R v Nicholas; R v Palmer

[2019] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Nicholas; R v Palmer

Citation:

[2019] ACTSC 16

Hearing Date:

10 December 2018

DecisionDate:

7 February 2019

Before:

Elkaim J

Decision:

See [27]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – joint commission

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33

Criminal Code 2002 (ACT) ss 45A, 310, 312

Drugs of Dependence Act 1989 (ACT) s 169(1)

Cases Cited:

Hawkins v Hawkins [2009] ACTSC 148

Parties:

The Queen (Crown)

Daniel James Nicholas (Offender – Nicholas)

Paul Arthur Palmer (Offender – Palmer)

Representation:

Counsel

Mr M Fernandez (Crown)

Mr A Doig (Offender - Nicholas)

Mr J Moffett (Offender - Palmer)

Solicitors

ACT Director of Public Prosecutions (Crown)

Darryl Perkins Solicitors (Offender – Nicholas)

Aboriginal Legal Service (NSW/ACT) Pty Ltd (Offender - Palmer)

File Numbers:

SCC 333 of 2017; SCC 336 of 2017; SCC 33 of 2017; SCC 34 of 2017

ELKAIM J:

1. Each of the offenders has pleaded guilty to committing the same offences.

2. The offences and their maximum penalty are as follows:

(a)Seven counts of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT). The maximum penalty for each offence is 20 years’ imprisonment and/or a fine of $300,000.

(b)One count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). The maximum penalty for each offence is 25 years’ imprisonment and/or a fine of $375,000.

1. Furthermore, there are two transfer charges relating to Mr Nicholas from the ACT Magistrates Court. The first charge (CC 2016/7585) is a breach matter and relates to a breach of a Good Behaviour Order imposed by her Honour Magistrate Fryar on 8 May 2017. The second (CC 2017/8853) was committed to the Supreme Court for sentence on 1 March 2018.

2. Both charges relate to the offender being in possession of methylamphetamine. This offence is contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) and carries a maximum penalty of 2 years’ imprisonment and/or a fine of $7,500.

3. Mr Nicholas was born in 1985. Mr Palmer was born in 1978. Although there is an age difference between the two men their involvement in the offences seems to be about equal. There is no suggestion that one or the other was the leader in the assorted criminal enterprises.

4. The burglaries all occurred between 16 July and 25 July 2017. They might be described as a spree of aggravated burglaries at a number of clubs and supermarkets through the Australian Capital Territory. The offenders usually struck in the early hours of the morning and primarily targeted automatic teller machines and cash redemption machines.

5. In addition to these offences, on 7 and 9 August 2017 the offenders damaged automatic teller machines using oxyacetylene equipment to gain access. There was resulting damage to the property. On 9 August 2017 the offenders entered a hotel and demanded money. Their demands were enforced by pointing a shot gun at staff members.

6. The yields from the various offences were varied. A common theme is that whatever the takings were, extensive damage was caused at the different properties. It is also notable that some of the counts in the indictment overlap to the extent that the offences occurred on the same occasion.

7. Two of the burglaries I think stand out because of the planning involved and the presence of firearms. They are Count 10 and Count 12. The distinction from the other offences will be reflected in the sentences.

8. I agree with the assessment of all counsel involved that the offences fall within the medium to high end of the range of objective seriousness. The robbery however, is particularly serious especially when considering the effects on the staff who were present.

9. Where there are a number of counts it is difficult to structure a sentence using any mathematical, or even apparently logical, formula. The important objective must be to follow the principles of totality so that an overly long and crushing sentence does not emerge. There must be a combination of concurrency and accumulation.

10. Mr Nicholas, now 33 years of age, is well-known to the police and corrective services. He was born in New Zealand and regrettably did not have a supportive upbringing. He came to the Canberra area when he was about 12 years of age although he did return to New Zealand for six years when he was 19 years old.

11. Mr Nicholas has generally worked in the building industry and has mixed with antisocial colleagues. He has been a drug user, particularly in the use of methylamphetamine, for at least the last 14 years. As a result, he has suffered financially. This has led to the need to obtain money to service his drug requirements. He told the authors of the Pre-Sentence Report that he regrets his offending and takes full responsibility for it. In particular he said that he regrets the use of a dangerous weapon. He has attempted suicide and has expressed a wish to make amends to the victims. These are all honourable objectives but they do not lessen the seriousness of the offences. Of course had he shown no remorse that would have weighed significantly against him in the sentencing process. I have also had regard to Exhibit 2 which contains solid evidence of his efforts to better his position.

12. There is a significant need for general deterrence. This applies to both offenders.

13. Mr Palmer is now 40 years of age. He also has a significant criminal history and has had issues with both drugs and alcohol. He was born in Canberra. He had a good upbringing until his parents separated when he was eight years of age. He was then exposed to domestic violence perpetrated by his stepfather. This in turn led to alienation from his mother. He does maintain a good relationship with his father and stepmother.

14. Mr Palmer is of Aboriginal descent. He has two children with whom he maintains contact. He has also worked in the construction and building industry and also as a courier. He was last in paid employment in 2010.

15. Mr Palmer has also recognised his wrongdoing. Nevertheless he has been assessed at having a high risk of general re-offending.

16. Exhibit 1 contains supportive material from his stepmother, Ms Tongs, and from a psychologist. The latter emphasises the need for rehabilitation through counselling. She has reached a diagnosis of Adult Detachment Disorder. The letter from Ms Tongs is particularly important because it combines the views of a mother with those of a person who has had almost unparalleled experiences of the difficulties faced by Aboriginal men striving to live in the community.

17. Mr Palmer’s criminal record is longer than that of Mr Nicholas. Perhaps on a purely technical basis his sentences should be longer.

18. Mr Doig, for Mr Nicholas, argued that his client should receive a lesser sentence than Mr Palmer primarily because of his client’s less significant criminal record. I agree that Mr Doig’s arguments have force but I also firmly believe that these two offenders who carried out these offences together and participated equally, should bare equal responsibility and receive equal punishment. It is of course imperative that Mr Nicholas does not receive any greater punishment than might otherwise have been the case. I accept that my approach does to some degree benefit Mr Palmer.

19. The Crown submitted that the starting date for Mr Palmer’s sentence should be 8 August 2018. Consistent with the decision by Refshauge J in Hawkins v Hawkins [2009] ACTSC 148 the starting date may take into account other considerations besides a strict reference to the specific offences being considered. Consistent with my view that these two offenders should be punished equally I will start both of their sentences on 14 February 2018.

20. Sections 6, 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT) state the objects and principles of sentencing and the more important considerations to be taken into account. Section 10 which says imprisonment is a last resort, does not apply. There have been no submissions to the contrary.

21. Both offenders pleaded guilty. It is arguable that they might receive different discounts for the utilitarian benefits of their respective pleas. To work out a distinction would in my view be an overly obscure exercise. I think 20% should be applied to both offenders. The sentences below have been reduced by this percentage or very close to it.

Sentences

1. I take into account the following offences when making a sentence-related order for the principal offences:

   (a)Count 3, theft (Nicholas: CC 2017/12728) (Palmer: CC 2017/11934);

   (b)Count 5, theft (Nicholas: CC 2017/09662) (Palmer: CC 2017/11935);

   (c)Count 7, theft (Nicholas: CC 2017/12720) (Palmer: XO 2018/31276);

   (d)Count 9, theft (Nicholas: CC 2017/12722) (Palmer: CC 2017/11939);

   (e)Count 11, theft (Nicholas: CC 2017/09663) (Palmer: CC 2017/11940);

   (f)Count 13, theft (Nicholas: CC 2017/12724) (Palmer: CC 2017/11941);

   (g)Count 16, property damage (Nicholas: CC 2017/09636) (Palmer: XO 2018/31280);

   (h)Count 17, property damage (Nicholas: CC 2017/09637) (Palmer: CC 2017/11944).

2. I note for completeness that Count 14, aggravated burglary (Nicholas: CC2017/12725) (Palmer: CC17/11942), Count 15, theft (Nicholas: CC 2017/12726) (Palmer: XO 2018/ 31279) and Count 19, possess unregistered prohibited firearm (Palmer: CC 2018/ 08873) are to be discontinued by the Crown.

3. I make the following orders:

   (a)In relation to Count 1, aggravated burglary (Nicholas: CC 2017/09633) (Palmer: CC 2017/08870), the offenders are sentenced to 3 years’ imprisonment commencing on 14 February 2018 and ending on 13 February 2021.

   (b)In relation to Count 2, aggravated burglary (Nicholas: CC 2017/12717) (Palmer: CC 2017/11933), the offenders are sentenced to 3 years’ imprisonment commencing on 14 February 2018 and ending on 13 February 2021.

   (c)In relation to Count 4, aggravated burglary (Nicholas: CC 2017/09634) (Palmer: CC 2017/8871), the offenders are sentenced to 3 years’ imprisonment commencing on 14 February 2018 and ending on 13 February 2021.

   (d)In relation to Count 6, aggravated burglary (Nicholas: CC 2017/12719) (Palmer: CC 2017/11936), the offenders are sentenced to 3 years’ imprisonment commencing on 14 February 2019 and ending 13 February 2022.

   (e)In relation to Count 8, aggravated burglary (Nicholas: CC 2017/12721) (Palmer: CC 2017/11938), the offenders are sentenced to 3 years’ imprisonment commencing on 14 February 2019 and ending on 13 February 2022.

   (f)In relation to Count 10, aggravated burglary (Nicholas: XO 2018/31282) (Palmer: XO 2018/31277), the offenders are sentenced to 3 years and 6 months’ imprisonment commencing on 14 February 2019 and ending on 13 August 2022.

   (g)In relation to Count 12, aggravated burglary (Nicholas: XO 2018/31283) (Palmer: XO 2018/31278), the offenders are sentenced to 3 years and 6 months’ imprisonment commencing on 14 February 2020 and ending on 13 August 2023.

   (h)In relation to Count 18, aggravated robbery (Nicholas: XO 2018/31284) (Palmer: XO 2018/31281), the offenders are sentenced to 5 years’ imprisonment commencing on 14 February 2020 and ending on 13 February 2025.

   (i)In relation to the breach transfer charge for Mr Nicholas, possess drug of dependence (CC 2016/07585), the offender is sentenced to 6 months’ imprisonment commencing on 14 February 2018 and ending on 13 August 2018.

   (j)In relation to the second transfer charge for Mr Nicholas, possess drug of dependence (CC 2017/08853), the offender is sentenced to 6 months’ imprisonment commencing on 14 February 2018 and ending on 13 August 2018.

   (k)The head sentence for each offender is 7 years’ imprisonment commencing on 14 February 2018 and ending on 13 February 2025.

   (l)I set a non-parole period for each offender of 4 years and 3 months’ ending on 13 May 2022.

4. Matter number CC2017/9632 (in respect of Mr Nicholas), drive while disqualified, is remitted to the Magistrates Court. I note that this offence relates to the same matters that Mr Nicholas has been sentenced for today. I respectfully recommend to the sentencing Magistrate that his punishment does not extend his term of imprisonment.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: