R v NC
[2016] ACTSC 245
•25 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NC |
Citation: | [2016] ACTSC 245 |
Hearing Date: | 25 August 2016 |
DecisionDate: | 25 August 2016 |
Before: | Elkaim J |
Decision: | See paragraph [36] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – armed robbery – s 101 Crimes Act 1900 (ACT) – early plea of guilty – limited prospects of rehabilitation – lengthy criminal history CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – riding in a vehicle without authority – s 120(1) Crimes Act 1900 (ACT) CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of recognizance – armed robbery – s 101 Crimes Act 1900 (ACT) – re-sentencing |
Legislation Cited: | Crimes Act 1900 (ACT), ss 101, 120(1) Crimes (Sentence Administration) Act2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss , 6, 7, 10, 33(1)(za) |
Cases Cited: | Blanco v The Queen (1999) 106 A Crim R 303 Bugmy v The Queen (2013) 249 CLR 571 Henry v R (1999) 106 A Crim R 149 |
Parties: | The Queen (Crown) NC (Offender) |
Representation: | Counsel Ms M Moss (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 36 of 2001 ; SCC 112 of 2016 |
Publication Restriction: | The offender’s name has been anonymised due to reference to Childrens Court proceedings. |
ELKAIM J:
Introduction
On 30 December 2001, the offender robbed the TAB outlet in Dickson in the ACT. He threatened a staff member with a gun and made off with $36,000. He left the scene in a vehicle he had earlier stolen.
On 25 May 2016, the offender pleaded guilty to the following charges:
(i)Armed robbery contrary to s 101 of the Crimes Act 1900 (ACT).
(ii)Riding in a vehicle without authority contrary to s 120(1) of the Crimes Act 1900 (ACT).
The first offence carries a maximum penalty of 25 years imprisonment. The maximum penalty for the second offence is 5 years imprisonment.
The pleas were entered on the second occasion the matter was mentioned in the Magistrates Court. They should be regarded as early pleas.
On 15 May 2001, Miles CJ sentenced the offender for an armed robbery committed on 31 July 1997. He held up a bank and left with almost $15,000. The sentence imposed was 4 years imprisonment. However it was suspended on condition that the offender enter into a good behaviour recognizance. He did so. The offences for which he is being sentenced today were committed during the period of the recognizance. It is therefore necessary for him to be re-sentenced in respect of the armed robbery.
The facts of the offences
Exhibit 1 includes a statement of agreed facts. The offender stole a Ford Fairlane sedan in Tumut in NSW. He drove to the Dickson TAB on 30 December 2001. At about 8 PM the offender approached the front doors of the store. Ms Wignall, an employee, was the only person inside. The doors were shut.
The offender had a gun. He pointed it at Ms Wignall and directed her to open the door. She activated an alarm and dialled 000. The offender kicked the door until it opened. He came inside the store and pointed the gun at the employee. She was then on the telephone trying to get help. The offender used his gun to hang up the phone.
Ms Wignall tried to open the safe but entered an incorrect number. The offender put the gun to her head. She was terrified. She managed to open the safe. She gave the money to the offender. It contained about $36,000.
Ms Wignall was directed to lie on the floor. She did so. She was hysterical. The offender left with the money.
Ms Wignall read out a victim impact statement. Fifteen years after the offence, it is clear that she is still suffering from the effects of the robbery. She is taking ongoing medication and she still suffers from a skin condition patently related to stress. There has been a specific diagnosis of post-traumatic stress disorder. Ms Wignall said, “One day I was going about my life. I went to work and in an instant he took from me life as I knew it”.
The use of a gun to terrorise an innocent victim, including placing the barrel of the gun to the head of the victim, renders the objective seriousness of the offence to be severe. This was conceded on behalf of the offender.
The offender is currently in prison. On 2 July 2010 he was sentenced in the Sydney District Court, for the offence of robbery while armed with a dangerous weapon, to 6 years imprisonment with a non-parole period of 4 years and 6 months. The sentence commenced on 26 January 2012. The offender will not be eligible for release under the sentence until 25 January 2018. He is currently serving the sentence in the Australian Capital Territory.
The offender
The offender was born in 1967. He is 49 years of age and has a very long criminal record. I adopt the following description from the Pre-Sentence Report (Exhibit 1).
The offender has an extensive history of offending dating back to 1980 when he was first convicted as a juvenile in the Tumut Children’s Court. He has continued to offend and been convicted across jurisdictions for offences including but not limited to Robbery, Larceny, Break Enter and Steal, Resist Arrest, Assault and Rob, Possession of Firearm, Possession of Prohibited Drug, Assault Occasioning Actual Bodily Harm, Maliciously Wound and Robbery While Armed with a Dangerous Weapon. New South Wales Corrective Services records indicate the offender has been subject to numerous good behaviour bonds and periods of parole in that jurisdiction, with breach proceeding on every occasion due to further offending.
The offender’s background is replete with tragedy and deprivation. He grew up in a dysfunctional family. He was exposed to alcohol and violence in his home from a young age. His father left the home when the offender was seven years of age. His mother was soon murdered by a new partner. His father did not take care of his children often being absent for long periods of time.
In 1984 his cousin and his cousin’s family were murdered. He had been close to his cousin and felt the loss deeply.
The offender was placed in a boys’ home in Sydney when he was 12 years of age. He left school in year 7 and soon began frequent admissions into juvenile justice facilities from when he was 14 years of age. As already seen, he has often been in and out of prison.
The offender denies any problem with alcohol but clearly has an addiction to illicit drugs, in particular heroin. He told the author of the Pre-Sentence Report that he is receiving treatment for his addiction and hopes to continue with this program.
Based on his record, those aspirations are unlikely to be met. He is also unlikely to stop reoffending.
Counsel for the offender tendered some documents going back some years, designed I think, to illustrate the offender’s tragic past. They certainly achieve that purpose. They also illustrate that reoffending is likely and rehabilitation is almost futile.
In sentencing reasons in September 2002, Berman DCJ noted that it was “of particular concern that the offender has demonstrated a willingness to arm himself with weapons in order to commit offences.”
His Honour noted that the offender was on a bond when he committed the offences for which he was being sentenced. His Honour also noted that the offender already had a “to say the least, lengthy” criminal history.
A report was prepared by a psychologist for use in the September 2002 sentencing hearing. The report describes the offender’s use of drugs and alcohol. His attempts then to cease his use of drugs obviously proved unsuccessful.
The report describes the offender’s personality features. He has “strong needs for attention and praise, may exaggerate his capabilities, competence and exploits, be overly self-involved and have a low tolerance for boredom.” The psychologist said his personality “predisposes him to substance abuse if variety and stimulus are unavailable, or if attention and praise are removed from him.”
Testing revealed the offender to be in the low average range of intellectual functioning. The report emphasised the need for the offender to be substance-free. This circumstance has obviously never been achieved.
Sentence
As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate. It is also necessary to have regard to s 33(1)(za).
I do not see any alternative to a term of imprisonment. The nature of the offence, the offender’s record, the effect on the victim and the absence of any real prospect of rehabilitation all combine to make this an inevitable result.
It is however, necessary for me to take a number of factors into account. These include the offender’s tragic upbringing (Bugmy v The Queen (2013) 249 CLR 571), the fact that the offender became a drug addict at a relatively young age (Douglas v The Queen (1995) FCR 465), the delay in the matter being dealt with (Blanco v The Queen (1999) 106 A Crim R 303) and the need to achieve a totality of punishment in respect of all the offences that being dealt with.
It was suggested I should deal with the matter as if the offender was being sentenced by Berman DCJ when he is sentenced the offender for similar offences committed at a similar time. This was in September 2002. I will endeavour to take that course.
I must also take into account the nature of the offence. As stated by Spigelman CJ in Henry v R (1999) 106 A Crim R 149:
Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish and robbery to be a serious crime which requires condign punishment.
It was common ground that the provisions of the Crimes (Sentence Administration) Act2005 (ACT) require me, if appropriate, to reset the non-parole period in respect of the matters for which the offender is currently in prison.
As already mentioned the offender pleaded guilty at an early opportunity. He is therefore entitled to some discount on his sentence. I am also of the view that the sentence in respect of the motor vehicle should run concurrently with that for the armed robbery. They are part of the same criminal enterprise.
I also intend to achieve appropriate totality by commencing the prison sentences from today, including that arising from the breach of the recognizance.
I think the appropriate sentence for the armed robbery, considering that the maximum is 25 years imprisonment, and taking into account the matters set out above, which both mitigate and militate against mitigation of sentence, to be 12 years imprisonment. This should be reduced to 10 years because of the early guilty plea.
In respect of the armed robbery from which the offender was sentenced by Miles CJ, I think the appropriate term of imprisonment is the 4 years considered by his Honour but without the benefit of a suspended sentence.
I think the non-parole period should be set at 6 years from today.
Orders
I make the following orders:
(i)For the offence of armed robbery contrary to s 101 of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of 10 years, to commence today and expire on 24 August 2026.
(ii)For the offence of riding in a vehicle without authority contrary to s 120(1) of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of one year to commence today and expire on 24 August 2017.
(iii)In respect of the breach of the recognizance entered into on 15 May 2001, the offender is re-sentenced for the armed robbery to a term of imprisonment of 4 years to commence today and expire on 24 August 2020.
(iv)The non-parole period for the offences for which the offender is currently in prison is reset to align with the non-parole period in respect of which the offender is being sentenced today.
(v)I set a non-parole period of 6 years to expire on 24 August 2022.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim Associate: V Wei Date: 29 August 2016 |
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