R v Richards
[2018] ACTSC 339
•14 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Richards |
Citation: | [2018] ACTSC 339 |
Hearing Date: | 14 September 2018 |
DecisionDate: | 14 September 2018 |
Before: | Burns J |
Decision: | [23]-[27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated robbery – two statutory circumstances of aggravation – objective seriousness – commenced drug use at a very early age – subjective features – plea of guilty – remorse – general deterrence – specific deterrence – rehabilitation – breach of Good Behaviour Orders – sentence of imprisonment imposed – shorter than usual non-parole period |
Parties: | The Queen (Crown) Zachery Thomas Richards (Offender) |
Representation: | Counsel Mr C Wanigaratne (Crown) Mr D Hoitink (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 201 of 2018 |
BURNS J:
Mr Zachery Richards, you appear before me today for sentence with respect to one offence of attempted aggravated robbery. This offence carries a maximum penalty of 25 years' imprisonment, a fine of $375,000, or both. There are two statutory circumstances of aggravation involved in this offence, in that you were both armed with an offensive weapon and you were in company. I note that a conviction with respect to this offence will mean that you are in breach of a number of good behaviour orders that were imposed in the Magistrates Court, and I will return to that in a moment.
The facts
The facts relating to this matter are that on Sunday, 10 June 2018, a person who identified themselves as Greg and gave a particular mobile phone number, made a booking with Elite Cabs Taxi Service. The driver of the cab attended at an address in Wanniassa and saw two males standing outside the address. Both males were wearing dark clothing and they approached the taxi.
One of the males was yourself and the other was an unknown male associate, who I will refer to as the co‑offender. You were carrying a black Adidas brand sports bag and you entered the taxi from the front passenger door and sat down in the seat. Your co‑offender approached the taxi driver from the driver's side door, he opened the driver's side door and punched the driver in the face. The taxi driver immediately felt pain to his face as a result.
You then produced a black handled kitchen knife from your sports bag and demanded that the taxi driver hand over his money and mobile phone. The taxi driver refused to comply and a struggle then ensued between you and the taxi driver. At some point during the struggle, the taxi driver sustained lacerations to his right hand from the knife, and you also sustained a cut to your right hand.
The taxi driver eventually managed to wrestle the knife away from you and activated his emergency beacon and CCTV camera. You and your co‑offender then ran from the scene without having managed to steal anything. A short time later, police arrived at the location and were shown the knife which was on the bonnet of the taxi.
Police carried out checks in relation to the mobile phone number which had been provided with the taxi booking and found that that mobile phone number was subscribed to a female who lived at an address in Ngunnawal. Police attended that address and spoke to the resident of the address, who was your stepfather. He informed police that you had been using that mobile phone number, and also informed police that the female person who subscribed to that number was your ex‑partner.
On 23 June 2018, police spoke with your biological father who told them that at about 7 am, on 10 June 2018, you had attended his home address and he had noticed that you had a significant cut to your right hand. You told your father that you had sustained that injury as a result of a fight, but you declined to identify the person that you fought with.
At about 5 pm, on 23 June 2018, police located you at the Hawker shops. You were cautioned and arrested for attempted aggravated robbery. You took part in a record of interview with police on 23 June 2018. During that interview, you told police you committed the offence because you needed the money as people were threatening your family over a drug debt. You made full admissions in the interview to your role in the attempted aggravated robbery.
Objective seriousness
In assessing the objective seriousness of this offence, I take into account the fact that the victim was vulnerable. He was a lone taxi driver undertaking his employment in the early hours of the morning. I have no doubt that this was a terrifying incident for him. I further take into account that actual violence was used which caused pain to the victim. He sustained lacerations to his hand.
10. His victim impact statement makes it clear that the offence has had a significant and continuing psychological effect upon him. I further take into account the fact that there was a degree of premeditation involved, although I accept that the offence was not carefully planned.
At the time of this offence, you were subject to five Good Behaviour Orders, two of which were part of suspended sentences of imprisonment. These orders were made in the Magistrates Court on 7 December 2017.
12. I note that this offence was carried out in order to obtain money to purchase drugs and also at a time when you were under the influence of drugs. Ordinarily, the fact that an offender commits a criminal offence in order to obtain either drugs or money to purchase drugs, or whilst under the influence of illicit drugs, does not significantly mitigate the offence. However, some relaxation of that principle is permitted in circumstances where an offender commenced drug use at a very early age, as I am satisfied was the case in your case.
13. As I will refer to in a moment, the evidence is that you commenced drug use at age 13. You are not to be held as accountable for the consequences of your commencement of drug use at such an early age as you would be if you had commenced drug use as an adult. As such, the Court is entitled to reduce to some degree your moral culpability with respect of these offences because of the fact that you had commenced drug abuse at a very early age.
14. I am satisfied that this offence falls in the mid-range of such offences. The attempt to commit the offence of aggravated robbery was well developed. The only element missing was theft, and that did not occur because the victim resisted.
Subjective features
15. I will now turn to your subjective features. You are currently 21 years old, although you were 20 years old at the time of the offence. I accept that you participated in a record of interview with police and you made admissions. I accept, on the basis of that, that you have demonstrated a degree of remorse with regard to your actions. You have a lengthy prior criminal history. You do not have any prior convictions for robbery‑type offences, but you are previously recorded for serious dishonesty offences and also offences of violence.
16. A Pre‑Sentence Report prepared for the sentence hearing says that your prior compliance with community‑based orders has been poor. I do note, however, that your behaviour in custody on this occasion has been described as satisfactory. The report states that you were bullied at school, so you started using illicit drugs when you were 13 years old.
17. Your relationship with your family at the present time is strained, due to your offending conduct. I note that your ex‑partner is expecting a child in October 2018, and you have made statements to the effect that you want to rehabilitate yourself in order to make yourself an appropriate father for your child.
18. You left school in Year 11, and since then you have had limited employment in the construction industry. I note that you told the author of the report that you are able to obtain employment upon your release from custody. You told the author of the report that most of your friends and associates have criminal records or are involved in drug use, but you intend to try to avoid associating with those people in the future.
19. The Pre‑Sentence Report notes a history of mental health issues, including previous suicide attempts. There is limited material before me with respect to your mental health issues. Your counsel has accepted that your mental health issues do not enliven the Verdins principles.
20. You told the author of the report that you agreed with the Statement of Facts. You also told the author of the report that your state of mind was affected by drugs and mental health issues at the time that you committed this offence. You said that you were willing to engage with supports to address your risk factors. You are assessed as at medium to high risk of re-offending.
21. I take into account your early plea of guilty in sentencing you. I accept that has significant utilitarian value and is also evidence of remorse. I also accept that you have demonstrated remorse to the author of the Pre‑Sentence Report and also in making admissions in the taped record of interview with the police. I will reduce by 25 per cent the sentence that I would otherwise have imposed in order to reflect your plea of guilty.
22. General deterrence is always an important consideration for offences of this type. Your prior history also speaks of the need for specific deterrence in sentencing. However, you are still a young man and, therefore, rehabilitation must continue to be given some weight, notwithstanding your previous criminal history. I am satisfied that the only appropriate sentence in relation to the offence of attempted aggravated robbery is one of full‑time imprisonment.
Sentence
23. I record a conviction with respect to the offence of attempted aggravated robbery (CC18/08136). The recording of that conviction means that you are now in breach of the Good Behaviour Orders that were imposed in the Magistrates Court. I will cancel the Good Behaviour Orders on matters CC17/5191 and CC17/5189. In each of those matters, I will impose the sentence that had been suspended, which was one of three months and six months respectively.
I do that rather than re‑sentencing you because, in my opinion, neither you and nor the community has gained by the suspension of the orders that were made by the magistrate. Both of those sentences will be served concurrently and will commence on 23 June 2018, such that the longer of the two sentences will expire on 22 December 2018. I will order no further action be taken with respect to the remaining Good Behaviour Orders which were not the subject of suspended sentence orders.
On the offence of attempted aggravated robbery, you will be sentenced to two years and three months' imprisonment, which I have reduced from three years in order to reflect your plea of guilty. That will commence on 23 December 2018 and expire on 22 March 2021. The aggregate sentence of imprisonment which you are therefore liable to serve is one of two years and nine months, commencing on 23 June 2018 and expiring on 22 March 2021.
26. I note that you have expressed a desire to rehabilitate from illicit drug use. To date, you have demonstrated little commitment to rehabilitation, but your age means that it is still desirable to persevere. Usually, I would set a non‑parole period of approximately 21 months with respect to such a sentence, but I will set a shorter than usual non‑parole period to allow for the possibility of you attending rehabilitation upon your release from full‑time custody.
27. I will set a non‑parole period of 14 months, commencing on 23 June 2018 and expiring on 22 August 2019. I recommend that the Sentence Administration Board carefully consider your progress in custody concerning rehabilitation from drug abuse before making any decision to offer you early release on parole. I further recommend that any offer of early release on parole be on the basis of you attending an appropriate drug rehabilitation program.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: 7 February 2019 |
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