the future.
I make the following orders:
(a)For the offence of attempted aggravated robbery (CH2019/903), the offender is sentenced to 12 months’ imprisonment (reduced from 15 months) to commence on 3 October 2019 and end on 2 October 2020.
(b)The balance of the period of imprisonment is suspended with immediate effect on condition that the offender enter into a Good Behaviour Order for a period of 18 months, that he reside with his aunt in Griffith at [redacted] or such other place as the Director-General directs, and that he accept the supervision of the Director-General and complies with his core conditions under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT).
(c)The offender is to be transported to the aunt’s house in Griffith by Mr McCombe.
(d)The offender is ordered to pay compensation in the amount of $317.33 to be paid into court to the Registrar for payment out to the beneficiary. That sum is to be paid within 12 months.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 9 June 2020 |
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