R v O'Connor
[2019] ACTSC 132
•23 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v O’Connor |
Citation: | [2019] ACTSC 132 |
Hearing Dates: | 30 January 2019 and 23 May 2019 |
DecisionDate: | 23 May 2019 |
Before: | Mossop J |
Decision: | See [55] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – make a demand with threat – aggravated robbery – actual use of force against victim – disparity in age between victim and offender – sentencing of four co-offenders – intimidatory effect of co‑offenders in a group – offending conduct recorded – significant criminal history – sentences fully suspended – imposition of good behaviour order |
Legislation Cited: | Crimes Act 1900 (ACT), ss 32(2), 32(2)(a) Criminal Code 2002 (ACT), ss 310, 403 Crimes (Sentencing) Act 2005 (ACT), s 53 |
Cases Cited: | Azzopardi v R [2011] VSCA 372; 35 VR 43 |
Parties: | The Queen (Crown) Matthew O’Connor (Offender) |
Representation: | Counsel P Dixon (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 91 of 2018 |
MOSSOP J:
Introduction
Matthew O’Connor has pleaded guilty to the following charges:
(1)making a demand of a person with a threat to endanger that person’s health, safety or physical well-being contrary to s 32(2)(a) of the Crimes Act 1900 (ACT) (Count 1) (XO2018/31444), the maximum penalty being 10 years imprisonment;
(2)aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Count 2) (CC2018/13668), the maximum penalty being 25 years imprisonment or 2000 penalty units or both; and
(3)making a demand of a person with a threat to endanger that person’s health, safety or physical well-being contrary to s 32(2)(a) of the Crimes Act (Count 3) (XO2018/31445), the maximum penalty being 10 years imprisonment.
Counts 1 and 2 were alleged to have been committed jointly. The sentencing of the offender occurred at the same time as the sentencing of his co-offenders, namely Mr Bobbine, Mr Westbrook and a young person who I will refer to as UB. Count 1 was committed with UB and Count 2 committed with Mr Bobbine, Mr Westbrook and UB. Given that I am sentencing the co‑offenders at the same time, I will include in these reasons a full statement of the facts relating to all offences in order to place the offender’s conduct in its proper context and also to remove the need to repeat the facts when sentencing his co-offenders.
Facts
Count 1
Between 19 October and 6 November 2017, the first victim who I will refer to as KE, was with some friends outside the Westfield Belconnen shopping mall near one of the exits. KE was 17 years old at the time and was sitting on his BMX bike. KE was approached by Mr O’Connor who told KE to give him $50 because KE had been “talking shit”. Mr O’Connor told KE that if he did not give him the money he would “bash” KE and take his bike.
Mr O’Connor then used his phone to call UB, a young person who was at that time 16 years old, and told him to come to the location. UB turned up and took hold of the handlebars of KE’s bike preventing him from leaving. UB and Mr O’Connor continued to demand money from KE and threatened to bash him. UB told KE that he could fight them instead of paying them. KE did not want to fight and, understandably, felt unsafe. He agreed to pay $30 to Mr O’Connor and UB so that he could leave without fighting them or losing his bike. He broke a $50 note at a food store inside the mall then returned outside and gave $30 to Mr O’Connor. KE and his friends then left the location.
These facts give rise to the charge against Mr O’Connor and UB that they made a demand of KE with a threat to endanger his health, safety or well-being contrary to s 32(2)(a) of the Crimes Act .
Count 2
On 20 November 2017, KE was at a residence in Belconnen with three of his friends including the second victim of the offending conduct, who I will refer to as CC.
At about 5:45pm, CC asked to borrow KE’s bike to drop off one of the other friends at the bus interchange. He wanted the bike in case he saw Mr O’Connor, UB or Mr Bobbine so that he would be able to get away more quickly. KE lent him his bike. At around 6.00pm, CC and the other friend arrived at Belconnen bus interchange and sat out in one of the bus shelters. CC had the BMX bike with him. Soon after, he was approached by Mr O’Connor and UB. Mr O’Connor told CC that KE owed them money and that he and UB were going to take the bike as “collateral”. CC told them that it was not his bike to give away. Mr O’Connor did most of the talking during this interaction.
The friend who CC had accompanied to the bus stop, boarded a bus and left during this conversation. He communicated with the other friend, who I will refer to as KU, who had been with CC and KE at the house. He told KU that he had seen a group walking towards CC. KU then told his mother who drove to the mall to look for CC. KU and KE set out on foot with the same intention.
In the meantime, Mr Bobbine, Mr Westbrook and two unknown females approached CC, Mr O’Connor and UB. Mr Bobbine was almost 21 years old at the time. Mr Westbrook had just turned 18. At this time CC was seated alone in an enclosed bus shelter in the middle of the bus interchange. Mr Bobbine sat on his left, Mr Westbrook sat on his right. CC was told that they were going to take the bike and if he resisted they would bash him. Mr O’Connor took the lead in this discussion. His co-offenders were demanding and aggressive during the conversation. CC felt that he would be physically assaulted one way or the other and did not believe that he could escape by riding away. CC attempted to negotiate with the offenders as he did not want to willingly surrender the bike. He knew the bike had been given to KE by his deceased father. CC agreed to a proposal that he would fight for the bike and if he won he could keep the bike. CC believed that he would only be fighting with one person, namely UB.
Mr O’Connor then took the bike and CC the other offenders and the two unknown females went to a rear walkway behind the Hoyts Cinemas. This area was chosen because it was not covered by closed circuit television (CCTV) cameras. There, CC had individual fights with UB, Mr Westbrook and Mr Bobbine. The fights were filmed by Mr O’Connor and Mr Westbrook. The films taken on Mr O’Connor’s phone were tendered. They showed the nature of the fights. UB fought first with CC. UB struck CC in the face numerous times. UB was ultimately struck in the throat by CC. He became tired and pulled out of the fight. Contrary to CC’s expectation, other members of the group then fought him. Mr Westbrook, who had one arm in plaster, fought with CC. He struck CC in the face before becoming tired and pulling out of the fight. Mr Bobbine then fought with CC. He was obviously significantly taller than CC. He struck CC in the face multiple times. CC told Mr Bobbine to stop the fight and said that they could have the bike.
Mr O’Connor took the bike. CC was told that if KE paid them $100 then they could get his bike back. The offenders then walked away and entered Westfield Belconnen. During this period UB rode the bike, Mr O’Connor pushed the bike and Mr Bobbine pushed and sat on the bike.
After the fights, CC felt dizzy and lightheaded. His face was swollen. He had a cut on his cheek and a chipped tooth. He went back to the bus interchange and into the mall. He was accompanied by two acquaintances. He saw KE and KU and told them what had happened. KU’s mother also found them. She called police and an ambulance. In the meantime, the offenders parted ways with Mr Bobbine who pushed the bike towards the mall carpark.
At about 6:40pm, Mr O’Connor and UB approached some seats outside the Target store in the mall where KE and two others were standing. KE asked Mr O’Connor and UB about his bike. Mr O’Connor falsely denied knowing anything about it. Soon after, CC approached them with KU’s mother. She filmed Mr O’Connor and UB for identification purposes. Mr O’Connor and UB subsequently left the area. Police attended and spoke to KE and CC who advised what had happened. KU’s mother took CC to Calvary Hospital.
It is this conduct which give rise to the charges against Mr O’Connor, UB and Mr Bobbine that they jointly committed aggravated robbery and the charge against Mr Westbrook that he aided abetted the aggravated robbery. In relation to Mr Westbrook, he pleaded guilty on the basis that he intended to commit an assault, that the commission of the assault in fact aided and abetted the commission of the theft by the other three and that he was reckless about the commission of the theft.
Count 3
Later that evening at around 8:30pm, KE was at home and received a call on the messaging app Snapchat. He answered the call and recognised the male voice as Mr O’Connor. During the conversation Mr O’Connor said words to the effect, “Bring $100 to Belco or you’re not going to get your bike back”.
KE and Mr O’Connor agreed that KE would go to Belconnen between 2pm and 5pm on Wednesday, 22 November 2017 and bring $120 to give to Mr O’Connor. Mr O’Connor told KE that he better be there otherwise he would not get his bike back.
Mr O’Connor filmed part of this call and distributed it on a group Facebook messenger conversation called “mixed race Belco gang”. This video footage shows Mr O’Connor saying the following:
Yeah is this [KE]? You snitch to the cops? Are you sure boy? Are you gonna have that money tomorrow? Tomorrow, $100. You’ll be able to get to the mall, what time tomorrow? What time cunt? Changed my mind, it’s 150 tomorrow boy. Yeah?
Subsequently, in a Facebook messenger conversation between Mr O’Connor and UB, UB asked “Oi are we splitting the money from [KE]” to which Mr O’Connor said “yeah cuz”.
These facts give rise to the charge against Mr O’Connor that he made a demand of KE with a threat to endanger his health, safety or physical well-being contrary to s 32(2)(a) of the Crimes Act.
Property damage
There is also a charge of property damage which Mr Bobbine asks to be taken into account in relation to the sentence for aggravated robbery.
In relation to that charge, Mr Bobbine took the stolen BMX bike to his home in Giralang on the evening of 20 November 2017. On 29 November 2017, police executed a search warrant at Mr Bobbine’s house. The BMX bike was found in a shed at the property and seized. Between 20 November 2017 and the time of its seizure, Mr Bobbine had pulled apart the stolen bike and replaced some of its parts. On 30 November 2017, KE and CC both identified the bike seized from the shed as the stolen bike. The bike had been significantly damaged since it had been taken on 20 November 2017. There was damage to the paintwork, the stickers and the handlebar grips. The bike had been pulled apart and several parts including the wheels and chain had been replaced. The cost of returning the bike to its original condition was estimated at $1488.39.
The conduct of Mr Bobbine gives rise to the charge of property damage contrary to s 403 of the Criminal Code which is a scheduled offence in relation to the principal offence of aggravated robbery. The penalty for a contravention of s 403 is imprisonment for 10 years or 1000 penalty units or both.
Victim impact statement
A victim impact statement prepared by CC was read to the court by counsel for the Crown. The court is obliged to consider the victim impact statement in deciding how the offender should be sentenced: see Crimes (Sentencing) Act 2005 (ACT), s 53. CC had known the offenders since about early 2016. He had previously been harassed and bullied (although the statement does not indicate that this was by the offenders). He had previously moved school in order to avoid bullying. He had been proud to do well at school and obtain his Year 10 certificate. He described that during the fighting he felt threatened, feared for his life and thought he would end up dead. He was sore and upset and embarrassed at the loss of the bike which had been lent to him. He feared what would happen to him in the future. The incident brought up past bullying traumas for him. Since the incident, he has suffered from fear and anxiety when out in Belconnen and elsewhere. He has seen the offenders around and tries to avoid being in places that they frequent. As a result of the assaults, he suffered two chipped front teeth, bruising to his face, chest and neck and concussion that caused him nausea affecting his speech, balance and motor skills for several days.
The victim impact statement is consistent with what one would expect from such a violent, bullying, standover exercise. CC however appears to have been more vulnerable to significant consequences from the incident as a result of his previous history of being bullied. I have taken into account the statement in deciding how Mr O’Connor and the other offenders should be sentenced.
Objective seriousness
The conduct of the offenders reflects abhorrent standover tactics by a group of young men more numerous and older than their victims. The conduct involved both threats and violence. The video of the aggravated robbery is quite disturbing as it shows the violent exploitation of the power imbalance between the group of men and their victim and was recorded for the purposes of further advertising the offenders’ conduct.
At the time of the offending, Mr O’Connor was on conditional liberty in that he was subject to a good behaviour order imposed by Magistrate Theakston (CC2016/12278).
The facts demonstrate that Mr O’Connor was the prime mover in making the demands from KE. As between Mr O’Connor and UB, it is clear that there is a very significant age difference between them, Mr O’Connor being 22 and UB being 16 at the relevant time. At the point when the demands were made of KE, Mr O’Connor commenced the interaction with KE and called up UB to come and participate. UB then joined in the interaction. However, by reason of age and the initiation of the incident, Mr O’Connor’s conduct is clearly more objectively serious.
The threat made was to “bash” KE and the demand was for the payment of a sum of money. The conduct is made more serious by the age differential between Mr O’Connor and KE and the fact that Mr O’Connor and UB were acting in concert so as to increase the intimidatory effect of their conduct. Whilst this conduct was extremely serious so far as the victim of the offending was concerned, having regard to the range of conduct covered by this section, the objective seriousness was in the low to mid range for a contravention of s 32(2) of the Crimes Act.
Mr O’Connor also played the most significant role in the aggravated robbery. The incident was commenced by Mr O’Connor in company with UB. Mr O’Connor did most of the talking. UB, Mr Westbrook and Mr Bobbine joined in, acting in concert so as to increase the intimidation of CC and ultimately to cooperate in inflicting violence upon CC. The means by which the bike was ultimately stolen involved, unnecessarily so far as the robbers were concerned, the ritual of fighting the victim until he capitulated. This was unnecessary for the purposes of the robbery as it is clear that the bike could have been stolen without the necessity for the sham contest which was engaged in. Rather, the sham contest was one designed to produce video footage which could be recorded. Although Mr O’Connor did not himself engage in fighting, I consider that his conduct is most objectively serious being the initiator of the aggravated robbery, playing the most significant role in relation to the means by which the robbery would occur, recording it and then distributing that for his own purposes.
The aggravated robbery is made more serious by the fact that it involved the actual use of force upon the victim rather than merely the threat of force. Further, it is aggravated by the fact that each offender was in the company of more than one person, hence increasing the extent to which they were capable of acting collectively so as to intimidate and inflict violence upon the victim. While the value of the item stolen was not large (having regard to the unlimited scope of this offence), it was of significant value to the owner and recognised as such by both the offenders and the victim. I assess the aggravated robbery as being at the lower end of the mid range of objective seriousness for the offence.
The third offence that Mr O’Connor faces is another count of demands accompanied by threats directed to KE. As with the demands made of and threats made to KE, the demand was for a relatively modest amount of money (although the amounts would have been very significant amounts so far as the victim was concerned). The Agreed Statement of Facts does not include any express threat to the health, safety or physical well-being of KE, but I take the plea of guilty to this charge as accepting that, in the light of the previous conduct the subject of Count 1 and the knowledge on the part of KE of the circumstances of the loss of the bike, that there was an implied threat to his health, safety or physical well-being. Once again, I assess the conduct as being in the low to mid range of objective seriousness for this offence.
Subjective circumstances
Mr O’Connor was 22 at the time of the offending conduct and is now 23. He was born in South Korea and adopted by an Australian family. His parents separated when he was in primary school and he lives with his mother. His father also lives in Canberra and has suffered from bowel cancer for which he has had chemotherapy and surgical treatment. He has an older sister. He attended school in Canberra and completed Year 12 at Canberra College. He has commenced apprenticeships in boilermaking and as an automotive mechanic, but he has not completed those apprenticeships. He worked as a furniture removalist for two and a half years. Since he was released from custody in July 2018, he has commenced working as a plasterer, working at least three to four days per week. At the time of sentencing submissions, he was considering doing a plastering apprenticeship.
When in primary school, he was diagnosed with attention deficit hyperactivity disorder (ADHD) and took Ritalin for that condition, although after college he reduced and then eliminated his Ritalin use.
Whilst in custody he described being assaulted on two occasions. He denied use of illicit drugs, although he does smoke tobacco.
He gave oral evidence. He had a limited capacity to articulate the reasons for his conduct. He described his driving record as being as a result of “stupidity” and the conduct that he engaged in in relation to the victim CC as being because he was “a bully and a dickhead”. His evidence was reliable in that regard. He admitted that sending the videos of the fight that he recorded to his friends would further humiliate the victim, CC.
He gave evidence that he thought at the time that KE owed money to another person, but was unable to identify who that other person was. I do not accept that evidence. The material in the Agreed Statement of Facts indicates that he was intending to split the proceeds of his efforts at extortion with UB, rather than pay the money so extracted to some other unidentified person. In any event, either scenario would be equally serious.
He was referred to and participated in restorative justice in relation to the aggravated robbery. He successfully participated in a restorative justice conference with the victim of the aggravated robbery.
He was assessed as suitable for community service work.
Two references were tendered. They were from Mr O’Connor’s mother and a friend of his. Both attested to his good character. The Crown objected to the admission of these documents on the basis that they were clearly inconsistent with his criminal history and hence could be given no weight. The reference from his mother is brief and limited. It says that he went “through a rough patch at one stage” and “he has tried very hard in the last 5 months to be a good citizen”. The reference from his friend Mitchell Boyd attests to the regret that the offender feels, that he has been on strict bail conditions and that he has sought to get his life back on track working full-time as a plasterer. While I give these references some weight in relation to the subjective circumstances of the offender, I cannot give them weight in relation to the offender’s good character as they do not appear to take into account or otherwise explain his admitted criminal history.
Criminal history
Mr O’Connor has a significant but not overwhelming criminal history.
In 2015, he committed the offence of possessing a knife without reasonable excuse and the offence of possessing an offensive weapon for which he was given good behaviour orders. In that year he also committed the offence of common assault and damaging property. He was given a fine and a good behaviour order respectively.
In 2016, he committed seven further offences all of which related to driving. He was dealt with by way of a mixture of good behaviour orders and fines. One of those good behaviour orders, for using an uninsured vehicle (CC2016/12278), was breached by his present conduct and needs to be dealt with.
In 2017, prior to the present offending, he committed five more driving offences including three offences of driving while license suspended. In relation to the last of the drive while suspended offences he was given a term of imprisonment of two months. In March 2017, he committed a series of driving offences in New South Wales which were dealt with by way of fine and disqualification except for a dangerous driving charge for which he was given a suspended sentence of imprisonment. In August 2017, he also committed the offence of taking a motor vehicle without consent and unlawful possession of stolen property. He was given a two month sentence of imprisonment on the charge of taking a motor vehicle without consent.
While most of the offences which he has committed are not of the most serious kind, they do reflect ongoing defiance of driving-related laws and other offences which limit the extent to which he is entitled to leniency on the basis of his youth.
Plea of guilty
Mr O’Connor pleaded guilty on 14 November 2018. The plea was entered in the Supreme Court after the trial had been fixed to commence on 19 November 2018. The plea, although late, had utilitarian value. Because of the plea of guilty I will allow a discount of 10% on the custodial sentences that I would otherwise have imposed for the offences.
Time in custody
Mr O’Connor has spent 141 days in custody solely attributable to this offending. That is almost five months. I also take into account the fact that the offender has been subject to very restrictive bail conditions since his release from custody in July 2018.
Consideration
In the case of each offence, the conduct of the offender involved exploiting the menace of threatened violence or actual violence against a victim who was clearly less powerful than Mr O’Connor either as an individual or acting as a member of a pack. The fact that it was treated by the aggressors as a form of “sport” makes it different from, but no less serious than, the more usual form of aggravated robbery. It was video recorded in order that the violence inflicted upon the victim may be disclosed to others, presumably to increase the victim’s humiliation and for the aggrandisement of Mr O’Connor and his “gang”. It is conduct in relation to which, particularly in relation to young men, general deterrence must be an important sentencing consideration. Punishment and denunciation are also important sentencing considerations.
The evidence that Mr O’Connor gave did not permit me to find, on the balance of probabilities, that he had abandoned the tendency to unlawfully exploit the power that he had over other people. His recognition that he was “a bully and a dickhead” reflects a degree of insight into his conduct, but the pattern of offending in the present case is such that specific deterrence must remain a significant sentencing consideration.
The principles relating to the sentencing of youth identified in Azzopardi v R [2011] VSCA 372; 35 VR 43 at [34]-[36] apply to a greater or lesser extent to each of the offenders. They apply to a greater extent to those offenders who are younger and to a lesser extent to those who are older. Those principles are, in summary:
(a)first, it is necessary to recognise that young offenders are immature and therefore more prone to ill-considered or rash decisions;
(b)second, it is necessary to recognise the potential for young offenders to be redeemed and rehabilitated because they are typically still at a stage of mental and emotional development that is more open to influences designed to positively change their behaviour than adults who have an established pattern of antisocial behaviour; and
(c)third, courts sentencing young offenders are cognizant that the fact of incarceration in an adult prison on a young offender will be more likely to impair rather than improve the offender’s prospects of successful rehabilitation.
In Mr O’Connor’s case, these principles are of less significance because he was an adult and had been an adult for several years. There is therefore less of a basis for the application of the three principles in this case, although because of his relative youth, each is still a matter to be taken into account.
He is entitled to leniency because there is a real prospect that still being relatively young a more lenient punishment will persuade him to change his ways and live a lawful life. It must be recognised that previous sentences imposed have not achieved that effect. On the other hand, the leniency due on account of his youth must not overwhelm the other sentencing considerations, in particular deterring him and others from such conduct in the future, making him accountable for his actions, denouncing his conduct and recognising the harm done to the victim.
Having regard to Mr O’Connor’s criminal history and the serious nature of the offending, having considered the available alternatives, only a custodial sentence is appropriate.
In my view, the starting point on Count 1 is a sentence of four months reduced to three months and 15 days on account of the plea of guilty. On Count 2, the starting point is a sentence of 20 months reduced to 18 months on account of the plea of guilty. On Count 3, the appropriate sentence is one of five months imprisonment reduced to 4 months and 15 days on account of the plea of guilty. Questions of totality indicate that there should be a degree of concurrency between the sentences, but that they should be otherwise cumulative. The base sentence will be that on Count 2. The sentence on Count 3 will be cumulative as to two months on the sentence on Count 2. The sentence on Count 1 will be cumulative as to two months upon the sentence for Count 3. This gives an aggregate sentence of 22 months imprisonment. The sentence will be backdated to 2 January 2019 to reflect the time spent in custody and suspended from today.
The offender will be subject to a good behaviour order for 18 months from today which will include a requirement to perform 100 hours of community service.
Orders
The orders of the Court are:
1.On Count 2 (aggravated robbery), the offender is sentenced to imprisonment commencing on 2 January 2019 and ending on 1 July 2020.
2.On Count 3 (make demands with threats), the offender is sentenced to imprisonment for four months and 15 days starting 17 April 2020 on ending on 1 September 2020.
3.On Count 1 (make demands with threats), the offender is sentenced to imprisonment for three months and 15 days starting on 17 July 2020 ending on 1 November 2020.
4.The sentences are suspended forthwith upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months which, in addition to the core conditions, includes the following conditions:
a. That he be subject to supervision during the whole of the period or such lesser period as determined by the Director-General.
b. That he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General;
c. That he supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing as required by corrections officer.
d. That he perform 100 hours of community service.
5.In relation to the breach of the good behaviour order on charge CC2016/12278 the court takes no further action.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 24 July 2019 |
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