R v Winters

Case

[2019] ACTSC 245

16 September 2019


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Winters

Citation:

[2019] ACTSC 245

Hearing Date:

15 July 2019

DecisionDate:

16 September 2019

Before:

Loukas-Karlsson J

Decision:

See [64]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by joint commission – assault occasioning actual bodily harm – principles of parity – where one offence committed in custody – prospects of rehabilitation

Legislation Cited:

Crimes Act 1900 (ACT) s 24

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 35, 72
Crimes (Sentencing Procedure) Act 1999 (NSW) s 22

Criminal Code 2002 (ACT) ss 45A, 310

Cases Cited:

Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297

Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Butters v R [2010] NSWCCA 1
Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Fusimalohi v The Queen [2012] ACTCA 49
Hall v The Queen; Barker v The Queen [2017] ACTCA 16
Hili v the Queen [2010] HCA 45; 242 CLR 520
Hogan v Hinch [2011] HCA 4; 243 CLR 506
Imbornone v R [2017] NSWCCA 144
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
Mun v R [2015] NSWCCA 234
R v Campbell (Supreme Court of the Australian Capital Territory, Refshauge J, 24 April 2009)
R v Harrison [2002] NSWCCA 79; 121 A Crim R 380
R v Henry [1999] 46 NSWLR 346; 46 NSWLR 346
R v Martin [2007] VSCA 291; 20 VR 14
R v Meyboom [2012] ACTCA 48
R v Mumberson [2011] NSWCCA 54
R v Newman; R v Reid [2016] ACTSC 102
R v NF [2018] ACTSC 165
R v Pham [2015] HCA 39; 256 CLR 550
R v Stacker [2019] ACTSC 219
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
R v Tran [1999] NSWCCA 109
Thompson v The Queen [2018] ACTCA 2
Van Zwam v R [2017] NSWCCA 127
Zdravkovic v The Queen [2016] ACTCA 53

Parties:

The Queen (Crown)

Dylan Winters (Offender)

Representation:

Counsel

M Fernandez (Crown)

J Robertson (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman Robertson Solicitors (Offender)

File Numbers:

SCC 237 of 2018; SCC 140 of 2019

LOUKAS-KARLSSON J:

Introduction

  1. On 4 February 2019, Dylan Winters (the offender) pleaded guilty to one charge of aggravated robbery contrary to section 310 of the Criminal Code 2002 (ACT) (Criminal Code) (Count 1) (CC2018/6763) by virtue of s 45A of the Criminal Code. The maximum penalty for this offence is 2,500 penalty units, imprisonment for 25 years or both.

  1. On 11 April 2019, the offender also pleaded guilty to one charge of assault occasioning actual bodily harm contrary to section 24 of the Crimes Act 1900 (ACT) (Crimes Act) (Count 2) (CC2019/4256). The maximum penalty for this offence is imprisonment for 5 years.

Facts

Count 1

  1. The agreed facts are set out in the Agreed Statement of Facts tendered by the Crown, summarised as follows.

  1. During the evening of 28 January 2018, the offender entered an IGA supermarket at Isabella Plains, ACT, in the company of a co-offender (Mr Stacker). The offender was armed with a machete, and the co-offender was armed with a kitchen knife. The offender and co-offender demanded money and cigarettes from a sales attendant who then opened the cash register. Mr Stacker then took $3,046 and placed it in a bag being held by the offender. The offender and co-offender then left the store.

Count 2

  1. On 16 May 2018, the offender assaulted another detainee (Mr Jones) in his cell in the Alexander Maconochie Centre (AMC) in the presence of two other detainees. The offender approached Mr Jones from behind, and struck Mr Jones in the face 15 to 20 times with closed fists resulting in bleeding from his head. Mr Jones fell to the ground and the offender kicked him in the face and ribs a number of times, and stomped on his head about two times. The assault lasted about one minute. Mr Jones was treated for a ruptured left ear drum with a small amount of blood in the canal, swelling over the left cheek, multiple areas of swelling over the scalp, abrasions, and a T-shaped laceration on the left side of the scalp which required gluing.

Victim Impact Statement

  1. The victim impact statement of the victim of the aggravated robbery includes the following:

After the robbery, when I would be at work I would look at the door often when it was night. I was hypervigilant working night shifts and on the counter which is where I predominantly worked.

My job at IGA was the first job I had, I did continue to work there but now have a permanent job now that I have completed Year 12.

  1. The victim’s mother also included the following in her victim impact statement:

My son appeared ok after that night. There were some ups and downs for him in the 6 months afterwards. For some reason, he thought [the offender was] caught soon after the incident but when weeks later he found out [he wasn’t], I noticed a change in him. At his lowest point, he did tell me he was depressed. I rang the Victim Support number we had been provided to seek assistance. Sadly, they never returned my call. I did receive some phone calls from his school at varying stages following the incident, concerned about how my son was going and he did see the school counsellor. I don’t want to dwell on those times, it is hard as a parent to see your child suffering and this made me suffer too. We were constantly monitoring him from a distance to ensure he was ok and I had several discussions with the school in an effort to best support him.

My son completed Year 12 last year. Of course his studies were affected after the incident but he seemed to [pick] up again by the end of year and I know he is in a good place now. Tears well in my eyes when I think back to that incident and the impact it had. Things like this have a ripple effect to so many people.

  1. The court acknowledges the significant impact that the offence has had and continues to have on the victim of the aggravated robbery. While there was no victim impact statement in relation to the assault occasioning actual bodily harm in custody, the Court also acknowledges the impact of that offence upon the victim.

Objective Seriousness

  1. Counsel for the offender submitted that the aggravated robbery was unsophisticated, although with elements of planning. Moreover, it was noted that no battery was inflicted and no direct threats of harm were made to the victim. It was further submitted that the offender’s culpability was slightly lower than the co-accused’s, as he did not go behind the counter or take money from the till. It was submitted that the money that was appropriated ($3,046) is not insignificant but not large in the range of aggravated robbery. Counsel for the offender submitted the robbery would fall in the mid-range of objective seriousness.

10.  In relation to the assault occasioning actual bodily harm, counsel for the offender submitted the assault was unprovoked and conceded that the offender would have been “emboldened” by the presence of other detainees. It was submitted that the injuries suffered by the victim were “very serious”. Counsel for the offender submitted the assault would fall at the mid-range or between the mid- to high-range of objective seriousness.

11.  I find the offence of aggravated robbery to be of mid-range seriousness and I find the assault occasioning actual bodily harm to be above mid-range, taking into account the matters discussed above (see also R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]).

Subjective Circumstances

12.  In evidence before me are a Pre-sentence Report (PSR) and Updated PSR prepared for the offender. The offender is 20 years of age. He is the youngest of three children born from his parents’ union. His parents separated when he was one year old, following his father sexually assaulting his mother and being imprisoned for the offence. The offender has two younger half-siblings from his mother’s subsequent relationships. He reported having a close relationship with his immediate family and mother’s ex-partner. He made initial contact with his father three years ago, but the relationship did not progress.

13.  The offender stated his mother used illicit substances and was physically abusive towards him and his siblings. The children were removed from the family home when the offender was nine. He advised that that time was extremely traumatic as he and his siblings were separated, and he was placed with a number of foster families and youth refuges. The offender’s mother stated that with one foster family the offender was physically abused and witnessed another person in care be sexually assaulted. The offender’s mother stated this impacted on his mental health and was, in her view, the catalyst for his offending behaviour.

14.  The offender has been in a relationship with his partner for over 12 months. He reported she is supportive of him and is a pro-social influence. The offender reported the majority of his friends and acquaintances are involved in criminal activity, and that his mother, sister and partner are his only pro-social supports. Prior to being remanded, the offender was residing with his mother for 12 months. The offender’s mother has since relocated to NSW and therefore is unable to assist the offender with accommodation upon his release. When released from custody, the offender plans to reside with his partner.

15.  The offender stated he completed his Year 10 Certificate in youth detention. He needs assistance with literacy and numeracy, but has failed to attend classes. He has no employment history in the community, however, is currently employed in the AMC. The offender informed Corrective Services he has an employment opportunity as a furniture removalist in the community and he plans to pursue employment opportunities upon his release.

16.  ACT Health has confirmed the offender has diagnoses of Intermittent Explosive Disorder, and Aggressive Conduct Disorder, and a background of Post-Traumatic Stress Disorder. The offender has recommenced medication for depression.

17.  The offender has a history of THC use, amphetamine use and psychosis, and he stated he first used cannabis at 11 years old. He claims to have ceased all drug use in custody, but failed to participate in two requested urinalysis tests. He stated he would resume consumption of cannabis when released. The offender reported he first used methylamphetamine at 12 years old, used intermittently and ceased only when in youth detention. When released from detention he reported he was able to maintain his abstinence from methylamphetamine for a short time prior to relapsing. Preceding the current remand period he reported daily methylamphetamine use, including on the day of the aggravated robbery. A drug screening tool administered on 24 January 2019 indicated that prior to being remanded he was using drugs at a substantial level. The offender claims he has not consumed alcohol for 18 months.

18.  The Updated PSR of 10 July 2019 reports that the offender’s behaviour in remand has been poor. The PSR notes that since 4 August 2018, he has received a number of warnings or penalties, and the Updated PSR outlines a further ten instances. These comprise inappropriate behaviour during visits, verbal abuse toward a custodial officer, abusive threats of violence towards a laundry manager and meal tampering during employment duties. The Updated PSR confirms the supportive relationship between the offender and his partner. It also notes Service records indicate that the offender’s partner visited him 32 times in AMC.

19.  On 28 February 2019, the offender attended an assessment for substance abuse treatment at Arcadia House. However, he was removed from their waiting list as he failed to communicate with staff. On 1 July 2019, the offender graduated from the Solaris Therapeutic Community Program. Records indicate that he was a positive influence on other program participants. ACT Health indicated the offender applied for the Methadone Program, disclosing he had been using opioids whilst in custody. He was found unsuitable for the Program as he has had no history of opioid management and a negative urine result (see T 17). The offender stated that he intends to manage his own abstinence from illicit substances when in the community without the assistance of intervention. The offender reported plans to keep himself busy through employment and new pro-social connections.

20.  The offender’s attitude remained the same towards the aggravated robbery as was indicated in the PSR. He reported he accepted full responsibility and expressed he was sorry for how he made the victim feel. He also accepted responsibility for the assault occasioning actually bodily harm and did not attempt to justify or minimise his offending behaviour. He disclosed he did not foresee the incident escalating as it did and reported regretting his choices and offending.

21.  The author of the Updated PSR noted the offender has been in the judicial system since he was 12 years old and he has a long history of illicit substance use and mental health issues which appear related to his offending and anti-social attitudes. The Updated PSR author was concerned that the offender appears to minimise the need to engage with interventions to manage his risk factors, “as there is no evidence to suggest he has been able to self-manage these issues successfully in the past”.

22.  Counsel for the offender submitted the offender was introduced to ‘ice’ by older boys following his older brother being sentenced to a term of imprisonment, and that he “felt peer pressured to consume the drug to fit in with the group.” Counsel further submitted that:

[T]he defendant is a young man, only twenty years of age with a pro-social partner and the opportunity to engage in employment. The defendant submits that these factors will motivate him to abstain from the use of illicit substances, which he had managed to do whilst in custody to lead a pro-social life.

Remorse

23.  In relation to the aggravated robbery offence, the offender told the PSR author that “nobody should ever have to go to work and have to worry about being robbed, I’m very sorry for how I have made them feel”. In relation to the assault occasioning actual bodily harm offence, the author of the Updated PSR stated that the offender “did not foresee the offending behaviour escalating in the manner that it did and reported regretting his choices and offending.”

24.  Counsel for the offender submitted that the offender has “accepted … that his behaviour could be much better coming before this court” (T 12.27). Counsel for the offender further submitted that “the [offender] does not shy away from the fact that he was a direct participant in the aggravated robbery”. I accept that there is some insight on the part of the offender.

25.  The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 (Mun) at [36] ; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v R [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380. Accordingly, I accept that there is some insight, though I do not ascribe significant weight to the remorse expressed in all the circumstances.

Conditional Liberty

26.  The offender was subject to a good behaviour order with a suspended term of imprisonment attached at the time of the aggravated robbery.

  1. As stated in R v Tran [1999] NSWCCA 109 at [15] (Wood CJ):

Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.

28.  The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.

29.  Counsel for the offender made submissions in relation to totality, specifically that I am to consider “how the aggravated robbery should sit within that period of imprisonment imposed by the Magistrates Court noting … he was subject to conditional liberty”.

30.  The offender was in custody from 3 March 2018 to 1 January 2019 for offences of minor theft, failure to stop a motor vehicle for police, possession of an offensive weapon and dangerous driving. From 2 January 2019, the offender has been in custody solely in relation to the current offences.

Criminal History

31.  The offender has a criminal history, including matters as a juvenile: offences of violence, robbery, aggravated burglary and property offences.

Plea of Guilty

32.  The offender entered a plea of guilty for Count 1 after the matter had been committed to trial in the Supreme Court, and a plea of guilty for Count 2 at the earliest opportunity in the Magistrates’ Court. Counsel for the offender submitted that the pleas of guilty assisted the administration of justice and provided utilitarian benefit to all parties, especially the victim’s mother who stated it was a “big relief to hear that my son was no longer required as a witness” in her Victim Impact Statement.

33. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the court is required to take into account guilty pleas by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].

34.  Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].

35.  Counsel for the offender submitted that a discount of 15% would be appropriate for Count 1 for the plea of guilty and the prosecution agreed. No submission was made regarding the amount of discount the Court should apply to Count 2 (T 24).

36.  I therefore allow an approximate discount of 15% for Count 1 for the plea of guilty and 25% for Count 2.

Time in Custody

37.  The offender spent 194 days in custody from 2 January 2019 to 15 July 2019 (the hearing date) solely referable to these offences and 63 days since the hearing date, totalling 257 days.

Cases

38.  Bare sentencing statistics provide limited assistance for sentencing (R v Pham [2015] HCA 39; 256 CLR 550). Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 at [4] that:

[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

39.  The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. I was referred by the prosecution to the guideline judgment R v Henry [1999] 46 NSWLR 346; 46 NSWLR 346 (Henry) and to the ACT cases of Hall v The Queen; Barker v The Queen [2017] ACTCA 16 (Hall) and R v NF [2018] ACTSC 165 which have accepted Henry as “persuasive” authority in this jurisdiction (see Hall at [49]). In Henry, Spigelman CJ identified at category of case where: there is a young offender with little criminal history, a weapon capable of inflicting serious injury, a limited degree of planning, limited violence, a vulnerable victim, a small amount taken and a plea of guilty but limited in its significance by a strong Crown case (at [162]). A case of this kind was considered to generally attract a period of four to five years imprisonment (at [165]). The prosecution submitted that the present case fell “pretty much squarely within” Henry but distinguished the offender’s “substantial criminal history”. It was accepted however that there was a “limited degree of planning” and limited actual violence but a real threat of violence.

40.  The prosecution also referred to R v Newman; R v Reid [2016] ACTSC 102, where the co-offenders, both 26 years old at the time of the offending, pleaded guilty to assault occasioning actual bodily harm, having assaulted members of a rival motorcycle gang at a shopping centre carpark. The offending was characterised as objectively very serious, premeditated and “intense and ferocious” (at [19]). After a discount of 15%, the offenders received sentences of 16 months and 20 months respectively, to be served by way of intensive corrections order, and each received non-association orders. The prosecution relied on this case by submitting the assault in the present case could also be characterised as “intense and ferocious”.

41.  Counsel for the offender referred to the decision of R v Campbell (Supreme Court of the Australian Capital Territory, Refshauge J, 24 April 2009). In that case the offender, aged 19 at sentencing, pleaded guilty to aggravated robbery and assault occasioning actual bodily harm. The offender admitted to being under the influence of drugs during the offending, was found to express some remorse and empathy and had made some attempts at rehabilitation. After discounts of approximately 15%, the offender received 3 years imprisonment for the aggravated robbery and 15 months’ imprisonment for the assault occasioning actual bodily harm, to be served cumulatively, with a non-parole period of 12 months (noting the offender’s youth and commitment to reform). Counsel for the offender noted that like Campbell, the offender is young and submitted the “prospects of rehabilitation have not shut upon him”.

Parity

42.  The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:

[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).

43.  The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32].

44.  The co-offender in relation to the aggravated robbery, Mr Stacker, was sentenced by Justice Elkaim on 15 August 2019. I have reviewed the reasons for sentence for the purposes of parity. The co-offender was sentenced to 2 years and 6 months’ imprisonment for the robbery offence committed with the offender (at [28]), after a discount of 25%. The co-offender was also sentenced in relation to other matters including another aggravated robbery and a burglary leading to an overall sentence of 5 years’ imprisonment and a non-parole period of 2 years and 6 months. The co-offender was born in 1994, so was also a relatively young man, though somewhat older than the offender, being in his mid-20s. The offender is only 20 years of age. Elkaim J stated that the co-offender (see R v Stacker [2019] ACTSC 219 at [18]):

[H]as a long criminal record probably dictated by his addiction to drugs, but exacerbated by the effect of the drugs on his mental impediments.

45.  In sentencing the offender I take into account the principles of parity, noting the difference in ages and additionally noting the otherwise broadly similar subjective circumstances of the co-offenders. The combination of drug addiction and childhood disadvantage appears somewhat more acute in the case of the offender, with a childhood that has been described as “chaotic” (T 10.28).

Statutory and Other Relevant Considerations

46. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

47.  The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation and recognition of harm to the victim are important sentencing considerations. The prosecution submitted that the issue of general deterrence was particularly important in relation to the aggravated robbery. In relation to the assault, the prosecution submitted this was a “ferocious and sustained attack in a custodial situation” (T 21.6), which called for both specific and general deterrence. I accept these submissions.

48. Counsel for the offender submitted that s 72 of the Sentencing Act is enlivened in relation to Count 2, as the assault was committed whilst the offender was in custody. That section states that:

(2) In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.

(3) The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.

49.  Counsel for the offender submitted that the court should make a direction that the sentence of imprisonment imposed for the offences should be served at least partly concurrently. I accept this submission as it accords with my view in relation to totality.

50.  Rehabilitation is also an important consideration having regard to the offender’s youth. In relation to rehabilitation, counsel for the offender submitted that “the defendant is a young man … and … the Honourable Court should not impose a term of imprisonment that is crushing.” Counsel drew on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

  1. Counsel for the offender submitted that I should pay regard to the offender’s “good prospects of rehabilitation considering his age and that prosocial aspect of having his partner” (T 12.6). The offender’s counsel further submitted that the offender’s poor behaviour in prison was prior to his graduation from the Solaris Therapeutic Community Program. On the evidence it must be said that the prospects for rehabilitation remain guarded, while acknowledging and taking into account the positive step of graduating from the Solaris program.

  1. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.

  1. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

  1. Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].

  1. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: Henry at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30]. The unfortunate combination, well known to the courts, of childhood disadvantage and drug addiction are very much present in the offender’s case.

  1. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence, and totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].]

Sentence

57.  It must be recognised by the Court that the offences committed against the victims have had a serious and significant impact upon them. Both the short and long-term consequences of being the victim of offences of aggravated robbery and assault in custody must be acknowledged.

58.  In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective matters.

59.  The appropriate sentence for the offence of aggravated robbery is 36 months reduced to 2 years, 6 months on account of the discount of approximately 15% for the plea of guilty.

60.  The appropriate sentence for the offence of assault occasioning actual bodily harm is 20 months reduced to 15 months on account of the 25% discount for the plea of guilty.

61.  Overall there will be a sentence of 3 years and 6 months, taking into account the appropriate period of concurrency and accumulation.

62.  There will be a non-parole period of 2 years and 2 months from 1 October 2018 to 1 December 2020, taking into account totality with the previous sentence, beginning on 3 March 2018.

Order

63.   I make the following orders:

(a)I record convictions in relation to the offences.

(b)In respect of the offence of aggravated robbery contrary to section 310 of the Criminal Code (CC2018/6763), the offender is sentenced to a term of 2 years, 6 months of imprisonment, commencing on 1 October 2018 and ending on 31 March 2021.

(c)In respect of the offence of assault occasioning actual bodily harm contrary to section 24 of the Crimes Act (CC2019/4256), the offender is sentenced to a term of 15 months of imprisonment, commencing on 1 January 2021 and ending on 31 March 2022.

(d)I set a non-parole period of 2 years and 2 months, commencing on 1 October 2018 and ending on 1 December 2020.

I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson

Associate:

Date: 16 September 2019

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Most Recent Citation
R v Bonfield [2021] ACTSC 362

Cases Cited

8

Statutory Material Cited

4

R v Tran [1999] NSWCCA 109
Markarian v The Queen [2005] HCA 25
Bugmy v The Queen [2013] HCA 37