R v Thomas
[2015] ACTSC 38
•5 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Thomas |
Citation: | [2015] ACTSC 38 |
Hearing Date: | 5 February 2015 |
DecisionDate: | 5 February 2015 |
Before: | Murrell CJ |
Decision: | Sentenced to four years and one month’s imprisonment with a non-parole period of two years and two months’ imprisonment |
Category: | Sentence |
Catchwords: | CRIMINAL LAW − Sentence − multiple offences − aggravated robbery − attempt theft − minor theft −fail to appear − early guilty plea − rehabilitation |
Legislation Cited: | Bail Act 1992 (ACT) s 49 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35 Magistrates Court Act 1930 (ACT) s 90B |
Cases Cited: | R v Henry (1999) 46 NSWLR 346 R v Keenan [2014] ACTSC 342 |
Parties: | The Queen (Crown) Scott Robert Thomas (Offender) |
Representation: | Counsel Mr D S Khan (Crown) Mr A Hopkins (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) (Offender) | |
File Numbers: | SCC 259 of 2014; SCC 262 of 2014 |
MURRELL CJ:
The offender adheres to pleas of guilty entered in the Magistrates Court to three offences. Two further offences have been transferred into this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT).
The offences are as follows:
(a)9 August 2014, attempt to steal Australian currency from SupaBarn, contrary to s 308 of the Criminal Code 2002 (ACT). The maximum available is penalty 10 years’ imprisonment, a fine of $150 000 or both.
(b)9 August 2014, aggravated robbery of the BP service station at Braddon, contrary to s 310(b) of the Criminal Code. The maximum available penalty is 25 years’ imprisonment, a fine of $375 000 or both.
(c)10 August 2014, aggravated robbery of the Caltex service station at Braddon, contrary to s 310(b) of the Criminal Code. The maximum available penalty is 25 years’ imprisonment, a fine of $375 000 or both.
(d)22 December 1998, failure to appear after bail undertaking, contrary to s 49 of the Bail Act 1992 (ACT).The maximum available penalty is two years’ imprisonment, a fine of $30 000 or both.
(e)9 August 2014, a minor theft offence from SupaBarn, contrary to s 321 of the Criminal Code. The maximum available penalty is six months’ imprisonment, a fine of $ 7 500 or both.
The pleas of guilty were entered early in the Magistrates Court. It is uncontroversial that they entitle the offender to a discount of about 25% to acknowledge the utilitarian value of the pleas and the other relevant matters under s 35 of the Crimes (Sentencing Act) 2005 Act (ACT) (the Sentencing Act).
Offending Conduct
The offender had attended an Aboriginal health service on 8 August 2014 for a review of his medication. He had been medicated for pain related to a back injury with an opiate-based medication. This medication was to be discontinued. He was to start on a methadone dose of 40 milligrams, as well as Valium to help him sleep.
On 9 August 2014, the offender became distressed because the methadone that he received was, in his opinion, inadequate to deal with his pain. He attended Canberra Hospital at 4.45pm seeking an opiate-based medication. He saw staff who specialised in mental health at about 7.00pm or 7.30pm. They observed that he was upset with his new medication regime. He complained of back pain. The offender was disappointed that he had not been given opiates. He behaved in an agitated fashion, although he was not thought disordered. He was logical and reactive. The impression of those who saw him was that he was possibly schizophrenic, with a differential diagnosis of substance induced psychosis. However he was not acutely psychotic at that time. The hospital records noted, “precipitant for presentation tonight seems to be substance seeking”. The offender had hoped to be admitted, but he was discharged with a bus ticket.
By that stage his mind was racing. He had been focused on obtaining some sort of opiate medication. When that request was refused, he proceeded by bus to central Canberra. At about 8.15pm, he went to SupaBarn. He took a 10 pack of Redhead matches to the cashier. The cashier’s cash drawer was open. While the cashier was distracted serving another customer, he reached into the till saying, “I’ll take that”. The cashier turned around and pushed the drawer shut, catching the offender’s fingers in the till. That comprised the attempted theft of currency from SupaBarn.
The offender left the supermarket without paying for the matches. That is the subject matter of the minor theft charge that was transferred into this Court.
At about 8.19pm the offender entered the BP service station in Lonsdale Street, Braddon. He approached the counter and said to the attendant, “I want all the money in your till”. Simultaneously, the offender threatened the attendant with a syringe held in his left hand. By this means, the offender obtained about $160 from the attendant. He left, saying “Enjoy your stress leave”.
The offender submitted that the syringe was in fact, a clean syringe which he had for other purposes, not primarily for use as a weapon. There was nothing to suggest otherwise. Given the offender’s history of drug abuse, it is a likely scenario. The offender did not wear any disguise and made no attempt to conceal his identity. He was motivated to obtain money to purchase heroin because he had just been refused opiate medication. He was experiencing withdrawals from the opiate medication that had previously been prescribed for his back pain. He considered that the methadone that had been prescribed was not effective. I accept that submission; subsequently, the offender’s methadone dose was increased to 120 milligrams and that, too, was not very effective. The offender is now reducing his methadone dose.
After leaving the BP service station, the offender purchased and consumed heroin. It did not have a lasting effect. By midnight, he was again craving opiates. He decided to commit a similar robbery. At about 12.35am on Sunday 10 August 2014, he walked into the Caltex service station in Braddon. He removed a pair of sunglasses from a stand and asked the operator for the price of the glasses. When he was advised of the price, he said, “I’ll grab another pair then”. He picked up another pair and returned to the counter. As he approached the counter, he removed a syringe from his jacket. He threatened the operator with the syringe. It was filled with a brown substance. The substance was coffee that the offender had purchased. The offender pushed the syringe in the direction of the operator, saying, “I’m going to stab you with this. Give me the money”. The operator informed the offender that he could not open the till as he had scanned an item into the computer system and it would not allow the till to open. The offender attempted to open the till, without success. He then demanded tobacco and mobile telephones. The operator gave him several packets of tobacco. Another customer entered the service station and distracted the offender. This allowed the operator to press the duress alarm and walk away from the cash register, towards the office. The offender jumped over the counter and seized three mobile telephones and some tobacco as well as both pairs of sunglasses. He left, mounting a pushbike.
Police attended and, at about 1.45am (about an hour later) they located the offender in Reid and placed him under arrest. He has been in custody since that time.
The only offence that was not part of that sequence of offences is the offence of failing to appear in December 1998. The offender faced numerous relatively minor charges in the ACT Magistrates Court. He was struggling with addiction at that time. For many years he has lead a transient lifestyle. He decided to leave the Canberra area and travel to Darwin. Subsequently, a warrant for his arrest was issued. The warrant was not executed until the offender’s arrest on 10 August 2014. The offender was in the community for a long period while the warrant was outstanding.
The fact that an offence is committed while the offender is on conditional liberty in the community is generally considered to be an aggravating circumstance. In this case, the offender was not on conditional liberty; he was not supposed to be at liberty at all until the outstanding warrant was dealt with.
Objective Seriousness of the Offences
There was no actual risk associated with the syringe as it was a clean syringe that contained only coffee. However, as the Crown submitted, the victims did not know that. As far as they were concerned, they were confronted with an extremely dangerous and perhaps life-threatening weapon. The offences were committed impulsively. I accept that the offender’s thinking was disturbed at the time. He was withdrawing from opioid medication that had been prescribed for back pain and he had sought replacement medication. The methadone that he was given was ineffective to deal with his back pain. Of course, that is not the entire story. The offender has had a very long history of substance abuse to which I will return in a moment.
The Offender’s Subjective Circumstances
The offender is 39 years of age. He has a significant criminal history, but the history is not particularly extensive considering that the offender is 39 years of age and he has lived an itinerant lifestyle since 15 years of age. The offender has a string of minor offences in the ACT. Many occurred in about 1998. Many were the subject of bail; they were the matters for which the offender failed to appear in December 1998. There is a reasonably significant criminal history in New South Wales between 1998 and 2013. The most serious matters are two offences of break, enter and steal that occurred in 2013. They resulted in a 12 month sentence with a three-month non-parole period. An offence of manufacturing a prohibited drug resulted in a three month sentence in 2010. For damaging property in 2011, the offender was incarcerated for six weeks.
Other matters include minor drug matters, driving matters, street offences and the like. They generally resulted in fines. There is also a very old matter of attempted burglary in Victoria. Minor offences have resulted in fines in South Australia and Queensland.
The offender is of Aboriginal background, although he does not identify strongly as Aboriginal. He has had limited education. He left home at 15 years of age and he has had very little contact with his family since that time. It is not known why the offender ran away from home. He still considers himself to be close to his maternal grandfather, who resides in Canberra. At the time of the offences in August 2014, the offender was in Canberra at least partly for the purpose of re-establishing contact with his grandfather. The offender has a 12-year-old daughter who resides interstate and with whom the offender has no contact.
The offender has generally been unemployed. He has had some seasonal work. Prior to the commission of the offences, he was on a Centrelink pension.
He has been known to ACT Mental Health Services since 1995. He has been treated for a condition which has been diagnosed as either schizophrenia or drug-induced psychosis. He has been admitted to many hospitals around Australia for a psychotic condition. Currently, he takes antipsychotic medication. He finds the medication to be beneficial.
The offender’s current diagnosis is schizophrenia. The reporting psychiatrist states that the offender needs to take antipsychotic medication indefinitely.
He also needs treatment for drug and alcohol dependence. Previously, he has not received significant counselling or treatment for drug and alcohol issues. The offender has a long history of using illicit substances. He used amphetamines on the day of the offences. He had also used cannabis and diazepams. I am unsure whether that medication was legally prescribed for him at the time of the offences.
The offender’s mental health was declining at the time of the offences. However, the observations made on the evening of 9 August 2014 at Canberra Hospital suggest that, while his condition may have been declining, he was not floridly psychotic at 7.30pm. The Crown submitted that he must have known what he was doing at the time that he committed the robbery at the BP station because as he was leaving, he said “Enjoy your stress leave”, suggesting that he had a good understanding of what was occurring.
The offender’s drug addictions are related to his mental health problems and his back injury. It is difficult to disentangle cause and effect. But it is apparent that, for many years, the offender has suffered from a serious psychotic condition. To control the condition he must be medicated. His drug and alcohol problems are very likely not assisted by the fact that he suffers from a psychotic condition. The offender believes that cannabis alleviates his pain. That has been one reason why he has consumed cannabis for many years. His consumption of cannabis may have impacted on his psychotic condition.
The offender is at high risk of general reoffending. His criminal history suggests as much. In the offender’s favour, although he is 39 years of age, the events of 9 and 10 August 2014 are the first criminal behaviours involving any serious violence. They are by far the most serious offences that the offender has committed.
A letter from the offender demonstrates some degree of remorse and awareness of the victims’ position.
The offender has taken some steps towards rehabilitation. He has undertaken the SMART Recovery Program in custody and he has been involved in a program for Aboriginal offenders. He has commenced a pain management regime which has stabilised his pain. This will be important to supporting his drug and alcohol rehabilitation. He is on antipsychotic medication. He takes the medication voluntarily. He has reasonable insight into his psychotic condition and the need to continue with antipsychotic medication. If his back pain and psychotic condition can be controlled, the offender will be in a better position to address his drug and alcohol problems. Prison will provide a stable environment in which he can progress towards rehabilitation.
Applicable Law
The Court is required to take into account the relevant features in s 33 of the Sentencing Act. I have referred to most of the relevant features. The Court is also required to address the sentencing purposes in s 7 of the Sentencing Act. In relation to sentencing purposes, the offender’s mental health condition is relevant. While there was no direct causal connection between his schizophrenia and the offences, there was an indirect connection. The offender’s mental health condition makes him a less appropriate vehicle to set an example to others, rendering general deterrence a somewhat less prominent sentencing objective, although it is not entirely irrelevant. There is no suggestion that the offender’s experience of imprisonment will be harsher because of his mental health condition.
The Court has been taken to a number of sentences for aggravated robbery. Most cases were considered by Burns J in R v Keenan [2014] ACTSC 342.
The Court was also taken to the ACT Sentencing Database, which contains 65 sentences for matters of this nature. The Database indicates that the mid-point for sentencing for matters under s 310 of the Criminal Code (aggravated robbery), is about three and a half years. Three years is also a common sentence. The Database results are consistent with the sentences imposed in the individual cases to which the Court was taken.
Each case turns on its own particular circumstances and the circumstances of this case are somewhat unusual. It is not the typical case discussed in R v Henry (1999) 46 NSWLR 346. Comparisons with that decision are not particularly helpful. However, I bear in mind the factors that were considered in Henry. In this case, the weapon was a syringe. Although not actually capable of causing severe injury it was certainly capable of arousing fear and anxiety in the victims. This offender was not a young offender. Although he was an older offender he had no significant record for offences of this type. The factor of mental illness and the tangled relationship between mental illness, drug addiction and back pain distinguishes this case different from most.
Sentence
The offender is convicted. I impose the following sentences. For the aggravated robbery on the BP service station on 9 August 2014, the starting point for the sentence was three years and four months or 40 months’ imprisonment. Deducting 25% for the plea of guilty, I arrive at a sentence of 30 months, or two years and six months’ imprisonment. That sentence will run from 10 August 2014 to 9 February 2017. In relation to the aggravated robbery at the Caltex service station on 10 August 2014, the starting point for the sentence was four and a half years’ or 54 months’ imprisonment. I have deducted 25% or 14 months, to arrive at a sentence of 40 months or three years and four months’ imprisonment. That sentence will run from 10 May 2015 to 9 September 2018. For the attempt to dishonestly appropriate currency from SupaBarn, I set a fixed term of imprisonment of one month to run from 10 August 2014 to 9 September 2014. That sentence has expired. In relation to each of the transferred matters, the offender is sentenced to the rising of the Court.
The sentences have a total length of four years and one month from 10 August 2014 to 9 September 2018. I fix a non-parole period of two years and two months from 10 August 2014 to 9 October 2016. The offender is eligible for release to parole on 9 October 2016.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 24 February 2015 |
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