R v Wilson
[2022] ACTSC 7
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wilson |
Citation: | [2022] ACTSC 7 |
Hearing Date: | 31 January 2022 |
DecisionDate: | 31 January 2022 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – in company of a young co-offender – victim threatened with a knife – plea of guilty – no criminal history – below mid range of objective seriousness – mental illness diagnosis – mental illness untreated at the time of offending – offender followed the lead of co-offender – strong family support – good prospects of rehabilitation – sentence of imprisonment – suspended upon entry into a good behaviour order – reparation order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), s 10 Criminal Code 2002 (ACT), s 310 |
Parties: | The Queen ( Crown) Lachlan Robert Wilson ( Offender) |
Representation: | Counsel C Wanigaratne ( Crown) S Lynch ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service (NSW/ACT) ( Offender) | |
File Numbers: | SCC 86 of 2020 SCC 87 of 2020 |
MOSSOP J:
Introduction
The offender, Lachlan Wilson, pleaded guilty to one count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (CC2020/13063). The conduct was particularised as dishonestly appropriating property, namely $100 belonging to the victim, with the intention of permanently depriving him of the property. At the time of doing so, the offender threatened to use force on the victim with the intention of dishonestly appropriating the property, in the company of a co-offender who was under the age of 18. This offence has a maximum penalty of 2500 penalty units, 25 years’ imprisonment or both.
Facts
On Thursday 5 November 2020, the victim was using an internet dating site. He exchanged messages with a user claiming to be 18 years old, and later claiming to be 15 years old. The victim thought he was being 'set up’ and agreed to meet the user to expose the person doing so.
At 2:45pm that day, the victim received a phone call from the offender’s mobile. During the call, it was arranged for the victim to attend a fictitious unit number at an address in Hawker.
The victim arrived at about 3:08pm and called the offender’s mobile number. The victim followed instructions to ascend the stairs to the top of the unit complex. Once he discovered the unit number was fictitious and turned around, he was confronted by the two offenders, both wearing face coverings.
The young co-offender threatened the victim with a steak knife and became verbally aggressive towards the victim, calling him a paedophile. The victim described that the offender appeared to be “taking his lead” from the young co-offender, and also began to call him a paedophile.
Both offenders demanded money from the victim, who had no cash on his person. They then walked the victim to an automatic teller machine at the Hawker shops. The victim withdrew $100, consisting of two $50 notes. The offenders demanded to see his remaining bank balance, which was approximately $17.
The offenders walked the victim back to his vehicle in the unit carpark. The young co‑offender searched the rear of the vehicle while the offender searched the glove box. The offender stole a silver/chrome cork screw bottle opener.
The young co-offender told the victim that he would contact him within a week to collect a further $200. The young co-offender also made further threats to expose the victim as a paedophile if further money was not paid.
The victim got into his car and drove to the Belconnen Police Station to report the incident.
The offender was arrested on 7 November 2020. He was granted bail in the Magistrates Court on 8 December 2020. He has therefore spent 32 days in custody in relation to this matter.
Victim impact statement
The victim provided a victim impact statement. He described the co-offender pointing a knife directly at him. He described freezing and thinking that he was going to be seriously hurt or killed and feeling that he had to comply with the offenders’ instructions to avoid harm. He recalls giving the offenders all the money he had and thinking about running away when the offenders searched the car. However, due to his arthritis, he believed he would be caught.
The victim described reporting the matter out of fear and staying interstate with relatives because he was too scared to return to his residence. He reports suffering from anxiety, bursting into tears without any obvious reason and leaving the house as little as possible. The offenders’ conduct has had a lasting effect on the victim, who feels paranoid about being robbed again. He is receiving psychological treatment to enable him to move on from the incident.
Objective seriousness
The offending involved the use of a weapon but not the actual application of force. It involved a degree of pre-planning although it cannot be said beyond reasonable doubt that the offender as opposed to the co-offender was for the initiator of that pre-planning. The offending is below the mid range of objective seriousness for this very serious offence.
Subjective circumstances
The offender is a 19-year-old Aboriginal man. He was 18 years old at the time of the offence.
The offender has an older brother and a younger sister. He was born in Port Macquarie and raised in Cootamundra, New South Wales. He reported to Prof Douglas Boer that his parents’ relationship was not good, and that his father has an alcohol problem and suffers from depression. He reported that there had been no relationship problems within his family since his father began taking antidepressant medication.
The offender’s parents and family remain a source of support.
The offender completed Year 11 but was excluded from completing Year 12. He is currently employed full-time.
The offender reports previous issues with binge drinking with friends but that he is no longer associated with those people.
The offender expressed remorse for his actions noting that it was “the wrong thing to do” and “not how you treat another person”.
The report of Prof Boer dated 15 January 2022 provides useful background information on the offender. It indicates a history of suicide attempts between the ages of 15 and 18. It also indicates that his treating psychiatrist had working diagnoses of autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). The report reaches the conclusion that he provisionally meets the criteria for a DSM-V diagnoses of ASD level 1 and ADHD. The report expresses the opinion that at the time of the offending, the offender’s mental condition was “significantly impaired” in that he was not taking his prescribed antidepressant medication and had not been assessed or treated for ADHD by a psychiatrist and hence was not medicated for that condition. The report identifies that hallmark symptoms of ADHD include both inattention and hyperactivity-impulsivity. Symptoms of ASD that would have been problematic at the time of the offending appear to have included deficits in “social relatedness” and communication. This would have included difficulties navigating social cues and a potential inability to understand the negative intentions of his co-accused. While the precise relationship between his conditions and the offending conduct is not established on the evidence, I accept that the unmedicated conditions were ones which made him more easily influenced to engage in the offending conduct and reinforce that which appears from other evidence, namely that he was a follower rather than the leader in the offending.
A letter from the offender’s treating psychiatrist, Dr Luke Johnson, also discloses facts which led him to a revised working diagnosis of paranoid schizophrenia, the symptoms of which are presently being treated with medication. The full working diagnosis is paranoid schizophrenia on the background of mild intellectual disability and ADHD.
Three references were also tendered.
The first, from his mother, indicates that the offender suffered from poor mental health for many years and she struggled to get a proper diagnosis when she observed his mental health condition getting progressively worse. It identifies that he has been very impressionable, lacking in maturity and always seeking acceptance from his peers, but is otherwise an honest, thoughtful, polite, considerate, gentle and sensitive young man. She indicates that the prescription of medication in August 2021 has had a transformative effect on the offender. He is now working full-time and has good support from his family. She indicates that he needs close guidance along with easy access to medication and his doctors, psychologists and psychiatrists.
The reference from Anthony Crowe, a secondary school teacher of 35 years’ experience who has known the offender all his life, describes the difficulties that the offender had while completing high school at a boarding school. It also attests to the decline in his mental health after his arrest and the significant benefits that he has received from medication. It attests to his remorse for the damage done to his victim and his motivation to turn his life around over the past year.
The third reference is from the offender’s current employer, which identifies that over the short time he has been employed, he has been a “decent, hard‑working and trustworthy person”.
Criminal history
The offender has no previous criminal history.
Plea of guilty
The plea of guilty was entered in the Magistrates Court during the matter’s sixth mention. It came after receiving the Crown’s brief of evidence. In my view, a discount of 25 percent is appropriate in the circumstances.
Consideration
Aggravated robbery is a very serious offence. This case involved threats with a knife. It was directed to a person who was prepared to respond to an internet dating opportunity and was vulnerable to deceit. The evidence is consistent with the offender being a follower rather than a leader. It does not establish that he was responsible for either the idea or the execution of the scheme to place the victim in a vulnerable situation.
The offender is a young man with mental health difficulties. The evidence establishes that those mental health difficulties are now significantly lessened by the use of appropriate medication, which was not the case at the time of the offending. It also indicates that he is subject to the influence of antisocial peers. He remains the beneficiary of significant family support and is now pursuing both employment and treatment to maintain his mental health.
The offender has no criminal history. He was only just an adult at the time of the offending. Plainly, the fact that he is a young man is a significant consideration having regard to the potential to engage in serious criminal conduct without fully appreciating its gravity or its consequences. Further, having regard to his mental health conditions, I am satisfied that a sentence of full-time imprisonment will weigh more heavily upon him because of those conditions.
Having regard to the lack of any previous criminal history and the progress at rehabilitation arising from a stable regime of medication and employment, it would, in my view, be counter-productive to impose a sentence which impeded that rehabilitation.
In my view, it is clear that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) is passed and a custodial sentence is appropriate. However, the matter can be dealt with in a way that does not involve any further period of full-time imprisonment.
In my view, the appropriate starting point is a sentence of 12 months’ imprisonment reduced to nine months on account of the plea of guilty. The sentence will be backdated to take into account the 32 days already spent in custody and will be suspended after that point upon entry into a good behaviour order without additional conditions for a period of 12 months.
Orders
The orders of the Court are:
1. On the charge of aggravated robbery (CC2020/13063) the offender is convicted and sentenced to imprisonment for a period of nine months commencing on 30 December 2021 and ending on 29 September 2022.
2. That sentence is suspended after the offender has served 32 days in custody upon entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months subject to the core conditions and with the additional condition that he comply with the reparation order made today.
3. Note that the 32 days in custody have been fully served.
4. A reparation order requiring the offender to pay the amount of $50 to [the victim] of care of the ACT Director of Public Prosecutions.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 16 March 2022 |
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