R v TF (No 2)
[2020] ACTSC 327
•8 December 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TF (No 2) |
Citation: | [2020] ACTSC 327 |
Hearing Date: | 8 December 2020 |
DecisionDate: | 8 December 2020 |
Before: | Elkaim J |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – assistance to authorities – rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT) ss 45A, 310, 318 |
Cases Cited: | R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346 |
Parties: | The Queen (Crown) TF (Offender) |
Representation: | Counsel R Christensen (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 278 of 2019; SCC 281 of 2019 |
ELKAIM J:
On various dates in 2020, the offender pleaded guilty to the following three charges:
(a)Two counts of aggravated robbery by joint commission (CC10430/2018, CC 12847/2018) contrary to s 310 of the Criminal Code 2002 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty is 25 years imprisonment, a fine of $400,000 or both.
(b)One count of joint commission take stolen motor vehicle (CC10431/2018), contrary to s 318 of the Criminal Code 2002 (ACT), by virtue of s 45A of the Criminal Code 2002 (ACT). The maximum penalty is 5 years imprisonment, a fine of $80,000 or both.
There are details of the facts of the three offences in the Agreed Statement of Facts (Exhibit A). The following is a summary.
The first robbery on 14 June 2010: The assistant manager of the Red Rooster restaurant in Wanniassa closed the establishment at about 10:35pm. He was about to leave in his motor vehicle when one of two offenders pulled the door open and threatened him. The threats, backed up by a 30cm knife, were designed to have the door of the restaurant unlocked.
The victim, under continuing threats from the robbers, opened the safe from which $1500 was stolen. The offenders then attacked assorted electrical equipment in order to disable the CCTV system and the telephone. The victim was then forced to pay the robbers $20 from his own wallet and directed to lie down on the ground. The robbers then departed. They took the victim’s mobile phone and his motor car. The latter is the subject of the driving charge. As suggested by the Crown, I will deal with it concurrently with the robbery but note the activity is an aggravating feature of the robbery.
The second robbery on 16 August 2010: This robbery was committed in company with the offender’s half-brother, UD, and a third man. When sentencing UD I described this offence as follows:
On 16 August 2010 the offender and two other men robbed the Lanyon Vikings Club. The staff were threatened with being shot and patrons were told to “get on the ground” while weapons were being waved around. A security guard was told he would be killed if he did not obey directions. Cash of up to $38,000 was taken from various locations in the club. (R v UD (No 2) [2020] ACTSC 323, at [4]).
I have specifically quoted from UD because parity of sentencing will be an important factor here. Also relevant from UD is my assessment of the objective seriousness of the offence. The same assessment applies here as that stated in [19] of UD.
Also, again drawing from the approach I took in UD, the objective seriousness of the first robbery I think falls into the same category as the second. I repeat my observation that although the club robbery appears to have a greater degree of sophistication and planning, the robberies are about equally serious from an objective point of view and especially when seen from the perspective of the victims.
In summary I am of the view that both robberies fall into a category of objective seriousness that takes them beyond a typical aggravated robbery as described in R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346, but with the caveat I expressed in UD derived from R v Heikkinen [2006] NSWCCA 50, at [3].
The offender was born in 1989. Although he was not a young person when the offences were committed, his name has been anonymised to avoid the identification of his half-brother, UD.
The offender had an unsettled childhood. He was one of three children to his biological parents. One sibling died. The other has remained a close family member. The offender also has five half siblings, one of whom is UD.
When his parents separated the offender lived with his father who passed away when the offender was 18 years of age. He has had regular contact with his mother who unfortunately has serious mental health issues.
The offender was sexually abused by a family member for many years.
Although being a carer for his father the offender was able to complete the Year 10 School Certificate. I note his school years were also marred by persistent bullying. He has had a selection of unskilled jobs and more recently was working as a gardener. This is not ongoing because the offender has been recovering from surgery to his left arm.
The offender has been drinking a lot since he was very young. More significantly he had a real problem with drugs. Their use played a part in obtaining funds through illegal activities. They have also no doubt led to his associations with other criminals. The offender said he no longer associates with UD. He has been described as a follower. To the extent that his crimes were committed with UD, this is consistent with UD himself having told the Court that he was the ‘prime mover’ behind his offences.
The offender is now in a long-term relationship. He is having psychiatric treatment with counselling and medication.
The offender has a significant criminal record including offences in New South Wales for which he has been in prison since committing the offences that are relevant today. There is no specific or apparent reason for the delay in the current offences coming to court. This is a factor which I am able to take into account.
The offender does seem to have expressed remorse for his offending. He described himself to the authors of the pre-sentence report as “reckless, dumb and young”. I agree with his considered assessment. As in UD I was taken to the sentencing remarks of Colefax DCJ when sentencing UD and this offender on 3 February 2014. The distinction here is that while his Honour did not accept expressions of remorse from UD, he did accept those from this offender. His Honour said:
In (TF)’s case, I was initially sceptical about his expressions of remorse, particularly considering the courses which he had undergone successfully whilst at Oberon. His demeanour in the witness box, however, was not the same as his brother’s and ultimately I have concluded (with some hesitation) that his expression of remorse was genuine. Nevertheless by having regard to his age and his criminal antecedents his prospects of rehabilitation must also be seen as reasonably guarded.
UD was sentenced to 3 years imprisonment for the offence on 16 August 2010 (reduced from 3.5 years after the guilty plea discount). I suspect UD was the dominating participant in that robbery. But as acknowledged by this offender himself, he must take responsibility for what occurred. UD had the benefit of being a minor when the offending occurred, but this offender pleaded guilty at an earlier stage. I think ultimately this offender should have the same starting point for his sentence as UD, namely 3.5 years imprisonment.
The offender has spent 645 days in custody for these offences. His sentencing will be backdated to 4 March 2019.
The pleas of guilty would normally have entitled this offender to a discount of about 15%. However there is an important further element in this matter. Although described as “reluctant” and not overly helpful, the offender did provide assistance to the authorities, in particular by making himself available in answer to a subpoena. I think this assistance, limited as it was, entitles the offender to an uplift of the discount for his pleas of guilty, which (including the original discount) I now assess at 30%. For purposes of s 37 of the Crimes (Sentencing) Act 2005 (ACT), the penalty that would otherwise have been imposed is different by a factor of 15%.
Totality is of course an important feature to be taken into account in sentencing. At the same time it is important that the public and the victims of each offence are made aware that each offence has to some degree attracted its own punishment.
In addition to all that I have said above, which thus far, other than in relation to assistance, would dictate a very similar approach to that taken in UD, there is a further and far reaching ingredient applicable only to this offender.
The offences were committed in 2010. Thereafter, like UD, the offender spent a good deal of time in a New South Wales prison. But this is where the similarities ended. UD came back to the ACT and resumed criminal conduct, in particular the robbery of the Mawson Club in 2017. This offender, on the other hand, commenced a path of rehabilitation which has continued to this day and has resulted in a person who now is a respected employee in a landscaping business and has a solid and supportive relationship which has been endorsed by his partner’s parents (Exhibit 1).
The courses he has done also attest to his efforts to better himself.
The result of this rehabilitation is that I will not return this offender to prison. Subject to the differences generated by the different levels of discount, I intend to apply the same sentences as those given to UD, but to suspend them with immediate effect.
This course, which was not opposed by the Crown, achieves the result of combining the need for punishment, including specific and general deterrence, with a clear message to criminals that rehabilitation is possible, is rewarding and provides an avenue for a decent life, with decent people in a decent society.
Each robbery sentence will have a starting point of 3.5 years. The discount for the pleas of guilty of 15% (subject to rounding off) reduce the sentences to 3 years. The further discount for assistance, again of about 15%, then reduces the sentences to 2.5 years.
Orders:
The offender is sentenced as follows:
(a)For the offence of aggravated robbery on 14 June 2010 (CC10430/2018) the offender is sentenced to imprisonment for 2 years and 6 months to commence on 4 March 2019 and end on 3 September 2021.
(b)For the offence of aggravated robbery on 16 August 2010 (CC12847/2018), the offender is sentenced to 2 years and 6 months imprisonment to commence on 4 March 2020 and end on 3 September 2022.
(c)For the offence of take stolen motor vehicle on 14 June 2010 (CC10431/2018) the offender is sentenced to 3 months imprisonment to commence on 4 March 2019 and end on 3 June 2019.
(d)The total period of imprisonment is 3 years and 6 months, commencing on 4 March 2019 and ending on 3 September 2022.
(e)The above sentences of imprisonment are suspended with immediate effect on condition that the offender enter into a Good Behaviour Order for a period of 2 years commencing today on core conditions.
(f)I respectfully recommend that the offender attend any mental health and anti-social companion courses for the period deemed to be necessary by the Director General of Corrective Services.
(g)In respect of any breaches of previous good behaviour orders I find that the offences are proved but take no further action.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 8 December 2020 |
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