R v UD (No 2)
[2020] ACTSC 323
•3 December 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UD (No 2) |
Citation: | [2020] ACTSC 323 |
Hearing Date: | 30 November 2020 |
DecisionDate: | 3 December 2020 |
Before: | Elkaim J |
Decision: | See [56] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – multiple offences – joint commission aggravated robbery – possess prohibited weapon – common assault |
Legislation Cited: | Crimes Act 1900 (ACT) s 26 |
Cases Cited: | R v Heikkinen [2006] NSWCCA 50 |
Parties: | The Queen (Crown) UD (Offender) |
Representation: | Counsel R Christensen (Crown) B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 280 of 2019 |
ELKAIM J:
On various dates in 2020, the offender pleaded guilty to the following eight offences:
(a)Four counts of joint commission aggravated robbery (CH957/2018; CH961/2018, CH962/2018 and CC2764/2018), 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 attempted aggravated robbery (CH958/2018), contrary to s 310 of the Criminal Code 2002 (ACT), by virtue of s 44 of the Criminal Code 2002 (ACT). The maximum penalty is 25 years imprisonment, a fine of $400,000 or both.
(c)One count of possess prohibited weapon (CC2765/2018), contrary to s 5 of the Prohibited Weapons Act 1996 (ACT). The maximum penalty is 5 years imprisonment, a fine of $80,000 or both.
The offender also entered pleas of guilty to the following charges which were transferred from the Magistrates Court:
(a)Two counts of common assault (CC2766/2018 and CC2768/2018), contrary to s 26 of the Crimes Act 1900 (ACT). The maximum penalty is imprisonment for 2 years.
The offender was born in 1992. Some of the offences were committed before the offender turned 18. This is why the offender’s name has been anonymised in these reasons.
Exhibit A includes a detailed statement of the facts of each offence. The following is a chronological summary:
(a)On 1 November 2009 the offender and another man gained entry to a McDonald’s restaurant in Fyshwick by forcing the manager, who had just closed the restaurant, to let the men into the premises under threat of the use of a curved and serrated knife. The manager was forced to open the safe from which $7,556.15 was removed. The robbers then departed. The offender pleaded guilty to this robbery on 14 February 2020.
(b)On 13 November 2009 a robbery of the KFC restaurant in Greenway was thwarted after an employee, although threatened with a double barrel shotgun, was able to run away and call for assistance. The offender pleaded guilty to one count of attempted aggravated robbery in respect of this incident on 28 February 2020.
(c)The same Fyshwick McDonald’s restaurant was robbed on 26 June 2010. The offender was again armed with a knife. During this robbery a cleaner was threatened with death. The manager was also threatened. On this occasion $11,151.90 was taken from the restaurant. The offender pleaded guilty on 14 February 2020.
(d)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. The offender pleaded guilty on 23 March 2020.
(e)On 24 December 2017 the Mawson Club was robbed. This time the offender was armed with a Taser gun which was used to threaten a security guard. As a result of the threats the offenders gained entry to the club, but only after the security guard had been ‘tasered’ to the back of his head and another employee assaulted. Once inside the club the security guard and the manager were threatened, as were some patrons. On this occasion $5,354.55 was taken. The offender pleaded guilty to various charges on 21 September 2020.
Each robbery had its own individual victims. There were always staff and sometimes patrons of the various locations involved. Some of the victims have given Victim Impact Statements. Others have not but their experiences are evident on CCTV footage. This is particularly so of the person opening the safe in the first McDonald’s robbery and the person being tasered in the Mawson Club robbery.
Two sisters were working at McDonald’s when the second robbery of this restaurant occurred. The elder was 23 and the younger 15. They have both provided Victim Impact Statements. The older sister received a serious injury to her shoulder which continues to require treatment. Her psychological injuries are perhaps even more substantial. Every aspect of her life has been affected, whether it be family, social or sporting. She says:
I can no longer play soccer and I still cannot go out at night without the fear of something happening. I have difficulty trusting people, I am withdrawn, riddled with self-doubt and have lost countless relationships because of this. I startle easily and when confronted with people dressed in hooded jumpers or facemasks, even on the television, I automatically go into fight or flight mode and sometimes when so terrified, I am physically sick from panic attacks as a result.
In the Victim Impact Statement from the younger sister she frankly reveals some pre-existing mental health issues and the compounding effect of the robbery upon her mental state. She says:
I was so young when it happened - it really impacted everything in my life at that time and beyond.
….
Since the incident I have suffered chronic panic attacks that made me physically sick. Ongoing physical symptoms I have include rashes, cold sores, mouth ulcers, shingles and bowel problems due to stress…. Since the event I have had crippling self-doubt, suffer social anxiety and startle incredibly easy - as an example I can’t sit with my back facing the door at work because someone coming up behind me would startle me into fight or flight.
The victim of the attempted robbery at KFC describes her terror and fear after being confronted with a man in a blonde wig carrying a shotgun. She says she still has nightmares and rarely goes out at night. She concludes her statement in this way:
I do not handle stress well anymore and become anxious easily and this has left me unable to re-enter the workforce as a capable restaurant manager which is what I was working towards.
The saddest thing for me to deal with now is that my children will never know the person that I was. I was a happy, easy-going, fun, confident, out-going person. I am none of those things now.
Persons committing robberies of the type involved here may do so thinking that the weapons they carry and the threats they make will enable them to achieve their objective, perhaps frighten the victims for a little time, but no doubt they will all soon recover. Or perhaps these robbers simply don’t care.
Whatever the case when a robber is caught they must face the consequences of what they have actually done, and must be warned that continuing similar behaviour will not be tolerated by the community and certainly not by the courts. In addition aspiring robbers must know that when caught they will be punished. These are the aims of specific and general deterrence.
The use of weapons, both by simple possession and actual use (the Taser), threats to employees and threats to patrons are all aggravating features of the offender’s conduct.
Objective seriousness is often judged according to what is referred to as the Henry guideline (R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346).
A cautionary note must always be applied to the use of the “Henry guideline”. As stated by Spigelman CJ in R v Heikkinen [2006] NSWCCA 50, at [3]:
When applying the Henry guideline as a check or indicator when there are multiple offences, it is always important to have regard to the issue of accumulation. There is no single correct sequence by which the applicable sentencing principles must be applied, particularly because it may become necessary to review the various elements after resolving an appropriate sentence for each individual offence from the perspective of totality.
Avoiding an overly long head sentence will be of particular relevance to this offender.
Another caveat on the use of the guideline arises in its application to offenders under the age of 18. Simpson J in R v SDM [2001] NSWCCA 158; 51 NSWLR 530, at [40] said that the guideline could be applied to young offenders but it must be done so “flexibly” with weight given appropriately to the particular facts of the case.
In R v Percival [2018] ACTSC 230 Murrell CJ confirmed the use of the guideline but observed that, in the ACT, sentences were generally lower than that stipulated by the Henry guideline. Her Honour continued, at [59];
I infer that a typical sentence of three years’ imprisonment in the ACT reflects two things: first, that most sentences are imposed after a plea of guilty; second, that most offenders have a criminal history involving offences of violence and property damage which has gradually escalated to the point where they commit the very serious offence of aggravated robbery.
The passage just quoted might be seen as particularly reflective of the circumstances of this offender.
Returning to the guideline, and in particular to the assessment of objective seriousness, the Crown submitted that the robberies in this case, in particular those of the clubs, should be seen as more serious than the ‘typical’ armed robbery described at [162] of Henry. In particular the Crown referred to this offender’s substantial criminal history, the use of weapons such as a Taser and guns and the threat of substantial violence, as well as the application of violence.
I generally agree with the Crown’s submission that the objective seriousness of the robberies is above that of a typical robbery but do not agree that the robberies of the clubs are necessarily more serious than the robberies of the fast food outlets.
In some respects, such as the use of the Taser, the club robberies are more serious. However, the restaurant robberies have their own significant circumstances, in particular the vulnerability of staff and the extent of injury inflicted upon them. For example in the first McDonald’s robbery the CCTV footage graphically showed the distress inflicted upon the store manager. In the second McDonald’s robbery the two sisters working at the restaurant were subjected to serious threats resulting in mental injury, and in the case of the older sister, physical injury as well.
I note that the offender has said that the mechanism by which the physical injury was suffered was unintended. I place little weight on this statement. The offender may not have intended to pull the computer monitor down onto the victim but that event was a consequence of the overall violence which attended the robbery. The robber went into the restaurant with an offensive weapon. He can hardly raise in mitigation that a particular injury was unintended.
My overall conclusion about objective seriousness is that each of the robberies was more serious than a typical guideline robbery but it is a futile exercise to manipulate the facts of each individual robbery to create an essential table of increasing seriousness. Each robbery must be treated on its own facts and weight given accordingly in the sentencing process.
As noted above, the offender was born in 1992. He is one of four brothers. His parents separated when he was young, probably due to domestic violence occurring between his parents. His mother formed a new relationship which provided a significantly more positive stepfather. The offender remains in a good relationship with his mother and stepfather.
The offender left school before completing Year 10. He has since spent a good deal of his time in custody and consequently has a limited employment history. The pre‑sentence report records that, at least in the last 12 months, the offender has related well to being in custody and has made an application to be a peer mentor. Perhaps the offender is at last achieving a degree of maturity.
The offender was married for a short time. It seems the marriage came to an end because of the offences he was committing.
The offender drank a lot of alcohol as a teenager but has apparently significantly reduced his consumption since then. He seems to have used drugs from time to time but there is no suggestion of any addiction to an illicit substance.
The offender was prescribed anti-depressant medication between 2008 and 2014 but has since achieved stability in his mental health.
In a further sign of his developing maturity the offender told the authors of the pre‑sentence report that he accepted responsibility for his actions and laid no blame on his co-offenders. To the contrary he suggested that his influence was the dominating factor.
The pre-sentence report says there is a medium risk of general re-offending, arising mostly from the offender’s history, negative peer associations and a lack of education and employment experience.
The offender said that neither alcohol nor drugs motivated his offending. Rather it was due to managing “general life stressors including financial instability”.
More often than not offences of this type are committed by persons intent on securing funds to maintain a drug habit. That is not the case here and to some extent is part of the tragedy attending this young man who for no apparent reason embarked on a life of very violent crime.
The offender has expressed remorse. He wrote a letter to the Court. In this letter he says, inter alia:
I’ve sat in custody trying to make sense of why I’ve done what I’ve done over the years and truth is it probably came down to a mixture of rebelliousness, immaturity, greed and lack of empathy for others. I had always had a short sighted attitude and never looked far into the future. When I was younger I felt sorry for myself and acted like the world owed me something blaming depression and life experiences for my offending behaviour almost as though I had a right to do the wrong thing.
I’m not sure how to apologise to so many victims for repeating the same mistakes over and over again. For the past few years I have wanted to hide under a rock with the shame of the person I’ve been. I’ve left such destruction everywhere I go and the ripple effect of my behaviour is probably immeasurable.
I am sorry for the harm I have caused and I am sorry that I did something to innocent and vulnerable people that will be everlasting in their memory. I have failed my community, my friends, my family, my then wife and my parents as their son which carries such shame.
The Crown has said that I should be cautious in accepting the offender’s expressions of remorse. Firstly they are contained in a letter and not made in the witness box. Secondly they are not the first time such expressions have been made to a court. I was taken to the decision of the Chief Magistrate on 4 July 2016 when sentencing the offender. Her Honour said:
You are clearly a man who is determined to do things the right way now. You have said so and I accept that in saying so you are genuine.
In her final remarks Her Honour wished the offender well and said:
I think you are a young man who has a lot of potential.
About 18 months after the Chief Magistrate made the above comments, the offender committed the robbery of the Mawson Club. The Crown suggested that the preferable approach to the offender’s statements of remorse was the scepticism expressed by Colefax DCJ when sentencing the offender in the New South Wales District Court for offences of escaping from custody and robbery in company. His Honour said of the expressions of remorse by the offender and a co-offender:
It is difficult to determine whether in truth each of these offenders is genuinely remorseful for his recent criminal conduct. In the case of [UD] his demeanour in the witness box was at face value impressive. He spoke with emotion and there were tears in his eyes. However I cannot overlook the fact that similar observations were made by Judge Wells in her remarks on sentence. Ultimately I was left with a distinct impression that the expressions of remorse and the display of emotion in the witness box were rehearsed. I am therefore not persuaded on the balance of probabilities that [UD] does have genuine remorse for his recent offences.
It is evident from the above passage that Colefax DCJ was not only referring to the matters before him but also having regard to sentencing by a different judge, Wells DCJ at an earlier time.
The overall criminal history of the offender is extensive. The offences are many and varied. As the offender himself observes in his letter, he has spent over eight years in prison, yet he is still a young man.
The Crown is correct in warning me to be cautious about the offender’s perceived remorse. Nevertheless, and I may be quite wrong, I do detect a maturity in the offender which will hopefully dictate his future course.
What has influenced me above all is the offender’s assumption of the role of mentor to other prisoners and the seeming good work he is doing in prison. This work finds expression in the letter from Ms Daniela Musolino to the Court where she states her gratitude to the offender for assisting her son, in prison, and steering him away from illicit drugs and bad colleagues.
If he at least recognizes the probability of having the AMC as his permanent address should he continue to offend, that will be some advance.
Another matter raised on behalf of the offender, in mitigation, was the delay since the commission of all but the last robbery in 2017. The other offences were committed in 2009 and 2010. It was submitted that there was no explanation provided for the delay and I should take delay into account according to the guidelines set out in Scook v The Queen [2008] WASCA 114 from [57].
I think there is some basis for the submission although I do not think it can be said that delay has caused significant stress to the offender or given him a belief that he would not be charged. His letters to the Court seeking finalisation of outstanding matters do not apply to the current offences. I will take delay into account but not to any significant degree.
The offender has spent 1025 days (2 years, 9 months and 20 days), in custody in respect of these offences. Notwithstanding the extent of this time he must stay in custody for some time longer. No argument was put to the contrary. No suggestion was made, for example, that an Intensive Corrections Order might be considered.
Going back to take account of the time spent in custody, the starting date for the sentences that I apply will be 15 February 2018.
So far as discounts for the pleas are concerned, I think the parties were ultimately in rough agreement that the discount for the Mawson Club robbery should be 5% and that for the other offences should be 10% or perhaps a little more. I will apply these percentages but with the benefit of some rounding off.
I think the two McDonalds offences should be treated equally and attract a sentence of three years imprisonment (reduced from three years and six months). Because of its early abandonment, the sentence for the attempted robbery at the KFC restaurant will be two years and six months (reduced from three years).
I have dealt with objective seriousness above. The Crown submitted that the Lanyon Club robbery was more serious than that of the restaurants. This was because of its greater sophistication and planning and the larger amount of cash stolen.
There is also the fact that this robbery, like the attempted robbery and the Mawson Club robbery, was committed while the offender was subject to a Good Behaviour Order.
Despite these ingredients, I maintain my view that this robbery should fall in the same general category as the McDonald’s robberies, in particular because of the effect on the victims of those offences. This approach is I think consistent with the flexibility described in SDM.
Therefore, the sentence for this offence will be three years imprisonment (again reduced from three years and six months). I add here each of the sentences committed while the offender was a young person have that fact as an element in the assessment of sentence. It is true that even as a young person the offender was a seasoned criminal, but nevertheless I must give due weight to s 133G(2) of the Crimes (Sentencing) Act 2005 (ACT) which requires a sentence of imprisonment to be for “the shortest appropriate term”.
Finally the Mawson Club robbery, although still within the same very general category of being more than a typical robbery, as described in Henry, has the added significant attributes of the offender’s age, the use of the Taser and the broad range of victims. The sentence here will be four years imprisonment (reduced from four years and three months).
There will be lesser sentences for the use of the prohibited weapon and the common assaults. They will be concurrent with the robbery sentence. The prohibited weapon is the Taser. Its use has been regarded as a significant factor in the sentence for the robbery. The same can be said for the assault on the Taser victim. The other common assault also falls within the broader facts of the robbery.
The total term of imprisonment is 10 years commencing on 15 February 2018 and ending on 14 February 2028.
The nonparole period will be five years and six months to reflect what I hope will be an encouragement for rehabilitation. I will also make the agreed place restriction order.
Unlike the Chief Magistrate I do not wish the offender well. I do however hope he finds a way to stay away from the courts and live a productive life. I do wish the victims well.
Orders:
The offender is sentenced as follows:
(a)For the offence of aggravated robbery on 1 November 2009 (CH957/2018) the offender is sentenced to 3 years imprisonment to commence on 15 February 2018 and end on 14 February 2021.
(b)For the offence of attempted aggravated robbery on 13 November 2009 (CH958/2018), the offender is sentenced to 2 years and 6 months imprisonment to commence on 15 August 2019 and end on 14 February 2022.
(c)For the offence of aggravated robbery on 26 June 2010 (CH961/2018) the offender is sentenced to 3 years imprisonment to commence on 14 November 2020 and end on 13 November 2023.
(d)For the offence of aggravated robbery on 16 August 2010 (CH962/2018) the offender is sentenced to 3 years imprisonment to commence on 14 May 2022 and end on 13 May 2025.
(e)For the offence of aggravated robbery on 24 December 2017 (CC2764/2018) the offender is sentenced to 4 years imprisonment to commence on 15 February 2024 and end on 14 February 2028.
(f)For the offence of use prohibited weapon on 24 December 2017 (CC2765/2018) the offender is sentenced to 6 months imprisonment to commence on 15 February 2024 and end on 14 August 2024.
(g)For the first transfer offence of common assault committed on 24 December 2017 (CC2766/2018) the offender is sentenced to 6 months imprisonment to commence on 15 February 2024 and end on 14 August 2024.
(h)For the second transfer offence of common assault committed on 24 December 2017 (CC2768/2018), the offender is sentenced to 6 months imprisonment to commence on 15 February 2024 and end on 14 August 2024.
(i)The total period of imprisonment is 10 years, commencing on 15 February 2018 and ending on 14 February 2028.
(j)I set a nonparole period of 5 years and 6 months commencing on 15 February 2018 and ending on 14 August 2023.
(k)Following his release from full-time custody the offender is prohibited from being in any ACT licensed club venue for a period of 12 months.
(l)For any breach offences, the offender is re-sentenced to the rising of the court.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim Associate: Date: 3 December 2020 |
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