R v Sullivan (No 2)
[2020] ACTSC 215
•7 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sullivan (No 2) |
Citation: | [2020] ACTSC 215 |
Hearing Date: | 6 August 2020 |
DecisionDate: | 7 August 2020 |
Before: | Mossop J |
Decision: | See [32] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery and attempted aggravated robbery – joint commission with his brother – subject to an intensive correction order at the time of the offences – criminal history – illicit substance use – relatively young offender – sentence of imprisonment |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 65 Crimes (Sentencing) Act 2005 (ACT), s 35(4) Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11 |
Cases Cited: | R v Sullivan [2019] ACTSC 38 R v Sullivan [2020] ACTSC 214 |
Parties: | The Queen (Crown) Rhys Sullivan (Offender) |
Representation: | Counsel M Howe (Crown) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Numbers: | SCC 147 of 2018 SCC 64 of 2020 SCC 65 of 2020 |
MOSSOP J:
Introduction
The offender, Rhys 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 (CC2020/846).
(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 (SCCAN2020/58).
(c)A transfer charge of trespass on premises in a Territory, contrary to s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth), the maximum penalty being a fine of not more than 10 penalty units (CC2019/13641).
I have just sentenced his co-offender, Joshua Sullivan, who is his brother: see R v Sullivan [2020] ACTSC 214.
Facts
The facts in relation to both offenders’ offending were agreed. I summarised them in my reasons in R v Sullivan [2020] ACTSC 214 and I adopt what I have said there:
Count 1: Robbery of McDonald’s Wanniassa
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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
16. 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
The same five victim impact statements were tendered, and I adopt what I said in relation to those in my sentencing remarks in relation to Joshua Sullivan: see R v Sullivan [2020] ACTSC 214 at [17]-[21].
Objective seriousness
So far as objective seriousness is concerned, I adopt what I said in my reasons in relation to Joshua Sullivan: see R v Sullivan [2020] ACTSC 214 at [22]-[23]. The aggravated robbery offence is in the mid range of objective seriousness and the attempted aggravated robbery offence is of equivalent objective gravity.
Subjective circumstances
The offender is 24 years old. He is the younger of his parents’ two children. He spoke about his childhood in largely positive terms although, unlike his co-offender, he stated that he witnessed emotional abuse within the family home between his parents. He said that his relationship with his parents has been strained at times due to his offending behaviour and illicit substance use.
Prior to being remanded into custody, he had been residing with his partner and three‑year-old daughter. He stated that the relationship broke down on 26 December 2019, at which point he returned to his parents’ residence. He reported that he has not had contact with his daughter since that time and he is currently single. He does not currently have stable accommodation in the community and is not able to return to the family home.
The offender left the formal education system at the completion of Year 10 and commenced an apprenticeship in landscaping shortly after. He left this employment after 12 months because of his offending and illicit substance use. He was unemployed for two years until he commenced an apprenticeship as a chef. He has not been able to complete this apprenticeship because of his involvement in the criminal justice system.
In November 2019, he started a trial period of employment through ACT Corrective Services Employment Officer as a brick layer. He completed the trial period in December 2019 and was due to commence an apprenticeship as a brick layer in January 2020. Unfortunately, the offender was placed on remand in relation to the current offences in December 2019 and so did not commence his apprenticeship.
He has no significant debts.
He reported no involvement with antisocial peers, with the exception of his brother.
The offender reported commencing methamphetamine use at the age of 17. This quickly escalated to problematic levels where he was using approximately one gram daily. He reported periods of abstinence due to treatment programs and periods in rehabilitation or on remand. He most recently completed the 12 week Arcadia Day Program in the community. Urinalysis records indicate that he was abstinent from illicit substances use between March and December 2019. He stated that he returned to illicit substance use on 26 December 2019 after being asked to leave home by his partner. During his current period on remand, he has completed the SOLARIS Therapeutic Program. He also completed the Stress Less Program.
The offender denied a problematic relationship with alcohol, although he reported that he had been drinking heavily over the 2019 Christmas period, due to the breakdown of the relationship with his partner.
He did not dispute the case statement. He said he had been intoxicated and heavily under the influence of methamphetamine at the time of the offending. The author of the pre-sentence report stated that the offender “displayed a clear insight into the connection between illicit substance [use] and offending behaviour”. He denied that the offences were premeditated and claimed that they were “spur of the moment” in order to fund the purchase of more illicit substances.
The author of the pre-sentence report assessed the offender as having a medium risk of reoffending. His criminogenic risks relate to a static criminal history, unemployment, personal and family relationships, accommodation instability, antisocial associates and illicit substance relapse. The offender claimed to accept responsibility for his actions and articulated an appropriate level of victim empathy.
A letter from the offender to the court recognised the impact upon the victims of his offending. It indicated his understanding of his predicament, emphasised the progress with his rehabilitation and explained the circumstances surrounding his offending, namely breaking up with his partner and the mother of his child in December 2019.
Consistent with the sentiments in his letter, the offender apologised to his victims in court. He also sought a referral for restorative justice. That is an available option in relation to his Territory offences.
Criminal history
The offender has a significant criminal history. It includes multiple charges of obtaining financial advantage by deception, theft, unlawful possession of stolen property, damaging property and aggravated robbery.
In relation to the aggravated robbery, that was committed in January 2018. It involved offending very similar to the McDonald’s offence. It involved a theft of $500 from a Red Rooster store in Wanniassa. The offender acted alone and was armed with a knife. In January 2019 I sentenced him to 30 months’ imprisonment but, having regard to my then assessment of his prospects of rehabilitation, ordered that the sentence be served by intensive correction: see R v Sullivan [2019] ACTSC 38. The offender was subject to breach action in relation to the intensive correction order (ICO) for leaving the residential rehabilitation service which he was required to attend. He was issued with a formal warning by the Sentence Administration Board and continued with an alternative rehabilitation provider. Urinalysis indicated that he remained free of illicit substance use between March and December 2019. He remained subject to that sentence at the time of the present offending and has continued to serve that sentence during the period he has been remanded in custody. The sentence expires on 6 January 2021.
Obviously, his criminal history limits the scope for leniency. The history of his attempts at rehabilitation pursuant to his existing sentence indicates that, while that was clearly not successful, he did achieve a period in the community without illicit substance use and that is certainly a positive sign.
Plea of guilty
The offender pleaded guilty to all charges on 10 June 2020. This was after the matter had been set down for trial, and two weeks after his co-offender had pleaded guilty to charges arising out of the same course of offending. The pleas were entered prior to any criminal case conferencing and the hearing of a coincidence application.
I do not consider that the setting down of the matter for trial is significant in the present case. That was done prior to any criminal case conferencing. I consider that the offender should be sentenced on the basis that the plea of guilty was after committal but prior to the criminal case conference.
In sentencing his co-offender, I considered that the case against him in relation to the Woolworths attempted robbery was overwhelmingly strong and that restricted the extent of the reduction that could be made on account of the plea of guilty. The position of the offender is slightly different in that he was not apprehended at the scene, but instead was apprehended hiding in a nearby residence. I consider that while the Crown case was very strong it was not overwhelmingly strong within the meaning of the statute and hence the restriction in s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) does not apply. Therefore, in relation to each offence, the offender will receive a 20% reduction on account of his plea of guilty.
Time in custody
The offender has been in custody since 28 December 2019 and therefore has spent 223 days in custody prior to today. This time in custody is a period during which he has continued to serve the sentence the subject of the ICO. Even if during that period the ICO was not cancelled, I take into account this period of pre-sentence custody by treating it as attributable to that earlier sentence.
Consideration
As with his brother, the offender engaged in the offending conduct in order to obtain money to buy drugs. It occurred when he was subject to an ICO. It appears to have been associated with the breakdown of the relationship with his partner and the mother of his child.
The offending was obviously serious. It reflected a pattern of unsophisticated, high risk, serious offending which repeated his earlier offending at the Red Rooster store.
I take into account that the offender was introduced to methamphetamine as a child when he was less able to make sensible decisions in relation to drug use. The offender’s past attempts at rehabilitation have been significant, although ultimately unsuccessful. He appears to remain motivated to rehabilitate himself, although his prospects are plainly not as good as they were when he received the ICO.
The sentence that was to be served by way of intensive correction must be served by full-time imprisonment: see the Crimes (Sentence Administration) Act 2005 (ACT) s 65. The interests of justice do not require otherwise. This sentence commenced on 7 July 2018 and ends on 6 January 2021.
Only significant sentences of imprisonment will be appropriate in relation to the McDonald’s and Woolworths offending. The starting point in relation to the McDonald’s and Woolworths offences is a sentence of imprisonment of 44 months. This is slightly less than the starting point in relation to his co-offender and the difference is attributable to the offender’s age and somewhat better prospects of rehabilitation. In each case, this is reduced to 35 months on account of the plea of guilty. The Woolworths offending will be cumulative as to 14 months upon his earlier sentence. This gives an aggregate sentence of 49 months or four years and one months’ imprisonment.
I must set a non-parole period for both the existing sentence and the additional sentence. The aggregate of the sentences imposed is 79 months. The non-parole period will be approximately 55% of the head sentence, which is a period of 43 months. The difference in the percentage of the head sentence reflected in the non-parole period between the offender and the co-offender is because of the offender’s age and his somewhat better prospects of rehabilitation. The non-parole period will therefore commence on 7 July 2018 and end on 6 February 2022.
The sentence for the trespass offence will be a fine of $100. This is a nominal penalty having regard to the fact that it is a fine only offence and that the principal offending is the attempted aggravated robbery. In the event that it is relevant to a Commonwealth offence, I will allow no time to pay.
The orders of the Court are:
1. The intensive correction order made on 30 January 2019 in relation to the charge of aggravated robbery (CC2018/3645) is cancelled.
2. The remainder of the sentence for the offence of aggravated robbery that was the subject of that order is to be served by full-time detention, starting on 7 August 2020 and ending on 6 January 2021.
3. On the charge of aggravated robbery (CC2020/846) the offender is convicted and sentenced to imprisonment for 35 months, commencing on 7 January 2021 and ending on 6 December 2023.
4. On the charge of attempted aggravated robbery (SCCAN2020/58) the offender is convicted and sentenced to imprisonment for 35 months, commencing on 7 March 2022 and ending on 6 February 2025.
5. The non-parole period starts on 7 July 2018 and ends on 6 February 2022.
6. The offences of aggravated robbery (CC2020/846) and attempted aggravated robbery (SCCAN2020/58) are referred for restorative justice.
7. On the charge of trespass (CC2019/13641) the offender is convicted and fined $100 and allowed no time to pay.
| I certify that the preceding thirty-two [32] 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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