R v Sullivan
[2019] ACTSC 38
•30 January 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sullivan |
Citation: | [2019] ACTSC 38 |
Hearing Date: | 30 January 2019 |
DecisionDate: | 30 January 2019 |
Before: | Mossop J |
Decision: | See [15] |
Catchwords: . | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery – extensive criminal history – good prospects for rehabilitation – sentence served by way of intensive correction order – general deterrence – substance abuse |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 42 Crimes (Sentencing) Act 2005 (ACT), s 11(3) Criminal Code 2002 (ACT), s 310(b) |
Parties: | The Queen (Crown) Rhys Sullivan (Offender) |
Representation: | Counsel P Dixon (Crown) J Stewart (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Offender) | |
File Number: | SCC 147 of 2018 |
MOSSOP J:
Introduction
Rhys Sullivan pleaded guilty to a single charge of aggravated robbery (CC2018/3645) contrary to section 310(b) of the Criminal Code2002 (ACT). He stole $500 from the Red Rooster store in Wanniassa and during the course of the robbery had a knife with him. The maximum penalty is 2500 penalty units or imprisonment for 25 years or both. The offence occurred on 31 January 2018.
Facts
The facts relating to the offending conduct were agreed. In summary they were as follows. At about 9:45pm on 31 January 2018, the offender entered the Red Rooster takeaway restaurant in Wanniassa. He approached a staff member who was mopping the floor just to the left of the front entrance and produced a large hunting knife. He was wearing a hooded jumper and black mask which covered his mouth and nose. He was wearing clear latex gloves. The knife that he held was a large hunting knife which was 20 to 30cm long. The staff member moved towards the front counter and called out for her manager who was working in the kitchen area. The offender approached the front counter and told the manager who was behind it to “put the money in the bag”. The manager asked whether the offender was armed and he waved the hunting knife around in an aggressive manner saying “it’s a real knife. This is it. It will hurt you” and “don’t push me”. The manager said there was no money in the front cash register but that he should follow him to get the money. The manager walked to the safe with the offender. The offender told him to put the money in the bag. The manager put about $500 in various denominations into a plastic shopping bag that the offender had whilst the offender was telling him to hurry up. The offender left the premises and ran towards Athllon Drive Wanniassa. The police were called. Police found a latex glove of a type not used by Red Rooster staff. This was later forensically tested and a forensic biologist concluded that the DNA found in the glove was 100 billion times more likely to be that of the offender than another person selected at random from the Australian Caucasian subpopulation. A review of closed circuit television (CCTV) showed one of the latex gloves being worn by the offender coming loose when it was caught in the safe.
After his arrest on 7 March 2018, the offender denied committing the robbery but admitted that he was an ice user. At the time of the offending conduct he was on conditional liberty in that he was the subject of a 12 month good behaviour order imposed by a magistrate on 2 May 2017.
Objective seriousness
The offending conduct is in the low to mid range of objective seriousness for this offence. There was some planning involved but it cannot be described as sophisticated. The knife was used to threaten the store manager in an active way rather than merely being present in the offender’s possession. Although there was a threat of violence, there was no actual violence inflicted. The amount taken was modest.
Subjective circumstances
The offender is 23 years old. He was born in Canberra and is the younger of his parents’ two children. He has primarily resided with his parents prior to being remanded in custody, although had left to stay with friends when his relationship with his parents become strained due to his ongoing substance abuse and offending behaviour. He is the father of one child. A family violence order was in place in relation to the mother of that child. That family violence order remains in effect, although its terms would not prevent him from living with his partner and daughter so long as he does not engage in behaviour which constitutes family violence.
He completed Year 10 at school. He commenced a landscaping apprenticeship which he left after one year because of his drug use and offending behaviour. He was unemployed for in excess of two years, although he had commenced an apprenticeship as a chef shortly before being remanded in custody. Prior to being remanded in custody, he was in receipt of wages, unemployment benefits and sold drugs in order to finance his own drug use. His network of friends was antisocial. Methylamphetamine was his drug of choice using 1g daily prior to his remand. He appeared to the author of the pre-sentence report to take responsibility for his offending, indicating that it was drug‑related and that he regretted it. He is assessed as being a medium to high risk of general reoffending and assessed as not suitable for community service work.
He was subject to an intensive correction assessment and a report dated 22 October 2018 assessed him as being suitable for an intensive correction order. The report indicates that he has signed an undertaking to comply with the obligations of an intensive correction order.
The offender tendered a letter from Calvary Riverina Drug and Alcohol Centre which indicated that he had been offered a place commencing on 31 January 2019. That facility offers a 24 week residential program in different phases. In the third phase of 12 weeks, participants undertake activities designed to help them integrate back into the community. Also tendered were certificates relating to completion of the Alcohol Drug Awareness (harm) Prevention Training run by Directions, the First Steps to Anger Management Program run by ACT Corrective Services and Hepatitis Education and Blood Spills program run by Hepatitis ACT. He also tendered a letter from himself and a letter from his partner. The letter from the offender was a letter of apology written both to the staff at Red Rooster and to the Court. There was no evidence that this apology had been communicated to the relevant staff. The letter from his partner attests to a change that she has observed in him over the last 12 months, as well as the need that she and their daughter has for his support.
Criminal history
The offender has a substantial criminal history including burglary, theft, riding or driving a motor vehicle without consent, stalking, possession of stolen property and obtaining a financial advantage by deception. In 2015 he was sentenced to short periods of imprisonment in relation to charges of minor theft, obtaining financial advantage by deception and unlawful possession of stolen property.
Plea of guilty
10. The offender pleaded not guilty on the second occasion that the matter was before the Magistrates Court. Following preparation of the brief of evidence he entered a plea of guilty on the third occasion that the matter was before the Magistrates Court. Notwithstanding the need for the brief to be prepared, I treat this as an early plea of guilty and will reduce the custodial penalty that I would otherwise have imposed by 25% on account of that plea of guilty.
Time in custody
11. The offender was taken into custody on 7 March 2018. Since 7 July 2018, his detention has been solely attributable to the current offence. This is a period of approximately 6.75 months.
Consideration
12. Aggravated robbery involving the threat of the use of a knife is obviously a very serious offence. Shopkeepers are a category of persons who are vulnerable to such offending. General deterrence must be a very significant sentencing consideration and that, in combination with the maximum penalty, indicates that for an offence of this kind a significant custodial penalty is appropriate. Having said that, the offending conduct appears to be associated with abuse of methylamphetamine. The indications are that there are good prospects for the offender’s rehabilitation. His youth, his young child and the availability of a residential rehabilitation program are all matters which provide some hope for the future.
13. I consider the appropriate sentence is one of 40 months imprisonment reduced to 30 months on account of the plea of guilty. That will be backdated until 7 July 2018 to take into account the period in custody solely attributable to the current offence.
14. The period of 30 months exceeds two years but is less than four years. Having regard to the matters set out in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT)6 I consider that notwithstanding that the sentence exceeds two years, it is appropriate that it be served by way of intensive correction in the community. Such an approach is appropriate because the offender has spent a significant period in custody attributable solely to the offending conduct, appears well motivated to rehabilitate himself and has available to him a substantial program of rehabilitation at the Calvary Riverina Drug and Alcohol Centre.
Orders
15. The orders of the Court are:
1. On the charge of aggravated robbery the offender is convicted and sentenced to imprisonment for 30 months from 7 July 2018 until 6 January 2021.
2. The sentence is to be served by way of intensive correction in the community subject to the core conditions in the Crimes (Sentence Administration) Act 2005 (ACT), s 42 and the following additional conditions:
(a)the offender is to attend and complete the residential rehabilitation program at the Riverina Drug and Alcohol Centre commencing no later than 31 January 2019;
(b)the offender is to undertake medical treatment and supervision as directed by a corrections officer;
(c)the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer;
(d)the offender attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by a corrections officer.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 6 March 2019 |
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