R v Walpole
[2018] ACTSC 138
•8 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walpole |
Citation: | [2018] ACTSC 138 |
Hearing Date: | 8 May 2018 |
DecisionDate: | 8 May 2018 |
Before: | Mossop J |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – attempted aggravated robbery – assault occasioning actual bodily harm – limited criminal history – pleas of guilty – general deterrence – specific deterrence – consideration of illicit substance use rehabilitation – sentence of full-time imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Criminal Code 2002 (ACT), s 310(b) |
Cases Cited: | R v Choe [2005] ACTSC 83 R v Choe (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 31 May 2006) Simpson v R [2010] NSWCCA 225 |
Parties: | The Crown (Crown) Phillip Walpole (Offender) |
Representation: | Counsel J De Bruin (Crown) S Ramsay (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 342 of 2017 |
MOSSOP J:
Introduction
Philip Walpole has pleaded guilty to two offences committed on 26 July 2017. The first is attempted aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT). The circumstances of aggravation is the possession of an offensive weapon. The maximum penalty for this offence is 25 years imprisonment. The second is assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). The maximum penalty is five years imprisonment.
Facts
The facts are agreed and are set out in detail in the Statement of Facts which was tendered as part of the Crown bundle which became Exhibit 1. The offender hid in the female toilets on Level 2 of the Westfield Belconnen shopping mall at around 5:30pm on 26 July 2017. He hid there for approximately half an hour before the victim entered the toilets. The victim entered one of the cubicles and used the toilet. As she unlocked the door to leave the cubicle, she had her handbag on her left shoulder. The offender forced the door inwards in her direction. He was holding a yellow box cutter in his hand. The victim attempted to close the door and the offender pushed her back using the door. She screamed for help. The offender slashed the box cutter in the direction of the victim’s face and she put up her hands to protect her face. She fell backwards on the toilet and kicked at the offender with both of her legs. The offender reached forward and tried to grab her handbag. She kept kicking and screaming until the offender retreated. He ran from the toilets. The victim then left the toilets and the police were called. She had a five centimetre cut on the back of her hand inflicted during the incident. The offender was subsequently identified and made admissions that closed-circuit television (CCTV) photos captured around the time of the commission of the offences showed him.
A victim impact statement which was tendered indicated, understandably, that the attempted robbery and assault has had a significant traumatic effect upon the victim. It has made her hypervigilant and has had ongoing psychological impacts which have affected her capacity to work and caused her financial difficulties.
Objective seriousness
The attempted aggravated robbery can be characterised as a bag snatching offence. The aggravating feature is that the offender was carrying an offensive weapon. The offending is aggravated by the fact that it occurred in an isolated area where the victim had an expectation of privacy and safety. It was premeditated to the extent that the offender chose the female rather than the male toilets and hid within the female toilets until the victim was alone and hence, vulnerable to an attempted robbery. I assess the objective seriousness as being in the mid range of objective seriousness for this offence. The assault occasioning actual bodily harm is in the mid range of objective seriousness. It involved slashing with a box cutter. The slashing was initially directed towards the victim’s face. The injuries may well have been more serious than they were. The actual bodily harm was a five centimetre cut on the back of her hand. There is no evidence of ongoing issues arising from that wound.
Subjective circumstances
The subjective circumstances of the offender are outlined in the pre-sentence report. They paint a picture of trauma and drug use from a young age. They illustrate that the problems which led the offender to commit the offences that he did are longstanding ones which are significantly influenced by his upbringing from a young age.
He was removed from his biological parents at the age of three and put into foster care. He remained with his foster parents until the age of 16. His childhood was described as disrupted and filled with violence towards his foster family. Between 15 and 18, he had periods living with his biological parents. His father died in 2006. He lived with his mother for around two years from the age of 16. From the age of 20, he returned to the Central Coast where he had a two year period of homelessness. He moved to Canberra at the age of 22 whilst in a relationship and during that period he had housing. He then had another period of homelessness, before being accommodated with assistance from the St Vincent de Paul Society. He then had another six months of homelessness, living on the streets prior to committing the current offences.
He completed Year 10 at school and has had limited employment since then. He struggles to read, write and spell. At times prior to his incarceration, he was receiving government assistance in accordance with the Newstart Allowance program.
Between the ages of 18 and 20, he consumed alcohol to excess. He commenced using cannabis at the age of 14. His use increased at the age of 16. He claimed to be abstinent since the age of 18. He also claimed a period of abstinence from illicit substances between the age of 20 and 25 years.
Since the age of 25, he commenced using methamphetamines. In the period of approximately six months prior to the offences, his methamphetamine habit increased to two or three points daily. He did not identify how he funded this habit.
The picture painted of his mental health is uncertain. His family reported a history of medication or issues relating to Attention Deficit Hyperactivity Disorder, Attachment Disorder and depression, although this was inconsistent with the information provided by the offender.
He indicated that he was under the influence of methamphetamine at the time of the offences. He did not impress the author of the pre-sentence report as comprehending the impact of his offending conduct on the victim or the community more generally. Notwithstanding the adverse comment by the author in this regard, I do not place significant weight on this issue. It is not surprising that a person with his social and educational background and history of methamphetamine addiction would be unable to articulate in any sophisticated way the impacts of his conduct.
The report identifies the need for intervention in relation to illicit substance use, antisocial attitudes, impulse control and decision-making, cognitive and intellectual difficulties, antisocial acquaintances, stable accommodation, and employment and finances. The spectrum of matters in relation to which he needs assistance is indicative of the fact that his criminogenic risks are broad and have their roots in long-term problems that the offender has.
An alcohol and drug assessment service report was also in evidence. The offender stated to the author of the report that being in custody had been “a blessing in disguise” in providing him with an opportunity to detox for a period of time. He was advised about the alcohol and other drug services available within the prison but stated that he did not wish to engage with them at the present time.
The offender also tendered three certificates showing that he has made some progress with education whilst detained in custody on remand. This is a positive sign. Somebody who comes from an educationally limited background and has difficulty with reading and writing will clearly benefit from every educational opportunity that is available within the prison so as to attempt to overcome their long term disadvantage. Clearly enough, becoming employable is one of the many things that the offender will need to achieve if he is to become a law-abiding citizen.
Criminal history
The offender’s criminal history in the Australian Capital Territory is limited. He has no convictions prior to the date of this offence. In New South Wales [redacted for legal reasons] his only convictions as an adult are for a breaking, entering and stealing offence committed in 2006 and a drug offence in 2009 for which he was fined.
Plea of guilty
The offender initially pleaded not guilty and then changed his plea to guilty when the matter was still in the Magistrates Court. He was then committed for sentence. The Crown case was strong. The guilty plea has a significant utilitarian value. I treat the guilty plea as a reasonably early one.
Time in custody
He has spent 284 days in custody solely attributable to these offences. This gives a backdate date for a custodial sentence of 28 July 2017.
Consideration
The Crown pointed to New South Wales authorities which emphasise the gravity of bag snatching offences such as the aggravated robbery in this case: R v Taylor [2000] NSWCCA 442; R v Marinos [2003] NSWCCA 136 and Simpson v R [2010] NSWCCA 225. Those cases refer to the decision of Gleeson CJ in R v Ranse (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Carruthers and Hunter JJ, 8 August 1994) in which his Honour said:
One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present respondent are not trivial instances of disrespectful private property. They are serious breaches of the peace. They are direct attacks upon the security of person and property which the law exists to protect.
These authorities emphasise the fact that protection from aggravated robbery is one of the most basic functions of the criminal law in our society. The fundamental nature of the protection given by the criminal law to persons such as the victim of this offence is emphasised by the maximum penalty of 25 years imprisonment.
In the Australian Capital Territory, Gray J dealt with a case which involved some remarkably similar facts in R v Choe [2005] ACTSC 83. In that case, a similar attack occurred on a female in a toilet cubicle. The injuries inflicted were, however, much more serious involving multiple stab wounds. That gravity was reflected in the finding that the harm inflicted was grievous bodily harm and sentences of seven years imprisonment for the aggravated robbery and four years imprisonment for the offence of intentionally inflicting grievous bodily harm: see R v Choe (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 31 May 2006). In sentencing Mr Choe, Gray J said:
An aggravated robbery in the circumstances surrounding this incident, which result in harm to a victim, merits condign punishment by way of a significant sentence of imprisonment. In this case, the actual use of an offensive weapon and the unprovoked and intentional attack which are the features of the count upon which I found Mr Choe guilty, aggravate the circumstances of the robbery. Further, I note that the commission of these offences had a profound effect on the victim.
Although the injuries received were more grave in that case, the comments of Gray J are equally applicable to this case.
In the present case, significant weight must be placed upon both general and specific deterrence. The offender is entitled to some leniency, having regard to his very limited criminal history. So far as rehabilitation is concerned, there are not strong indications that the offender is committed to addressing the risk of return to illicit substance use. There can, however, be no doubt that a sentence of full-time imprisonment is the only appropriate sentence.
On the attempted aggravated robbery charge, the starting point is a sentence of two and a half years which will be reduced to two years on account of the plea of guilty. On the charge of assault occasioning actual bodily harm, the starting point is a sentence of 14 months which will be reduced to 11 months on account of the plea of guilty. These sentences will be concurrent as to six months. The total effective sentence is, therefore, 29 months. The non-parole period will be 20 months. The sentence will be backdated to take into account the period that the offender has spent in custody.
Orders
The orders of the Court are:
1.On the charge of attempted aggravated robbery (CC2017/8374), the offender is sentenced to imprisonment for two years commencing on 28 July 2017 and ending on 27 July 2019.
2.On the charge of assault occasioning actual bodily harm (CC2017/8375), the offender is sentenced to imprisonment for 11 months commencing on 28 January 2019 and ending on 27 December 2019.
3.The non-parole period commences on 28 July 2017 and ends on 27 March 2019.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 July 2018 |
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