R v Reyes
[2014] ACTSC 114
•2 May 2014
ACT SUPREME COURT
Case Title: | R v REYES | |
Medium Neutral Citation: | [2014] ACTSC 114 | |
Hearing Date: | 10 April 2014 | |
DecisionDate: | 2 May 2014 | |
Before: | Burns J | |
Decision: | See [20]–[21] | |
Catchwords: | CRIMINAL – SENTENCE – aggravated robbery – use of imitation gun – robbery of video store during trade hours – drug abuse | |
Legislation Cited: | Criminal Code 2002 (ACT), s 310 | |
Parties: | The Queen Robert Joseph Reyes | |
Representation: - Counsel | Mr J Lundy (Crown) Ms L Taylor (Defence) | |
- Solicitors | ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defence) | |
File Number: | SCC 201 of 2013 | |
R v Robert Joseph REYES
SENTENCE
Mr Reyes, you appear before me today for sentence with respect to one offence of aggravated robbery (s 310 Criminal Code 2002 (ACT)) which occurred on 2 November last year. A Statement of Facts has been prepared and was tendered without objection. I will not recite the facts set out in that exhibit. It is sufficient to note that about 11.05 am, you entered a video store in Gungahlin and produced what appeared to be a dark coloured pistol. You pointed that object at the employee of the video store and said, “Give me the money”. She gave you some money but you demanded more. She said that she did not have any. You then pointed the firearm at her again and said, “I know you fucking do. Give me the fucking fifties or I’ll shoot you in the head”. The victim then proceeded to open a safe located in the floor of the store and removed all of the banknotes from the safe and placed them in a bag before handing it to you. You then told her to lie on the ground and count to 200 and said that if you saw her get up that you would shoot her. You then left the store.
You were arrested at about 6.14 pm on 2 November and conveyed to the city watch house late that night; you have remained in custody since that time. You came before the Magistrates Court on Monday 4 November 2013 and bail was refused.
When you were arrested, police seized $30 in various denominations of banknotes and a Samsung mobile telephone. I note that you stole approximately $1,100 from the Civic Video at Gungahlin.
On 25 November last year, you entered a plea of guilty to the charge in the Magistrates Court at which time you were committed for sentence before this court. I note that the maximum penalty in relation to this offence is 25 years’ imprisonment.
In determining the objective seriousness of this offence, I take into account the fact that the victim was female and was working alone in a video store and therefore was a vulnerable person. I also take into account that the circumstance of aggravation in the offence of aggravated robbery was the use of a weapon, being a black coloured pistol.
In submissions to me during the sentence hearing, your counsel indicated that she was instructed that the pistol was not a real weapon capable of discharging a projectile. I will proceed to sentence on that basis. However, that does not, in my opinion, significantly mitigate the penalty or the nature of the offence. Certainly it would have been no comfort to the victim who would not have known that the firearm which she was facing was not a real one. You apparently disposed of this imitation firearm by throwing it into the lake.
I take into account the Victim Impact Statement which refers to the significant effect that your actions had on the victim. She has required psychological treatment and will probably continue to do so for some time. Your actions were clearly calculated to terrify the victim by pointing the gun at her head and threatening to shoot her.
I am also satisfied that the offence involved a degree of planning. You told me via your counsel that you had originally planned to rob your drug dealer but, at the last moment, you decided to rob the video store instead. That also does not significantly mitigate your offence. You had clearly planned to commit a crime. You just changed the victim at short notice.
I take into account the fact that you have a significant criminal history. Whilst it is not a particularly lengthy criminal history, it has a number of matters recorded in it which are pertinent for sentencing with respect to this offence. Firstly, you have convictions for aggravated robbery recorded in 2004 in this court together with thefts and burglaries. You were sentenced to a total sentence of six years and six months’ imprisonment with two years and six months non-parole. On the face of it, those were particularly lenient sentences. However, it may be that your relative youth at that time persuaded the court to impose what, on the face of it, were relatively lenient sentences.
Secondly, you have also been convicted of an offence of possession of a trafficable quantity of heroin for supply in 1999. I note that on 13 March last year, you were sentenced to two months’ imprisonment suspended in the Magistrates Court on a charge of minor theft with a the Good Behaviour Order for a period of 12 months. On the basis of your previous criminal history, you cannot expect any leniency in these proceedings.
PRE-SENTENCE REPORT
A Pre-Sentence Report was prepared for the purposes of the sentence hearing. I note that you are 34 years old and that you have nothing in your formative years that would explain your subsequent criminal behaviour.
I take into account that you have been well behaved in custody since 2 November 2013. The author of the report states that you have a close relationship with your parents and siblings and that they continue to provide support to you. I note that whilst in custody, you have commenced a tertiary preparation program in preparation for undertaking a degree in Information Technology. You have also completed other programs within the AMC.
I note that you worked for about five years, most recently in the construction industry, but this ended due to a work-related injury that you suffered in January of 2013. Subsequently, you were in receipt of Centrelink benefits and currently you are employed at the AMC as a cleaner.
The report notes that you have a history of drug use commencing at age 16. You have in the past used multiple drugs but your drug of choice has been heroin. On 1 March 2007, you were released on parole on condition that you were to attend residential rehabilitation. You remained in that program until 6 September 2007 when you self-discharged. You claim to have then remained drug free until January 2013 when you sustained your workplace injury. Your wife apparently encouraged you to cease the use of drugs but you did not. Instead you also began using methylamphetamine and continued the use of both drugs until you were remanded in custody.
The author of the report notes that you have expressed insight into your addiction and need of treatment. I note that you intend entering the Solaris program at the AMC when you are able to. You told the author of the report that your offence was motivated by a need to support your drug addiction. You accepted responsibility for your actions. You demonstrated understanding of how your offence affected the victim and also demonstrated a degree of remorse. I note that in the course of the sentence hearing, a letter of apology to the victim was tendered.
The author of the report assessed you as being at medium risk of reoffending. I consider that that assessment understates the risk of you reoffending. Despite receiving a lengthy prison sentence in 2004, you have reoffended in a similar way. Your commitment to remaining abstinent from drug use prior to January 2013 was clearly fragile. I accept that your loss of employment was a significant setback for you but you quickly relapsed after that setback into the use of drugs. That type of setback is a common occurrence in life and it is a matter of concern that after what could only be described as a common life experience, you quickly slipped back into the use of illicit drugs. Your loss of employment and subsequently your breakup with your wife does not excuse anything that you have done.
Based upon your past abstinence from drug abuse and offending, I accept that you have reasonable prospects for rehabilitation if you successfully address your drug addiction. I note that you have shown positive attitudes to rehabilitation in the AMC and that, of course, is very promising. I also take into account the contents of the CADAS report.
SENTENCE
It is an aggravating circumstance attending the commission of this offence that you were on conditional liberty at the time. This calls for more significant punishment. The major sentencing considerations with respect to offences of this nature are punishment and deterrence. In this case, not only is general deterrence relevant but also personal deterrence.
I take into account your plea of guilty. I accept that that was an early plea and that it demonstrates a degree of remorse and also has a very significant utilitarian value. I will reduce by 25 percent the sentence that I would otherwise have imposed.
I will record a conviction with respect to the charge of aggravated robbery. This places you in breach of the Good Behaviour Order that was imposed in the Magistrates Court on 13 March last year. That Good Behaviour Order is cancelled and the sentence of two months’ imprisonment which was suspended at that time will be imposed. That sentence of two months’ imprisonment will commence on 2 November 2013.
For the offence of aggravated robbery, you are sentenced to six years’ imprisonment commencing on 2 December 2013 and expiring on 1 December 2019. There will be a non-parole period of four years commencing on 2 November 2013 and expiring on 1 November 2017.
Now, Mr Reyes, it is up to you now to make the best of the time that you are going to have to spend in custody. If you are going to avoid coming back before this court in the future, then you are going to have to address your drug addiction. It should become clear to you now that each time you come back charged with this type of offence, the sentences are going to become longer and longer and very quickly
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Sentence herein of his Honour Justice Burns.
Associate:
Date: 30 May 2014
0
0
1