R v NN

[2018] ACTSC 43

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v NN

Citation:

[2018] ACTSC 43

Hearing Date:

5 February 2018

DecisionDate:

7 February 2018

Before:

Mossop J

Decision:

See [45]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – offences as young person – aggravated burglary – riding without consent in motor vehicle – theft – guilty plea – good behaviour order – offences as adult – aggravated robbery in company – damaging property – guilty plea – imprisonment – sentence length moderated by illicit drug use commencing as child

Legislation Cited:

Criminal Code 2002 (ACT), ss 308, 310(a), 312, 318(2), 403(1)

Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 86, 87

Cases Cited:

Douglas v The Queen (1995) 56 FCR 465

Parties:

The Queen (Crown)

NN (Offender)

Representation:

Counsel

M Fernandez (Crown)

D Volodin (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 304 of 2017

SCC 310 of 2017

MOSSOP J:

Introduction

1. NN has pleaded guilty to two groups of charges.

1. He has pleaded guilty to three charges committed in 2009:

(a)aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT);

(b)dishonestly riding without consent in a motor vehicle contrary to
s 318(2) of the Criminal Code; and

(c)theft contrary to s 308 of the Criminal Code.

1. The maximum penalty for aggravated burglary is 20 years imprisonment, or a fine of 2000 penalty units, or both. 

1. The maximum penalty for dishonestly riding without consent is five years imprisonment, or a fine of 500 penalty units, or both.

1. The maximum penalty for theft is imprisonment for 10 years, or a fine of 1000 penalty units, or both.

1. The offender pleaded guilty at the earliest possible stage.

1. He has also pleaded guilty to two offences committed in 2017.  They are:

(a)aggravated robbery contrary to s 310(a) of the Criminal Code; and

(b)damaging property contrary to s 403(1) of the Criminal Code.

1. The maximum penalty for a charge of aggravated robbery is 25 years imprisonment, or a fine of 2500 penalty units, or both.

1. The maximum penalty for the offence of damaging property is 10 years imprisonment, or a fine of 1000 penalty units, or both.

1. The offender pleaded guilty to the 2017 offences at his second appearance in the Magistrates Court and was thereafter committed for sentence to the Supreme Court.  It was a plea of guilty at the earliest possible stage.

Facts

2009 Offences

1. In August 2009 the offender was aged 16 years.

1. Between 8:30pm and 9:30pm on 21 August 2009, the offender and three other people (two of whom were also under the age of 18), had been walking along Verbruggen Street in Melba.  The adult was KL.  KL said he wanted to steal a car and approached a car in the driveway of a house, smashed its window and forced the ignition using a nail file.  He drove down the street and approached the other three who climbed into the car knowing that it was stolen.  They went to KL’s house.  At about midnight, they left the house and discussed committing a burglary, ultimately deciding to burgle the place of employment of one of the other two young people.  It was a hairdressing salon in the Jamison Plaza in Macquarie.  KL cracked the glass and then kicked a large hole in it.  The offender and KL entered the store and attempted to force the safe open.  They removed a bone coloured cashbox containing approximately $100 from within the store room area.  They ran away from the shop as a security guard approached.  The next morning they drove the vehicle to Braidwood, New South Wales, where they abandoned it at a Mobil service station.  Shortly after the offender was apprehended by New South Wales police.

1. The offender was summonsed to appear in the Magistrates Court on 16 April 2010.  He did not appear and ultimately a warrant was issued for his arrest.  Following his arrest for the 2017 offences, he was brought before the Childrens Court for the first time on
   6 November 2017.  He pleaded guilty and was committed for sentence on that date.

2017 offences

1. About 3:10am on 6 October 2017 (when the offender was 24 years old) the offender and his co-offender, a young person, attended the 7-Eleven convenience store in Hardwick Crescent, Holt, in the ACT.  Their movements within the store were captured on closed circuit television (CCTV).  The offender approached the store manager to buy a packet of cigarettes.  The store manager refused to sell the offender cigarettes without some form of identification.

1. The young person selected a chocolate bar and took it to the service desk.  He purchased it from the store manager.  While the store manager was attending to the sale of the chocolate bar, the offender reached through the wire partition, grabbed the store manager’s T-shirt and said “give me the till”.  The store manager tried to back away and in doing so, the body of his T-shirt was torn away from its collar.  The young person pulled out a small, metal hatchet and lent through the wire barrier, holding it in his right hand and pointing to the cash register with his left hand.  As the store manager was trying to open the cash register, the offender took the hatchet from the young person and pointed it at the store manager.  The cash register tray popped open and the offender and young person moved away from the service area.  The store manager removed the cash register tray and held it out towards the offender and the young person.  It contained about $250.  It is the theft of the $250 which gives rise to the robbery, which is statutorily aggravated by the fact that it was in company.  The young person grabbed the cash register tray and he and the offender ran towards the exit door.  It did not open automatically and the offender struck the right hand side of the door causing it to shatter.  The store manager pressed an emergency release button which opened the door and enabled the offender and the young person to flee from the premises.  The damage to the door gives rise to the damage property charge.

1. The offender was arrested that same afternoon.  He made admissions about participation in the robbery and identified his co-offender.

1. At the time that the offence was committed, the offender was on parole following the completion of the non-parole period of a 12 month sentence of imprisonment for the offence of assault occasioning actual bodily harm.

Victim impact statement

1. The victim of the aggravated robbery in 2017 prepared a victim impact statement which was read by the prosecutor.  He did not work for two weeks following the robbery because of the distress that it caused.  He suffered financial loss as a result.  Quite understandably, he suffers from anxiety and fear at work when customers come close to the counter, fearing that they may attack him.  He suffers difficulties in sleeping and his university results have suffered when compared with the results he achieved before the robbery.

Objective seriousness

1. In relation to the 2009 offences:

(a)The aggravated burglary is at the low end of objective seriousness having regard to his ancillary role in it, and the fact that it involved commercial premises which were unoccupied.

(b)The associated theft is in the low to mid-range of objective seriousness having regard to the fact that it was commercial premises and the nature and value of the items stolen.

(c)The dishonestly ride motor vehicle is in the low end of objective seriousness because he was riding, rather than driving, and did so in the context of KL being the instigator of the activity.

1. The 2017 aggravated robbery offence is at the lower end of the mid-range of objective seriousness for this offence.  The offence was aggravated robbery because it was in company.  The possession of an offensive weapon, namely a sharpened hatchet, is an aggravating feature of the offending conduct.

1. The damage property charge from 2017 is an offence at the low to mid-range of objective seriousness for that offence. 

Subjective circumstances

1. The offender’s personal circumstances are disclosed in a Pre-Sentence Report and a Court Alcohol and Drug Assessment Scheme (CADAS) Report.

1. The offender is 25 years old.  He was raised by his mother as his parents separated when he was aged six.  He reported a dysfunctional upbringing.  His mother had a number of partners during his childhood, one of them in particular was a disciplinarian.  He described the home in which he was raised as a “party house”.

1. He presently has a supportive relationship with his mother and often lives with her [redacted for legal reasons] for short periods.  She visits him in custody.  He has an amicable relationship with his father. 

1. He is the father of two children aged three and a half and three months.  Those children reside with their mother on the South Coast.  The relationship with their mother ended in July 2017.  He does not currently have access to them.

1. He completed Year 10 at school.  His work history has been mainly unskilled labouring positions.  He has never held a drivers licence.

1. Although he reported psychiatric diagnoses of borderline personality disorder, depression, anxiety and bipolar, these could not be confirmed by the author of the
   Pre-Sentence Report.

1. In relation to illicit substances, he had experimented with a wide range of such drugs.  He began using cannabis at the age of 13 and regularly used up to 2g per day.  He used intravenous methamphetamine from age 16 and, at his peak, was injecting up to $500 of it per day.  He started using heroin from age 22.  Prior to his incarceration, he was injecting and smoking a cocktail of drugs stating “I was shooting up to die”.  These included methamphetamine and heroin.  He is currently successfully treated with methadone.

1. He has made a number of modest attempts at rehabilitation completing two months of a three-month program when aged 15, a one-week program in 2012 and one week of a subsequent residential program.  A self-report drug screening tool discloses that he requires a severe level of intervention for his drug use.  He was assessed as being suitable for engagement with intervention programs.

1. He is assessed by the author of the Pre-Sentence Report as being at a high risk of recidivism.  That is because of:

(a)the absence of any significant protective factors given that he is unemployed, homeless, has mental health concerns and severe illicit substance misuse issues, an extensive criminal history and poor compliance with
community-based orders, and his failure to accept opportunities to address his substance abuse issues;

(b)his propensity for violent offending and disregard for “pro-social values”; and

(c)his past difficulty with complying with court directions.

Criminal history

1. In 2010 he was convicted of an offence of recklessly causing grievous bodily harm a few days before the offences committed in the ACT in August 2009.  He was given a bond with supervision.  It appears that following his arrest in Braidwood he was charged with possessing a prohibited drug, driving without a licence and being carried in a conveyance taken without consent of the owner.  In relation to the first two charges, they were dismissed with a caution.  In relation to the charge of being carried a conveyance taken without consent of the owner, he was given a bond of 12 months.

1. In 2011 he was convicted of an offence of aggravated breaking and entering and commission of a serious indictable offence in company in October 2009.  A control order was made along with a 15 month suspended sentence.  A similar offence, committed within the same period, appears to have been dealt with in March 2012 resulting in a control order and a 12 month suspended sentence.  It is possible that this was a call-up for breach of the earlier order, although that is not made clear by the New South Wales criminal history.  In 2011 he was convicted and fined for possessing a prohibited drug in 2010.

1. In 2011 he was convicted of a breaking and entering offence in September 2009 and a control order with a 15 month suspended sentence was made.

1. As an adult the offender has a number of convictions.  In 2012 he received sentences of imprisonment for being armed with intent to commit an indictable offence and assault occasioning actual bodily harm.  In 2014 he was convicted of possessing a prohibited drug and fined.  In 2015 he was sentenced to imprisonment for stalking or intimidation and contravening an apprehended violence order.  Again in 2015, he was sentenced to imprisonment for a common assault and contravening an apprehended violence order, offences which were committed only a month after the earlier offences.  In 2017 he was convicted of an offence committed in November 2016 of assault occasioning actual bodily harm.  He was sentenced to 12 months imprisonment with a non-parole period of six months.  He was on parole in relation to that offence when he committed the present 2017 offences.

Time in custody

1. The offender was remanded in custody after he was charged with the 2017 offences and has spent 115 days in custody prior to the sentencing hearing solely attributable to these and the 2009 offences.  The backdate date is 13 October 2017, the date of his arrest.

Consideration

1. The 2009 offences must be dealt with in the context that they were committed at the beginning of his criminal career.  For the New South Wales component of riding in the stolen vehicle he received a 12 month bond.  Although he was involved in actually entering the hairdressing salon along with KL, he does not appear to have been the instigator of the exercise and, having regard to KL’s initiation of the theft, and the fact that the three young people returned to his house, I infer that KL was the ringleader and instigator of the crime spree.  In my view, having regard to his age and his lack of significant criminal history prior to the date of the offences, they can all be dealt with by way of good behaviour orders.  In relation to the aggravated burglary charge, the good behaviour order will be for a period of 18 months, for the ride motor vehicle without consent it will be for a period of six months, and for the theft it will be for a period of 12 months.

1. So far as the 2017 offending conduct is concerned, unfortunately the offender’s past history and personal circumstances give little room for leniency or, indeed, hope.  The only possible source of hope is that a further period in custody will, one way or another, result in him ceasing to abuse illicit drugs upon his release.  Having regard to his past periods of imprisonment and his continued use of illicit drugs, if the past is the best predictor of future, then the prospects are not good.  However, if he were to make use of the programs available within prison and change as a result of getting older, he may be able to alter the trajectory of his life.

1. I have taken into account, as a factor moderating the length of sentence I impose, that his illicit drug use, most notably heroin, commenced when he was a child: see Douglas v The Queen (1995) 56 FCR 465 at 470, and that this illicit drug use is associated with his ongoing criminal conduct.

1. Robberies of shops open late at night are clearly matters in relation to which general deterrence must be a significant consideration.

1. It is clear, having regard to the available alternatives, that a custodial sentence is the only appropriate one.  Having regard to the objective seriousness of this offence and the criminal history of the offender, it is appropriate that the sentence be one of full-time detention.  The appropriate starting point is a sentence of imprisonment of 36 months.  This will be reduced on account of his early guilty plea by 25 per cent, giving a period of imprisonment of 27 months. 

1. So far as the damage property charge is concerned, the appropriate term of imprisonment is a period of nine months reduced to seven months on account of the plea of guilty.  This sentence will be concurrent except as to two months with the sentence on the more serious robbery charge as it was part of a single incident.

1. This gives a total period of imprisonment of 29 months.

1. The non-parole period will be 20 months, which is slightly less than 70 per cent of the head sentence.

1. The sentence on the aggravated robbery charge will be backdated to 13 October 2017 so that it takes account of the period spent in custody attributable to these charges.

Orders

1. The orders of the Court are:

1.    On charge of aggravated burglary (CH10/461), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of
18 months.

2.    On the charge of riding in motor vehicle without consent (CH10/266), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act for a period of six months.

3.    On the charge of theft (CH10/268), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months.

4.    On the charge of aggravated robbery (CC2017/11321), the offender is convicted and sentenced to imprisonment for a period of 27 months commencing on
13 October 2017 and ending on 12 January 2020.

5.    On the charge of damaging property (CC2017/11322), the offender is convicted and sentenced to imprisonment for a period of seven months commencing on
13 August 2019 and ending on 12 March 2020.

6.    The non-parole period commences on 13 October 2017 and ends on 12 June 2019.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 4 April 2018