R v UB
[2019] ACTSC 134
•23 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UB |
Citation: | [2019] ACTSC 134 |
Hearing Dates: | 30 January 2019 and 23 May 2019 |
DecisionDate: | 23 May 2019 |
Before: | Mossop J |
Decision: | See [19]–[21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – make a demand with threat – aggravated robbery – actual use of force against victim – sentencing of four co-offenders – intimidatory effect of co‑offenders in a group – offender a young person at the time of the offence – sentences fully suspended – imposition of good behaviour order |
Legislation Cited: | Crimes Act 1900 (ACT), ss 32(2)(a), 114C |
Cases Cited: | Azzopardi v R [2011] VSCA 372; 35 VR 43 |
Parties: | The Queen (Crown) UB (Offender) |
Representation: | Counsel P Dixon (Crown) J Purnell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender) | |
File Numbers: | SCC 111 of 2018 SCC 135 of 2018 |
MOSSOP J:
Introduction
The offender, who I will refer to as UB, has pleaded guilty to the following charges:
a) one count of make demand with threat contrary to s 32(2)(a) of the Crimes Act 1900 (ACT), the maximum penalty being imprisonment for 10 years; and
b) one count of aggravated robbery, contrary to s 310 of the Criminal Code 2002 (ACT) by joint commission, the maximum penalty being 2500 penalty units or imprisonment for 25 years or both.
The sentencing of the offender UB occurred at the same time as the sentencing of his co-offenders, Caleb Bobbine, Matthew O’Connor and Blake Westbrook.
Facts
I have set out the facts relating to the offence of making a demand with threats and the aggravated robbery charge in my reasons in R v O’Connor [2019] ACTSC 132. Those offences are Count 1 and Count 2 referred to in those reasons. I adopt the facts set out there in relation to UB.
Count 1
3.Between 19 October and 6 November 2017, the first victim who I will refer to as KE, was with some friends outside the Westfield Belconnen shopping mall near one of the exits. KE was 17 years old at the time and was sitting on his BMX bike. KE was approached by Mr O’Connor who told KE to give him $50 because KE had been “talking shit”. Mr O’Connor told KE that if he did not give him the money he would “bash” KE and take his bike.
4.Mr O’Connor then used his phone to call UB, a young person who was at that time 16 years old, and told him to come to the location. UB turned up and took hold of the handlebars of KE’s bike preventing him from leaving. UB and Mr O’Connor continued to demand money from KE and threatened to bash him. UB told KE that he could fight them instead of paying them. KE did not want to fight and, understandably, felt unsafe. He agreed to pay $30 to Mr O’Connor and UB so that he could leave without fighting them or losing his bike. He broke a $50 note at a food store inside the mall then returned outside and gave $30 to Mr O’Connor. KE and his friends then left the location.
5.These facts give rise to the charge against Mr O’Connor and UB that they made a demand of KE with a threat to endanger his health, safety or well-being contrary to s 32(2)(a) of the Crimes Act .
Count 2
6.On 20 November 2017, KE was at a residence in Belconnen with three of his friends including the second victim of the offending conduct, who I will refer to as CC.
7.At about 5:45pm, CC asked to borrow KE’s bike to drop off one of the other friends at the bus interchange. He wanted the bike in case he saw Mr O’Connor, UB or Mr Bobbine so that he would be able to get away more quickly. KE lent him his bike. At around 6.00pm, CC and the other friend arrived at Belconnen bus interchange and sat out in one of the bus shelters. CC had the BMX bike with him. Soon after, he was approached by Mr O’Connor and UB. Mr O’Connor told CC that KE owed them money and that he and UB were going to take the bike as “collateral”. CC told them that it was not his bike to give away. Mr O’Connor did most of the talking during this interaction.
8.The friend who CC had accompanied to the bus stop, boarded a bus and left during this conversation. He communicated with the other friend, who I will refer to as KU, who had been with CC and KE at the house. He told KU that he had seen a group walking towards CC. KU then told his mother who drove to the mall to look for CC. KU and KE set out on foot with the same intention.
9.In the meantime, Mr Bobbine, Mr Westbrook and two unknown females approached CC, Mr O’Connor and UB. Mr Bobbine was almost 21 years old at the time. Mr Westbrook had just turned 18. At this time CC was seated alone in an enclosed bus shelter in the middle of the bus interchange. Mr Bobbine sat on his left, Mr Westbrook sat on his right. CC was told that they were going to take the bike and if he resisted they would bash him. Mr O’Connor took the lead in this discussion. His co-offenders were demanding and aggressive during the conversation. CC felt that he would be physically assaulted one way or the other and did not believe that he could escape by riding away. CC attempted to negotiate with the offenders as he did not want to willingly surrender the bike. He knew the bike had been given to KE by his deceased father. CC agreed to a proposal that he would fight for the bike and if he won he could keep the bike. CC believed that he would only be fighting with one person, namely UB.
10.Mr O’Connor then took the bike and CC the other offenders and the two unknown females went to a rear walkway behind the Hoyts Cinemas. This area was chosen because it was not covered by closed circuit television (CCTV) cameras. There, CC had individual fights with UB, Mr Westbrook and Mr Bobbine. The fights were filmed by Mr O’Connor and Mr Westbrook. The films taken on Mr O’Connor’s phone were tendered. They showed the nature of the fights. UB fought first with CC. UB struck CC in the face numerous times. UB was ultimately struck in the throat by CC. He became tired and pulled out of the fight. Contrary to CC’s expectation, other members of the group then fought him. Mr Westbrook, who had one arm in plaster, fought with CC. He struck CC in the face before becoming tired and pulling out of the fight. Mr Bobbine then fought with CC. He was obviously significantly taller than CC. He struck CC in the face multiple times. CC told Mr Bobbine to stop the fight and said that they could have the bike.
11.Mr O’Connor took the bike. CC was told that if KE paid them $100 then they could get his bike back. The offenders then walked away and entered Westfield Belconnen. During this period UB rode the bike, Mr O’Connor pushed the bike and Mr Bobbine pushed and sat on the bike.
12.After the fights, CC felt dizzy and lightheaded. His face was swollen. He had a cut on his cheek and a chipped tooth. He went back to the bus interchange and into the mall. He was accompanied by two acquaintances. He saw KE and KU and told them what had happened. KU’s mother also found them. She called police and an ambulance. In the meantime, the offenders parted ways with Mr Bobbine who pushed the bike towards the mall carpark.
13.At about 6:40pm, Mr O’Connor and UB approached some seats outside the Target store in the mall where KE and two others were standing. KE asked Mr O’Connor and UB about his bike. Mr O’Connor falsely denied knowing anything about it. Soon after, CC approached them with KU’s mother. She filmed Mr O’Connor and UB for identification purposes. Mr O’Connor and UB subsequently left the area. Police attended and spoke to KE and CC who advised what had happened. KU’s mother took CC to Calvary Hospital.
14.It is this conduct which give rise to the charges against Mr O’Connor, UB and Mr Bobbine that they jointly committed aggravated robbery and the charge against Mr Westbrook that he aided abetted the aggravated robbery. In relation to Mr Westbrook, he pleaded guilty on the basis that he intended to commit an assault, that the commission of the assault in fact aided and abetted the commission of the theft by the other three and that he was reckless about the commission of the theft.
On 24 November 2017, UB, along with the co-offender Mr O’Connor, was arrested by police at Westfield Belconnen and participated in a record of interview.
Objective seriousness
The contravention of s 32(2)(a) of the Crimes Act was one committed by joint commission. In relation to this charge, Mr O’Connor was the prime mover in making those demands. UB only joined in when he was called up by Mr O’Connor. It is clear having regard to the facts that I have found and the age difference between Mr O’Connor who was 22 and UB who was 16 that UB played the lesser role. The offence is in the low to mid range of objective seriousness for a contravention of s 32(2).
Similarly, the aggravated robbery was by joint commission. Mr O’Connor was the leader of the pack. Having said that, UB was involved from the start and took part in the violence inflicted upon CC. The aggravated robbery is at the lower end of the mid range of objective seriousness for this offence. UB’s culpability is less than that of Mr O’Connor and only slightly greater than Mr Bobbine and Mr Westbrook.
Victim impact statement
A summary of the victim impact statement is included in my reasons in R v O’Connor and I adopt what I said there.
23.A victim impact statement prepared by CC was read to the court by counsel for the Crown. The court is obliged to consider the victim impact statement in deciding how the offender should be sentenced: see Crimes (Sentencing) Act 2005 (ACT), s 53. CC had known the offenders since about early 2016. He had previously been harassed and bullied (although the statement does not indicate that this was by the offenders). He had previously moved school in order to avoid bullying. He had been proud to do well at school and obtain his Year 10 certificate. He described that during the fighting he felt threatened, feared for his life and thought he would end up dead. He was sore and upset and embarrassed at the loss of the bike which had been lent to him. He feared what would happen to him in the future. The incident brought up past bullying traumas for him. Since the incident, he has suffered from fear and anxiety when out in Belconnen and elsewhere. He has seen the offenders around and tries to avoid being in places that they frequent. As a result of the assaults, he suffered two chipped front teeth, bruising to his face, chest and neck and concussion that caused him nausea affecting his speech, balance and motor skills for several days.
24.The victim impact statement is consistent with what one would expect from such a violent, bullying, standover exercise. CC however appears to have been more vulnerable to significant consequences from the incident as a result of his previous history of being bullied. I have taken into account the statement in deciding how Mr O’Connor and the other offenders should be sentenced.
Subjective circumstances
At the time of the offending UB was 16 years old. UB’s mother immigrated from Japan in 1999. His father passed away suddenly when UB was six years old. He has a younger brother. His mother describes that he was brought up rather strictly and tended to keep his emotions to himself. He has a supportive extended family in Australia and Japan. Her evidence was that he has performed well academically and socially. He played competitive soccer. He seems to have gone off the rails in college as a result of moving into a different friend group. He started to spend time at Belconnen Mall. This was a matter of concern for his mother and in retrospect, can be seen as a significant adverse sign. He quit playing soccer, took an interest in fighting got tattooed, and started smoking. Since being charged with the crime, his mother reports that his behaviour has improved dramatically, changing his mindset and reconnecting with his family members. She took him back to Japan to separate him from the bad environment that he was in. He returned to college in 2018. He also returned to playing soccer. He completed Year 11 satisfactorily and is planning to go to university.
A reference from the founder of the Motivate Football Academy Australia describes how UB was involved in the Academy for some years before dropping out and only returning in July or August 2018. When he returned he trained hard and was polite and good‑mannered.
He was referred for restorative justice. He successfully participated in a restorative justice conference with the victim of the aggravated robbery.
He has been assessed as suitable for community service work.
Criminal history
He has no criminal history.
Plea of guilty
He pleaded guilty at the callover a week before the trial was due to commence. This was a late plea of guilty but it still had utilitarian value. I take it into account in determining the appropriate sentence.
Time in custody
UB spent one day in custody between his arrest and being bailed by the court.
Consideration
In October and November 2017, UB was 16 years old. He was a willing participant in what his counsel described as a “stupid criminal enterprise”. I accept that he was younger than Mr O’Connor who was the leader of the pack and the moving force in relation to both offences committed by UB.
The evidence of his mother indicates that the period during which the offending occurred was a period when UB lost his way and fell in with the wrong crowd. He illustrates the proposition that young people are very much dependent upon having a stable law‑abiding social group to keep them “on the rails”. Unfortunately, UB seems to have fallen under the malign influence of Mr O’Connor and hence participated in both offences under his tutelage. In sentencing the offender, it is necessary to have regard to the statutory considerations in Pt 8A of the Crimes (Sentencing) Act2005 (ACT), in particular s 133C and s 133D. Further the principles in Azzopardi v R [2011] VSCA 372; 35 VR 43 are also clearly relevant in the case of UB.
Counsel for UB submitted that the appropriate course was to impose a good behaviour order, either with or without a conviction.
In my view, the first offence which was clearly much less serious may be dealt with without conviction. That is because I am satisfied that, having regard to the nature of the offence and the personal circumstances of the offender, it is not appropriate to impose any punishment other than nominal punishment on him. The second offence is more serious and in my view must be dealt with by way of a conviction. In reaching that conclusion I have had regard to the fact that the recording of a conviction may have consequences for him in the future. Such a disposition reflects substantial leniency having regard to the fact that offending conduct as serious as this would generally warrant a custodial sentence.
Orders
The orders of the Court are:
1. On the charge of making a demand with a threat (XO2018/31446), the court directs that the charge be dismissed.
2. On the charge of aggravated robbery (CH2017/994), the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months.
The offender also has a related offence transferred under s 90B of the Magistrates Court Act 1930 (ACT):
a) one count of possession of property suspected of being the proceeds of crime (CC2018/275), contrary to s 114C of the Crimes Act, the maximum penalty being 200 penalty units or imprisonment for two years or both.
He pleaded not guilty to this charge and it was transferred to this court on 14 May 2018. It must be remitted to the Magistrates Court under s 68F of the Supreme Court Act1933 (ACT).
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 31 July 2019 |
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