Russell v Forshaw
[2017] ACTMC 18
•9 November 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Russell v Forshaw |
Citation: | [2017] ACTMC 17 |
Hearing Date: | 23 October 2017 |
DecisionDate: | 9 November 2017 |
Before: | Magistrate Theakston |
Decision: | See paragraph [23] |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – aggravated robbery – unlawful possession of stolen property – driving while licence suspended by law – prescribed drug in oral fluid – reasonable prospects of rehabilitation. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 116ZK Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 (1) (za) Crimes Act 1900 (ACT) ss 375 (12) (c), 375 (15) Criminal Code 2002 (ACT) ss 310 (b), 324 (1) Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 (1) Road Transport (Driver Licencing) Act 1999 (ACT) s 32 (2) (a) |
Cases Cited: | Beniamini v Craig [2017] ACTSC 30 R v McInnes [2017] ACTSC 2017 R v Bennett [2017] ACTSC 104 R v Bresnan [2017] ACTSC 18 R v Campbell (No 2) [2016] ACTSC 368 R v Christie (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 20 August 2013) R v John (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 21 December 2011) R v Kelly (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 23 August 2011) R v O’Brien (Unreported, Supreme Court of the Australian Capital Territory, Matthews J, 17 December 2010) |
Parties: | Benjamin Peter Russell (Informant) Lawrence Bain Forshaw (Defendant) |
Representation: | Counsel Mr B Ngugi (Informant) Ms A Chalmers (Defendant) |
| Solicitors Director of Public Prosecutions (Informant) Canberra Criminal Lawyers (Defendant) | |
File Numbers: | CC 9360 of 2016 CC 9361 of 2016 CC 6448 of 2017 CC 8552 of 2017 |
MAGISTRATE THEAKSTON:
Background
The defendant is before the court for sentencing, having pleaded guilty to the following charges:
(a)CC16/9360 – Drive while suspended by law (17 August 2016) contrary to s 32(2)(a) Road Transport (Driver Licencing) Act 1999;
(b)CC16/9361 – Drive and have within relevant period prescribed drugs in his oral fluid (17 August 2016) contrary to s 20(1) Road Transport Alcohol and Drugs Act 1977;
(c)CC17/8552 – Unlawful possession of stolen property (10 May 2017) contrary to s 324(1) Criminal Code 2002; and
(d)CC17/6448 - Aggravated robbery (11 June 2017) contrary to s 310(b) of the Criminal Code 2002.
The defendant entered those pleas of guilty at early appearances and I accept such pleas evidence remorse and his acceptance of responsibility and provide the court, the prosecution, the police and witnesses with a utilitarian benefit. I take that into account and will reduce the sentences by 25% of what I would have otherwise imposed.
The maximum penalties for the above offences respectively are:
(a)$7,500 and or 6 month’s imprisonment;
(b)$3,750 and or 3 month’s imprisonment;
(c)$7,500 and or 6 month’s imprisonment; and
(d)$375,000 and or 25 year’s imprisonment.
I note my jurisdictional sentencing limit of $15,000 and or 5 year’s imprisonment for the offence of aggravated robbery: s 375(15) Crimes Act 1900. I also note that notwithstanding that jurisdictional limit, I should impose a sentence reflecting the objective seriousness of the offence tempered, if appropriate, by the subjective circumstances of the defendant taking care not to exceed the jurisdictional limit. I should not regard my jurisdictional sentencing limit as being reserved for a worst case. Put another way, I should not impose a lesser sentence simply because the charge is before this court rather than the Supreme Court: Beniamini v Craig [2017] ACTSC 30 (23 February 2017) at [101] – [103]. If I form the view that I have insufficient sentencing powers to impose an appropriate sentence, I should then not dispose of the matter summarily and instead commit the defendant for sentence to the Supreme Court: s 375(12)(c) Crimes Act 1900.
The Circumstances of the Offences
The facts of these offences are contained in the three separate Statements of Facts (Exhibits A – C). In relation to the driving offences I note that it was not the defendant’s manner of driving that brought him to the attention of police, he was stopped mid-afternoon, there were no passengers in the car, the prescribed drugs in the defendant’s oral fluid were methylamphetamine and delta-9-tetrahydrocannabinol, and the licence was suspended due to loss of demerit points.
I note the binary nature of the drive with prescribed drugs in oral fluid offence, and that the positive reading provides no information about if and how the defendant’s ability to safely control a motor vehicle may have been affected by the presence of those substances. I also note that two drugs were detected.
I find both driving offences fall towards the mid-range of objective seriousness.
In relation to the unlawful possession offence, I note the defendant was found by police to be walking along a street in Belconnen carrying $324.65 worth of new clothing still with shop and security tags attached. The defendant told police he had received the clothing as payment for a $150 debt. The amount of property involved was not significant and I find that this offence falls towards the lower end of objective seriousness.
The aggravated robbery occurred at the Kippax Fair Subway restaurant just before closing time at 8:30pm. The husband and wife owners of the business were present when the defendant entered the restaurant brandishing a kitchen knife and syringe and demanded money. He made reference to ‘HIV’ and left the store with only $67 in cash.
An offence of this type is clearly objectively serious and this is reflected in the maximum penalty allocated to the offence. While no victim impact statement was put before the court, the statement of facts describes the male business owner being frightened and consequently acquiesced to the defendant’s demands to produce cash. I also take judicial notice that armed holdups, even in the absence of a firearm, ordinarily cause significant terror to those present, and that terror may have ongoing psychological consequences. It was submitted by both parties, and I accept, that this offence falls towards the mid-range of objective seriousness for an offence of this type. It is obviously the most serious offence for which I am required to sentence the defendant.
The Defendant’s subjective Circumstances
I had the benefit of Pre-Sentence Reports and Ms Chalmers’ submissions on behalf of the defendant. The defendant is 28 years of age, single and without dependants. He reported enjoying a positive upbringing in Canberra. He had been employed as a federal public servant for 8 years. However, that came to an end in 2016 when the car, in which he was travelling, was involved in a multi-vehicle accident. A truck collided with that car. He suffered undisclosed injuries and consequential pain, and was prescribed opiate based analgesics. His use of those prescription drugs led in turn to his use of heroin and a subsequent addiction to heroin. He was in the grip of that addiction when he committed the aggravated robbery in June this year, and committed that offence for the purpose of funding the purchase of heroin.
The defendant also reported witnessing the suicide of a close friend. The Pre-Sentence Report makes reference to the defendant suffering mental health issues. However, those issues were not described in any further detail within the evidence.
The defendant has been in custody since 11 June 2017 and is prescribed Methadone for the purpose of managing his heroin addiction. He has reduced his dose from an initial prescription of 25mg to his current prescription of 2.5mg.
The defendant is participating in a tertiary preparation course with the hope of one day providing counselling to others struggling with addictions to substances. He is also enrolled in the Alcohol Drug Awareness and Harm Prevention Training and an anger management course.
The defendant prepared a letter addressed to the court, in which he expressed his disgust at his actions and his remorse and empathy towards the victims of the aggravated robbery. He expressed a desire to complete his sentence, attend residential rehabilitation and later contribute to the community. The updated Pre-Sentence Report, records that the defendant has applied and been accepted for entry into the residential rehabilitation program, Benelong’s Haven at Kinchela NSW, with a bed available within the week. It also assessed that the defendant accepted full responsibility for the offences, and demonstrated a deep insight into his offending behaviour and the impact of his actions upon the victims and the community.
The defendant has a criminal history. There are two entries for driving with alcohol in his blood and one entry for driving with an illicit drug in his blood. Those offences were in 2010, 2011 and 2016 respectively. Those convictions are of relevance to the driving matters before the court, but not to the aggravated robbery and unlawful possession offences. In any event, I take that history into account, not for the purpose of increasing the penalty that would otherwise be appropriate, but rather to determine what degree of leniency should be afforded to the defendant. The defendant comes before the court for the first time for offences of violence and dishonest and I take that into account.
Comparable sentencing
The parties have compiled for my benefit eight sentencing decisions from the ACT Supreme Court in relation to aggravated robbery. Those decisions are:
(a)R v McInnes [2017] ACTSC 207;
(b)R v Bennett [2017] ACTSC 104;
(c)R v Bresnan [2017] ACTSC 18;
(d)R v Campbell (No 2) [2016] ACTSC 368;
(e)R v Christie (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 20 August 2013);
(f)R v John (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 21 December 2011);
(g)R v Kelly (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 23 August 2011); and
(h)R v O’Brien (Unreported, Supreme Court of the Australian Capital Territory, Matthews J, 17 December 2010).
Those decisions have informed me about current sentencing practices within the Territory, and I take them into account as required at by s 33(1)(za) Crimes (Sentencing) Act 2005.
Consideration of Sentence
I take into account the purposes of sentencing, as articulated in s 7 of the Crimes (Sentencing) Act 2005. Clearly denunciation of the defendant’s conduct and making the defendant accountable for his actions must feature highly in sentencing. Similarly deterrence, both general and specific must feature.
Further, the defendant’s limited criminal history, his demonstrated remorse and empathy and his specific plans to address the factors that led to his offending, lead me to assess that rehabilitation should also feature highly. Clearly, it is in both the defendant’s and the community’s interests for the defendant to successfully address his addiction and consequentially reduce his likelihood of re-offending. Based on the material before me, I assess the defendant has real prospects of rehabilitation. Of course it is up to him to take action, with the necessary persistence, to realise those prospects into actual reform.
Having considered the possible alternatives, I have formed the view that no penalty other than a period of imprisonment is appropriate for the offence of aggravated robbery. I have not reached that conclusion for the other three offences.
In relation to the aggravated robbery offence, I will set a period of imprisonment that reflects the gravity of the offence in the context of the defendant’s personal circumstances with the aim that the defendant be adequately punished for the offence in a way that is just and appropriate and deter the defendant and others from committing similar offences. I will suspend the sentence after a period with the view of providing the defendant with an opportunity to engage in rehabilitation, with the consequence that should he not, he may be required to serve a further portion of his sentence.
Sentence
I make the following orders:
1. In respect of the offence of aggravated robbery - the defendant is convicted and sentenced to 18 month’s imprisonment commencing on 11 June 2017, suspended after serving 6 months on condition the defendant enter into a Good Behaviour Order for a period of 18 months from the date of his release and is to:
a. comply with his obligations under s 85 of the Crimes (Sentence Administration) Act 2005;
b. be subject on probation to the supervision of the Director-General of Corrective Services or delegated supervisor for a period of 12 months from the date of his release, or such lesser period as deemed appropriate by the supervisor; and
c. obey all reasonable directions of that supervisor, including any direction to attend any assessment, program, counselling or rehabilitation, including residential rehabilitation.
2. In respect of the offence of unlawful possession – the defendant is convicted and fined $700 with no time to pay.
3. In respect of the offence of drive while suspended by law the defendant is convicted, fined $400, allowed no time to pay, and disqualified from driving for 3 months from today.
4. In respect of the offence of drive and having within the relevant period prescribed drugs in his oral fluid – the defendant is convicted, fined $500, allowed no time to pay and disqualified from driving for 12 months from today, concurrent on the above disqualification.
The Court notes that s 116ZK of the Crimes (Sentence Administration) Act 2005 may apply to orders 2, 3 and 4.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 9 November 2017 |
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