R v XXL
[2019] ACTSC 294
•13 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v XXL |
Citation: | [2019] ACTSC 294 |
Hearing Dates: | 16 October and 13 December 2019 |
DecisionDates: | 18 October and 13 December 2019 |
Before: | Mossop J |
Decision: | See [42] and [48] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – burglary – offender under 18 years old at time of offence – later offence of aggravated robbery when an adult – whether s 80 of the Crimes (Sentencing) Act 2005 (ACT) constrains the availability of an intensive correction order for the latter offence – it does if a good behaviour order is imposed for the first offence – intensive correction order made for aggravated robbery |
Legislation Cited: | Criminal Code Act 2002 (ACT), s 310 Crimes (Sentencing) Act 2005 (ACT), ss 11, 78, 80, 133B, 133C, 133D, 133G Magistrates Court Act 1930 (ACT), s 90A |
Cases Cited: | Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 R v Goodge [2019] ACTSC 297 |
Parties: | The Queen (Crown) XXL (Offender) |
Representation: | Counsel D Sahu Khan (Crown) R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 57 of 2019 SCC 115 of 2019 |
MOSSOP J:
Reasons given on 16 October 2019
The offender, XXL, has pleaded guilty to a charge of burglary contrary to s 311 of the Criminal Code 2002 (ACT), committed on 28 June 2015 (CH2019/140). The offence carries a maximum penalty of 14 years’ imprisonment, 1400 penalty units or both. The proceedings in relation to this charge have been transferred to this court under s 90A of the Magistrates Court Act 1930 (ACT).
He has also pleaded guilty to a charge of aggravated robbery contrary to s 310 of the Criminal Code committed on 2 July 2019 (CC2018/14718). The maximum penalty for that offence is 25 years’ imprisonment, 2500 penalty units or both.
The plea of guilty to the charge of burglary puts him in breach of three good behaviour orders which were imposed on charges of possessing an offensive weapon with intent, destroying or damaging property not exceeding $5000 and common assault.
Facts
The Burglary
The facts in relation to the burglary were agreed. They were in summary as follows. The burglary occurred on 28 June 2015. The offender broke into the Trinity Christian School in Wanniassa. The alarm was activated at 1.25am and police attended and conducted a search of the school. They identified that someone had entered the electrical plant room and removed a circuit breaker from the switchboard. The point of entry was a double metal framed door with toughened glass panels. The door had been forced outwards causing one of the glass panels to break and the door handle was lying on the ground.
Next to a vending machine police located a pair of red handled scissors and a section of vacuum cleaner tube. There appeared to be blood on the pair of scissors. It appeared that someone had attempted to open the vending machine, causing it damage. Police seized the scissors and the vacuum cleaner tube and made a request for a police forensic team to attend later that day.
At 3.45am police attended the school again in response to another alarm. A school staff member told police that he had seen that someone had re-entered the school and taken the cashbox out of the vending machine. Police observed that the same doorframe had been forced outwards again causing further damage around the locking mechanism and breaking five further glass panels. The vending machine had been further damaged and the cashbox removed.
At about 8.25am that morning forensic investigators attended the school and obtained a wet swab of apparent blood from the push button console on the external door of the vending machine.
Just over three years later the DNA profile so obtained which had been placed on the national criminal investigation DNA database was found to match that of the offender.
The cost of repairing the five damaged glass panels was $1480.
The Aggravated Robbery
The aggravated robbery occurred on 2 July 2019. The facts relating to the aggravated robbery were agreed. I summarised them in my reasons in R v Goodge [2019] ACTSC 297 (Goodge) as follows:
4. In January 2018, the victim, [ML], entered into an agreement with Mr Goodge who was known to him as ‘Sunni’. The agreement was for a loan of $2300 with which the victim was to purchase a vehicle.
5. The victim sold the vehicle and obtained a bank loan for $13,000 to purchase a white Audi S3 sedan. The victim continued to repay Mr Goodge for the debt and as at July 2018 he had an outstanding debt of approximately $1500. The victim was working as a cleaner and was in the process of saving money to pay off the remainder of the debt.
6. At some time in June 2018, Mr Goodge heard that the victim was working and had purchased a new motor vehicle even though he still owed him money.
7. On 1 July 2018, Mr Goodge contacted the victim on Facebook Messenger using his personal profile '[redacted]'. Mr Goodge sent the following message to the victim:
I've added it all up & doubled it just for the FUCKING STOOGE JEW. Yeh that’s you ( through&through. A if you think you are going to just pay me 900. I WILL COME THERERIGHT NOW YOUSHIT TALKING STUPID FUCKING COCK HEAD & I’LL PUT YOU TO BED
8. The Agreed Statement of Facts does not provide any explanation for the level of vitriol and threat in this communication.
9. The same night, the victim received text messages via Facebook Messenger from XXL whom he had known for five or six years. XXL was using his Facebook profile in the name of ‘[redacted]’. ln these messages XXL alleged that the victim was making inappropriate contact with XXL’s girlfriend. The victim responded and denied that he had made such contact as she was not his type and he would never do that to a mate.
10. At about 2.30am on 2 July 2018, the victim was asleep in his bedroom located in a granny flat at the back of his parents’ house in Wanniassa. At around this time, he heard a knock on the door to his granny flat. He heard the voice of Mr Goodge and opened the door, XXL then pushed past Mr Goodge and forced entry into the granny flat, while yelling and screaming at the victim. Mr Goodge then entered the flat.
11. The victim saw that XXL was holding a small wooden bat in his right hand and a small purple folding knife in his left hand. The knife was approximately 15cm long. The bat was approximately 30cm long and was the diameter of a tennis ball.
12. XXL began to wave his knife in the victim’s face before striking him on the left side of his head a number of times using the wooden bat.
13. XXL demanded the victim sign over ownership of his Audi vehicle to Mr Goodge whilst threatening him with the knife.
14. The victim wrote a note stating that he signed over ownership of his Audi vehicle to Mr Goodge. He only did so because XXL had assaulted him with the bat earlier and was fearful he would use the knife to cause him further injury.
15. Mr Goodge was present at all times when XXL was carrying out the assault.
16. Mr Goodge and XXL knocked over several items in the victim's granny flat before taking his wallet, Samsung S7 mobile phone, a taser, a “$” shaped money box and keys to his vehicle.
17. The victim left his granny flat and saw that his motor vehicle had been taken. He then entered the main residence and alerted his mother to what had happened. She knew Mr Goodge as a friend of the victim. She then contacted police at about 3.05am who attended a short time later. Members from ACT Ambulance Service attended at about 3.35am and transported the victim to the Canberra Hospital.
18. At about 2.25pm on 4 July 2018, police located the victim’s vehicle next to a unit in Summerland Circuit in Kambah. Police seized the vehicle and took it back to the Australian Federal Police Exhibit Management Centre where it was forensically examined.
19. Although there was some suggestion in the Agreed Statement of Facts that the vehicle may have been taken merely as security for the repayment of the debt by the victim to Mr Goodge, the parties agreed that Mr Goodge and XXL should be sentenced on the basis that their intention was to permanently deprive the victim of the vehicle and hence that the elements of theft and hence robbery were satisfied in relation to the vehicle as well as the other items taken. Those facts give rise to the charges of aggravated robbery in relation to Mr Goodge and XXL (CC2018/10561 and CC2018/14718).
…
23. Both XXL and Mr Goodge’s fingerprints were found on the Audi sedan.
Victim impact statements
Similarly, in relation to the aggravated robbery, victim impact statements were prepared by the victim and his mother. I described them and the manner in which I have considered them in Goodge as follows:
24. Two victim impact statements were prepared by the victim. The first demonstrates that he feared for his life when he was being attacked. It also explains the impact that he perceived the attack had on him and his mother. It indicates that the robbery had a significant psychological effect upon him and he became in his words “unemployable in that mind state”. It identifies that he has recovered somewhat from the impact of the robbery. His second statement describes his reaction to the robbery in further detail, the fact that it led him to sink into a depressive state and the impact upon his relationships with his then partner and mother.
25. The victim impact statement prepared by his mother describes the impact of her son seeking help in the early hours of the morning in an injured state. It describes the stress and anxiety that she has suffered since and, in particular, her fears that the robbers would return.
26. It describes the impact upon her and the victim and the effect on her relationship with her husband and her two sons. It describes the ongoing traumatic memories that she suffers as a result of the incident on that night.
27. I have taken into account the terms of the victim impact statements particularly insofar as they articulate the terror inflicted upon the victim at the time and the subsequent psychological impact upon him and his family.
Objective seriousness
The burglary was on institutional premises at night. It was therefore not aggravated by being domestic premises or premises where it was likely that occupants would be put in fear. It involved some damage to the property sufficient to gain entry. I would assess it as being in the low to mid range of objective seriousness for this offence.
The aggravated robbery was statutorily aggravated because XXL was in company with Mr Goodge. It was also aggravated by the fact that weapons were involved. It involved a robbery committed on the home of the victim in the early hours of the morning. XXL was the one who inflicted the violence upon the victim, although Mr Goodge was present throughout. I consider that XXL’s culpability was clearly the greater of the two offenders. I consider that the objective seriousness of this offence is somewhat below the mid range of objective seriousness for the offence of aggravated robbery.
Subjective circumstances
There were two pre-sentence reports prepared, one dated 11 July 2019 and an updated pre-sentence report dated 9 October 2019.
XXL identifies as an Aboriginal man, born in Canberra and raised in [redacted], NSW. He is 20 years old. He described a happy childhood that was mutually supportive. He was the middle child of his parents’ three children and described good relationships with both siblings. XXL appears to enjoy positive relationships with his immediate family members.
XXL said that he has been in a relationship with his current partner for approximately 12months and they have a 17 month old child. He reported he was happy with his domestic circumstances and it appears he has the full support of his partner at this time.
XXL stated that he has a child from a previous relationship and has amicable arrangements in place that include regular contact with his daughter.
XXL stated that he lived with his ex-partner for two years prior to being served with a Domestic Violence Order, which prevented him from being at the property. He reported residing with his parents for approximately 12 months before the current remand period.
He reported that he completed Year 9 and then had a number of casual jobs in the construction industry. He left his most recent employment three months prior to his being remanded in custody, due to a disagreement with his brother.
He explained that due to his unemployment he has been funding his living with money obtained by criminal offending. He also reported being financially dependent on his parents.
He denied any past issues with alcohol.
In relation to drug use, he explained that he began to use methamphetamines at the age of 14 years. His use escalated to addiction at the age of 17, and in the past 12 months he had been using illicit substances on a regular basis.
He denied any historical or current issues with his general or mental health.
He acknowledged that the offence was as a result of his poor decision making and admitted he was under the influence of methamphetamine at the time. He claimed he was motivated to commit the offence in order to obtain money to pay for his illicit substance use.
The pre-sentence report summarised his circumstances as follows:
[XXL] is 20 year old man who has been assessed as a medium risk of reoffending. His criminal history began in 2013 and appears to have escalated in combination with his illicit substance misuse. He indicated he understands his current addiction affects his behaviour and appears to want to address this issue in a bid to reduce his propensity for re-offending.
At present his personal circumstances appear stable and he has some pro-social supports in place. These supports would no doubt be beneficial should he commit to full time rehabilitation, however he still appears to struggle with impulsive behaviour and poor decision making. [XXL] may benefit from engagement with a cognitive self‑change program to develop awareness of his thought processes.
At the time of being interviewed for the second pre-sentence report he denied any issues with drug misuse and stated he had no intentions to use on his release. He indicated that he was no longer estranged from his brother and consequently he hoped to return to full-time work when able to do so. There was evidence of an offer of full-time work available upon his release. When questioned by the author of the pre-sentence report in relation to his risk of reoffending, he stated that he intended on distancing himself from antisocial influences in the community, and instead hoped to invest more of his time into family responsibilities.
A letter from his mother was also tendered. That letter indicated that the offender’s irresponsible, impulsive and self-destructive behaviour correlated with his use of methamphetamine. It disclosed that she is personally responsible for caring for his three year old child. She expresses the opinion that he is motivated to address his drug use and it is very clear that she is very motivated to assist him with that rehabilitation.
Criminal history
The offender has a regrettable criminal history. In the Australian Capital Territory he has the three offences for which he was given good behaviour orders. His offending in New South Wales commenced when he was 14 years old. He has convictions for armed robbery, destroying or damaging property, driving a vehicle taken without consent of the owner, receiving stolen property, common assault involving domestic violence, assault occasioning actual bodily harm, having goods in custody suspected of being stolen, possessing or using a prohibited weapon without a permit, receiving stolen property, stalking or intimidation and resisting a police officer in the execution of the officer’s duty. The criminal history is such that even though the offender is a young man the scope for leniency is substantially reduced. It also indicates that specific deterrence remains a significant issue.
Plea of guilty
The offender pleaded guilty to the burglary charge after an initial plea of not guilty but before the provision of a brief of evidence. In those circumstances I consider it appropriate to reduce the sentence that I would otherwise have imposed by approximately 25%. The offender pleaded guilty to the aggravated robbery in the Supreme Court following a criminal case conference. I consider it appropriate to reduce by approximately 15% the custodial sentence that I otherwise would have imposed.
Time in custody
The offender has been in custody since 12 December 2018. It is appropriate to take this period into account by backdating any custodial sentence to this date.
Consideration
At the time of committing the burglary the offender was 16 years old. It is necessary therefore to take into account the matters in Ch 8A of the Crimes (Sentencing) Act 2005 (ACT), in particular in ss 133C, 133D and 133G. Had he been sentenced at about the time of the offending conduct he would only have had a single prior conviction. It is likely that in those circumstances he would have been dealt with leniently. A relevant consideration in sentencing him now is whether or not any sentence imposed for the burglary would constrain the sentencing options available in relation to the aggravated robbery. That depends on the operation of s 80 of the Crimes (Sentencing) Act. Section 80 provides:
80 Intensive correction orders—concurrent and consecutive periods
(1)A court must not make an intensive correction order with intensive correction to be served concurrently or consecutively with a sentence of full-time imprisonment, a suspended sentence of imprisonment, a sentence of default imprisonment or a good behaviour order.
(2) However, a court may make an intensive correction order with intensive correction to be served concurrently with a good behaviour order if—
(a) an offender is under a good behaviour order but not under a suspended sentence order; and
(b) the offender is convicted of an offence that was committed before the offence to which the order relates.
(3) If subsection (2) applies, the sentencing court may sentence the offender to serve a term of imprisonment by intensive correction to be served concurrently with the offender’s good behaviour order.
(4) A court may also make an intensive correction order if—
(a) an offender is under a suspended sentence order but not in full-time detention; and
(b) the offender is convicted of an offence that was committed before the offence to which the order relates.
(5) If the sentencing court makes an order under subsection (4), the court must cancel the offender’s suspended sentence order and re-sentence the offender to serve a term of imprisonment by intensive correction.
The issue in relation to subs (2) is whether the second last word in the subsection, “order”, refers to the good behaviour order referred to in the chapeau and paragraph (a) or to the ICO referred to in the chapeau. This in turn determines whether the court may make an ICO only where the good behaviour order offence predates the ICO offence or where the ICO offence predates the good behaviour order offence.
In my view, the position is that the ICO offence must be one committed before the good behaviour order offence:
(a)The use of the word “is” in paragraph (b) indicates that the word “offence” first appearing in that paragraph is the ICO offence and the second reference is to the good behaviour order offence.
(b)The words “the order relates” is best read as a reference to the good behaviour order referred to in (a) because (b) represents a temporal qualification on the subset of good behaviour orders referred to in (a).
As a consequence, if a good behaviour order is imposed in relation to the burglary then that would preclude the making of an ICO in relation to the aggravated robbery.
A further complication is that the making of an ICO is only available in relation to an “adult offender”. The expression “adult offender” is not defined. However, it is in contrast to a “young offender” which is defined in s 133B as a person who is under 18 years old when the offence was committed. That indicates that the reference to an “adult offender” describes a person who was 18 years or older at the time of the commission of the offence. The offender in this case was under the age of 18 years when he committed the burglary offence and hence an ICO is not available in relation to the burglary offence.
Clearly on both charges it is appropriate to take into account the factors discussed in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]-[36].
On the burglary charge it is not appropriate to reach a conclusion at this stage as to the appropriate sentence having regard to what I have said above about the operation of s 80.
In relation to the aggravated robbery, only a custodial sentence would be appropriate. The starting point is 33 months’ imprisonment reduced to 28 months on account of the plea of guilty.
I am satisfied that the overall sentence would be less than four years’ imprisonment and as a consequence the making of an ICO remains an available option: Crimes (Sentencing) Act s 11. Not only is it an available option but in light of the correlation between the use of methamphetamine and offending, the offender’s age, his prosocial supports and the significant time spent already in custody, the making of an ICO may be appropriate if he is found to be suitable. Therefore, I consider that it is appropriate to direct that an intensive correction assessment be prepared. Once that has been prepared it will be possible to determine how the custodial sentence that I have indicated will be served. It will also be possible to reach a conclusion as to the appropriate sentence on the burglary charge.
I will also at that point deal with the breaches of the three good behaviour orders imposed in 2015. The position of both parties was that an appropriate disposition would be to take no further action, a course which is authorised by s 108(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT).
I also intend to make a referral for restorative justice if with an explanation of the process the offender consents to that. Once again I make it clear that I do not propose to delay the finalisation of the sentencing until any restorative justice process is complete. Rather, I will attempt to finalise the matter as soon as possible after the intensive correction assessment is carried out.
Orders
The orders of the Court are:
1. An intensive correction assessment under s 78 of the Crimes (Sentencing) Act 2005 (ACT) is to be prepared in relation to the aggravated robbery.
2. The matter is adjourned until 9.15am on Friday, 13 December 2019.
Reasons given on 13 December 2019
In the reasons that I gave on the last occasion, I identified that disposition by way of an ICO may be an appropriate outcome, having regard to the correlation between the use of methamphetamine and offending, his age, his prosocial supports and the significant time already spent in custody.
Since that time, he has spent an additional period in custody, bringing the total period in custody to one year. The intensive correction assessment report identifies that he is suitable for disposition by way of an ICO. The complication arises because of the constraints that I identified in my earlier reasons, arising from the fact that he is also subject to being sentenced for an offence committed as a child and the limitations on the capacity of the court to combine ICOs with other forms of sentence. That presents a difficulty in relation to the sentence for the charge of burglary. It rules out the possibility of what would otherwise be the appropriate disposition, namely by way of a good behaviour order. That has the consequence that if an ICO is to be imposed, as I think it should, then the charge of burglary must be dealt with in a way which is either unduly lenient or unduly severe.
Having regard to the fact that he has the benefit of having spent a very substantial period in custody on remand, it would have been possible to make a backdated sentence of imprisonment, in relation to which the ICO was not consecutive. That would have been, frankly, a device by which the constraints in s 80 could have been avoided in order to achieve what was a reasonable outcome. However, I consider that, having regard to the terms of s 133G of the Crimes (Sentencing) Act which indicates that a sentence of imprisonment for a young offender must be a last resort and for the shortest appropriate term, it is not appropriate to deal with the matter in that way. Rather, I consider that it is appropriate to deal with the sentence in a way which is unduly lenient, but unduly lenient in the context of a very substantial custodial sentence being imposed on other offending. I consider it to be within the scope of s 17 of the Crimes (Sentencing) Act because in addition to the mandatory considerations in s 17(3), s 17(4) permits the court to have regard to anything else that it considers relevant.
I consider it relevant in the present case to take into account the matters to which I have referred, about what would otherwise be the appropriate disposition, the constraints that the legislation imposes and the fact that a substantial custodial sentence is being imposed in circumstances where XXL has already spent a year in custody on remand. All of those factors appear to me to indicate that it is appropriate to deal with the matter under s 17 by directing that the charge be dismissed because I am satisfied that it is not appropriate to impose any punishment other than nominal punishment upon the offender.
In reaching the conclusion that the matter should be dealt with by way of intensive correction, I have considered each of the matters referred to in s 11(3) of the Crimes (Sentencing) Act.
As a consequence, I dispose of the matters as follows.
1.On the charge of burglary (CH2019/140) the charge is dismissed under s 17 of the Crimes (Sentencing) Act 2005 (ACT).
2.On the charge of aggravated robbery (CH2018/14718) the offender is convicted and sentenced to imprisonment for 28 months starting on 12 December 2018 and ending on 11 April 2021. That sentence is to be served by way of intensive correction and subject to the following additional conditions:
(i)That the offender undertake medical treatment and supervision as directed by a corrections officer.
(ii)That the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing as required by a corrections officer.
(iii)That the offender attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by a corrections officer.
3.In relation to the breach of good behaviour order imposed on the charge of possessing an offensive weapon with intent (CH2014/917), no further action is taken.
4.In relation to the breach of the good behaviour order imposed on the charge of destroying or damaging property (CH2014/916), no further action is taken.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 23 January 2020 |
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