R v McCracken
[2016] ACTSC 253
•25 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McCracken |
Citation: | [2016] ACTSC 253 |
Hearing Date: | 25 August 2016 |
DecisionDate: | 25 August 2016 |
Before: | Murrell CJ |
Decision: | Sentenced to 5 years’ imprisonment. Non-parole period fixed at 2 years and 6 months’ imprisonment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – serious aggravated robbery on supermarket – armed and in company |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 35 Criminal Code 2002 (ACT) s 310 |
Cases Cited: | R v Rowland; R v Herceg [2016] ACTSC 192 |
Parties: | The Queen (Crown) Stephen McCracken (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 266 of 2015 |
MURRELL CJ:
The offender pleaded guilty to the offence that, on 25 June 2015, he committed a robbery in company with Christopher Rowland and at the time had an offensive weapon with him. The offensive weapon was a replica pistol. The plea was accepted in full satisfaction of the indictment.
The offence of aggravated robbery is an offence against s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). It carries a maximum penalty of 25 years' imprisonment.
The matter was committed from the Magistrates Court to the Supreme Court for trial. The offender indicated a plea of guilty on the ninth occasion that the matter was mentioned in the Supreme Court and before it was fixed for trial. Given the timing of the plea, the strength of the prosecution case and the other relevant factors, under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) the offender should receive a sentencing discount of a little more than 15%.
The facts are set out in my decision when sentencing the co-offenders: R v Rowland; R v Herceg [2016] ACTSC 192 at [6]–[15]. I will not repeat them here. It will suffice to say that some points of distinction between the conduct of Mr Rowland and that of this offender were drawn to my attention.
It was submitted that the offender’s conduct was less aggressive than that of Mr Rowland. Otherwise, the general conduct was almost identical. Mr Rowland and Mr McCracken planned the offence together. They were driven to Woolworths Kambah by Mr Herceg. They both exited the vehicle and entered Woolworths. Each was holding a replica firearm and wearing similar clothing. But from that point, so the defence submitted, the offender’s conduct was less aggressive than that of Mr Rowland. Mr Rowland circled the service desk, climbed onto it and put his foot on the weigh station at the service desk, pointed his firearm at a female victim and then, on about four occasions, swore and yelled at a female victim, demanding that she open the till. On the other hand, the facts do not disclose that the offender yelled or swore at any victim. He stayed "to the right of the service desk rather than circling it and climbing onto it". He did produce a bag for the attendant to place money into the bag.
I accept that, as the offender was less aggressive than Mr Rowland, the offence committed by him was marginally less objectively serious than that committed by Mr Rowland. On the other hand, the offender's criminal history is significantly worse than that of Mr Rowland and I see little distinction when both objective and subjective features are taken into account.
Objective seriousness
As in the case of Mr Rowland, the offence committed by the offender is of high objective seriousness.
First, only one circumstance of aggravation is required to support the offence, but in this case there were two aggravating circumstances; the possession of an offensive weapon by the offender and the fact that he was in company. Further, the person with whom he was in company was carrying an offensive weapon.
Second, the offence was planned by Mr McCracken and Mr Rowland. They communicated prior to the offence and arranged to secure a stolen vehicle and a separate driver, who was Mr Herceg. The planning could not be described as sophisticated, but it was significant.
Third, the offence was committed when the shop was open and there was the potential for a number of people to have been terrified. Fourth, a reasonably substantial sum of money, approximately $3,500, was taken. Subsequently the offenders arranged for the disposal of evidence in bushes.
Finally, the victims suffered considerable psychological trauma, as is evidenced by the victim impact statements, as one would expect after a confrontation with two armed robbers in your workplace at night. The victims suffered very significant post-traumatic stress which has impacted upon their earning capacity and upon their daily lives. Each has undergone a significant period of counselling. The problems are ongoing.
Subjective factors
The offender is 25 years old. He was 23 at the time of the offence.
The offender has a significant criminal history for offences of dishonesty, including one offence of robbery committed in 2012. It was a relatively minor offence of robbery, as indicated by the penalty of four months' full-time imprisonment.
As far as one can gather from the very confusing criminal history, the offender spent about 12 months in custody from April 2011 to April 2012. On 25 July 2013, the Magistrates Court sentenced him for many offences which resulted in an overall sentence of one year and 11 months’ imprisonment from 28 January 2013 with a 14-month nonparole period. That saw him released on 27 March 2014 to serve the remaining nine months of the sentence on parole. After the expiry of the parole at the end of 2014, the offender committed no further offences until he committed this offence on 25 June 2015.
After this offence and prior to his arrest, the offender committed offences on 13 October 2015. On 27 January 2016 he was sentenced to an effective term of eight months’ imprisonment, to be released on 12 April 2016 after serving six months.
The pre-sentence report states that the offender was born in Canberra. He is one of three children. His parents separated when he was 14 years old. He now enjoys good relationships with both parents and his siblings. His family has visited him many times in custody.
The offender has been employed sporadically. He has held jobs for short periods only. During his adult life, he has been largely dependent on Centrelink benefits.
The offender agreed that his peer network is largely anti-social. He accepts that his peer group has been a significant factor in his offending.
The offender began to use methamphetamines when he was 17 years old. Recently, his level of substance abuse has been as high as one gram or 10 points daily, although he denies intravenous drug use. As recently as March 2016, while in custody, the offender declined to provide a sample for urinalysis. A drug abuse screening test undertaken only a few weeks ago indicated that the offender's drug use over the previous 12 months was substantial.
Until recently, the offender has declined to participate in programs to address his offending behaviour. In particular, earlier in this year he declined to attend the SMART Recovery program. However, some weeks ago he was assessed as suitable for re-entry into that program and he is now awaiting placement. The offender has frankly stated that he does not feel that he would follow through on community based interventions and needs to undertake programs while in custody. Recently, he indicated a change of heart in relation to undertaking a cognitive self-change program and he is now prepared to participate in the program.
In addition to having a longstanding and significant problem with substance abuse, the offender has a gambling problem. He informed the authors of the CADAS report that he had a gambling problem for some years prior to his recent incarceration. He reported that he had spent $500–$1,000 a week on poker machines and had never sought treatment. The authors of the CADAS report noted that the gambling problem coincided with the uptake of daily methamphetamine use.
The offender frankly told the authors of the CADAS report that he had weak will power and "couldn't walk away from drugs" if they were offered to him. He is still "in love" with amphetamines. He identified that being surrounded by drug using peers has been very influential in his continuing involvement with crime and drug use.
The offender has been assessed as having a medium risk of re-offending. It seems that the offender has had a recent change of heart about participating in programs that might help him to rehabilitate. However, given the recency of the apparent change and its proximity to this sentencing hearing, it remains to be seen whether the offender will give effect to his stated intentions.
Sentence
In sentencing the offender I have regard to the sentencing purposes in s 7 of the Sentencing Act. The purposes of punishment, accountability and general deterrence are very significant. The recognition of harm to the victims is important. The issue of rehabilitation is to be considered. I am not at all confident about the offender's capacity for rehabilitation, but, at least of recent times, he has indicated considerable insight into the circumstances of his offending conduct and has stated that he is prepared to undertake courses that might assist him.
He will be in custody for some time. The parole authority will be in a good position to assess his prospects at the expiry of the nonparole period. I would not confidently predict what they might be, but it is possible that he will be able to reintegrate into the community upon his release. Consequently, the nonparole period should not be too high.
When one weighs the slightly lesser objective seriousness against the worse criminal history of the offender, but taking into account that Mr Rowland was on conditional liberty at the time of the offence, the starting point for the offender’s sentence should be six years' imprisonment. A discount of a little over 15% should be allowed. I will discount the sentence by 12 months to give a sentence of five years' imprisonment. I am prepared to allow a degree of concurrency with the sentence imposed by the Magistrates Court for the subsequent offences. The sentence will commence on 13 January 2016. The offender is sentenced to five years' imprisonment from 13 January 2016 to 12 January 2021.
The total period of the sentences is five years’ imprisonment. I fix a nonparole period of two years and six months’ imprisonment from 13 January 2016 to 12 July 2018.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 5 September 2016 |