R v Westbrook
[2019] ACTSC 135
•23 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Westbrook |
Citation: | [2019] ACTSC 135 |
Hearing Dates: | 30 January and 23 May 2019 |
DecisionDate: | 23 May 2019 |
Before: | Mossop J |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aiding or abetting an aggravated robbery – actual use of force against victim – sentencing of four co-offenders – intimidatory effect of co‑offenders in a group – less culpable offending conduct – offender on conditional liberty at the time of the offending – guarded prospects for rehabilitation – sentence fully suspended – imposition of good behaviour order |
Legislation Cited: | Criminal Code 2002 (ACT), s 310(a) |
Cases Cited: | Azzopardi v R [2011] VSCA 372; 35 VR 43 |
Parties: | The Queen (Crown) Blake Westbrook (Offender) |
Representation: | Counsel P Dixon (Crown) G Mansfield (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service NSW/ACT (Offender) | |
File Number: | SCC 176 of 2018 |
MOSSOP J:
Introduction
Blake Westbrook has pleaded guilty to aiding or abetting an aggravated robbery (XO2018/31447), contrary to s 310(a) of the Criminal Code 2002 (ACT). The maximum penalty for that offence is the same as that for aggravated robbery, namely, 25 years imprisonment or 2500 penalty units or both.
Facts
The facts relating to the aggravated robbery are described in my reasons in R v O’Connor [2019] ACTSC 132 as follows.
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.
Objective seriousness
I repeat what I said about objective seriousness in R v O’Connor:
25.The conduct of the offenders reflects abhorrent standover tactics by a group of young men more numerous and older than their victims. The conduct involved both threats and violence. The video of the aggravated robbery is quite disturbing as it shows the violent exploitation of the power imbalance between the group of men and their victim and was recorded for the purposes of further advertising the offenders’ conduct.
…
29.Mr O’Connor also played the most significant role in the aggravated robbery. The incident was commenced by Mr O’Connor in company with UB. Mr O’Connor did most of the talking. UB, Mr Westbrook and Mr Bobbine joined in, acting in concert so as to increase the intimidation of CC and ultimately to cooperate in inflicting violence upon CC. The means by which the bike was ultimately stolen involved, unnecessarily so far as the robbers were concerned, the ritual of fighting the victim until he capitulated. This was unnecessary for the purposes of the robbery as it is clear that the bike could have been stolen without the necessity for the sham contest which was engaged in. Rather, the sham contest was one designed to produce video footage which could be recorded. Although Mr O’Connor did not himself engage in fighting, I consider that his conduct is most objectively serious being the initiator of the aggravated robbery, playing the most significant role in relation to the means by which the robbery would occur, recording it and then distributing that for his own purposes.
30.The aggravated robbery is made more serious by the fact that it involved the actual use of force upon the victim rather than merely the threat of force. Further, it is aggravated by the fact that each offender was in the company of more than one person, hence increasing the extent to which they were capable of acting collectively so as to intimidate and inflict violence upon the victim. While the value of the items stolen was not large (having regard to the unlimited scope of this offence), it was of significant value to the owner and recognised as such by both the offenders and the victim. I assess the aggravated robbery as being at the lower end of the mid range of objective seriousness for the offence.
Mr Westbrook’s role in the offending is somewhat less culpable because he aided and abetted rather than being a joint offender. However, in terms of impact upon the victim he participated in the assault in a similar manner to Mr Bobbine and UB.
Victim impact statement
A victim impact statement was prepared by CC and read to the court. I summarised the content of it in R v O’Connor and I take the statement into account in sentencing Mr Westbrook.
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
Evidence of Mr Westbrook’s personal circumstances is contained in a pre-sentence report dated 29 January 2019 with some further information being provided in the submissions made by counsel. Mr Westbrook is recorded as having engaged with the preparation of the report “sufficiently”, although he is noted as appearing to have “a poor attitude towards the overall process”.
He is presently 19 years old and was 18 years and one month at the time of the offending conduct. He was born and raised in Sydney and relocated to Canberra in approximately 2016. He described his upbringing as fairly normal, although he had experienced incidents of domestic violence between his parents. His parents separated in 2012. He has eight siblings and has positive relationships with them. He has a fractured relationship with his father, but a positive and supportive relationship with his mother. He is single with no dependents.
When sentencing submissions were made he had resided in stable accommodation with a friend’s family for approximately one year. In February 2019, that arrangement broke down and he moved to Sydney to live with his mother. The pre-sentence report indicated that in any event he intended to relocate to Sydney when the current offences had been dealt with.
He completed Year 10 at school. He has had inconsistent employment since leaving school. After a period in custody in 2017, he worked for five months as a landscaper at the National Arboretum. He worked for three months installing metal roofing. He then worked for four months as a glazier and installing insulation. From December 2018, he worked for Jason Barnes doing specialised cleaning. Mr Barnes provided him with a reference to which I will refer in a moment. He had enrolled in an apprenticeship to become a barber which involves study at the Canberra Institute of Technology as well as working at a barber shop in Gungahlin. As at the date of sentencing, no further information was provided about his employment or educational circumstances following the breakdown of his accommodation arrangements in Canberra and his relocation to Sydney.
He reported to the author of the pre-sentence report that most of his associates and friends have a criminal history. He reported a problematic history of alcohol use and a history of illicit substance use up until approximately February 2018, but minimal use of alcohol and no use of illicit substances since then.
He reported that he spent most of his spare time at the gym.
He denied any current mental health concerns.
So far as his attitude to the offences was concerned the author of the pre-sentence report recorded:
He acknowledged his actions were unlawful, however, appeared unable to demonstrate any insight into his behaviour and how it may have impacted on the victim. He claimed the only reason he would participate in a referral to Restorative Justice would be for personal gain.
For that reason, unlike his co-offenders, he was not referred for restorative justice.
He was assessed by the author of the pre-sentence report as being at a medium/low risk of general reoffending. His primary risk factors are identified as his attitude towards his offending behaviour and antisocial associates. He retained the benefit of a prosocial family and, at the time of the pre-sentence report, stable accommodation.
He was assessed as suitable for community service work.
Two references were tendered. The first from Jason Barnes. Mr Barnes had been Mr Westbrook’s employer since December 2018. He first met him two years ago through Mr Barnes’ son. Mr Barnes formed an adverse impression of him at that time. Since then, he became aware that Mr Westbrook had been charged with several offences and served some time in prison. He was pleasantly surprised at the difference he observed in Mr Westbrook, referring to his apparent motivation to want a better life for himself. He says that outside work Mr Westbrook attended the gym and trained for boxing and has become a role model for Mr Barnes’ son. The evidence he gives is consistent with the time spent in custody having had a significant impact upon Mr Westbrook and motivating him to change his life.
The second reference is from Brian Roberts who manages the gym where Mr Westbrook trains and boxes. He refers to the discipline and values encouraged by the gym and the fact that he has observed Mr Westbrook trying to engage and commit to building positive connections through the gym, to move on from his immature previous actions and become a better person.
Criminal history
[Redacted for legal reasons.]
[Redacted for legal reasons.]
Plea of guilty
The plea of guilty was entered at a late stage. I will reduce the custodial sentence that I would otherwise have imposed by 10% on account of the plea of guilty.
Time in custody
Mr Westbrook spent one day in custody in relation to these offences. I take that into account in determining the appropriate sentence.
Consideration
Mr Westbrook was only just an adult at the time of the offending conduct. Clearly the principles set out in Azzopardi v R [2011] VSCA 372; 35 VR 43 at [34]‑[36] apply to a young man such as Mr Westbrook. Since the offending conduct the evidence discloses that he has found some purpose in work and boxing. He has the benefit of a supportive family and stable accommodation. His role was somewhat less culpable than the others who assaulted CC. Unfortunately the offence was committed at a time when he was on conditional liberty and [redacted for legal reasons]. It is unfortunate that he has failed to recognise or be able to articulate any understanding of the impact of his offending conduct on the victim.
As a result of the breakdown in his accommodation arrangements and his move to Sydney in February 2019, there is uncertainty as to whether he has been able to maintain the discipline of employment and exercise. Given his youth, criminal history and absence of stable employment, his prospects for rehabilitation must remain guarded.
His conduct aided and abetted a very serious offence. Clearly, denunciation, punishment, accountability and recognition of the harm done to the victim are important sentencing considerations. So too is general deterrence and, having regard to the offender’s history, specific deterrence. In light of his youth, clearly the prospect of rehabilitation and a sentence which provides incentive for that is also important.
The nature of the offending conduct and the seriousness of the offence, assessed by reference to the maximum penalty means that in my view only a custodial penalty appropriate. The appropriate starting point is a sentence of imprisonment of 14 months, reduced to 12 months and 15 days on account of the plea of guilty.
His youth at the time of the offending and the evidence that he has moved on from the offending conduct in 2016 and 2017 has persuaded me that it is appropriate to wholly suspend that sentence. He has been assessed as suitable for community service and I consider that in light of the suspension of the sentence, he should be required to perform a period of community service. As I have indicated, he has not yet clearly demonstrated that he has chosen, or is able, to conduct himself lawfully and his prospects of rehabilitation must therefore remain guarded. In those circumstances, having regard to the fact that he was on conditional liberty at the time of the offending and has not demonstrated an attitude which recognises the gravity of his conduct, a wholly suspended sentence is a lenient one. There should be no doubt that if he fails to take the opportunity given to him by a wholly suspended sentence he will spend time in full‑time custody.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery, the offender is sentenced to imprisonment for a period of 12 months and 15 days.
2. The sentence is to be wholly suspended upon the offender entering into an undertaking to be of good behaviour for a period of 12 months and 15 days, which in addition to the core conditions, is to be subject to the following additional conditions:
a. That he be subject to supervision during the whole of the period or such lesser period as determined by the Director-General.
b. That he attend such educational, vocational, psychological psychiatric or other programs or counselling as directed by the Director‑General.
c. That he supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing as required by a corrections officer.
d. That he perform 100 hours of community service.
| I certify that the preceding twenty-eight [28] 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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