R v Sullivan
[2020] ACTSC 214
•7 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sullivan |
Citation: | [2020] ACTSC 214 |
Hearing Date: | 6 August 2020 |
DecisionDate: | 7 August 2020 |
Before: | Mossop J |
Decision: | See [54] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery and attempted aggravated robbery – in joint commission with his brother – on parole at time of offences – extensive criminal history – illicit substance use – mental health diagnoses – sentence of imprisonment |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 35(4) Criminal Code 2002 (ACT), ss 44, 45A, 310 |
Cases Cited: | R v Hawkins [2019] ACTSC 10 R v Sullivan (Unreported, ACT Supreme Court, Nield AJ, 3 May 2012) R v Williams [2018] ACTSC 325 |
Parties: | The Queen (Crown) Joshua Sullivan (Offender) |
Representation: | Counsel M Howe (Crown) S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 63 of 2020 |
MOSSOP J:
Introduction
The offender, Joshua Sullivan, has pleaded guilty to the following offences:
(a)Count 1: joint commission aggravated robbery, contrary to ss 310 and 45A of the Criminal Code 2002 (ACT), the maximum penalty being 25 years’ imprisonment, 2500 penalty units or both (CC2020/793).
(b)Count 2: attempted joint commission aggravated robbery, contrary to ss 310, 44 and 45A of the Criminal Code 2002 (ACT), the maximum penalty being 25 years’ imprisonment, 2500 penalty units or both (SCCAN2020/57).
His co-offender, Rhys Sullivan, who is also his brother, is being dealt with at the same time: see R v Sullivan (No 2) [2020] ACTSC 215. Rhys Sullivan is charged with the same offences, as well as a transfer charge of trespass.
Facts
The facts in relation to both offenders’ offending were agreed and are, in summary, as follows.
Count 1: Robbery of McDonald’s Wanniassa
During the early hours of 27 December 2019, the co-offenders entered the McDonald’s restaurant in Wanniassa. There were three employees working in the McDonald’s, which was open for business, and a number of customers were in the store.
The co-offenders entered the store through the front entrance. Each offender was carrying a silver-bladed knife with a silver handle and a red and white shopping bag. Both were wearing black face coverings and green and white gloves. Rhys Sullivan was also wearing a black head covering.
The co-offenders walked past the cash registers and into the kitchen area of the restaurant. Rhys Sullivan pointed a knife at one of the employees, who I will refer to as FE, and asked where the money was. She called for the help of another employee, who I will refer to as MS, who was counting money in the safe in the manager’s office.
The co-offenders walked towards MS and demanded he open the safe. He complied and Rhys Sullivan entered the manager’s office and emptied the cash from the cash register into a shopping bag. Joshua Sullivan entered the manager’s office and emptied cash from the safe into his shopping bag. Rhys Sullivan them emptied cash from a cash register located above the safe, and Joshua Sullivan found two additional cash registers to empty.
The co-offenders left the manager’s office and walked back through the kitchen towards the front entrance. Joshua Sullivan stopped at the cash registers at the front counter and demanded that MS open the register, before emptying the cash into the shopping bag. Joshua Sullivan then ran to the front entrance where Rhys Sullivan was holding the door. Both offenders ran in the direction of Erindale Drive. $1190 was taken during the course of the robbery.
Although the robbers were otherwise well disguised, each was wearing branded underwear and the brand name on their underwear was exposed as they were bending over in the manager’s office stuffing the contents of the tills into plastic bags. Matching underwear was found by police when they executed a search warrant at the co-offenders’ home.
Count 2: Attempted Robbery of Woolworths Calwell
Around 9:41pm on 28 December 2019, the co-offenders approached a Woolworths store at the Calwell Shopping Centre. The co-offenders ran through an outdoor parking area and into the shopping centre. They were both carrying a silver-bladed knife with a silver handle. Joshua Sullivan was also carrying a blue Aldi fabric shopping bag. Joshua Sullivan was wearing a light blue t-shirt wrapped around his head, and face and green and white gloves. Rhys Sullivan was wearing a black balaclava and green and white gloves.
The co-offenders walked towards the Woolworths service desk, which opens into the shopping centre. Joshua Sullivan was holding the knife in his right hand and approached the customer side of the service desk where an employee, who I will refer to as LN, was serving customers. Rhys Sullivan, also holding a knife in his right hand, went to the back of the service desk and entered into the staff-only area. Joshua Sullivan asked LN where the money was located. LN pointed towards the self-service area and backed away. Joshua Sullivan entered the service desk area and began emptying the cash register into the blue bag. Rhys Sullivan walked out to the front of the service desk.
Several men who had been in the carpark and observed the co-offenders approaching the supermarket followed them into the shopping centre, fearing a robbery was about to occur. I will refer to them as ET, NB, NI and NW. ET walked into the service desk area and restrained Joshua Sullivan using a bear hug. NB and NI also approached the service desk.
Rhys Sullivan then ran from the store towards a shopping centre exit. NW had been waiting near the exit and collided with Rhys Sullivan, who fell into the closed sliding doors. NW attempted to restrain Rhys Sullivan, although he stepped back when he noticed that Rhys Sullivan was still holding a knife. Rhys Sullivan ran towards another exit, crossed the carpark onto Webber Crescent, and ran towards a laneway located adjacent to units on Webber Crescent.
While ET was restraining Joshua Sullivan, NB grabbed Joshua Sullivan’s right hand in an attempt to take the knife. NB removed the knife and sustained a cut to his right index finger in the process. ET, NI and NB wrestled with Joshua Sullivan and attempted to restrain him. NI sustained some minor cuts, bruises and an injury to his index finger during the scuffle. A Woolworths employee picked up and removed the knife.
The police arrived at around 9:46pm and arrested Joshua Sullivan. His wallet and identification were located nearby. The blue Aldi bag was located in the service desk area with $775 inside and $385 on the floor.
Transfer charge (in relation to Rhys Sullivan): Trespass
Meanwhile, two residents of a nearby unit were at home. The male heard his dog barking and saw a shadow running towards his garage. The female looked inside the garage and saw Rhys Sullivan hiding. She pretended not to see him and left the unit to alert police. Police attended and arrested Rhys Sullivan in the garage.
Victim impact statements
Five victim impact statements were tendered. Two of the victims read their statements in court. A police officer read two others.
One of the victims who prepared a statement worked at McDonald’s. It illustrates how experiencing such a robbery can have long-term disruptive consequences for the psychological well-being of victims, even in circumstances where there is no actual or expressly threatened violence. That is consistent with the victim impact statements from two employees of the supermarket. They illustrate the long-term consequences for victims of such offending as they revisit the events in question in their minds and suffer long-term loss of a feeling of security and trust.
A victim impact statement was also prepared by the owner of the McDonald’s. That corroborates the psychological impact upon employees of the business and the consequences for such restaurants more generally. It indicates that the costs of such offending are not merely the immediate financial costs but the incremental, more widespread, financial and non-financial costs for the business and its employees.
The final witness statement was from one of the men who assisted with the detention of the offender during the attempted robbery of Woolworths. It illustrates the particular impact upon him as a result of a previous experience of a family member with such robberies and the additional consequences for him of participation in the overpowering of the offender. In addition to the physical injury suffered during the apprehension of the offender it indicates what, for him, were surprisingly significant and persistent psychological consequences, as well as consequences for the members of his family arising from the offending.
Overall, the victim impact statements serve to illustrate the significant and long-term psychological impacts upon those exposed to such offending behaviour and hence the broader and long-term effects of the offending beyond its immediate financial consequences. By doing so, they emphasise the need for general deterrence and protection of the community as applicable purposes of sentencing.
Objective seriousness
The McDonald’s offending involved conduct which was in company and with a weapon. The weapon was a knife rather than a firearm. The Statement of Facts does not record any express threats to staff members. The video does not show any gratuitous threatening conduct by the offenders. It was unsophisticated offending with some planning. It was directed at a category of business which is vulnerable to such offending by reason of its cash holdings, its hours of operation and the nature of the staff employed. It was committed by the offenders when they were on conditional liberty. The offender was recently released on parole and Rhys Sullivan was serving a custodial sentence by intensive correction. The offending is in the mid range of objective seriousness for this offence.
The Woolworths offending involved an attempt which was almost complete and would have been completed but for the intervention of bystanders. I treat it therefore as equivalent objective gravity as if the offence had been completed. The number of staff and members of the public who were present and hence affected by the conduct was greater than in relation to the McDonald’s offending. The use of the weapon by the offender during the course of his apprehension was more serious than the use of the weapon during the McDonald’s robbery. It is, for the same reasons as the McDonald’s offending, in the mid range of objective seriousness.
Subjective circumstances
Pre-sentence report
The offender is 27 years old. He is the eldest of two children from his parents’ relationship. He experienced a positive and supportive family environment throughout childhood, although he reported to Dr Danielle Clout that he was “smacked around” by his father. He reported that his family was supportive of him for numerous years despite his offending behaviour and antisocial lifestyle, although he has had limited contact with his parents since his remand at the Alexander Maconochie Centre (AMC).
The offender has no fixed abode and if he were released into the community would not have any available accommodation options. Previously, the offender resided with his parents, however, this is no longer a suitable option.
The offender completed schooling to Year 10 and has a limited employment history. His employment history has been negatively impacted by his multiple periods of incarceration. He was reliant upon government benefits while in the community. He has no significant debts.
In terms of his social network, the offender reported that all of the people known to him have criminal histories and are involved in negative behaviours. He advised that he finds it difficult to keep away from such people and admitted that he may struggle to keep away from this group of people upon his release.
The offender first started consuming alcohol during his early adolescence, drinking daily until the age of 17 years. More recently, the offender has had minimal consumption of alcohol as his illicit substance abuse is more regular. He first started using cannabis during his early adolescence. This has since increased to the use of cannabis, methylamphetamine, heroin and benzodiazepam. He reported that up until his remand in the AMC, he was using these substances daily, with intermittent periods of abstinence. The offender has a history of undertaking a pharmacotherapy regime both in custody and the community and has completed the SOLARIS Therapeutic Program three times, in 2020, 2019 and 2015.
The offender is not involved in any structured leisure or recreational activities and advised that boredom was a factor in relation to his past offending behaviour.
He indicated that his drug use has impacted on his mental health in the past, including periods of drug induced psychosis. He reported current compliance with his mental health medication.
He said that he was under the influence of illicit substances during the commission of the current offences. He told the author of the pre-sentence report that he “did not excuse his actions and he claimed to accept responsibility for the offences and acknowledge their seriousness.” He noted that most, if not all, of his criminal behaviour is linked to drug use.
The author of the pre-sentence report expresses the opinion that:
[The offender has] a lengthy criminal history which confirms a pattern of similar offending behaviours as well as a limited peer network devoid of pro-social modelling. He acknowledged a correlation between such behaviours and drug use and to his credit has made initial steps to address his substance abuse issues with the completion of the SOLARIS program.
…
Whilst [the offender] has demonstrated a commitment to addressing the primary risk factors, further support to ensure long term commitment, motivation and engagement with appropriate services is required if he as [sic] to reduce his medium to high risk of re‑offending.
Psychological assessment report
Counsel for the offender tendered a psychological assessment report by Dr Clout. Dr Clout gave the opinion that the offender is currently experiencing symptoms consistent with diagnoses of schizophrenia, cannabis use disorder, opioid use disorder and stimulant use disorder.
However, she expresses the opinion that the offender’s schizophrenia is likely to represent a lifelong condition, requiring ongoing pharmacological treatment. She reported that schizophrenia makes the offender more vulnerable to drug abuse and, in turn, the drug abuse exacerbates the offender’s symptoms relating to schizophrenia.
She also reported that the offender disclosed a history of verbal and physical bullying during primary school and high school, which she determined to have contributed to his ongoing vulnerability to depressive symptoms and anxiety.
In relation to the diagnosed conditions, Dr Clout was of the opinion that they existed at the time of his offending. In terms of the psychotic symptoms of schizophrenia, she said they inhibit judgement, rationality and decision-making, although she acknowledged that such symptoms were not directly related to the offending.
The offender reported to her that incarceration generally has a positive impact on his mental health, despite ongoing symptoms. He acknowledged that he has become “institutionalised” and experienced anxiety about having to function in the community.
She recommended continued pharmacological treatment and more intensive psychological treatment. She has also recommended some transitional supports and a 12 month residential rehabilitation program were he to be released from custody.
Criminal history
He has a very significant criminal history including offences of aggravated robbery, arson, damaging property, burglary and theft. It includes a number of offences of aggravated robbery committed in 2010 for which sentences were imposed by Nield AJ in 2012: see R v Sullivan (Unreported, ACT Supreme Court, Nield AJ, 3 May 2012). Whilst the circumstances of the offending were somewhat different, the significant custodial sentences imposed were unsuccessful in deterring further offending conduct. At the time of sentencing for that offending the offender was 19 years and eight months old. Nield AJ said “I consider that it is tragic that someone so relatively young as the offender is before this court to receive sentences for so very serious offences as armed robbery, attempted armed robbery and arson.”
In January 2019 Burns J sentenced the offender for offences including burglary, theft and possession of a firearm: see R v Sullivan [2019] ACTSC 163. He imposed an aggregate term of imprisonment of three years and five months with a non-parole period of two years and one month. He said at [25]:
At 26 years of age you are still somebody who is not beyond redemption and indeed rehabilitation is still a significant sentencing consideration. You have a very unenviable criminal history. You are rapidly getting to the stage where rehabilitation will no longer have any significance, and protection of the public will be more important when sentencing you for serious criminal offences. If you do not want to spend most of your young adult life in prison, you really need to do something about addressing drug addiction. That is something that only you can address.
At the time of the present offending, the offender was on parole in relation to the sentences imposed by Burns J. He had been released on parole for less than four weeks when the offending occurred. The parole order was cancelled by the Sentence Administration Board at the offender’s request on 17 March 2020.
Plea of guilty
The offender pleaded guilty to all charges on 25 May 2020 in the Supreme Court, after the Crown’s committal documents had been filed. The pleas were entered prior to any criminal case conferencing.
In relation to the offending at Woolworths, I consider that the prosecution case for the offence was overwhelmingly strong, the events being captured on CCTV and the offender being apprehended during the course of the attempted robbery. I do not consider that the unrealised possibility of a defence based upon the offender’s mental health takes the case outside one which was overwhelmingly strong.
Section 35(4) of the Crimes (Sentencing) Act 2005 (ACT) permits a reduction to be made in the penalty imposed but not a “significant reduction”. Given the utilitarian value of the plea, I consider that some reduction ought to be made. I consider that a reduction of greater than 5% would be a “significant” reduction. I will therefore allow a 5% reduction for the fact that the offender pleaded guilty.
In relation to the McDonald’s offending, the prosecution case was not “overwhelmingly strong” and, having regard to when the plea of guilty was entered, it is appropriate that there be a 20% reduction on account of the plea of guilty.
Time in custody
The offender has been in custody since 28 December 2019 and has spent 223 days in custody prior to today. As a result of being on parole at the time of the offending, the offender’s time in custody is not attributable to the current offences. Instead it is time served as part of the sentences imposed by Burns J in January 2019. That sentence ends on 3 April 2021.
Consideration
The offences were committed in order to obtain money to buy illicit drugs. They were unsophisticated, high risk, armed robberies. Such conduct is terrifying to those who are exposed to it and has longer term consequences for them, as well as the community more generally. Plainly enough, it is conduct which must be deterred and punished.
The offender has a poor criminal history. He is not old, but he is no longer young.
While the offender’s mental health condition forms part of his subjective circumstances, it is not directly causally related to the offending. Drug use may have contributed to the onset of his symptoms of schizophrenia. The symptoms of schizophrenia appear to contribute to his ongoing drug use. I have taken into account that his descent into drug use occurred before he was an adult and, hence, at a time when he was less able to make sensible decisions.
I was referred to decisions of this court imposing sentences for aggravated robbery, namely, R v Sullivan [2019] ACTSC 38 (which is my previous decision in relation to Rhys Sullivan); R v Williams [2018] ACTSC 325 and R v Hawkins [2019] ACTSC 10. Those cases disclosed starting points between three years and four months and four years and four months, and I have taken those decisions into account.
So far as the relevant purposes of sentencing are concerned, clearly both general and specific deterrence are significant. So too is punishment and denunciation of the offending. As Burns J indicated, protection of the community has become a more significant factor as the offender’s capacity for rehabilitation becomes more doubtful. There is clearly the prospect that the offender will become institutionalised. The prospect of rehabilitation can be recognised by maintaining the relationship between non-parole period and head sentence as adopted by Burns J, namely, approximately 61%.
The starting point in relation to each sentence is a sentence of 48 months’ imprisonment. In relation to the McDonald’s robbery, the sentence is reduced to 38 months on account of the plea of guilty. In relation to the Woolworths attempted robbery, the sentence is reduced to 46 months on account of the plea of guilty. The sentences will be cumulative upon the existing sentence which ends on 3 April 2021. While the robbery and the attempted robbery were distinct offending rather than a course of conduct, I consider that totality requires a significant degree of concurrency. The sentence for the Woolworths offending will be cumulative as to 18 months upon the McDonald’s offending.
This gives a head sentence of 56 months or four years and eight months. The sentence imposed by Burns J runs from 4 November 2017 until 3 April 2021. The non-parole period set by Burns J is cancelled and needs to be reset. The combined effect of the sentences imposed by Burns J and that which I have imposed today is eight years and one month’ imprisonment. Maintaining the same ratio of head sentence and non-parole period, the non-parole period will be 59 months (four years and 11 months). That means that it commences on 4 November 2017 and ends on 3 October 2022.
The orders of the Court are:
1. On the charge of aggravated robbery (CC2020/793) the offender is convicted and sentenced to imprisonment for 38 months commencing on 4 April 2021 and ending on 3 June 2024.
2. On the charge of attempted aggravated robbery (SCCAN2020/57) the offender is convicted and sentenced to imprisonment for 46 months commencing on 4 February 2022 and ending on 3 December 2025.
3. The non-parole period commences on 4 November 2017 and ends on 3 October 2022.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 25 August 2020 |
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