R v TX
[2020] ACTSC 157
•17 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TX |
Citation: | [2020] ACTSC 157 |
Hearing Date(s): | 11 February 2020 |
DecisionDate: | 17 June 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [110] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – possess prohibited firearm – plea of guilty – disadvantaged background – guarded prospects of rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT) ss 44, 310 Firearms Act 1996 (ACT) s 42 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 35, 57 Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11 |
Cases Cited: | Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 Blundell v The Queen [2019] ACTCA 34 Brown (aka Davis) v The Queen [2020] VSCA 60 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Butters v R [2010] NSWCCA 1 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 248 Douglas v The Queen (1995) 56 FCR 465 DPP v Kotiau [2020] VSC 245 Fusimalohi v The Queen [2012] ACTCA 49 Hall v The Queen [2017] ACTCA 16 Hili v The Queen [2010] HCA 45; 242 CLR 520 Imbornone v R [2017] NSWCCA 144 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfires v The Queen [2014] ACTCA 46; 245 A Crim R 80 Mun v R [2015] NSWCCA 234 O’Brien v The Queen [2015] ACTCA 47 R v Campbell [2010] ACTCA 20 R v Collier [2019] ACTSC 358 R v Despotovski [2020] NSWDC 110 R v Greentree (No 2) [2017] ACTSC 315 R v Harrison [2001] NSWCCA 79; 121 A Crim R 380 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Jacky [2017] ACTSC 392 R v Kilic [2016] HCA 48; 259 CLR 256 R v Martin [2007] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Muell [2019] ACTSC 77 R v Mumberson [2011] NSWCCA 54 R v Nicholas [2019] ACTCA 36 R v Pham [2015] HCA 39; 256 CLR 550 R v Salcedo (No 3) [2018] ACTSC 305 R v Stott (No 2) [2020] ACTSC 62 R v Thompson [2017] ACTSC 141 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCA 109 Scott v R [2020] NSWCCA 81 Van Zwam v R [2017] NSWCCA 127 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) TX (Offender) |
Representation: | Counsel E Wren (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 264 of 2019 and SCC 265 of 2019 |
LOUKAS-KARLSSON J:
Introduction
On 9 October 2019, TX pleaded guilty to the following offences:
(a)An offence of attempted aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code) (CC2019/8123). The maximum penalty for this offence is 2,500 penalty units or imprisonment for 25 years, or both.
(b)An offence of unauthorised possession or use of a prohibited firearm contrary to s 42(1)(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act) (CC2019/8125). The maximum penalty for this offence is imprisonment for 10 years.
The offender has requested, under Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), that an additional offence of trespass (CC2019/8124), contrary to s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth), be taken into account for the purposes of sentencing in relation to the offence of attempted aggravated robbery.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle.
At approximately 3:50pm on 16 July 2019, two men knocked on the door of Mr Cargill’s residence in Florey. There were a number of people inside the residence at the time.
Mr Cargill opened the door and the two males entered the house, saying words to the effect of “where’s Smiley” or “the old lady”. Smiley is the nickname of Ms Hodges, who was also a resident of this property and was inside at the time. Mr Cargill directed the men to Ms Hodges’ bedroom and allowed them to enter the house.
The offender and co-offender, who remains unidentified, walked towards Ms Hodges’ bedroom and knocked on the door. Ms Hodges and Ms McDonald were inside the bedroom.
The offender opened the bedroom door and Ms Hodges saw him but did not recognise him. He was holding a firearm that was pointed towards the ground, in her direction. Both the offender and co-offender entered the room and said words to the effect of: “Where’s the gear? Where’s the money? We were told you’d be difficult. We’ve been sent from Victoria. You talk too much.”
The co-offender began searching the room. He picked up a mobile phone from a table and attempted to smash it. The offender and co-offender then brought Mr Topley, another person in the house, into the bedroom and threw him onto the bed. They stood over Mr Topley and demanded that Ms Hodges produce “something”. Ms Hodges told them to leave Mr Topley alone.
The offender then struck Ms Hodges with the butt of the firearm. She was struck on the left side of her face and felt immediate pain. The offender said “you’re coming with us” to Ms Hodges and they left the room with her.
Ms McDonald left the bedroom and exited the house. She ran to the front of the house and saw Ms Hodges’ daughter, Ms Lees, at the front of the property with her children. Ms McDonald told Ms Lees what was happening inside, and Ms Lees called 000. The two women then departed the location in Ms Lees’ vehicle with Ms Lees’ children.
A short time later, Ms Hodges heard someone call ‘cops’ and the co-offender and offender ran to Ms Hodges’ bedroom. The sound of breaking glass emanated from the room.
Ms Hodges returned to her bedroom and saw the window was broken. The offender and co-offender were no longer present.
At about 4:05pm, police arrived and entered the property. Some police entered the rear yard and observed the offender exit the residence through a rear window. Police directed the offender to stop, however, he failed to comply and ran through the backyard and scaled a fence, fleeing along Clements Street.
A short time later, police located the offender and observed him scale a fence and enter the backyard of a residence on MacCallum Circuit, Florey. Police entered the garage of that residence and located the offender hiding in a corner under some furniture. He identified himself. The offender was placed under arrest and cautioned.
Police observed a grey backpack located in the area of the garage where the offender had been hiding. Police checked the backpack and located a side by side double barrel shortened shotgun.
The resident of the property advised that the backpack did not belong to him and that the offender did not have permission to be on his property.
The offender was taken to the ACT Watch House, where he was searched. A red 12 gauge shotgun round was located in his jacket which matched those found in the shotgun.
That evening, an AFP firearm team member attended the location and identified the firearm as an unknown model double barrel Liege brand 12 gauge break action shot gun. The examination revealed that the shotgun was loaded with two 12 gauge shotgun rounds.
Victim Impact
The prosecution submitted that, although no victim impact statements were before the Court, the Court can readily infer that “this would have been a terrifying incident for those inside the house.” The prosecution further noted that the strike from the firearm caused “immediate pain” to Ms Hodges.
Courts understand the serious effects of such offences as these on the victims. The Court acknowledges the significant impact that these offences have had, and will continue to have, on the victims.
Objective Seriousness
Counsel for the offender and prosecution agreed that the offence was a serious example of that class of offence.
Counsel for the offender conceded that the aggravation of the firearm renders it an objectively serious example of that class of offence (T 41.10-13). Counsel did, however, point to the fact that the firearm was not discharged. Further, it was a
“somewhat unsophisticated” offence that involved “little in the way of planning” (T 42.10-15).
In written submissions, the prosecution referred to the fact that the offence was aggravated by statute by the possession of a prohibited weapon and the presence of another person. The prosecution referred to the following features as contributing to the objective seriousness of the offending:
(a)the weapon was loaded and was pointed towards the victim;
(b)the offence occurred in Ms Hodges’ home, where she was entitled to feel safe;
(c)the circumstances of the offending were such that Ms Hodges and Ms McDonald were effectively “ambushed” and unable to leave the room; and
(d)the offence was planned and not spontaneous.
The prosecution further submitted that, although there was a co-offender, it was the offender who had possession of the weapon and assaulted the victim with that weapon, and therefore his culpability for the offences is high.
I find the offences to be at a higher level of objective seriousness: see R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. Nevertheless, it must be stated that references to low, mid and high range are unlikely to be helpful in this jurisdiction. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]). The relevant identifying features are set out in the broadly agreed submissions of the prosecution and defence referred to above. As to planning, the offence was not spontaneous; however, the planning, such as it was, was of a limited nature.
Subjective Circumstances
In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender on 21 January 2020.
The offender is 32 years old. He was born in Bega, New South Wales, and is the youngest of three siblings. He reported drug presence in his family home growing up. When the offender was around nine years old, his father left the family home and the offender resided with his mother. The offender claimed to be the victim of physical and sexual violence perpetrated by his mother’s partners. Nevertheless, he reported a positive relationship with his parents.
The offender has two children, including one stepchild. Prior to the offender’s current period of custody, he and his partner were separated, but living together and co-parenting. The offender reported that his post-release plan was for the children and their mother to relocate to the ACT, but that those plans were not finalised. His alternate post-release plan was to reside with his mother in NSW, however, her home has been lost in the recent bushfires, so this option was also not confirmed.
The offender reported that he was expelled from school prior to completing year nine and attributed his behavioural issues at school to his troubled home life. Since leaving school, the offender reported having a variety of trade-related positions. He has had limited casual work since 2015, when he was injured. At the time the PSR was prepared, the offender was employed in the laundry at the AMC.
The offender reported drug use from 11 years of age, and acknowledged the need for intensive drug rehabilitation, including possibly residential rehabilitation. In January 2020, the offender was drug tested in custody and returned a positive result for methamphetamine, amphetamine and opiates.
The offender disclosed previous diagnoses of post-traumatic stress disorder, anxiety, and depression. He was assessed by Forensic Mental Health Services upon induction into custody on 17 July 2019, however, he showed no evidence of major mental illness and his file was closed shortly thereafter.
The offender accepted the police statement of facts. He attributed his return to the ACT, his anti-social associates, and a drug debt as contributing factors to his offending behaviours. The report writer stated that the offender provided limited insight into managing those circumstances beyond claims that he believed he no longer had any outstanding debts. He did not show empathy for the victim of the offence and identified himself as a victim.
Forensic Psychiatrist Report
Counsel for the offender tendered a report by Dr Richard Furst, a forensic psychiatrist, dated 5 December 2019. The report included the following and made reference to R v Jacky [2017] ACTSC 392, in which the offender was a victim:
I note that TX instructs that he was forced into committing the offence “by a certain club” [outlaw motorcycle club], apparently the same ‘club’ [but not the same person] responsible for shooting him in the leg 4 years ago.
…
PSYHIATRIC HISTORY
TX was born in Bega and grew up in Bega. There were no apparent developmental difficulties and he did reasonably well in primary school … Things deteriorated at high school, TX stated he went ‘off the rails’ after his parents separated. He was generally rebellious and was truanting at high school.
His mother was a heavy drinker and frequently invited her boyfriends home, who were also drinking heavily. TX described the home situation as “chaotic.” He hardly saw his father, who had moved to Sydney.
He stated that he was sexually abused around the age of 11 years by one of his mother’s boyfriends, citing that as a reason for him ‘going off the rails’ in his early teens. He said he never told his mother what happened as he felt too ashamed and embarrassed, trying hard to block things out and not talk about his abuse. TX was expelled from Bega High School halfway through Year 9.
…
He described a history of depression and anxiety getting back to his childhood/teenage years.
…
There was an extensive history of drug use, negative peer associations and associated criminal behaviour in his teens and 20s … Things settled down somewhat after [his partner] fell pregnant …
DRUG AND ALCOHOL HISTORY
TX abused cannabis from around the age of 11 years. His use of cannabis was ongoing in his teens, then decreased in his 20s.
TX was truanting and began to drink alcohol from the age of 12-13 years. He subsequently drank heavily throughout his mid to late teens. He had heavy binges approximately 3-4 times per year.
He used MDMA and amphetamines from the age of 14-15 years. TX also used ‘ice’ [methylamphetamine], from the age of 17-18 years. He used a lot of ice at the time, with occasional use of heroin.
…
Most of his previous offences and associated sentences served in custody were drug-related, including 4-months in custody in NSW for theft/break and enter in 2011.
TX was involved in further drug/driving offences, including a police pursuit on 18/03/16, being incarcerated in NSW until 17/12/16. His relationship with [his partner] broke down during his period of custody in 2016.
…
OFFENCE RELATED ISSUES
TX stated he was on the South Coast earlier this year when he “ran into” members of the same outlaw motorcycle club he had problems with in 2015, a reference to him being shot at the time. He stated they called him and said he had to come to Canberra to “sort it out,” a reference to the debt they “put on him.” He did not know the victim, but was directed to commit the offence in question in relation to his ‘debt’.
TX said he regretted his actions, adding, “It’s pretty shit … I’ve never robbed anyone like that … I take responsibility for what I did. I feel like I had no choice at the time. I was in the car with people who previously shot me … I take responsibility. I put myself in that situation … I could have gone to the police, but I was too afraid to go to the police.”
…
RECENT PROGRESS
... TX said he wanted to get his ‘mental health’ together, stay off drugs, get back to work and have a ‘normal life.’
…
OPINION REGARDING SPECIFIC QUESTIONS
… TX’s primary mental conditions relate to his long-term addiction to drugs of abuse, especially methylamphetamines, consistent with a substance abuse disorder/addictive disorder, and the longer-term emotional and psychological effects of apparent child sexual abuse victimisation.
Dr Furst recommended that the offender be referred for further assessment with psychiatric services through ACT Mental health.
Motivation for Offending & Evidence of Offender
The offender stated to Dr Furst that he was forced into committing these offences by the same outlaw motorcycle gang (OMCG) that was responsible for shooting him in 2015. The prosecution did not accept this explanation for the motivation behind the offending.
The prosecution submitted that if the Court was satisfied that the offender had felt it necessary to commit these offences because he had previously been shot by the same people, then that would be a “significant factor”. Nevertheless, the prosecution submitted that “in circumstances where it is an untested statement which the Crown would say is self-serving, the Crown’s position is that your Honour would place little weight on it” (T 16.39-43).
Consequently, the offender then gave evidence in relation to his motivation for committing these offences. He gave evidence that, when he was discharged from the Alexander Maconochie Centre (AMC) in 2016, he owed a $2,000 debt for drugs he had used in prison. Further, he stated (T 22.40-43):
…when I left the AMC, I was asked quite forcibly to go pick up some phones for these said people and come back and throw them over the fence, which I said I would do, but I didn’t do it…
The offender gave evidence that he was in Canberra for three to four weeks following his release from the AMC in 2016. During that time, he was repeatedly messaged about throwing phones over the fence of the AMC and was told that his debt had increased from $2,000 to $20,000 (T 23-24). He stated that he was not concerned about the consequences of not following through, as he was leaving Canberra with his partner and children and he “just put it out of [his] mind” (T 23.7-10).
The offender gave evidence that he threw away his phone and did not hear from these people again until approximately one month before committing the current offences (T 24.30-36). Around one month prior to the current offences, the offender ran into two members of the group and gave his phone number to one of those people (T 25.24-25). About a week later, the offender once again began receiving messages about repaying the debt (T 25.12-20).
The offender expressed that he was concerned about these people coming to his house, where his family was, and he “felt so guilty” because he hadn’t told the mother of his children about the debt (T 25.20-30).
The offender gave evidence that he was asked to come and see the man who was sending him messages, which he did (T 25.28-29). While at the house, he was asked by the co-offender to come and help with a robbery in Dickson (T 27.11-13):
…it was said that if I went with him and did the job with him, which would have been going in and robbing a drug dealer, that my debt would be cleared and I’d be all good.
When the intended victim of that robbery did not return home, the co-offender and offender decided to attend a residence in Florey, where the current offences were committed (T 27.13-28).
In cross-examination, the offender confirmed that he was unwilling to tell the Court who the debt was owed to, in relation to both the outlaw motorcycle gang involved, and the people involved (T 28.15-21). He further agreed that the shooting in 2015 had nothing to do with a drug debt, however, the person who shot him was known to him to be a member of the motorcycle gang involved in the drug debt (T 28.28-36).
When cross-examined about the connection between the shooting and the outlaw motorcycle gang, the offender stated: “I’m not going to say these people were involved in the shooting. What I’m saying is that the shooter himself was involved in the club” (T 29.46-30.2).
When asked by the prosecution “wasn’t he scared” when he was asked to throw the phones over the fence in 2016, the offender replied (T 30.17-23):
I wouldn’t say that I wasn’t scared. It’s hard to give you a good explanation on my reasoning at the time. I was a drug-affected person. At that point I was in so much trouble with my family at the time, I just wanted to get out of Canberra and forget everything and just – I guess I just convinced myself that it would blow over, which I thought it had.
The offender gave evidence that, once these people began contacting him again, he eventually began to take the debt seriously, as he was concerned these people would come to his house, where he was staying with his ex-partner and children (T 32.12-19). When it was suggested by the prosecution that he was not concerned at that time about attending Canberra, he responded: “No, I was concerned, I was very concerned, but it was put to me that, ‘Come up, we’ll work it out,’ and, you know, it would be okay” (T 32.23-25).
The cross-examination concluded with the following exchange (T 37.42-38.2):
You accept though, TX, that there was no one else in that room that was forcing you to act in a particular way? – No. I take responsibility for my part in this. It’s my choices in life, the things I’ve done in my life that lead to things like this. I take responsibility for it. I’m not trying to completely unload and say, like – and at the same time, I had a choice to make as well. I could have said no and dealed with other consequences. Now, I’m just telling you, and I’m sure it’s hard for you to believe but these are the facts of the incident.
In oral submissions, the prosecution accepted that there may be “a ring of truth” in terms of why the offender came to the ACT, after being paroled in New South Wales and setting up a life there: “there seemingly is no other reason for him to have been in the ACT” (T 53.39-43). While the prosecution accepted that it was “difficult to point to anything in particular in relation to his evidence” that would cause the Court to “outright” reject it (T 54.1-2), the prosecution submitted the following (T 54.21-25):
…in circumstances where the offender has admitted that no one ultimately forced him to commit the offence, that he chose to commit this offence for whatever reason he now puts before the court, the Crown would be saying that it doesn’t mitigate the offence in any real way and is not a factor that your Honour could take into account significantly.
In oral submissions, counsel for the offender submitted that these circumstances, and the context surrounding the offending, reduce the offender’s moral culpability (T 27-32). The prosecution disagreed with this submission and stated: “it’s difficult to find that this reduces someone’s moral culpability solely by reference to another imagined person’s circumstances or reason why they may have committed the offence” (T 59.38-41).
The prosecution further made submissions against any finding that the offender was not a volunteer in his committing the offence, as he freely acknowledged that he had not been forced into it and that his actions were his own (T 59.41-45).
It was ultimately accepted by both parties that the context of the offence reduces the moral culpability of the offender, but not to a significant extent (T 60.7-9). I accept the ultimate submission of both the prosecution and defence as it accords with my view of the evidence. The moral culpability of the offender is reduced to a limited extent, that is, by way of relevant context.
Remorse
Counsel for the offender submitted that the offender did express some remorse to Dr Furst, stating that he “took responsibility for his actions but qualified by the belief [by saying] at the time he felt he had no choice” (T 40.38-40).
Prosecution agreed that there was “some scope” to find that the offender regrets his actions. Nevertheless, it was submitted that, beyond what the offender said to Dr Furst, there was limited evidence that the offender was remorseful, and, therefore, any consideration of remorse should be given limited weight (T 58.8-22).
The offender did not give evidence related directly to his remorse for the offences.
The courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18], Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ, Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 at [44], Mun v R [2015] NSWCCA 234 (Mun) at [36] and R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18], Mun at [37] and Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v R [2017] NSWCCA 144 and R v Harrison [2001] NSWCCA 79; 121 A Crim R 380, where the sentencing judge in each case was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse. Accordingly, I do not ascribe significant weight to the remorse expressed.
Conditional Liberty
The offender was subject to parole orders in New South Wales at the time of offending.
In R v Tran [1999] NSWCA 109 at [15], Wood CJ stated:
Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.
The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence (T 47.32.43). I take the conditional liberty into account as an aggravating factor on sentence.
Criminal History
The offender has a criminal history, with convictions in the ACT, NSW, and Victoria dating back to 2007. Relevantly, the offender has prior convictions for breaking and entering, aggravated burglary, and firearm offences.
In 2009, the offender was convicted for a number of break and enter offences in NSW. In 2017, he was convicted for firearms offences in Victoria. The offender was most recently convicted for an aggravated burglary in the ACT in 2015. For this offence, he received a sentence of 8 months’ imprisonment, suspended after serving approximately 4.5 months and upon entering a good behaviour order for a period of 18 months.
Disciplinary History in Custody
The PSR notes that, while on remand for these charges, the offender tested positive for illicit substances and was subject to disciplinary action in relation to an assault.
Plea of Guilty
The offender entered pleas of guilty in the Magistrates Court, without having previously entered a plea of not guilty and prior to a brief being prepared.
Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua and Blundell v The Queen [2019] ACTCA 34.
Counsel for the offender submitted that the plea was entered at the earliest reasonable opportunity (T 40.12-13). The prosecution accepted that it was a very early plea of guilty (T 40.3).
I therefore allow a 25% discount for the pleas of guilty.
Time Spent in Custody
The offender has spent 338 days in custody from 16 July 2019 solely referable to these offences.
Cases
Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent
The following cases from this jurisdiction provide a “yardstick”, as referred to by the High Court, in relation to this sentencing exercise: Hili at [53]-[54].
I was referred to the following cases by the prosecution:
(a) R v Thompson [2017] ACTSC 141: The offender robbed a liquor store in company, armed with a rifle. The value of the property taken was $4,123.85. The offender had a significant criminal record, including convictions for robbery and aggravated robbery. There was no reference as to whether conditional liberty was a factor. There was no reference as to whether the firearm used in the robbery was loaded (at [6]). For the offence of aggravated robbery, he was sentenced to a term of 4 years and 6 months’ imprisonment. This was reduced by 25% from a sentence of 6 years, which would have been imposed had the offender not pleaded guilty. For possessing a prohibited weapon, he was sentenced to a term of 1 year and 10 months’ imprisonment. His overall head sentence was 5 years and 11 months, with a non-parole period of 4 years. An appeal against the sentence of Burns J was dismissed.
(b) R v Nicholas [2019] ACTCA 36: The offenders entered a hotel armed with a sawn-off shotgun. Palmer pointed the gun at the complainant, demanding he lie on the ground, and then pointed the gun at another employee, directing him to open the safe. It was unclear whether the gun was loaded. The offenders left the premises with $3,500 in cash. Following a successful Crown appeal, Palmer was sentenced to 5 years and 10 months imprisonment for that offence. Nicholas was sentenced to 5 years and 4 months imprisonment for the same offence. Both offenders received a discount of approximately 10% due to their pleas of guilty. Nicholas and Palmer were sentenced for a number of offences over a range of dates and received head sentences of 8 years and 10 months and 10 years, respectively. Both offenders were subject to conditional liberty at the time of offending (at [23] and [25]).
(c) R v Muell [2019] ACTSC 77: The offender committed an attempted aggravated robbery in company, and with an offensive weapon. The offender attempted to rob a taxi driver with a handgun and a knife. He threatened the taxi driver with the knife and the weapon, and demanded he hand over his wallet and money. The prosecution could not establish that the handgun was capable of discharging or was loaded at the time (at [7]). The offender had multiple previous convictions and was on bail for unrelated offending at the time of the offence (at [20] and [10]). He was sentenced by Mossop J to 3 years and 10 months imprisonment for the attempted aggravated robbery, receiving a 15% discount for his plea of guilty. The offender was sentenced in the context of a number of other offences, including two aggravated burglaries, and received a head sentence of 6 years and 4 months.
The prosecution also noted the New South Wales guideline judgment of R v Henry (1999) 46 NSWLR 346 (Henry), in which the NSW Court of Criminal Appeal described a category of armed robbery with the following features:
(a) young offender with little or no criminal history;
(b) weapon like a knife capable of killing or inflicting serious injury;
(c) limited degree of planning;
(d) limited, if any, actual violence but a real threat thereof;
(e) victim in a vulnerable position such as a shop keeper or taxi driver;
(f) small amount taken;
(g) plea of guilty, the significance of which is limited by a strong Crown case.
The prosecution submitted that, although Henry is not binding, the ACT Court of Appeal has described it as persuasive authority: Hall v The Queen [2017] ACTCA 16 at [49]. In Henry, the Court considered that an offence in the above category should generally attract a sentence of four to five years.
The prosecution submitted that the features of the offending in this case make it more serious than the typical category of offending described in Henry.
Counsel for the offender referred to the following cases in oral submissions (see T49-50):
(a) R v Collier [2019] ACTSC 358 (Collier): The offender pleaded guilty to aggravated burglary. The offence involved the offender and four co-offenders entering the victim’s house. A number of the co-offenders inflicted serious harm to the victim, however, the offender himself was not involved in any actual or threatened harm to the victim. The offender took two laptop computers from the premises. The offending was assessed at mid-range, and subjective factors such as childhood disadvantage were taken into account on sentence. The offender was sentenced to 18 months’ imprisonment, suspended after 6 months upon entering into a good behaviour order for a period of 12 months. The sentence was reduced from 20 months on account of the plea of guilty.
(b) R v Greentree (No 2) [2017] ACTSC 315 (Greentree): The offender pleaded guilty to an offence of aggravated burglary. The circumstances of the offence were that the offender entered the premises of an acquaintance (the victim) with three men. The victim was assaulted, threatened, and robbed. His injuries included a stab wound caused by chef’s scissors. The offender also struck him with a golf club. The offender suffered from schizophrenia and had a long history of substance abuse and criminal activity. For the aggravated burglary offence, the offender was sentenced to a term of imprisonment of 2 years and 9 months, including a 10% discount for the plea of guilty. A sentence of 9 months for common assault was wholly concurrent with the burglary sentence. The offender’s non-parole period was 2 years.
(c) R v Salcedo (No 3) [2018] ACTSC 305 (Salcedo): The offenders were found guilty after a trial of the following offences: aggravated burglary; making a threat to inflict grievous bodily harm; recklessly inflicting actual bodily harm; and intentionally inflicting grievous bodily harm. The facts of the case were that the offenders attended the house of the victims, where one of the offenders pointed a firearm at a young person. One of the offenders fired and hit the young person, and hit one of the adult victims. Both offenders were sentenced to 7 years of imprisonment for the aggravated burglary. The overall sentence for Mr Salcedo was a sentence of 10 years with a non-parole period of 5 years. The overall sentence for Mr Stretton was a sentence of 11 years with a non-parole period of 6 years and 5 months. Mr Stretton was also sentenced in relation to an unrelated matter.
Counsel for the offender submitted that the offence was “on all fours with the cases of home invasion” (T 49.26-27) and drew the Court’s attention to the above cases. Counsel submitted that the case of Salcedo was “on another level again” from TX’s offending (T 50.12-14), while acknowledging that the other cases referred to, Collier and Greentree, were not as serious as the current offending before the Court (T 49.29-50.7).
Additional Offences
As discussed earlier, the offender has requested that, under Part 4.4 of the Sentencing Act, an additional offence of trespass (CC2019/8124) be taken into account for the purposes of sentencing in relation to the offence of aggravated burglary.
A number of relevant principles in relation to consideration of additional offences were enunciated by the Court of Appeal in R v Campbell [2010] ACTCA 20 from [43]-[50] (Campbell), including:
(a)the Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal (at [43], Sentencing Act s 57(1));
(b)any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account (at [46], Sentencing Act s 57(1));
(c)in taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution ([47]) and in taking them into account they will no doubt be considered in the assessment of the offender’s character and prospects of rehabilitation (at [50]);
(d)it is not necessary for a court to indicate precisely what effect the taking into account the additional offences has (at [49]) and, while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so (at [50]);
(e)“taking offences into account” means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result of increasing, or changing the nature of, the sentence to be imposed (at [50]); and
(f)the offender is not to be sentenced for the additional offences (at [50]).
I will take into account, when determining the appropriate sentence for the aggravated burglary offence, the additional offence of trespass referred to above at [2]. I also have regard to the principles outlined in Campbell as to how this offence is to be taken into account.
Statutory Considerations
In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.
Purposes of Sentencing
The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
Counsel for the offender submitted that “in circumstances where the commission of the offence is not entirely as a volunteer, it may be that specific deterrence in this instance has a lesser role to play” (T 46.5-7). In response to this, the prosecution submitted that any reduction in the need for specific deterrence as a result of the contextual background is offset by his criminal history and understanding of the consequences of his actions (T 54.38-46). In my view, specific deterrence has a clear role to play in the sentencing of the offender.
The prosecution submitted that, although the offender is relatively young, his criminal history is such that his prospects of rehabilitation are poor. They noted that he has been provided repeated opportunities in the form of suspended sentences and parole orders to rehabilitate himself. In oral submissions, the prosecution submitted that the offender’s prospects for rehabilitation were “guarded” (T 52.2-3).
Counsel for the offender agreed that his prospects may be guarded, however, noted that the offender was only 31 years old and has not yet attempted residential rehabilitation (T 52.20-23).
Overall, on the evidence, it must be said that the prospects for rehabilitation remain guarded, as conceded by both the prosecution and defence.
Considerations Related to the Offender’s Disadvantaged Background
It is clear from the PSR and Dr Furst’s report that the offender has experienced a very disadvantaged childhood. The childhood disadvantage is evident. Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
The offender’s drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: Henry at [193]-[203], [273], [347] and R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30].
In relation to the offender’s addiction, counsel for the offender referred to the case of Douglas v The Queen (1995) 56 FCR 465 at 470, where von Doussa, Higgins and Nicholson JJ stated:
The age of an offender when he or she became addicted and the degree of judgment open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct.
I take these principles into account on sentence.
Impact of COVID-19 on a Sentence of a Term of Imprisonment
On 16 April 2020, the parties made further sentencing submissions in relation to the impact of the COVID-19 pandemic on a sentence to a term of imprisonment.
Counsel for the offender submitted that people in correctional and detention centres are at a higher risk of contracting COVID-19. It was further noted that in-person social visits at the Alexander Maconochie Centre (AMC) have been suspended since 22 March 2020.
Counsel for the offender submitted that the COVID-19 pandemic was relevant in relation to the following sentencing considerations: the impact of health issues; onerous conditions of custody; hardship for family and dependants; the safety of the sentenced prisoner in custody; and the state of uncertain suspense.
In relation to the more onerous conditions of custody due to COVID-19, counsel for the offender highlighted the cases of Brown (aka Davis) v The Queen [2020] VSCA 60 (Brown) and R v Stott (No 2) [2020] ACTSC 62 (Stott). In Brown, Priest and Weinberg JJA state at [48]:
With regard to the COVID-19 pandemic, and the submission put forward [by] the applicant, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system … and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.
In the recent ACT decision of Stott, Elkaim J stated:
The curtailment of visiting rights is a relevant factor… [that] does amount to a change of circumstances. Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits. In particular, contact with family is an important element in the life of a person resident at the AMC.
In written submissions, counsel for the offender stated the following:
Ultimately, the defence submits that the prohibition on visitors being able to attend the AMC, in addition to the other restrictions imposed within the AMC in terms of movement and activities otherwise enjoyed by detainees and sentenced prisoners, gives rise to detainees and sentenced prisoners having a more onerous and harsh experience while in custody.
In oral submissions, the prosecution indicated that they did not cavil with the offender’s submissions on the relevance of COVID-19, both in relation to the increased risk of infection and the fact that a period of custody is likely to be more onerous in the current circumstances (T 66.42-67.8).
The prosecution tendered a letter under the hand of Ms Karen Grace, Executive Director of Mental Health, Justice Health and Alcohol and Drugs Services within Canberra Health Services, dated 15 April 2020. The letter contained the following:
People in closed environments such as prisons are at increased risk of infection because of the nature of those environments. However, significant preventative and contingency planning and preparation has, and will continue to be, undertaken to minimise and manage the risk to correctional detainees, staff and visitors.
In oral submissions, counsel for the offender noted that, as per the psychiatric report of Dr Furst, the offender suffers from anxiety and depressive symptoms. While this may be “not outside the norm or a common experience for the prison population”, counsel for the offender submitted that these mental health concerns can be taken to be exacerbated by the current pandemic (T 70.25-35). Appropriately, counsel for the offender did not seek to propose any numerical discount in relation to this submission, but rather noted that the pandemic, combined with the offender’s mental health condition, can be taken into account as making his time at the AMC more onerous (T 71.6-32).
I accept the submissions of both the offender and the prosecution in relation to COVID-19. In particular, in this context, I note the social consequences in relation to the suspension of in-person prison visits. I take this into account as a relevant factor on sentence.
In relation to the impact of COVID-19, it is necessary in the individual case to take into account both health consequences and social consequences. On the evidence before the Court, it appears the AMC is managing the health risks appropriately at this stage. There is no evidence before the Court that the respondent is in a high-risk category in relation to physical health consequences. The social consequences, as I have indicated, are nevertheless of significance, as discussed in Stott.
Courts around Australia have made a number of statements concerning COVID-19 and sentencing. Suspension of visits make incarceration more onerous: Scott v R [2020] NSWCCA 81 at [166]. Prison systems remain free; community infection rates are trending downwards. However, it is acknowledged that while the risk of infection remains and related restrictions are in place, the consequences for prisoners are significant: DPP v Kotiau [2020] VSC 245 at [75]. Absence of visits from family and friends is an additional hardship that must be synthesised along with other matters: R v Despotovski [2020] NSWDC 110 and Brown at [48].
Other Relevant Considerations
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59, R v Meyboom [2012] ACTCA 48 at [66] and Zdravkovic at [71].
In relation to concurrency, the prosecution accepted that some level of concurrency between the two offences would be appropriate (T 43.5-7). Counsel for the offender submitted that total concurrency, or at least significant concurrency, would be appropriate (T 44.8-9). There will be a significant level of concurrency in relation to the related charges before me.
In that regard, I refer to the following passage from O’Brien v The Queen [2015] ACTCA 47 at [26], citing Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:
[W]here offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
I take these principles into account on sentence. In particular, I note the importance of avoiding double counting in light of the related nature of the offences.
Sentence
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the related offences and the subjective matters.
The appropriate sentence for the offence of attempted aggravated robbery (CC2019/8123) is 6 years and 8 months reduced to 5 years on account of the discount for the plea of guilty.
The appropriate sentence for the firearm offence (CC2019/8125) is 16 months reduced to 12 months on account of the discount for the plea of guilty.
Overall, there will be a sentence of 5 years and 3 months with a non-parole period of 3 years and 2 months taking into account the appropriate period of concurrency and the principle of totality.
Orders
I make the following orders:
(a) I record convictions in relation to the offences.
(b) In respect of the offence of attempted aggravated robbery (CC2019/8123), the offender is sentenced to 5 years’ imprisonment, commencing on 16 July 2019 and ending on 15 July 2024.
(c) In respect of the offence of unauthorised possession of a prohibited firearm (CC2019/8125), the offender is sentenced to 12 months of imprisonment, commencing on 16 October 2023 and ending on 15 October 2024.
(d) I set a non-parole period of 3 years and 2 months, commencing on 16 July 2019 and ending on 15 September 2022.
| I certify that the preceding [110] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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