R v Migotto
[2021] ACTSC 261
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Migotto |
Citation: | [2021] ACTSC 261 |
Hearing Date: | 12 October 2021 |
DecisionDate: | 12 October 2021 |
Before: | Elkaim J |
Decision: | See [43] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aid and abet attempt aggravated robbery |
Legislation Cited: | Criminal Code 2002 (ACT) s 45(7) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 Crimes (Sentence Administration) Act 2005 (ACT) s 86 |
Cases Cited: | KT v The Queen [2008] NSWCCA 51 |
Parties: | The Queen ( Crown) Dale Jaiden Migotto ( Offender) |
Representation: | Counsel K Lee ( Crown) S Whybrow ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) David Healey Solicitors ( Offender) | |
File Number: | SCC 231 of 2020 |
ELKAIM J:
Following a series of Criminal Case Conferences the offender pleaded guilty to a single count in an indictment dated 21 May 2021. This indictment charges the offender with aiding and abetting the commission of an offence by other persons, namely an attempted aggravated robbery, on 21 June 2020.
The maximum penalty for the offence is imprisonment for 25 years and/or a fine of $400,000. This is the same penalty as the offence of aggravated robbery.
The facts are set out in detail in the agreed Statement of Facts, included in Exhibit A. The following is a summary. On 21 June 2020 the offender was a passenger in a Suzuki Swift motor vehicle. He was sitting in the back seat. There were four other persons in the vehicle. Some of them, including the offender, were smoking cannabis.
There was a copper pipe in the vehicle which seems to have prompted a discussion that it should be used to attack another person. The discussion also encompassed the stealing of a motor car, perhaps with the assistance of the copper pipe.
As the Suzuki Swift was driving along it was pulled over by the police. The driver was arrested. This prompted the offender to take over as the driver. The journey continued as did the discussion about stealing another motor vehicle. The intent in doing so was perhaps to go to Batemans Bay or perform ‘skids’. It is not clear why this could not have been done in the Suzuki.
Shortly before 9:00pm the occupants of the Suzuki noticed a black BMW in the car park at the Erindale Shopping Centre. This vehicle appealed to the offender who said:
That’s a good car, imagine the skids we could do in that and imagine how much it would be worth if we sold it.
The other occupants of the Suzuki agreed with the offender’s assessment of the BMW. They resolved to steal the BMW. At about 8:55pm the owner of the BMW (the complainant), who had been shopping in the Centre, returned to her vehicle.
The offender remained in the Suzuki. Two of his colleagues left the Suzuki and approached the complainant. One of them, a 15 year old female, was armed with the copper pipe. The other person, a male, had a ‘flick’ knife with a blade of about 7cms in length. The offender had not been aware of the existence of the knife.
The two prospective robbers approached the complainant and demanded her money and attempted to snatch her car keys from her hand. The complainant, displaying significant resilience, told them to go away. After a short interlude of ‘to-ing and fro-ing’, in which there was some contact with the complainant and threatening gestures with the knife, the two assailants obeyed the instruction and fled to the waiting Suzuki.
The offender had been watching the above events unfold. As soon as his two colleagues returned to the Suzuki, he drove off. Fortunately, the complainant was able to record the registration number of the Suzuki.
There is a Victim Impact Statement from the complainant. She describes the experience as an “heinous, horrendous and hideous violation of my inner self as a human being”. She has consulted a psychologist to help her deal with her experience. She has been “angry and really upset that I have had to deal with this”.
In addition, she says that she has had significant pain in her left shoulder. She has had difficulty sleeping and has “not been able to function and be able to work effectively as I used to. I have not been able to go into the premises of my business”.
For the first six months after the incident the complainant recalled the events every day. She says that “mentally, my state of mind was shattered”. The stress has had an effect on the complainant’s teeth as a result of clenching and grinding. She has required a good deal of dental treatment. She suffered “excruciating pain”. A cracked tooth had to be removed. This was a procedure performed under a general anaesthetic. It became necessary to go through the process of inserting an implant which is still ongoing and no doubt very costly.
The Victim Impact Statement was completed on 18 June 2021. At this time the complainant was still suffering with stress and anxiety. In January she suffered “a mental and emotional breakdown”. She concludes:
This trauma has changed me and I have to live with and deal with the ramifications every day, but I hope that I never have to experience this again.
The Victim Impact Statement highlights the most important factor that criminals do not consider. They consider the benefits of what they are planning, perhaps even the risks of apprehension or harm to themselves. But I am sure that they very rarely consider the possible effects of their actions on their victims. These effects will always outweigh every other relevant consideration.
The offender was arrested on 3 July 2020. He has spent one day in custody. He has a criminal record, but it is minor and does not include any similar offence. He was however in breach of a conditional release order relating to a drug offence that had been committed in New South Wales.
In assessing the objective seriousness of the offence it is necessary for me to take into account the offender’s degree of participation in the crimes. He was, in effect, a getaway driver making himself available to speedily drive his colleagues away, should this become necessary. He was aware of the intent of stealing the BMW and he knew about the copper pipe which he could have envisaged to have been used as a weapon.
I agree with this paragraph in the Crown’s written submissions:
12.The offender must have been aware of the possible use of the copper pipe in the offence, but there is no evidence that he was aware of the presence of the knife. Further, it is accepted that the criminal culpability of the co-offenders is greater than the offender, given the offender stayed in the car and was not himself involved in any physical acts of violence or threats of violence. Nevertheless, the offender’s actions offered significant support to the co-offenders.
In my view the offender’s participation in the criminal activity should be regarded as towards the lower end of objective seriousness. It is also necessary for me to take into account, by way of principles of parity, the sentences imposed upon the two co-offenders. The female, who was aged 15 at the time, and had no criminal record, was dealt with in the Children’s Court by way of a non-conviction order with a 12 month Good Behaviour Order.
The other co-offender, who was 19 years old and had a significant criminal record, was sentenced, by Burns J, to imprisonment for two years with a non-parole period of 10 months (R v Holt [2020] ACTSC 311).
As accepted by the Crown, there will necessarily be some disparity in the sentence to be imposed on this offender because of his lesser role and the significant differences in subjective features (in particular criminal histories) as between the co-offenders.
There are also personal factors of this offender which must influence his sentencing. He was born in 2000. Although he is the only child of his parents’ union, he does have three half siblings. His father was an alcoholic and abusive of his mother, to an extent that the offender suffers from a Post-Traumatic Stress Disorder (PTSD). His parents split when he was seven years of age although there was a recent, but seemingly brief period of reconciliation. The offender has a supportive relationship with his mother and two of his half siblings. Other than occasional contact, the offender has little to do with his father.
The offender has a learning disorder as well as Attention Deficit Hyperactive Disorder (ADHD). These conditions impacted on his schooling requiring extra support. Although he remained at school through Year 12, the offender did not receive either a Year 10 or Year 12 certificate. A school psychologist found that his cognitive function was well below that of his peers.
The offender has worked in the construction industry and is currently employed as a labourer on a full-time basis. He also, significantly to his credit, does volunteer work for the Cancer Council.
The offender has no difficulty with alcohol but he does have a fairly long history of smoking cannabis. He also used methamphetamine for a short time before the offending. He breached his bail conditions in November 2020 by using cannabis. Since then however he has participated in drug prevention programs and returned negative results to all tests since.
In addition to the ADHD, PTSD and the learning disorder mentioned above, the offender also suffers from anxiety, social phobia, agoraphobia, and depression. He has had one attempt at suicide, about three years ago. He is prescribed antidepressant medication by his General Practitioner. He has nevertheless been able to secure and continue in full-time employment.
There is a Mental Health Brief Assessment Report included in the papers. The Report says that the above diagnoses “appear to be mostly managed through medication and avoidance of illicit substances”. It also suggests that the offender has “some features of borderline personality disorder, specifically chronic suicidal ideation, difficulties managing anger and impulsivity”.
The Report recommends continuing psychological intervention of a structured nature.
The authors of the Pre-Sentence Report said that the offender “is considered to be medium-low risk of general re-offending and if sentenced to a supervised Order, would primarily be supported with existing support services”.
The Pre-Sentence Report continues:
It is noted that high levels of community supervision may be detrimental to his pro-social factors most notably his employment, particularly the strict regulations around interstate travel imposed by an Intensive Correction Order.
Although assessed as suitable for an ICO, the above passage clearly indicates that it would not be the preferable option.
In respect of remorse I accept that, besides the plea of guilty, the offender has expressed contrition for his actions. In a letter to the Court he talks about his shame at his actions and his realisation of his erroneous ways, in particular brought to stark reality by the death of his co-accused after release from prison. The offender says:
I am very, very sorry for what I have done to the victim. I have been through a lot as a child, and I know I am affected by the violence that I witnessed so I can imagine how the victim now feels and that it was not fair of me to do that to another person. I have read her Victim Impact Statement and I feel so disgusted at myself at the effects this offence has had on her.
There is a letter from the offender’s mother describing his background and his difficult early years. She says he is now an NDIS participant which will help him with support and treatment. He has full-time employment and his drug use has ceased. His involvement with NDIS is confirmed in a letter from this agency which attaches his current plan. It also highlights the very real disabilities from which the offender suffers.
His employment is confirmed in a letter from Mr John Barry who says the offender has worked for his company as a reliable employee since 1 July 2021.
Mrs Margaret Holt, the mother of the now deceased co-offender, has written to the Court stating that there has been a “massive change” in the offender. She talks of the support he provided her after her son’s death.
There are other references confirming his remorse and changes to improve his life.
The Crown submitted that a term of imprisonment was required but continued: “It will be a matter for the Court to consider how such a sentence would be served”.
The Crown provided me with a list of cases involving broadly similar offences. Of course no two cases are the same and certainly no two offenders have the same subjective features. I do not think it necessary to list all the cases here, but only to observe that the sentence that I will impose fits well within the range of the sentences in the cases to which I was referred. I do agree with the Crown that the case which is most comparable is R v Tauiliili [2020] ACTSC 11.
Sentencing always requires consideration of ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) and also s 33. In this case s 10 is important because it says that imprisonment should be regarded as a last resort.
Mr Whybrow, who appears for the offender, has referred me to KT v The Queen [2008] NSWCCA 51 at [23] where McLellan CJ at CL said that it was appropriate to take into account the “cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law”. I think this case is a good example of the type of the offender being referred to by his Honour.
I also agree with Mr Whybrow that the Verdins principles (derived from R v Verdins & Ors [2007] VSCA 102) have a place in this matter and I take them into account. Mr Whybrow submitted that a term of imprisonment was not necessary and that a Good Behaviour Order, perhaps attached to Community Service would be appropriate. I disagree. I think the nature of the offence, and bearing in mind the maximum penalty of 25 years’ custody, demands at least a short period of imprisonment.
In addition, the offender is entitled to a discount arising from his plea of guilty. I assess the discount at 20%.
I make the following orders:
1.The offender is sentenced to 4 months and 24 days imprisonment (reduced from 6 months) to commence on 12 October 2021 and end on 7 March 2022.
2.The above sentence of imprisonment is suspended with immediate effect on condition that the offender enter a Good Behaviour Order for a period of 12 months from today, 12 October 2021 on the core conditions: s 86 Crimes (Sentence Administration) Act 2005 (ACT). The necessity to comply with corrective services is for the period that corrective services considers appropriate.
3.The offender’s undertaking of the Good Behaviour Order is recorded (as per s 13(2A) Crimes (Sentencing) Act 2005 (ACT)).
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 13 October 2021 |
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