R v White
[2022] ACTSC 122
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v White |
Citation: | [2022] ACTSC 122 |
Hearing Date: | 25 May 2022 |
DecisionDate: | 26 May 2022 |
Before: | Elkaim J |
Decision: | 1. The Court imposes the following sentences: (a) Robbery (5 December 2021): the sentence is 13 months and 14 days’ imprisonment (reduced from 18 months) to commence on 7 March 2022 and end on 20 April 2023. (b) Aggravated robbery (6 December 2021): the sentence is 18 months’ imprisonment (reduced from 24 months) to commence on 7 September 2022 and end on 6 March 2024. (c) Aggravated robbery (6 December 2021): the sentence is 16 months and 14 days’ imprisonment (reduced from 22 months) to commence on 7 November 2022 and end on 20 March 2024. (d) Common assault (6 December 2021): the sentence is four months and 14 days’ imprisonment (reduced from six months) to commence on 7 August 2022 and end on 20 December 2022. (e) Robbery (6 December 2021): the sentence is 15 months’ imprisonment (reduced from 20 months) to commence on 7 December 2022 and end on 6 March 2024. (f) Aggravated robbery (6 December 2021): the sentence is 16 months and 14 days’ imprisonment (reduced from 22 months) to commence on 7 March 2023 and end on 20 July 2024. (g) Robbery (6 December 2021): the sentence is 12 months and 7 days’ imprisonment (reduced from 15 months) to commence on 7 May 2023 and end on 13 May 2024. (h) Attempt theft (7 December 2021): the sentence is one month’s imprisonment to commence on 7 April 2023 and end on 6 May 2023. (i) Aggravated burglary (7 December 2021): the sentence is 17 months and 7 days’ imprisonment (reduced from 22 months) to commence on 7 July 2023 and end on 13 December 2024. (j) Minor theft (7 December 2021): the sentence is one month’s imprisonment to commence on 7 March 2023 and end on 6 April 2023. (k) Possess prohibited substance (7 December 2021): sentence is one month’s imprisonment to commence on 7 March 2023 and end on 6 April 2023. 2. The total effective sentence is 2 years, 9 months and 7 days’ imprisonment. 3. The nonparole period is 1 year, 7 months and 29 days to commence on 7 March 2022 and end on 4 November 2023. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – robbery – common assault – attempted theft – minor theft – possession of prohibited substance |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 |
Parties: | The Queen ( Crown) Kodie White ( Offender) |
Representation: | Counsel E Wren ( Crown) E Chen ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 69 of 2022 SCC 70 of 2022 |
Elkaim J:
Kodie White has pleaded guilty to a number of offences. His pleas were entered over two separate days.
On 9 March and 18 March 2022 the offender pleaded guilty to the following offences, set out according to the dates of their commission:
(a)5 December 2021—one count of robbery.
The maximum penalty is 14 years’ imprisonment and/or a fine of $224,000.
(b)6 December 2021—three counts of aggravated robbery, two counts of robbery and one count of common assault.
The maximum penalty for an aggravated robbery is 25 years’ imprisonment and/or a fine of $400,000. The maximum penalty for common assault is two years’ imprisonment.
(c)7 December 2021—one count of aggravated burglary, one count of attempted theft, one count of minor theft and one count of possessing a prohibited substance.
The maximum penalty for aggravated burglary is 20 years’ imprisonment and/or a fine of $320,000. The maximum penalty for theft is 10 years’ imprisonment and/or a fine of $160,000. The maximum penalty for minor theft is six months’ imprisonment and/or a fine of $8,000. The maximum penalty for the possession charge is two years’ imprisonment and/or a fine of $8,000.
The details of the offences are set out in the Agreed Statement of Facts in Exhibit A. The following is a summary.
On 5 December 2021 (a robbery charge) the offender approached a man carrying a shopping bag. He threatened him with a gun, demanding his wallet. The victim said he did not have any cash and that his bag contained only his Christmas shopping. The offender next asked for some “weed”. After all of his demands were rejected, the offender left but heard the victim talking on his mobile phone. He returned to the victim and demanded the phone. He also took some of the contents of the shopping bag. They were toys presumably intended as Christmas presents. The victim ran away.
On 6 December 2021 the offender confronted a different victim at a block of units (an aggravated robbery charge). He was armed with a knife which had a blade of about 20 centimetres in length. He demanded everything the victim had. The victim fell over onto a step. The offender head-butted him and placed his knife on the victim’s neck. The victim handed over his phone, wallet, trousers, shirt and shoes. The offender dressed himself in the victim’s clothes. The offender told the victim that he would be killed if he disclosed the offending.
About an hour later the offender accosted a man in the street (an aggravated robbery charge). He again threatened him with a knife. He demanded the man’s necklace which was handed over.
After about another hour the offender entered a grocery store in Narrabundah (the common assault charge). A man and his three-year-old daughter were in the store. They left and began walking down the street. The offender followed them. He was agitated and confronted the victim suggesting that he had been “testing me”. After a selection of threats were made the offender walked away.
A little later, yet another victim was standing in his driveway (a robbery charge). The victim was putting his daughter in a motor car. The offender confronted him in an intimidating and threatening manner. He spat at the victim. He suggested the victim was a murderer and that police were on the way. He threatened to kill the victim and his young daughter. He demanded a wallet which was provided to him. The threats continued nevertheless. The offender then walked away.
About 10 minutes later another victim was washing his car (an aggravated robbery charge). The offender asked him for a cigarette. Then he asked for the entire packet. Both were handed over. The offender withdrew a knife and demanded the victim’s cash. He threatened to stab the victim. The offender went into the victim’s garage. The victim ran into the house and closed the door. He called the police.
In the early afternoon of the same day the offender boarded a bus on which a 15-year-old male was seated (a robbery charge). The offender sat next to the male and began to abuse him. He accused him of rape. He told the young person to take off his hat, jumper and shoes. He demanded his telephone. The young man, no doubt terrified, handed over a baseball cap, Adidas shoes, jumper and a mobile phone. There was a bankcard in a wallet attached to the phone. The offender then moved seats but continued to threaten the youth.
On 7 December 2021, in the evening, a man left his apartment block (attempted theft charge). Two offenders, including this offender, approached him and demanded his mobile phone. The man fled.
The man later saw the offenders leaving an apartment block with a number of items, presumably stolen. It transpired that they had been stolen from a nearby residence (aggravated burglary and minor theft charges). The possession of a prohibited substance charge arises from a bag containing 0.230 grams of heroin found with the goods stolen from the residence. The origin of the bag is unknown.
The offender was on bail when all of these offences were committed. He was arrested on 7 December 2021. On 24 March 2022 the offender was sentenced in the Magistrates Court for a number of different crimes. He received a total term of imprisonment of six months, commencing on 8 December 2021.
The objective severity of the offences vary. Some are, even by definition, minor. However some are much more serious. Although nowhere near the worst of these types of offences, the robberies and burglary, when aggravated, must fall into a category approaching medium objective seriousness. This is particularly so for the two aggravated robberies on 6 December 2021 and the robbery on the same day when the victim’s daughter was in the motorcar. The use of a knife is an important consideration.
The offender was born in 2000. Notwithstanding his youth he has already accumulated a criminal record. He was born in Canberra. He is an only child and was raised by his mother and aunts. He is of Indigenous heritage, although does not profess any significant connection to his cultural background.
The offender’s mother suffered from schizophrenia. She was often hospitalised. As a result the offender had a very disturbed upbringing. He often stayed with relatives. He was exposed to drinking, drugs and abuse. He suffers from Attention Deficit Hyperactivity Disorder (ADHD) and possibly Post Traumatic Stress Disorder (PTSD) as a consequence of the trauma of his upbringing.
The offender has a partner with whom he hopes to live with in the future. He left school after Year 9. He has never been employed although does hold some certificates, for example in asbestos handling and first-aid.
The offender started to use cannabis when he was very young. He later went on to heroin and methamphetamine. He had a heroin overdose in 2021, which seems to have put him off this drug. When he was taken into custody in December 2021 medical intervention was required to assist his mental health which seemed to be suffering from substance withdrawal.
The offender attributes all of his offending to his use of drugs. This is consistent with the almost deranged manner in which the offences were committed and his limited memory of what occurred.
There is a mental health assessment from Justice Health Services dated 15 December 2021. The report, consistent with the description of the offences, says that the offender described “increased anger, agitation, and loss of focus following substance abuse, particularly methamphetamine use”. Not surprisingly, the report says that psychiatric review is required and raises the possibility of cognitive behavioural therapy or dialectical behavioural therapy.
In a report dated 14 January 2022 the offender’s treating psychiatrist, Dr Wareing, says that treatment for ADHD should be recommenced together with antipsychotic medication.
I have been provided with five victim impact statements. The person approached at Narrabundah shops says that he was fearful of threats to himself and his three-year-old daughter witnessing an assault upon him. He is now apprehensive about going to the shops.
The victim who was assaulted says that he remains with a sore neck and shoulder. He is very stressed, his memory has deteriorated and he relies on his wife for support. He carries an umbrella for protection.
The victim whose Christmas presents were stolen says that his day-to-day life has changed. He no longer feels safe at his home. He is terrified of a robbery. He entered into a state of hypervigilance for a short time and required medication to help him sleep. He has been seeing a psychologist and is gradually improving.
Once again the scourge of drugs has destroyed the hopes of a normal life for an already damaged young man. His background must be taken into account, but so too must public deterrence and the sheer unacceptability of people roaming the streets threatening and attacking innocent people.
Sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) must be taken into account. So too must be s 10, although in this case prison is less of a last resort than an inevitability.
Mr Chen, on behalf of the offender, valiantly submitted that an Intensive Correction Order (ICO) should be imposed. He said this offender required as much intense supervision as possible and this could only be achieved through an ICO. I agree with Mr Chen that something must be done about this young man’s addictions. But the offences are too serious and too many for an ICO to be considered. In addition the offender has a history of a breach of orders while being allowed to be in the community. I also note, and it is of significance, that the authors of the pre-sentence report have stated that the offender is not a suitable subject for an ICO.
On the other hand the offender is still a young man. He has mental health issues which are susceptible to treatment, his drug addiction should be capable of being addressed and he has a supportive partner, so that there are real chances of rehabilitation. Hopefully rehabilitation can be commenced while in custody and thereafter as conditions of parole.
I also accept he has genuine remorse for his actions. He entered the witness box and gave evidence to that effect. He gave the impression of a man still battling with addiction but hopefully willing to move on to a new chapter in his life.
There will need to be some concurrency in the sentencing to avoid an overly long head sentence. A good deal of concurrency is consistent with the three days of offending essentially being a single drug induced criminal spree. It is also, however, important to recognise that the separate offences, and their separate victims, certainly in respect of the more serious offences, should attract some punishment specifically attributable to each of them.
The Crown accepted that the offences on 5 and 6 December 2021 should attract a discount of 25 per cent arising from the pleas of guilty. It was also accepted that a slightly lesser discount should apply to the other offences. Subject to rounding off, I assess this discount at 22 per cent.
The offender has been in custody since 8 December 2021. He has remained at the AMC in relation to unconnected offences. The sentences will end on 7 June 2022. Although the offender has not had any time in custody referable to the current offences, the Crown accepted that the commencement point for my sentencing may be backdated, although should not be backdated as far as 8 December 2021.
I intend to commence the sentences from 7 March 2022.
I impose the following sentences:
(a) Robbery (5 December 2021): the sentence is 13 months and 14 days’ imprisonment (reduced from 18 months) to commence on 7 March 2022 and end on 20 April 2023.
(b) Aggravated robbery (6 December 2021): the sentence is 18 months’ imprisonment (reduced from 24 months) to commence on 7 September 2022 and end on 6 March 2024.
(c) Aggravated robbery (6 December 2021): the sentence is 16 months and 14 days’ imprisonment (reduced from 22 months) to commence on 7 November 2022 and end on 20 March 2024.
(d) Common assault (6 December 2021): the sentence is four months and 14 days’ imprisonment (reduced from six months) to commence on 7 August 2022 and end on 20 December 2022.
(e) Robbery (6 December 2021): the sentence is 15 months’ imprisonment (reduced from 20 months) to commence on 7 December 2022 and end on 6 March 2024.
(f) Aggravated robbery (6 December 2021): the sentence is 16 months and 14 days’ imprisonment (reduced from 22 months) to commence on 7 March 2023 and end on 20 July 2024.
(g) Robbery (6 December 2021): the sentence is 12 months and 7 days’ imprisonment (reduced from 15 months) to commence on 7 May 2023 and end on 13 May 2024.
(h) Attempt theft (7 December 2021): the sentence is one month’s imprisonment to commence on 7 April 2023 and end on 6 May 2023.
(i) Aggravated burglary (7 December 2021): the sentence is 17 months and 7 days’ imprisonment (reduced from 22 months) to commence on 7 July 2023 and end on 13 December 2024.
(j) Minor theft (7 December 2021): the sentence is one month’s imprisonment to commence on 7 March 2023 and end on 6 April 2023.
(k) Possess prohibited substance (7 December 2021): sentence is one month’s imprisonment to commence on 7 March 2023 and end on 6 April 2023.
The total effective sentence is 2 years, 9 months and 7 days’ imprisonment.
The nonparole period is 1 year, 7 months and 29 days to commence on 7 March 2022 and end on 4 November 2023.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Elkaim. Associate: Date: |
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