R v OI
[2020] ACTSC 286
•14 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v OI |
Citation: | [2020] ACTSC 286 |
Hearing Date: | 14 October 2020 |
DecisionDate: | 14 October 2020 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery of a taxi driver – use of a weapon and threat to kill – unsophisticated offending – motivated by desire to gain money to buy drugs – mid range objective seriousness – offender is a young person – limited criminal history – good prospects of rehabilitation – suspended sentence and good behaviour order imposed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 10, 17, 33(1)(za), 133C, 133D, 133G(2), 133U Criminal Code 2002 (ACT), s 310(b) |
Cases Cited: | R v NF [2018] ACTSC 165 R v NQ [2019] ACTSC 51 R v UD [2017] ACTSC 210 |
Parties: | The Queen (Crown) OI (Offender) |
Representation: | Counsel M Smith (Crown) K McKee (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 201 of 2020 |
MOSSOP J:
Introduction
The offender, who is a young person, pleaded guilty to one count of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT). The maximum penalty is 25 years’ imprisonment, a fine of $400,000 or both.
Facts
The facts were agreed and are as follows. The victim was a taxi driver. On 3 June 2020 at about 2:50pm he received a booking request to pick up a passenger from a location in Charnwood. He drove to the location and observed the offender waiting on the side of the road.
The offender got into the taxi through the back, driver-side door and sat in the middle seat. The victim asked where the offender wanted to go and the offender replied that he would give directions. The victim drove for about seven to eight minutes before the offender asked him to pull over. When the victim pulled over the offender asked him how much the fare was, and the victim told him it was $9. The offender then proceeded to pull out a knife, which was about 30 cm long with a silver blade and a black handle, from his bum bag and held it up to the victim’s neck. He demanded that the victim give him all his money or he would kill him.
The victim opened his wallet and gave him the $45 that he had. The offender also demanded his mobile phone, but the victim refused. The victim was then able to remove his seatbelt and get out of the taxi and yelled for help. The offender got out of the rear door and ran away.
There were CCTV cameras inside the taxi which captured the incident. The mobile phone number that made the taxi booking was also linked to the offender. On 7 June 2020 the police attended the offender’s residence, where he participated in a recorded conversation. He initially denied the allegations. Fortunately, he then received what must have been sensible advice from his mother and participated in a further recorded conversation in which he made complete admissions.
Objective seriousness
The offending involved the use of a weapon. It involved the use of a weapon in a way that involved an immediate threat because it was held near the victim’s neck and that conduct was accompanied by a threat to kill. The victim was a taxi driver, a particularly vulnerable class of person. The offending involved some planning but was unsophisticated. I consider the offending to be around the mid range of objective seriousness, largely because of the immediate and direct threat made using the knife.
Subjective circumstances
The personal circumstances of the offender are described in a detailed pre-sentence report that was prepared by Child and Youth Protection Services (CYPS).
He is currently 17 years old. He was 16 years and 11 months old at the time of the offending. He was born in Canberra and is one of three children to his parents, with an older brother and a younger sister. He predominately resides with his parents and siblings in their family home. He spent some time away from the family home at the end of April 2019 when he was reportedly homeless for two weeks. He said he was “not happy at home” and was having problems with his parents and was on drugs. He has a close relationship with his older brother but he is more distant from his younger sister.
He said his relationship with his parents is now “pretty good”. The main conflict in the house is often due to disagreements he has with his parents about rules and boundaries. He believes that there has been a huge change since his arrest for this offence. He reported that he has stopped taking any illicit substances and now has a good job.
His mother reported that most of the time everything is fine but there are “ups and downs like any teenager”. However, she disclosed that more recently his attitude has changed and she felt she had let things slide. This included the offender leaving home on the weekend of 18 September 2020, which resulted in him breaching a bail condition.
He reported that he changed high school at the beginning of 2019 and that 2018 was a difficult year for him, as it was during this time that he got heavily into drugs. At his new school he showed little engagement and was suspended around three times. He left high school in June 2019 and commenced employment as a plasterer with his father. He stayed working with his father until April 2020, when he left because they were not getting on with each other. He currently works for a different company and is doing a certificate in plastering at the Canberra Institute of Technology. His site foreman describes him as being polite to everyone and having a good working relationship with his colleagues, although noted that he can have difficulty maintaining consistency at work.
He is currently financially independent, having a source of income through his full-time work as a plasterer. However, he is primarily supported by his parents in order to meet living expenses.
He disclosed that he first started experimenting with drugs when he was 14 years old “just to try it out”. He acquired them from hanging around with older people. The offender recalled he stopped using drugs for a period of six months but resumed using them towards the end of 2018. He disclosed that he has tried almost every drug including cannabis, methylamphetamines (ice), cocaine, MDMA and acid. He said he would smoke cocaine quite regularly and attempted heroin on one occasion. He regularly consumed ice and cannabis and was a recreational user of acid. He reported that he is no longer in touch with these older acquaintances and friends, who he believes had a negative impact on him. He has not used any illicit substances or alcohol since June 2020.
He acknowledged that he has been influenced by peers who use drugs. He reported having a good relationship with his work colleagues and said they have a positive influence on him.
He has a girlfriend who he believes is a positive influence and keeps him in line.
He has no concerns regarding his physical and mental health.
He has been referred to restorative justice and reports he is keen on it as he feels it will allow him to show his remorse and apologise. He understands that the offence impacted upon the victim and the victim’s family and stated that he should not have done it. The restorative justice process is ongoing.
He agreed with the Statement of Facts and admitted that the offence was related to his substance misuse.
He is assessed as having a moderate risk of general recidivism.
The author of the pre-sentence report’s opinion was that:
[The offender] is a young man who is easily influenced by his fellow acquaintances and peers. As [he] is young and has shown the court remorse and a history of good behaviour during his bail period, it is the view of the writer that he has good prospects of rehabilitation. [He] will continue to reside with his family and has continued to work fulltime and is currently working towards an apprenticeship in plastering. [He] has demonstrated good insight and understanding that his offence was driven by substance misuse and is committed to addressing this underlying issue into the future.
Victim impact statement
The victim wrote a victim impact statement that was read aloud by the prosecutor. He described the events on the day of the offence and said that it has made him “feel unsafe and threatened for [his] life”. Due to the incident he has given up his job as a taxi driver. He had nightmares for two weeks.
These impacts fall within the range of expected impacts from offending such as that committed by the offender.
Criminal history
The offender was charged with possessing a knife without reasonable excuse in April 2019. This was dealt with by a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT).
Plea of guilty
The offender pleaded guilty to this offence on 31 August 2020 in the ACT Childrens Court. This was at the fifth mention.
Time in custody
The offender has spent four days in custody in relation to this offence.
Consideration
In sentencing the offender, the statutory directives in ss 133C and 133D of the Crimes (Sentencing) Act must be taken into account:
(a)The court “must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7 (1)”;
(b)the court must have particular regard to the common law principle of individualised justice;
(c)the court must consider:
(i)the young offender’s culpability for the offence having regard to his maturity;
(ii)the young offender’s state of development;
(iii)the past and present family circumstances of the young offender.
A sentence of imprisonment must be “a last resort and for the shortest appropriate term”: s 133G(2).
The offending was serious. It was motivated by the desire to gain money to buy drugs.
The offender is a young person who seems to have fallen into significant drug use whilst at school. His only other offending is minor and appears consistent with having entered the drug using world. He has now left that environment and appears to be free of drugs and on the way to being a productive member of society. He has the continuing support of his family. If that is the case, then his drug use and offending conduct will fall into the category of conduct during a “bad patch” of his youth. The interests of the community are strongly aligned with ensuring that he continues on this path.
He has had the benefit of a s 17 order in relation to his previous, relatively minor offence. Having regard to the gravity of his current offending, that is clearly not available again. Any disposition must involve a period subject to a good behaviour order involving a period of supervision in order to ensure that he receives the inputs that are necessary in order to maximise his prospects of staying on the path towards a productive and lawful life.
I was referred to the decisions in R v NF [2018] ACTSC 165 and R v NQ [2019] ACTSC 51. Both of those cases involve more complex sentencing exercises and more serious offending. I was also referred to the decision in R v UD [2017] ACTSC 210. In that case, aggravated robberies committed by a 16-year-old were dealt with by good behaviour orders. It is notable, however, that the offender in that case had spent 83 days in pre‑sentence custody which was taken into account. I have had regard to each of these sentences under s 33(1)(za) of the Crimes (Sentencing) Act.
The question in this case is whether or not the threshold in s 10 of the Crimes (Sentencing) Act has been passed.
In my view it has. That is because of the gravity of the offending, the offender’s age at the time of the offending and also the need to send a very strong signal to the offender that he must stay on track towards rehabilitation. I consider that a wholly suspended sentence of four months and 15 days’ imprisonment, reduced from six months on account of the plea of guilty, will be sufficient to recognise the gravity of the offending and sufficient to maximise the prospects that the offender does not reoffend.
Although I have indicated that a good behaviour order is required, I consider that it should be for a relatively modest duration so that the offender has a realistic target to aim for and hence put his offending and the consequences of it behind him. On the other hand, he must realise that if he breaches the good behaviour order the likelihood is that he will spend time in full-time detention.
Orders
The order of the Court is:
1. On the charge of aggravated robbery the offender is convicted and sentenced to imprisonment for four months and 15 days, which sentence is wholly suspended upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months with a supervision condition under s 133U of the Crimes (Sentencing) Act 2005 for a period of 12 months or such shorter period as the Director-General considers appropriate.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 16 October 2020 |
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