R v NQ
[2019] ACTSC 51
•8 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NQ |
Citation: | [2019] ACTSC 51 |
Hearing Date: | 6 February 2019 |
DecisionDate: | 8 February 2019 |
Before: | Mossop J |
Decision: | See [52] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – aggravated robbery – dishonestly take or ride motor vehicle – damaging property – offender a child at the time of offending – uncertain prospects of rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT), s 26 Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), ss 310, 312(a), 318(1), 403(1) |
Parties: | The Queen (Crown) NQ (Offender) |
Representation: | Counsel A Williamson (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Numbers: | SCC 239 of 2018 SCC 240 of 2018 |
MOSSOP J:
Introduction
The offender, who I will refer to as NQ, has pleaded guilty to the following offences:
(a) aggravated burglary (CH2018/4355) contrary to s 312(a) of the Criminal Code 2002 (ACT) on 28 February 2018, the maximum penalty being 2000 penalty units, imprisonment for 20 years or both (count 11);
(b) two counts of aggravated robbery (CH2018/319 and CH2018/258) contrary to s 310 of the Criminal Code, one offence occurring on 27 February 2018 (count 8) and the other occurring on 28 February 2018 (count 14), the maximum penalty being 2500 penalty units, imprisonment for 25 years or both;
(c) two counts of dishonestly taking or riding in a motor vehicle without consent (CH2018/321 and CH2018/259) contrary to s 318(1) of the Criminal Code, one offence occurring on 27 February 2018 (count 10, taking) and the other occurring on 28 February 2018 (count 15, riding), the maximum penalty being 500 penalty units, imprisonment for five years or both; and
(d) damaging property (XO2018/31438) contrary to s 403(1) of the Criminal Code on 28 February 2018 (count 12), the maximum penalty being 1000 penalty units, imprisonment for 10 years or both.
The offender has asked the court to take into account an additional offence in sentencing her for the second aggravated robbery, namely common assault (CH2018/261) contrary to s 26 Crimes Act 1900 (ACT) on 28 February 2018, the maximum penalty being imprisonment for two years.
Facts
On 1 February 2018, a co-offender, EG, and his wife travelled to Canberra in the Australian Capital Territory (ACT). EG is the offender’s brother-in-law. SC, the offender’s uncle who is another co-offender, arranged accommodation for them. He did this by getting his son’s friend, EE, to rent hotel rooms. EG then told EE to drive to Sydney and pick up the offender and bring her back to Canberra. He did so and she subsequently met up with her co-offenders. At the time the offender was just short of her 18th birthday. EG was in his 30s. SC was in his 40s or 50s. Between 24 February and 27 February 2018, the offender remained in the company of EG and SC, another co-offender Raymond Russell and others. She witnessed the co-accuseds commit a number of serious offences. She was aware that they were under the effect of methamphetamine but was not a party to the offences herself.
Counts 8 and 10
On 27 February 2018, the offender was involved in a robbery in company which involved stealing the motor vehicle of an elderly lady outside the Ainslie Football Club. EG had decided that the group needed another car and decided to steal one. At this time the group comprised EG, SC, NQ, Mr Russell, EG and a woman named Lateisha Williams. They searched for cars in the Braddon area. EG and Ms Williams tried to break into two cars and hotwire them but did not succeed. At about 3:30pm three people aged between 60 and 85 left the Ainslie Football Club on Wakefield Avenue, Ainslie. They walked towards their maroon Ford G6 (the Ford). The group, including NQ had driven along Wakefield Avenue opposite the club in a black Holden Commodore. The offender and Williams got out of the car and approached the two men and the woman. They were holding knives and threatened the group, demanding they give them the keys to the Ford. The offender said, “give me the key bitch or I’ll fucking stab you”. EG approached the group, reached in his jacket pocket and pulled out a black pistol. He cocked the gun and pointed it towards the victims saying, “if you don’t bitch, I’ll shoot all three of you”. The female victim gave her car keys to the offender.
The offender, EG and Ms Williams got into the Ford, while EG continued to point the gun at the group. The female victim asked if they could return her handbag which was still on the back seat of the motor vehicle. EG picked up the handbag and threw it on the ground. NQ then drove the car out of the carpark onto Wakefield Avenue.
Police were called. On the evening of the following day, the Ford was located at an address in Lyneham. On 6 April 2018, during an interview with police EG admitted that he had stolen the car.
These circumstances give rise to counts 8 and 10. Count 8 is a charge of aggravated robbery (Criminal Code, s 310) and count 10 is a charge of dishonestly taking a motor vehicle (Criminal Code, s 318(1)).
So far as NQ’s involvement in the aggravated robbery is concerned, she was a principal participant, threatening the female victim with a knife. Similarly, in relation to the charge of taking the motor vehicle without consent, she was a principal participant not only because of her role in the robbery, but also because she subsequently drove the car away.
Count 11
The next day 28 February 2018 shortly after 3.00am, SC, EG, NQ, Mr Russell and Ms Williams drove to the Military Shop in Kembla Street in Fyshwick. EG tried to prise the front doors open. Mr Russell walked up to the front doors and struck the glass panel with an object smashing the glass. EG then smashed the remaining glass with an unknown object. Ms Williams and NQ walked into the store through the smashed glass, followed by EG and Mr Russell. EG and Mr Russell struck the glass cabinets where hunting knives were kept, smashing the glass. After less than a minute, all walked out of the store and back to the Ford and drove away.
This gives rise to count 11 aggravated burglary (Criminal Code, s 312). The statutory circumstance of aggravation is being in company. It also gives rise to count 12 because of the damage to the doors and cabinets within the premises. So far as the latter was concerned, the offender did not do the damage but committed the offence because of her involvement in the overall operation, even though that role was a subordinate one.
Counts 14 and 15
Later, at about 11:40am on 28 February 2018, a university student was waiting for a carpark near the corner of McCaughey Street and Barry Drive in Turner. His window was down and the car engine was off. EG, NQ and Mr Russell walked past his car, continuing for a short distance before turning around and walking back to the car. Mr Russell lent through the driver’s window and yelled, “get out, get out” repeatedly while he stabbed the student in the upper right arm. NQ and EG were also yelling “get out, get out” and tried to open the doors but they were locked. NQ was not aware that Mr Russell intended to stab student. The student was confused and tried to start the car to move it, but Mr Russell continued to stab him in the chest. The student tried to defend himself against the knife attack and suffered defensive wounds to both hands, his left arm and left elbow. EG or Mr Russell grabbed the student’s Apple iPhone 6 from his hands and took his car keys. The student then got out of the car and EG, Mr Russell and NQ got into the car and drove away. The vehicle had the student’s passport, credit card and student ID in it when it was stolen. Passers-by helped the student and called the police. The student was taken to the Canberra Hospital, treated for multiple stab wounds including a penetrating stab wound to his chest and wounds to his right upper arm, right base of thumb, left fifth digit and left forearm. He spent three days in hospital.
Less than an hour later, police saw the stolen vehicle in Kambah. When police approached the car four people got out and ran away. Other police arrived at the scene and captured EG and Mr Russell. At the time of his arrest EG had a loaded .32 calibre self-loading pistol in his possession and several military-style knives were on the ground near him. EG subsequently admitted that he had taken a large amount of ice that morning. Mr Russell had two knives and a black leatherman style knife in his possession. All of the knives were identified as having belonged to the Military Shop. NQ was subsequently arrested in the area. SC was subsequently arrested at an address in Casey.
The circumstances involving the student give rise to the count of aggravated robbery (count 14, Criminal Code, s 310). The indictment refers to both the statutory circumstances of aggravation, namely, being in company and having an offensive weapon. They also give rise to count 15 which is the charge of dishonestly riding in a motor vehicle without consent (Criminal Code s 318(1)).
So far as NQ’s involvement in the aggravated robbery and the riding of the motor vehicle was concerned, she played a significant role but that was clearly a lesser role to that of Mr Russell who committed the acts of violence upon the student.
Scheduled charge - common assault
When NQ was taken to the ACT Watchhouse, she was being escorted between cells. After she had been placed in her cell, the officers went to leave and she rushed towards the cell door and spat at one of the officers causing saliva to strike him in the face and chest.
This gives rise to a charge of assault and it is to be taken into account under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) in relation to the charge of aggravated robbery at Turner.
Objective seriousness
The aggravated robbery at the Ainslie Football Club was a very serious offence involving the use of a knife and the use of a gun. It was both in company and involved an offensive weapon. The weapons were deployed in a threatening manner. It was carried out in a brazen fashion in the middle of the afternoon. It is an offence above the mid range of objective seriousness for the offence.
The offence of taking the motor vehicle is closely associated with the aggravated robbery. It involved a very significant asset taken in circumstances which involved a direct confrontation with the owners of the vehicle. The offence is above the mid range of objective seriousness for this offence.
The aggravated burglary at the Military Shop involved damage to property to effect entry and damage to property to effect theft of items. It was on commercial premises rather than residential premises. No direct confrontation with any person was involved. It did not involve wanton damage. It is in the low to mid range of objective seriousness for this offence having regard to the fact that the property damage is separately charged. The property damage is in the low to mid range of objective seriousness for that offence.
The aggravated robbery on the student in Turner is an extremely serious offence. It involved the infliction of unprovoked and unavoidable violence upon an innocent person. Once again, it was a brazen attack in the middle of the morning when other persons were around. It is an offence in the mid to high range of objective seriousness.
The assault which is to be taken into account in relation to the Turner aggravated robbery involves spitting at a police officer. It is one that obviously involves defiance of the officer and the authority of the officer. It is in the low range of objective seriousness for a common assault.
The offence of ride motor vehicle without consent is in the mid range of objective seriousness for this offence. The offender did not drive and is not charged with taking the vehicle. However, the offending is very closely associated with the serious robbery which preceded it.
I have indicated when describing the facts the varying degrees to which NQ was a participant in each of the offences. In relation to all of the offences, in assessing the offender’s culpability, regard must be had to the fact that she was almost an adult, but also to the fact that she was operating as a part of a group in which EG and SC were clearly in a relationship of power and authority to her due to their greater age and their relationship to her. An aggravating feature in the present case is that in NQ was on parole for aggravated burglary and assaulting police at the time of the offending.
Subjective circumstances
NQ is presently 18 years old. At the time of the offences she was 17 years old. She is of Aboriginal descent. She had early involvement with New South Wales child welfare authorities due to her parents’ substance dependency issues. She was made a ward of the State of New South Wales at the age of three. She described a traumatic childhood due to frequent placements in out-of-home care and no contact with her biological family. She described physical and sexual abuse during this time. She has now connected with her mother and four siblings and describes the relationship as positive.
She has not completed a full year of schooling since Year 4. She has never held employment. Prior to being remanded she was in receipt of Centrelink Youth Allowance. Prior to remand, all of her friends and acquaintances were drug users.
She reported commencing cannabis use between the age of 10 and 12. She commenced using methamphetamine when she was 14. She was smoking methamphetamine daily prior to being remanded.
When assessed by the author of the pre-sentence report she had no formal diagnosis of a mental health condition, although she reported a history of self-harming behaviour, suicidal ideation and other mental health conditions when she was detained on remand. A report prepared by Dr Danielle Clout, a clinical psychologist, gave a diagnosis of major depressive disorder, post-traumatic stress disorder, stimulant disorder and cannabis use disorder.
She is assessed by the author of the pre-sentence report as being at a medium to high risk of general reoffending with minimal protective factors in the community. She indicated to the author of the pre-sentence report a reluctance to comply with any community-based order, although she expressed a different attitude when she gave oral evidence in court. The author of the pre-sentence report indicated that she was not fully committed to treatment for her drug use and would not do that in the community.
On 5 December 2018, she was referred for restorative justice. A number of the offences have been found unsuitable for restorative justice. Consideration of the suitability for restorative justice of two of the charges is continuing.
The report of Dr Clout provides further information about the personal circumstances of the offender, in particular, a description of her dysfunctional upbringing. She reported being in 50 to 60 foster placements throughout her life as well as in a number of group homes. She reported to Dr Clout that she found time in juvenile detention easier than in the group homes because there was less abuse and better access to education and better security. The report also explains the basis for her perception, reported to the author of the pre-sentence report, that she had been failed by government authorities. That is because of her opinion that having regard to her experiences in foster care, she would have been better off if she had been with her family of origin.
The facts reported to Dr Clout and Dr Clout’s assessment of them indicate that the offender’s history and personality are likely to create multiple long-term difficulties for her.
The report also indicates that she was able to complete her School Certificate during her last period of incarceration and that she is currently working towards her Year 12 certificate. It also records that the offender appears to have substantial interest in making changes in her life and being motivated for treatment. However, Dr Clout records:
Despite this favourable sign, the combination of problems that she is reporting suggests that treatment is likely to be quite challenging and that the treatment process is likely to be arduous, with many reversals.
A letter written by the offender to the court provides more information about her very disrupted childhood and family background. The offender states that she recognises now that she does not need to do crime in order to survive anymore. It provided further information about her reluctance to be the subject of supervision in the community, a position from which she retreated when giving oral evidence to the court. In her evidence in court she said that she had previously thought that she wanted to travel and be free of supervision, but now she was willing to accept supervision and that she was able to do so because “I know I’m going to be good”. She accepted that she had previously said such things to courts in the past, but that she felt that now was different. Her evidence in court was superficially favourable, but tended to emphasise that whether or not she is able to conduct herself lawfully in the community will only be able to be determined once she is released from custody.
Criminal history
The offender has a poor criminal history. It all arises in New South Wales where, until her crime spree in the ACT, she had lived. Her criminal history has arisen between 2014 and today. She has been subject to sentences involving detention on a number of occasions. The offences which she has been found to have committed include affray, stealing, common assault, damaging property, resisting or hindering police, stalking or intimidation, larceny, assault in company, having a knife in a public place, shoplifting, assaulting police, having goods in custody suspected of being stolen, behaving in an offensive manner, entering enclosed lands, throwing an object at a vehicle or vessel, possessing a prohibited drug, robbery in company, aggravated breaking and entering and committing a serious indictable offence, and entering a building with intention to commit a serious indictable offence. As a result of offending in early 2017, she was the subject of a control order for 18 months which included a non-parole period of seven months which ended in September 2017. That was the longest period in detention to which she had been subject prior to the present offending. She was on parole in relation to this offending at the time when she committed the present offences.
Plea of guilty
The offender pleaded guilty in the Childrens Court on 25 June 2018 to the charges relating to the robbery of the student in Turner (charges 14 and15). I treat these as early guilty pleas and will allow a reduction of 25% in the custodial sentence that I will impose for these offences.
She pleaded guilty to the balance of the charges (counts 8, 10, 11 and 12) on 5 December 2018 when the proceedings were in the Supreme Court, but before they were listed for trial. These pleas were obviously not early pleas but retain a significant utilitarian value and I will reduce the sentence that I would otherwise have imposed by approximately 15% on account of the plea of guilty.
Time in custody
The offender has spent 345 days (11 months and 11 days) in custody prior to today solely attributable to the present charges.
Consideration
NQ was under the age of 18 when the offences were committed. The court is therefore obliged to consider the purpose of promoting her rehabilitation and may give more weight to that purpose than it gives to any of the other sentencing purposes in s 7(1) of the Crimes (Sentencing) Act (s 133C(1) Crimes (Sentencing) Act). It must have particular regard to the common law principle of individualised justice: see s 133C(2). The court is obliged to consider the young offender’s culpability having regard to her maturity, her state of development and her past and present family circumstances: see s 133D. Any sentence of imprisonment must be a last resort and for the shortest appropriate term: see s 133G. The court must consider making a sentence that combines a sentence of imprisonment and a good behaviour order with a supervision condition: see s 133G(3). There is no capacity to set a non-parole period for a sentence of imprisonment imposed on a young offender: see s 64(2).
The course of offending conduct engaged in by the offender was extremely serious. She was a member of a drug-affected gang that was roaming Canberra committing very serious crimes. Clearly, the sentencing purposes of general and specific deterrence, punishment, denunciation, accountability, protection of the community and recognition of the harm done to the victims require significant weight. The sentences imposed must recognise the significant harm done to the victims of the offences, particularly the victims of the two aggravated robbery offences.
General deterrence plays a lesser role in circumstances where NQ was a minor at the time and has had a disrupted and unfortunate upbringing. Given her youth it is appropriate that her rehabilitation be given very significant weight as a sentencing purpose. The rehabilitation of the offender is very clearly in the long-term interests of the community.
Notwithstanding that imprisonment is a matter of last resort, the offending conduct in the present case is so serious that periods of imprisonment are necessary. Both because of the statutory command to do so as well as the interests of the community in the offender’s rehabilitation, that period in detention must be the shortest appropriate period.
The offender has clearly had a very disrupted childhood during her period in state care. That is a matter which must be taken into account in mitigation. It is significant that she has become and adult whilst in custody and hence, is no longer a ward of the state.
The mental health diagnoses made by Dr Clout are significant in relation to the burden imposed by detention. On the other hand, the offender gave evidence that the past periods of detention have provided a degree of safety and security when compared with her life outside custody as a ward of the state.
At the time of the offending she was using ice daily. Her early introduction to drug use, at a time where she was clearly unable to make a mature decision about involvement with such substances, is also a matter which may be taken into account in mitigation. In oral evidence she gave an answer in cross-examination to the effect that even if she had not been using drugs, she still would have committed the offences. I don’t place significant weight on that answer. Her offending was significantly tied to her drug use and the antisocial persons involved with such drug use.
Because of her youth, there is at least some hope that she will be able to return to lawful conduct. I accept the submission of counsel for the offender that she is at a turning point, at least to the extent to which I accept that she is at a potential turning point. Whether it turns out to be a turning point is really a matter which will only be able to be determined with hindsight. Adequate housing, addressing her illicit substance use, education, employment and avoiding antisocial associates will all be significant components if she is to be rehabilitated. She expressed a desire to become a youth worker and help others in similar situations to those which she has endured. That is a worthy goal and may motivate her in the future. However only time will tell. Dr Clout’s assessment appears to be that the road to rehabilitation is likely to be a rocky one. Any sentence must accommodate this uncertainty.
Counsel for the Crown emphasised the significance of the offender’s record and her failure in the past to take the opportunities given to her by lenient sentences as matters which must temper, to some extent, the significance of rehabilitation as a sentencing consideration. I accept that general proposition. The sentences imposed must achieve a balance between rehabilitation and the other sentencing purposes which reflects the hope and possibility of rehabilitation, but also the fact that it is far from a certainty.
Counsel for the Crown provided tables summarising sentences imposed for aggravated robbery and burglary. The small number of cases in those tables relating to the sentencing of persons who were under 18 when they offended indicated, consistently with the statutory mandate, much shorter sentences of imprisonment being required to be served compared to the sentence of imprisonment imposed upon adult offenders.
The attitude to supervision identified in the offender is somewhat problematic. In her letter to the court and in the discussions with the author of the pre‑sentence report she indicated a reluctance to be the subject of supervision conditions in the community. On the other hand, by the time she gave evidence she expressed a willingness to be subject to supervision. This late conversion to such willingness is somewhat concerning. It appears to me that there is a real risk that the earlier attitude of the offender will manifest itself after release, notwithstanding what she said when giving evidence. However, that is a risk which will have to be managed and the offender will need to make decisions about whether she is prepared to be released the subject of supervision conditions and bear the consequences if she is released but fails to comply with them.
I will explain the sentences that I will impose before making orders. On the charge of aggravated robbery outside the Ainslie Football Club, the starting point is a sentence of imprisonment of 21 months, reduced to 18 months on account of the plea of guilty. On the charge of dishonestly taking the motor vehicle without consent, the starting point is a sentence of imprisonment of 14 months, reduced to 12 months on account of the plea of guilty. Because the circumstances of taking the vehicle were closely associated with the aggravated robbery and having regard to the totality of the sentences imposed, that will be cumulative only as to one month on the sentence for the aggravated robbery. For the aggravated burglary involving the Military Shop, the starting point is a sentence of imprisonment of 12 months, reduced to 10 months on account of the plea of guilty. The sentence will be cumulative as to four months upon the previous sentence to recognise the separate criminality of the offending, but also the totality of the aggregate sentence to be imposed. On the damage property charge relating to the damage within the Military Shop, the offender will be sentenced to seven months imprisonment, reduced from eight months on account of the plea of guilty and that sentence will be wholly concurrent with the previous sentence. On the aggravated robbery of the student in Turner and taking into account the assault at the Watchhouse, the appropriate starting point is a sentence of 21 months imprisonment, reduced to 16 months on account of the plea of guilty. 12 months of that sentence will be cumulative upon the previous sentence. On the charge of dishonestly riding a motor vehicle without consent, the starting point is a sentence of six months, reduced to four months on account of the plea of guilty. That will be cumulative as to one month upon the previous sentence.
This gives an aggregate sentence of imprisonment of 36 months. The sentence will be backdated so as to recognise the 345 days in custody prior to today solely attributable to the present charges. The backdate date is therefore 28 February 2018.
The sentences will be suspended after service of 18 months imprisonment subject to a good behaviour order which involves a number of conditions designed to promote the rehabilitation of the offender.
Orders
The orders of the court are:
1. On the charge of aggravated robbery, the offender is convicted and sentenced to imprisonment for 18 months starting on 28 February 2018 and ending on 27 August 2019.
2. On the charge of dishonestly taking motor vehicle without consent, the offender is sentenced to 12 months imprisonment starting on 28 September 2018 and ending on 27 September 2019.
3. On the charge of aggravated burglary, the offender is sentenced to imprisonment for 10 months starting on 28 March 2019 and ending on 27 January 2020.
4. On the charge of damaging property, the offender is sentenced to imprisonment for seven months commencing on 28 March 2019 and ending on 28 October 2019.
5. On the charge of aggravated robbery, the offender is sentenced to imprisonment for 16 months starting on 28 September 2019 and ending on 27 January 2021.
6. On the charge of dishonestly riding in a motor vehicle without consent, the offender is sentenced to four months imprisonment starting on 28 October 2020 ending on 27 February 2021.
7. The sentences referred to in orders 2 to 6 are to be suspended on 28 August 2019 upon the offender entering into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with the following additional conditions:
(a)a condition that she is to be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person for the period of the order or such lesser period as the Director-General determines;
(b)the offender is to supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by corrections officer;
(c)the offender is to attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director‑General.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 26 April 2019 |
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