R v Williams
[2019] ACTSC 298
•16 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Williams |
Citation: | [2019] ACTSC 298 |
Hearing Date: | 3 September and 16 October 2019 |
DecisionDate: | 16 October 2019 |
Before: | Murrell CJ |
Decision: | See [73]–[76] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted robbery – Aggravated robbery – Take motor vehicle without consent – Guilty plea following Criminal Case Conference –Where offender has extensive criminal history – Where offender has a significant substance abuse problem and mental health concerns – Where youth of the offender is relevant – Where offender is unsuitable for intensive correction order – Rehabilitation and acknowledgment of harm are important sentencing considerations |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12, 35 Criminal Code 2002 (ACT) ss 44, 309, 310(b), 318(1) |
Cases Cited: | R v Denniss [2018] ACTSC 239 R v Henry (1999) 46 NSWLR 346 R v Sullivan [2019] ACTSC 38 |
Parties: | The Queen (Crown) Jesse Dean Williams (Offender) |
Representation: | Counsel R Roberts (Crown) J Campbell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 36 of 2019 |
Murrell CJ:
Introduction
The offender was committed to the Supreme Court on five counts. Following a Criminal Case Conference, the Crown accepted a plea of guilty to the following three offences in full satisfaction of the indictment:
(a)On 30 January 2018—attempted robbery, contrary to ss 44 and 309 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 14 years’ imprisonment, a fine of $224,000, or both.
(b)On 30 January 2018—aggravated robbery (aggravated by virtue of the possession of an offensive weapon), contrary to s 310(b) of the Criminal Code. The maximum penalty for this offence is 25 years’ imprisonment, a fine of $400,000, or both.
(c)On 2 February 2018—take motor vehicle without consent, contrary to s 318(1) of the Criminal Code. The maximum penalty for this offence is five years’ imprisonment, a fine of $80,000, or both.
The offender was arrested in NSW on 3 February 2018. On 18 September 2018, he was extradited to the ACT. In the ACT, he has been in custody since 20 September 2018 in relation to these offences (as well as unrelated matters).
The Crown case was very strong in relation to all matters, as is frequently the case with aggravated robbery and similar offences, such as burglary. The strength of the Crown case is a factor that the Court is required to take into account under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), but the decisions of this Court make it quite clear that the utilitarian value of a plea is the primary factor when determining the extent of a discount for a plea.
In relation to pleas entered at or in the immediate aftermath of Criminal Case Conferencing, it is the Court's usual practice to allow a discount of up to about 20 per cent. This practice provides a degree of assurance to persons who are considering whether or not they should enter pleas at the time of Criminal Case Conferencing.
In accordance with the usual practice, this case, I consider it appropriate to allow discounts of around 20 per cent.
Facts
30 January 2018 offences
At about 5:40 PM on Tuesday, 30 January 2018, the offender entered the Red Rooster restaurant in Wanniassa. He approached the store manager, who was behind the front counter, and said in a shaking voice, “Give me all your money”. The store manager asked the offender to repeat himself. The offender did so, simultaneously lifting the bottom of his shirt and gesturing towards his waistband, suggesting that he had a concealed weapon. However, the store manager could not see a weapon. Believing that the offender was unarmed, the store manager seized a metal bar and yelled to his co-worker to call the police. The offender departed. The co-worker called the police.
The incident was captured on CCTV. The offender was dressed reasonably distinctively.
Less than 15 minutes later, at about 5:54 PM, the offender attended the Coles Supermarket in Wanniassa. He joined the queue at the cigarette counter. An off-duty Coles employee was in the line. She recognised the offender as, earlier on that same day, she had seen him twice at the store. On one earlier occasion, he had purchased a Telstra pre-paid mobile telephone. On the second occasion, he had spoken to the Coles employee, introducing himself by name as Jesse Williams and asking for her phone number. He had seemed slightly intoxicated. When she greeted the offender in the cigarette queue, he ignored her.
When the offender reached the front of the queue, he asked for a packet of cigarettes. The store attendant placed the cigarettes on the counter. The offender then placed a shopping bag on the counter and lifted his shirt slightly, revealing a knife tucked into the waistband of his shorts. He said quietly (at a volume that did not attract the attention of others apart from the attendant behind the counter), “Give me the money or I will fucking stab you”. The attendant emptied two till drawers into the shopping bag; a total sum of approximately $6,000. The offender left the store with the cigarettes and shopping bag. Security and police were alerted.
The incident was captured on CCTV. The footage showed the offender wearing the same clothes that he had worn when attempting to rob the Red Rooster restaurant shortly prior to this offence.
In May 2018, the Coles employee who had been behind the cigarette counter attended the City Police Station and identified the offender on a photo board as the person who had robbed Coles on 30 January 2018.
2 February 2018 offence
On the afternoon of 2 February 2018, the offender attended the residence of his grandmother, Ms Turner. Her Hyundai vehicle was parked in the driveway. A spare key to the vehicle hung by the front door.
The offender paced in the hallway and behaved oddly. After a short time, he gave Ms Turner a hug and said he was going out for a cigarette and would be back soon. Without Ms Turner's knowledge or consent, he took the spare key to her car from where it was hanging by the front door and drove away.
Later, Ms Turner and her husband called the police.
The following afternoon, on 3 February 2018, NSW police located the offender in premises at Brindabella, NSW. Ms Turner's car was nearby. It had been burnt out. Upon searching the offender, police found the keyring that had been attached to the car key. The car key itself was located inside the premises.
The offender was arrested on suspicion of offences committed in NSW. At the time of his arrest, he appeared to be confused and agitated, and police formed the opinion that he was under the influence of illicit substances.
Because of his condition, he received medical treatment and was not interviewed by police for some time after his arrest.
5 February 2018 search warrant
On 5 February 2018, police executed a search warrant at the residence of the offender's father. They located a black-handled knife with three stainless steel rivets on a drying rack in the kitchen that matched the knife observed by the counter attendant at the Coles store. The knife differed from other knives stored in the kitchen. The police also located a plastic shopping bag containing an empty Telstra pre-paid mobile phone box.
The offender had been staying with his father during January 2018. The offender's father had first seen the knife that was located in the kitchen sink about a week prior to the offender's departure in early February and had assumed that the offender had brought it into the house.
The offender's father reported that the offender had left home at about 5:00 PM on 30 January 2018, and that he had next seen the offender on the following night wearing clothes that matched those of the robber depicted on CCTV images relating to the offences of 30 January 2018 at the Wanniassa Shopping Centre.
Objective seriousness
Aggravated robbery
As to the objective seriousness of the offences, the parties correctly observed that, in this jurisdiction, the NSW guideline judgment in R v Henry (1999) 46 NSWLR 346 is of persuasive authority only, but it provides some assistance in relation to a “typical” armed robbery.
Some of features of a “typical” armed robbery are present in this case.
The most serious matter before the Court is the offence of aggravated robbery of the Coles store. In relation to that matter, the offence can only be described as very unsophisticated. The offender wore little by way of disguise. He had visited the store prior to the day in question and provided his real name to an employee who was in the same queue as him before the commission of the offence.
The weapon that was used was a knife. The knife was displayed to the victim but it was not wielded. A verbal threat was made to the victim but the threat was made in the presence of many individuals. The offence was committed in such a manner that it did not, as it turned out, attract the attention of other customers or staff.
On the other hand, a substantial amount of money was taken.
Attempted robbery
The offence of attempted robbery committed shortly prior to the offence against the Coles store was also unsophisticated. The offender was nervous during the offence and was readily deterred by the store manager wielding a metal bar.
Nevertheless, it is a serious offence that carries a very significant maximum penalty.
Take motor vehicle without consent
The offence of taking a motor vehicle without consent was serious. I accept that it was an opportunistic offence but the vehicle in question was undoubtedly of significant value. It was not recovered; it was destroyed. The circumstances in which the offence was committed were unsavoury, involving the betrayal of the offender's grandmother.
Subjective circumstances
The offender was 24 years old at the time of the offences. He is now 25 years old.
Criminal history
The offender’s involvement with the criminal justice system is lengthy. Commencing when he was a juvenile, the offender committed numerous violent offences and offences against property, as well as breaches of court orders.
Mostly these offences were committed in NSW. Between 2011 and 2018, the offender was convicted of many dishonesty offences, including break, enter and steal and aggravated assault with intent to rob, receiving stolen property. He was also convicted of many offences of violence, including assault, stalk or intimidate, assault occasioning actual bodily harm, and assault an officer in the execution of duty.
Some offences relate to drug use, including two offences in the ACT. Those offences that do not relate directly to drug use probably reflect the offender's long-standing problem with substance abuse and need for funds to finance substance abuse.
The offender has received a number of sentences of imprisonment, generally for relatively short terms. However, following his arrest in NSW in February 2018, he was sentenced for offences of break, enter and steal in NSW and for an offence of receiving stolen property that related to his possession of his grandmother's motor vehicle. For those offences, he was sentenced to a total of 14 months’ imprisonment from 5 February 2018 to 4 April 2019, with a nonparole period of 7 months and 12 days, concluding on 16 September 2018.
I propose to commence the sentences that I impose from 17 September 2018. The period of incarceration from 5 February 2018 to the conclusion of the new sentences will be significant. It will be the first lengthy period of custody served by the offender.
In relation to the offence of receiving stolen property concerning the car stolen by the offender from his grandmother, while the offender received a significant sentence for that matter in NSW, the sentence was made entirely concurrent with the sentence for break, enter and steal. Consequently, it does not greatly impact upon determination of the sentence that I propose to impose for the unlawful taking of the motor vehicle in the ACT.
Childhood and family
The offender was born in the ACT. His childhood was chaotic and quite dysfunctional, marred by alcohol abuse and frequent conflict between his parents them, which the offender witnessed. The offender’s parents divorced when he was about two years old. Thereafter, he resided initially with his father, who reportedly subjected the offender to physical abuse when intoxicated.
The offender's childhood accommodation was unstable and, at various stages, he lived with different family members. He resided with his mother from age nine to 13, before moving back to live with his father. The offender’s father struggled to cope with the offender's anti-social behavior as he became involved in criminal activities throughout his adolescence.
Currently, the offender enjoys a positive relationship with his father, but his relationship with his mother continues to be somewhat dysfunctional. The offender is attempting to reconcile with her.
The offender has one brother, with whom he is on good terms. He has four half-siblings, with whom he has little contact. Although the offender's grandparents were the victims of the offence committed on 2 February 2018, they have visited him many times in custody and continue to support him. His grandfather attended Court.
The offender has been in a relationship with his current partner for about three years. His criminal activity and poor decision-making have adversely impacted on the relationship. The offender's partner stated that the offender struggles with conflict and stress management and has had anti-social associates. However, the offender enjoys a reasonably positive relationship with his partner's three young children, to whom he is a step-father.
Schooling and employment
At school, the offender's dyslexia meant that he had learning difficulties. In Year 7, he was expelled from high school due to disruptive behavior and possession of cannabis and a knife.
Subsequently, he received little formal education. That disadvantage will affect him throughout his life. However, to his credit, he has engaged positively with education while in the Alexander Maconochie Centre (AMC). He hopes to complete Year 12 and is working towards that goal. The offender holds a Certificate II in Hospitality and has been employed in that area.
On two occasions, the offender’s employment was terminated for absenteeism and illicit substance abuse. The longest period for which he has worked is about eight months. Prior to entering custody, he relied on Centrelink benefits. Upon release, the offender hopes to work in the construction industry and his brother has offered him construction work.
In addition to undertaking education programs within the AMC, the offender has undertaken other programs that may enhance his employment prospects and which addressing substance abuse.
He has substantial debts for NSW driving offences.
Associates
The offender has few socially positive associates, other than the family members to whom I have referred.
However, he has identified the dangers of socialising with anti-social peers and says that, upon release, he will avoid contact with them by remaining in the ACT; most of the anti-social peers live in NSW. However, the author of the intensive correction order assessment report stated that the offender did not appear to have engaged in comprehensive planning about how he will avoid anti-social associations in the future.
Alcohol and drugs
The offender has a very long-standing substance abuse problem. He commenced abusing alcohol when he was 12 years of age, at a time when he lacked the judgement that an adult might have had about abusing alcohol. At 12 years of age, he was binge-drinking around ten drinks a session on an almost daily basis, often drinking until he lost consciousness. Reflecting back, he sees his early alcohol abuse as an attempt to self-medicate.
He has had periods of abstinence of up to three years. He claims to have been abstinent from alcohol while in custody, although there is a report that, on one occasion, homemade alcohol was located in his cell.
He was assessed as at high risk of alcohol abuse.
The offender has a significant history of illicit substance abuse, particularly the abuse of methylamphetamine. He began to use that substance at 17 years of age. Reportedly, prior to his incarceration, the offender used half an ounce to one ounce of methylamphetamine per week. He has denied substance abuse while in the AMC. However, in April 2019, he refused to submit to a urinalysis test. He did submit to three later tests and the results were clean.
On two occasions, when he was aged 19 and 22, he undertook the Hope House Therapeutic Rehabilitation Program in Batemans Bay. However, on each occasion, he left without completing the Program. On 26 March 2019, the offender was referred to the Ted Noffs Community Outreach Program, which provides young prisoners with support in substance abuse treatment with mental health issues.
Since March 2019, the offender has seen a counsellor each fortnight. His counselling has examined strategies for relapse prevention, identifying triggers in the community, and alternative coping strategies.
The counsellor is prepared to work with the offender upon his release from custody. As mentioned, the offender has undertaken programs in custody in relation to alcohol and substance abuse.
Mental health
The offender has been diagnosed with drug-induced psychosis. As noted above, he appeared to be psychotic at the time of his arrest in NSW. He has experienced auditory and visual hallucinations since childhood. This raises the issue of whether, in fact, his psychosis is entirely substance-induced. It is unclear whether his psychotic symptoms first appeared after he commenced abusing alcohol. He is medicated within the AMC for his psychotic condition.
The offender also reported a history of suicide attempts, but he denies any current suicidal ideation or thoughts of self-harm. He is willing to undertake further mental health treatment.
Attitude to offending
The offender claimed to accept responsibility for his offending behaviour. He expressed regret and acknowledged the impact of his actions on the victims.
However, to some extent, he has continued to justify the offences.
In relation to the robberies, the offender has stated that his family had been experiencing financial problems, and he had responded by “taking matters into his own hands”.
In relation to the motor vehicle offence, he reported that he had needed transport urgently and, therefore, had borrowed his grandmother's car. He claimed that he had been in a motor vehicle accident shortly after he took the car. As he could not afford to repair the damage, he had decided to burn the vehicle so that his grandmother could claim on her insurance policy.
Risk of reoffending
The offender was assessed as at a high risk of general reoffending. Key intervention areas to reduce the risk include interventions to address alcohol and substance abuse, anti-social associates and attitudes, unemployment, and mental health issues.
He was assessed as treatment-ready, which is a positive sign. This assessment is supported by the offender's own actions in engaging with drug education and ongoing counselling, submitting three of four clean urinalysis samples, and accepting support from his family. Family support will be critical to the offender's recovery.
Intensive correction order assessment report
The offender was assessed for an intensive correction order over a period of eight weeks. During the assessment period, he supplied clean urinalysis samples. Overall, his behaviour in custody was described as unsatisfactory; he has been disciplined twice for theft and has received a warning for possessing homemade alcohol (referred to above).
In effect, the offender was assessed as unsuitable for an intensive correction order due to the absence of appropriate accommodation. The offender's father was willing to offer short-term conditional accommodation but was unwilling to offer the offender more permanent accommodation because of the offender's illicit substance abuse, past poor choices, and past criminality.
The offender's past instability and lack of uncompromising commitment to rehabilitation while in custody mean that an intensive correction order is not a suitable sentencing option. Further, the objective seriousness of the offences strongly suggest that he should serve a significant period of fulltime imprisonment.
Comparable cases and statistics
The Court was referred to a number of comparable cases including R v Denniss [2018] ACTSC 239, R v Percival [2018] ACTSC 230, and R v Sullivan [2019] ACTSC 38.
The Court reviewed the statistics on the ACT Sentencing Database, although I acknowledge the limitations that apply to the use of statistics. For persons aged between 21 and 25 years with a history of custodial sentences for the same type of matter (a sample of 25 cases), almost all were imprisoned. The usual sentence range was two and a half to four years.
The Sentencing Database statistics for the offence of take motor vehicle without consent where imprisonment was imposed on an offender aged between 21 and 25 years show that the sentences were usually in the range of six to 12 months.
In sentencing the offender, it is critical to consider the relevant sentencing purposes. In this case, the prominent sentencing purposes are general deterrence, personal deterrence, accountability, denunciation, and recognition of harm to the victims.
It is necessary to impose an appropriate degree of punishment. At the same time, it is important to leave open opportunities for rehabilitation. The offender is motivated to rehabilitate. It remains to be seen whether he is able to avail himself of opportunities to do so.
The offender's long-standing and well-entrenched alcohol and substance abuse problems mean that he will require residential rehabilitation to set him on the right path to recovery. He has expressed interest in such programs. Earlier this year, he sought another place at Hope House and was assessed as suitable. Defence counsel has submitted that a residential rehabilitation placement would be the most suitable treatment.
On 3 September 2019, I adjourned these proceedings to enable the offender to make enquiries about the availability of residential rehabilitation. As the offender has already served a significant period in custody and residential rehabilitation would seem to be the best treatment, such a placement presents as a good outcome, not only for the offender but also for the community.
Sentence
The offender is convicted of all offences. I impose the following sentences:
(a)For the offence of take motor vehicle without consent—12 months’ imprisonment, reduced by 20 per cent to 10 months’ imprisonment, from 17 September 2018 to 16 July 2019.
(b)For the offence of attempted robbery—two years’ imprisonment, reduced by five months to 19 months’ imprisonment, from 17 December 2018 to 16 July 2020.
(c)For the offence of aggravated robbery—two and a half years’ imprisonment, reduced by 20 per cent to two years’ imprisonment, from 17 June 2019 to 16 June 2021.
Taking into account the period of imprisonment in NSW, the offender will be incarcerated for a total period of three years, four months and 12 days, from 5 February 2018 to 16 June 2021.
The sentences imposed for the offences of attempted robbery and aggravated robbery are suspended from today.
In relation to each suspended sentence, pursuant to s 12 of the Sentencing Act I make an associated two-year good behaviour order. The good behaviour orders carry the following conditions:
(a)The offender is to travel in the company of his father today to Hope House, Batemans Bay. He is to admit himself to the Hope House Residential Rehabilitation Program and comply with the conditions of the Program.
(b)The offender is to accept the supervision of Community Corrections and report to Community Corrections by 1 PM today (in the event that it is not feasible to do so in person, he can report by telephone).
(c)If he is discharged from the Hope House Program for non-compliance, he is to report to the Registrar and Community Corrections in person within one working day of the discharge.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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