Scott v Collins
[2021] ACTSC 301
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Scott v Collins |
Citation: | [2021] ACTSC 301 |
Hearing Date: | 1 November 2021 |
DecisionDate: | 3 November 2021 |
Before: | Mossop J |
Decision: | See [36] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal from conviction – offences of robbery – minor theft – use firearm – common assault – assault on the low end of objective seriousness – sentence manifestly excessive in the circumstances – magistrate failed to apply the appropriate discount for guilty pleas – magistrate gave no reasons for the discounts applied – sentences imposed involved an error – resentence required |
Legislation Cited: | Crimes Act 1900 (ACT), s 26 Criminal Code 2002 (ACT), ss 309, 321 Firearms Act 1996 (ACT), s 177(2), sch 1 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Cranfield v The Queen [2018] ACTCA 3 R v De Simoni (1981) 147 CLR 383 |
Parties: | Brett Scott ( Appellant) Matthew Collins (First Respondent) John Luff (Second Respondent) Troy Lawrence (Third Respondent) Peter Brettell (Fourth Respondent) Alexandra Grigg (Fifth Respondent) Rhys Bennetts (Sixth Respondent) Scott Roberts (Seventh Respondent) Jane Kenehan (Eighth Respondent) |
Representation: | Counsel S McLaughlin ( Appellant) C Muthurajah (Respondents) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 23 of 2021 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 23 June 2021 Case Title: Lawrence v Scott Court File Numbers: CC20/9574; CC20/6759; CC20/6841 CC20/8177; CC20/8202; CC20/8507 CC20/10118; CC20/13282; CC21/82 |
MOSSOP J:
Introduction
This is an appeal from a magistrate sitting in the Galambany Circle Sentencing Court who sentenced the appellant on a charge of robbery, six counts of minor theft, a count of using a prohibited firearm and a count of common assault. In relation to a breach of a good behaviour order relating to a minor theft the magistrate took no further action.
The total sentence imposed was a sentence of five years and six months’ imprisonment with a non-parole period of two years and nine months.
The offending, maximum penalty, date of guilty plea and subject matter of the offending are described in the following table.
| Charge | Details of offending | Maximum penalty | Sentence imposed (all with convictions) | Date and stage of plea of guilty |
| CC2020/8507: Robbery (contrary to s 309 Criminal Code 2002 (ACT)) | 21 September 2019 Aldi (alcohol, $59.98) | 14 years’ imprisonment and/or 1400 penalty units | 18 months’ imprisonment (reduced from 2 years) 25 August 2020 to 24 February 2022 | 18 September 2020 No brief of evidence prepared |
| CC2020/8202: Minor theft (contrary to s 321 Criminal Code 2002 (ACT)) | 4 November 2019 Best Friends Pet Supplies (pet food, $501.90) | 6 months’ imprisonment and/or 50 penalty units | 2 months’ imprisonment (reduced from 3 months) 25 February 2022 to 24 April 2022 | 18 September 2020 No brief of evidence prepared |
| CC2020/6841: Minor theft (contrary to s 321 Criminal Code 2002 (ACT)) | 13 April 2020 Woolworths (meat, $420) | 6 months’ imprisonment and/or 50 penalty units | 2 months’ imprisonment (wholly concurrent with CC2020/8202) 25 February 2022 to 24 April 2022 | 18 September 2020 No brief of evidence prepared |
| CC2020/9574: Minor theft (contrary to s 321 Criminal Code 2002 (ACT)) | 18 April 2020 Liquorland Southpoint (alcohol, $201) | 6 months’ imprisonment and/or 50 penalty units | 2 months’ imprisonment (reduced from 3 months) 25 April 2022 to 24 June 2022 | 17 November 2020 No brief of evidence prepared |
| CC2020/6759: Minor theft (contrary to s 321 Criminal Code 2002 (ACT)) | 19 April 2020 Dan Murphy’s (alcohol, $512.45) | 6 months’ imprisonment and/or 50 penalty units | 2 months’ imprisonment (wholly concurrent with CC21020/9574) 25 April 2022 to 24 June 2022 | 18 September 2020 No brief of evidence prepared |
| CC2020/8177: Minor theft (contrary to s 321 Criminal Code 2002 (ACT)) M | 17 June 2020 IGA (alcohol, $95.96) | 6 months’ imprisonment and/or 50 penalty units | 1 month imprisonment (reduced from 6 weeks) 25 June 2022 to 24 July 2022 | 18 September 2020 No brief of evidence prepared |
| CC2021/82: Minor theft (contrary to s 321 Criminal Code 2002 (ACT)) | 23 August 2020 BWS (alcohol, $62) | 6 months’ imprisonment and/or 50 penalty units | 1 month imprisonment (wholly concurrent with CC2020/8177) 25 June 2022 to 24 July 2022 | 17 March 2021 No brief of evidence prepared |
| CC2020/10118: Use unregistered/prohibited firearm (contrary to s 177(2)(a) Firearms Act 1996 (ACT)) | 24 August 2020 | 10 years’ imprisonment | 2 years and 9 months’ imprisonment (reduced from 3 years) 25 July 2022 to 24 April 2025 | 17 November 2020 No brief of evidence prepared |
| CC2020/13282: Common assault (contrary to s 26 Crimes Act 1900 (ACT)) | 24 August 2020 | 2 years’ imprisonment | 10 months’ imprisonment (reduced from 12 months) 25 April 2025 to 24 February 2026 | 17 November 2020 No brief of evidence prepared |
| CC2018/10437: Minor theft (breach of good behaviour order) | 6 months’ imprisonment and/or 50 penalty units | No further action | ||
| Total | Head sentence: Five years and six months Non-parole period: Two years and nine months | |||
Grounds of appeal
The grounds of appeal are:
(a)the aggregate sentence in respect of all charges is manifestly excessive;
(b)each individual sentence is manifestly excessive;
(c)that the learned magistrate failed to apply the appropriate discount for the appellant’s pleas of guilty in relation to CC2020/10118; and
(d)that the learned magistrate failed to apply the appropriate discount for the appellant’s pleas of guilty in relation to CC2020/13282.
The offending
The circumstances of the offending were set out in the reasons given by the magistrate:
The robbery from September of 2019 involved you going into an Aldi store. You had two bottles of bourbon which you had taken but you had premeditated the theft of that alcohol because you had taken a box in, in the trolley, and you put the items into the box. When you went out, ostensibly to pay for some other items that you had picked up whilst you were there, a staff member asked you to open the box, and you replied with the threat, ‘If you open the box I will punch your lights out you fucking cunt.’
That constitutes the robbery, there being two components to it. The property element of taking the items, and the threat that was directed to the staff member. That incident was caught on closed circuit television, and you were recognised by the police and subsequently charged with that matter. The minor thefts are very similar in most instances. That from 4 November 2019 involved you walking into the best friends pet store in Tuggeranong. You filled a trolley full of items to feed an animal, pet food valued at about $500, and you walked out. Again, it was caught on closed circuit television footage, was shown to security staff who recognised you, and you were picked up by the police.
On 13 April 2020 you walked into the Woolworths store in Mawson. You loaded up a bag with meat worth about $420 and you walked out. The police were called. You were identified by closed circuit television footage by the police officers who recognised you, and when you were spoken to in respect of that matter you had made admissions as to the theft. On 18 April 2020 again you went into a store. This time it was Liquorland in Greenway. Before you had gone in, you had actually spoken to somebody who worked at the store, and you had suggested that if they allowed you to take items, you would put a bottle aside for them.
The staff member very sensibly disagreed with that proposal but saw you later when you entered the store. You took three large bottles of Bacardi which were worth about $200. It was caught on closed circuit television footage. You were recognised and arrested. Then on 19 April of last year you went into Dan Murphy’s in Phillip. You left the store but not through the till area. You went out another door. You had taken alcohol worth over $500. You were recognised from closed circuit television footage by police. On 17 June 2020 you entered into an IGA in Isabella Plains.
You took items from the fridge and ran out of the back door. Those items were worth about $90. They were cans. The police found you lying in a bunch of leaves and spoke to you. You then tried to open one of the cans, and when you couldn’t open it you hit yourself in the head with it. You were recognised of course by the police and taken into the store, linked again by CCTV footage. 23 August 2020 you went into BWS in Kambah and stole some whiskey worth about $60.
Again, you were recognised, your picture having been caught on closed circuit television footage. On 24 August 2020 a different scenario emerged. I will come back to that in just a moment. The minor thefts, which is what they are charged at, are clearly just that. They are minor, but they are aggravated by repetition and by the brazenness with which you just have entered stores and felt free to take items at will. By penalty, the most serious offence that you are charged with is the robbery, combining as I said, the taking of the property and use of force. In this case, threatened harm. Although this particular example of it was toward the lower end of the range of an offence of robbery.
The other offences with which you are charged that are of particular concern are the use of the prohibited firearm and the associated common assault. This incident involved an innocent bystander and dedicated police officers and involved a very real perception of the risk of harm or death. It went on for an extended period of time in a public place, and it involved the expenditure of significant public resources and affected a large number of people. It commenced at about 10.30 in the evening on Cooyong Street when a number of young men who were travelling in a car saw you walking along looking unsteady on your feet.
You turned around to face them and they had seen something in your hand, but then saw it as a revolver which you pointed directly at the front window of the car when they were about five or ten metres away from you. They thought you were going to shoot, and they took cover in the car as best they could. The driver accelerated away and pulled over nearby to call police. There are no charges that arise from that aspect of the incident. It merely explains how it commenced. [DQ] had just finished work in a restaurant nearby in town when he came across you in Bunda Street. You asked him to use his phone to call your mother.
You sat down next to each other, and you were holding the firearm. [DQ] saw that you had a knife as well. Whilst he made that phone call and you were speaking to your mother, he took the knife and threw it away, showing significant courage in doing that. That knife has not subsequently been recovered. After your first phone call to your mother, you demanded that [DQ] call your ex-girlfriend for you, or your girlfriend. [DQ] tried to calm you down, and for his trouble, you grabbed him by his left arm and scratched it until it bled.
[DQ], who showed remarkable presence of mind, was able to observe that there were no bullets in the firearm. The police arrived, and [DQ] was able take refuge back in the restaurant that he had come out of, as his colleagues had called him to do so. Acting Sergeant Jarrod Drennan came on the scene. You turned the revolver and pointed it at his face from a distance of no more than four metres away. He was concerned that you would discharge that weapon.
He had no idea that it was a replica, or that there were no bullets in it. Other police attended and surrounded the area. You then held the firearm to your own head. You were shouting and obviously intoxicated. Detective Sergeant Robert Gregory, known as Greg Lester, also attended. Both of the sergeants tried to negotiate with you whilst you made demands and gave deadlines in relation to speaking to your ex-partner and your mother. Other police officers also attend, but these officers had the prime running of your matter at the time.
You threatened to shoot yourself or to cause the police to shoot you. On at least three occasions you pointed the firearm toward the two sergeants. After about an hour and a half, the police crisis hostage and negotiation operations team attended and commenced negotiating with you. You again indicated that you wished to make the police shoot you and made further demands to speak to your partner and your mother. This continued for almost another hour before you threw your weapon to the ground, and put your hands on your head, and got on your knees, and were taken into police custody. You were obviously heavily intoxicated.
It turned out that the firearm was a wooden handled .356 Python revolver replica. These weapons normally have an orange plastic tip on them which shows that they are a replica, but that had been removed so it looked like a real firearm. There was no firing pin in it, so it was unable to fire. Of course, you do not own a firearms licence.
Personal circumstances of the appellant
The appellant is a 37-year-old Aboriginal man raised in a large family. He was born and raised in Canberra. Domestic violence perpetrated by his father was directed towards his mother, himself and his sister. His father died in 2013. He has eight siblings and has regular contact with two of them. He has a supportive relationship with his mother.
The appellant has seven children from two previous relationships. He has limited contact with some of those children. His relationship with his current partner commenced in 2017.
He had been homeless for 12 months before being remanded in custody. He had been couch-surfing at a friend’s room in Ainslie Village. He has no accommodation when he returns to the community.
He completed school until year 10. Between 2011 and 2013, he lived in Sydney and was employed as an apprentice butcher but left that work prior to completing his apprenticeship. He has been unemployed since 2013.
The appellant has a history of significant alcohol and illicit substance use throughout his life. Between May and August 2020, he was consuming up to 16 standard drinks daily. He was using methamphetamines three days a fortnight in the period prior to being remanded in custody. Most of his associates were antisocial.
He has had diagnoses of antisocial personality disorder and bipolar disorder. His mental health declined during May 2020. He attempted suicide on several occasions throughout 2020. The report of Dr Anthony Barker dated 13 May 2021 diagnoses major depressive episode, moderate severity and borderline personality disorder. Dr Barker considered that it was likely that there was a realistic connection between the appellant’s maladaptive personality features and the offending on 24 August 2020. He noted that the appellant’s consumption of alcohol was also a significant contributor “perhaps more so than his maladaptive personality features”. Dr Barker identified that a custodial sentence would weigh more heavily upon the appellant given his limited coping skills and ongoing depressive symptoms and the possibility that he could “seriously decompensate” if serving an extended custodial sentence.
The appellant expressed regret for his offences. He was assessed by the author of the pre-sentence report dated 30 December 2020 as being at a high risk of general reoffending.
The appellant has completed a range of programs while remanded in custody at the Alexander Maconochie Centre. He has a minimum security classification.
His criminal history is limited. He has a range of convictions that include theft, possessing stolen property, assault occasioning actual bodily harm, common assault, leaving a child unattended, ill-treating or abusing a child and drug-driving. Although he has previously been subject to custodial sentences, the longest period of full-time imprisonment that he had been subject to was 101 days. His convictions for theft related to offending in 2003, 2008, 2018 and September 2019. For the offending in 2019, less than two weeks prior to the robbery, he was convicted and fined $100.
Appeal ground (b) - common assault
The victim of the common assault was DQ. The common assault is described in the statement of facts as follows:
[DQ] tried to talk to the defendant to calm him down, this caused the defendant to grab [DQ’s] left arm, scratching it and causing it to bleed.
The appellant was charged with common assault, not assault occasioning actual bodily harm. The actual bodily harm could not, therefore, be considered to be an aggravating factor in the sentencing for the common assault: R v De Simoni (1981) 147 CLR 383. Therefore, the extent of the assault was the grabbing of DQ’s left arm. Plainly, the context in which this occurred had the potential to be terrifying, an intoxicated man waving a handgun about in a threatening manner. However, the sequence of events identified in the statement of facts was that the knife had been previously disposed of by DQ and at about the time of the assault, DQ observed the appellant’s firearm to have no bullets in it (how he managed to do this is not made clear on the evidence). The video of the incident, which is of a period after the assault, shows DQ continuing to sit calmly while the appellant wanders the street, shouting at police and waving the pistol about. Nothing about DQ’s demeanour discloses fear on his part.
In those circumstances, the assault was at the low end of objective seriousness. The physical act was modest. It occurred in a context that did not involve an aggravating feature such as a breach of trust or an abuse of a power imbalance. Although it occurred in a context in which it had the potential to be terrifying, the evidence does not disclose that it in fact had that effect.
In those circumstances, the starting point of 12 months’ imprisonment and the sentence actually imposed of 10 months’ imprisonment was manifestly excessive.
Further, by reason of that sentence being made wholly cumulative upon the firearm charge, the sentence as a whole was manifestly excessive.
Appeal grounds (c) and (d)
These two grounds assert that there was an error on the part of the magistrate in failing to apply an appropriate discount for the appellant’s plea of guilty in relation to the firearm charge and the common assault charge.
In relation to the discount for the plea of guilty, the magistrate said:
That the pleas of guilty were entered is relevant. The pleas are a reflection of remorse for your offending, although I note that there was a strong prosecution case in respect to every one of the matters before the court. There is nonetheless significant utilitarian value in the fact that these matters did not proceed to hearing. Both in terms of the saving of public money, and the impact upon the potential witnesses in those matters.
The percentage discount arising from the pleas of guilty are outlined in the table above. On the firearm charge, it was a discount of approximately 8.3 percent. On the common assault charge, it was a discount of approximately 16.6 percent. The reasons given by the Magistrate do not disclose any particular reason for setting the discount at these particular and differing levels. The parties could not identify a basis for these levels of discount or the difference between these levels of discount and the discount applied in relation to the minor theft charges.
The Court of Appeal has made clear the usual range of discounts for pleas of guilty: see Cranfield v The Queen [2018] ACTCA 3; Blundell v The Queen [2019] ACTCA 34. In this case, there were pleas of guilty entered in the Magistrates Court before a brief of evidence was required to be prepared. Pleas of not guilty were never entered. The utilitarian value of the pleas was therefore at its highest.
Having regard to the decisions of the Court of Appeal and the absence of any reasons given for the discounts set on these two charges, I am satisfied that the sentences involved an error.
Resentence
Having regard to these identified errors, the appellant needs to be resentenced. It is not necessary to address the other grounds of appeal.
The facts and the appellant’s subjective circumstances are outlined above.
The robbery is at the low end of the range of objective seriousness for a robbery. It was only converted from a minor theft into a robbery by the threat that the appellant made to the staff member in the shop when she asked him to disclose what was in the box in the shopping trolley.
The minor thefts are all thefts from commercial premises during the day when staff were present. They were unsophisticated and brazen. They reflected a desire to obtain alcohol, food or pet food. They are in the middle to low range of objective seriousness for this offence, depending upon the value of the goods stolen. Notwithstanding the lower value of the items stolen in the later offending, I have treated these as warranting the same punishment because they reflect a repetition of the unlawful conduct.
The offence of using a prohibited firearm involves “use” as opposed to possession. The reason that the firearm was prohibited was that it was “a replica of any firearm”. That contrasts with other items in the list of prohibited firearms in Schedule 1 of the Firearms Act which include machine guns (item 1), self-loading shot guns designed or adapted for military purposes (item 6) and firearms with suppressors attached (item 11).
Had the pistol been operational as opposed to a replica, then the appellant would have only been exposed to a five-year offence as it would have fallen into the category of “any other firearm that is not registered”: s 177(2)(b) of the Firearms Act. The use of the firearm was protracted, in that it involved a stand-off with police which extended over almost two and half hours. There were occasions upon which the firearm was pointed at police. It was on those occasions when police apprehended that they may need to use deadly force in order to protect themselves. At the commencement of the incident, it had been used to threaten passers-by. It was not used for the purposes of other offending, but instead to draw attention to the appellant and in order to seek that they use lethal force against him. These various factors are difficult to synthesise, but taking them all into account, I consider that the offending is in the mid-range of objective seriousness for this offence.
The victim impact statements prepared by the two police officers reflect the trauma associated with having to deal with a circumstance in which they perceived that their lives were threatened and perceived that they may need to inflict deadly force in order to protect themselves.
In relation to each of the offences, the appellant entered a guilty plea at an early stage, prior to a brief of evidence being prepared. Notwithstanding that each of the cases against him involved a strong prosecution case, there was nevertheless considerable utilitarian value in relation to his pleas, particularly the pleas in relation to events on 24 August 2020 which would have involved a significant number of witnesses. It is appropriate that he receive a discount of 25 percent on the sentences that would otherwise have been imposed.
The sentences were appropriately backdated to 25 August 2020 when the appellant was first taken into custody.
In relation to the purposes of sentencing, general and specific deterrence are important, as are the denunciation, recognition of harm done to the victims and rehabilitation. The lifelong consequences of the appellant’s disrupted upbringing must be taken into account. The pattern of offending is consistent with a decline in the appellant’s mental health during this period. Although he has sporadic previous offending, there is no consistent period of offending such as this. Given his borderline personality disorder, the prospects of rehabilitation are guarded. His progress in custody with courses and programs is a positive sign. However, it may be difficult for him to maintain gainful employment upon release.
The aggregate sentence that I will impose is a period of imprisonment of 30 months and seven days. The non-parole period will be a period of 20 months which represents approximately 66 percent of the head sentence.
Orders
The orders of the Court are:
1. The sentences imposed on 23 June 2021 upon the following charges are set aside and substituted with the following sentences:
(a)CC 2020/8507, robbery, nine months’ imprisonment (reduced from 12 months) commencing on 25 August 2020 ending on 24 May 2021.
(b)CC 2020/8202, minor theft, 22 days’ imprisonment (reduced from one month) commencing on 25 May 2021 and ending on 15 June 2021.
(c)CC 2020/6841, minor theft, 22 days’ imprisonment (reduced from one month) commencing on 8 June 2021 and ending on 29 June 2021.
(d)CC 2020/9574, minor theft, 22 days’ imprisonment (reduced from one month) commencing on 22 June 2021 and ending on 13 July 2021.
(e)CC 2020/6759, minor theft, 22 days’ imprisonment (reduced from one month) commencing on 6 July 2021 and ending on 27 July 2021.
(f)CC 2020/8177, minor theft, 22 days’ imprisonment (reduced from one month) commencing on 20 July 2021 and ending on 10 August 2021.
(g)CC 2021/82, minor theft, 22 days imprisonment (reduced from one month) commencing on 3 August 2021 and ending on 24 August 2021.
(h)CC 2020/10118, use prohibited firearm, 18 months’ imprisonment (reduced from two years) commencing on 25 August 2021 and ending on 24 February 2023.
(i)CC 2020/13282, common assault, seven days’ imprisonment (reduced from 10 days) commencing on 25 February 2023 and ending on 3 March 2023.
(j)CC 2018/10437, breach of good behaviour order, no further action.
2. The non-parole period commences on 25 August 2020 and ends on 24 April 2022.
| I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 December 2021 |
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