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1. Blake Samuel Gordon is a 21-year-old man who has pleaded guilty to one offence of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). This offence occurred in May 2022 and has a maximum sentence of a fine of $400,000, imprisonment for 25 years, or both.

Facts of the offending

2. The facts of the offending were agreed and are summarised below. The victim was known to the offender. On 26 May 2022 the victim arranged to meet a mutual acquaintance, Stephen ‘Tonka’ Smith (Tonka), at a block of apartments in Hawker. On the morning in question, the offender was with Tonka and a female, inside the female’s unit. The victim arrived at the apartment block some time before 10.00am. He spoke with Tonka in a public area. The female, who was unknown to the victim, was standing near Tonka.

3. During his conversation with Tonka, the victim saw the offender walk towards him from behind Tonka.

4. The offender grabbed the victim by the throat and said words to the effect of, “Where’s my money?” The victim responded that he did not have money.

5. The offender then pulled a Swiss Army pocketknife out and held it towards the victim. A struggle ensued. The victim attempted to push the offender’s hand which held the knife away from him. The offender would not let go of the victim and continued to demand that the victim give him money. The victim then gave the offender $250 in Australian currency, in $50 notes. The offender then let go of the victim and ran away.

6. Several unrelated onlookers called Triple 0 and the Police attended shortly afterwards and spoke with the victim nearby.

7. At approximately 10:50am, Police saw the offender walking in the same street as the block of apartments. They cautioned and searched the offender (captured on body worn camera footage). The Police seized $540 cash in $50 and $20 denominations and a small red pocketknife in the offender’s bag. When the offender was questioned by police as to how he had obtained the money, he stated that this was his Centrelink payment which he withdrew from an ATM “yesterday”.

8. The offender was arrested in Hawker and taken to Belconnen Police Station. He initially denied being involved in the robbery and stated that he was at his friend’s home (the female friend referred to above) the entire morning and had withdrawn the cash from a Commonwealth Bank ATM in Belconnen on 25 May 2022. Enquiries with the Commonwealth Bank did not support this statement.

9. The offender pleaded guilty on 19 May 2023.

The Court’s sentencing task

10. The sentencing objectives are to be found in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). In fulfilling those objectives, the Court does so according to the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. See also the discussion in DPP v Rohrlach [2023] ACTSC 166 (Rohrlach) at [18]-[23] which remains applicable here.

11. There are a number of mandatory relevant considerations set out in s 33 of the Sentencing Act and these have been incorporated into the reasons that follow, to the extent that they are applicable to the present offender’s circumstances.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

12. The objective seriousness of the offence is determined by considering the nature and circumstances of the offence. The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

13. The Court must consider whether the facts of the particular offence committed by the offender lie in the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 (Kilic) at [19].

14. The evaluation is “objective” in that the Court disregards matters personal to the offender and determines the seriousness wholly by reference to the nature of the offending Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].

15. The Court does consider the subjective features (that is, the aspects of the offending which is personal to the offender) and the after-effects of offending, but these are separate considerations: s 33 of the Sentencing Act and Kilic at [12].

16. The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].

17. It is preferable to make a specific assessment of the factors that inform the objective seriousness of an offence: Miller at [22] citing Delaney v the Queen [2013] NSWCCA 150; 230 A Crim R 581 at [56]; Laipato v The Queen [2020] ACTCA 35 at [156].

18. In doing so, and in listing such factors, it should not constitute a mere checklist but rather, an assessment as noted above. It should also be noted that the absence of any factors does not mean that there is reduction of the objective seriousness of the offence, rather, it simply means the offence is not aggravated by that factor: DPP v Moala (No 3) [2023] ACTSC 306 per McCallum CJ at [24].

19. In respect of the offence, the offender was on conditional liberty at the time, in that he was subject to two good behaviour orders. This is an aggravating feature. However, those matters have been dealt with separately.

Aggravated Robbery

20. It suffices to refer to Hall v The Queen; Barker v The Queen [2017] ACTCA 16 (Hall) citing R v Henry [1999] NSWCA 111; 46 NSWLR 346 where the Court of Appeal stated at [49]-[51]: [49] The guideline judgment of the New South Wales Court of Appeal in R v Henry (1999) 46 NSWLR 346, while not binding on this Court, is persuasive. In that case, the Court described a category of aggravated armed robbery cases with the following features at [162]:

(a) young offender with little or no criminal history; (b) weapon like a knife capable of killing or inflicting serious injury; (c) limited degree of planning; (d) limited, if any, actual violence but a real threat thereof; (e) victim in a vulnerable position such as a shop keeper or taxi driver; (f) small amount taken; (g) plea of guilty, the significance of which is limited by a strong Crown case. [50] In R v Henry, the Court of Appeal considered that an offence in that category should generally attract a sentence of between four and five years imprisonment. It may be noted that, like the ACT, the maximum sentence for aggravated armed robbery in New South Wales is 25 years imprisonment. [51] The category of case described in R v Henry involves a young offender with no or little criminal history.’ ...

21. Here, the offender was relatively young but with a criminal history. Those two matters are considered separately below.

22. As to the other features, the weapon that was used by the offender was a knife, which is capable of inflicting serious injury: R v Wilson-Winship [2007] NSWCCA 163; 196 A Crim R 370 at [50], [52]. The Courts have remarked that a knife is “always loaded”: R v Campbell [2010] ACTCA 20 at [38], R v Griggs [1999] ACTSC 22 at [41]. Accordingly, the use of a knife is a seriously aggravating feature: R v Jajou [2009] NSWCCA 167; 196 A Crim R 370 at [72], cited in Hall at [17]. However, it is important to recognise that the presence of the knife was the circumstance of aggravation for the offence itself – that is, it is an element of the offence. In short, the knife does not aggravate what is already an aggravated offence.

23. The robbery was ill planned.

24. The knife was used to instil fear in the victim. There was both a threat of violence and actual violence that occurred. The physical violence was limited to the extent of the struggle occurring between the victim and the offender whereby the victim attempted to push the knife away. However, the threat of violence was nevertheless significant given that the offender held a knife to the victim and did not let go of the victim until the money was handed over.

25. The victim was not in an inherent position of vulnerability.

26. The amount stolen was of low value, and a small amount of $250 was taken.

27. By its nature, this was a very serious offence. However, the features indicate that this was a low-level example of such an offence.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

28. Two pre-sentence reports were before the Court. I have read those reports and taken their contents into account. I accept what has been reported in them. The summary that follows is brief and more general than the detail of the reports. It is a difficult balance to strike between setting out sufficient circumstances of the offender to explain the subjective features that impact upon the offending on the one hand – which is necessary to ensure that the public has confidence that the sentence imposed is just – and preserving the offender’s privacy in relation to health matters and social background on the other. To this must be added an appreciation that sensitive matters may also carry with them a risk of re-traumatisation in the process of the sentence being delivered in open court.

Family Background and Relationship support

29. The offender’s family background is not one of safe and stable care. It involves claims of misconduct and abuse in different forms by various people, including family members, against the offender, with periods spent at youth refuges.

30. The offender reported that he met his biological father for the first time when he was around 14 years old. He says he was forced to try methamphetamine and other illicit substances by his father, and during this time he was “couch surfing” with illicit substance users, being “on the run” from Police. I mention this particular instance as in my view, it is the beginning of the root cause of the offending.

31. Currently, the offender is in a relationship.

32. Although much of the offender’s background was self-reported, none of it was challenged and it can be relied on in this Court: Lloyd v The Queen [2022] NSWCCA 18 at [45]. The same approach was taken by Refshauge AJ in relation to similar material of childhood disadvantage in R v Deng [2022] ACTSC 143 at [154]. Although that decision was later overturned on appeal for a different reason, the Court of Appeal held that the R v Bugmy [2013] HCA 37; 249 CLR 571 (Bugmy) principles remained applicable and were taken into account on re-sentence: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [110].

33. The material that was before the Court was sufficient to establish (on the balance of probabilities) the offender’s background and history as described above. I consider the principles articulated in Bugmy at [43]-[44] to apply. As stated in The Queen v Ruwhiu [2023] ACTCA 18 at [126] (references omitted): … a reduction in moral culpability does not require a strict causal connection between an offender’s disadvantaged background and the offending. The weight to be afforded to the effects of social deprivation in an offender’s youth and background is in each case for individual assessment: Bugmy per Gageler J (as the Chief Justice then was) at [56].

Accommodation

34. Prior to being taken into custody, the offender was in possession of a public housing tenancy, although it appears he at times resided with his mother and was also accommodated through participation in a residential rehabilitation program.

Education/Employment

35. The offender had difficulties during his schooling years but he has completed his year 10 certificate, which as his counsel submitted, gives him a degree of employability. The offender reported short-term periods of employment since 2018 and most recently was employed in a warehouse. However, his ability to work has been seriously impacted by his substance use. He held employment as a sweeper while he was remanded in the Alexander Maconochie Centre for approximately 7 months.

36. He has also taken steps to train through Mission Australia, and a certificate of his training achievements was before the Court. Community supports and activities

37. The offender has limited connections to pro-social activities, advising that he spent most of the time prior to entering custody searching for appropriate accommodation for him and his partner.

Alcohol and/or Drug Use

38. The most critical aspect of the offender’s subjective circumstances is his long history of poly-substance abuse. The list includes daily methamphetamine use from approximately 14 years of age, daily heroin use at times, and daily cannabis use to treat symptoms linked to anxiety and he previously reported smoking between 7-14 grams of cannabis daily. He also has been through periods of quite serious alcohol addiction, the details of which are unnecessary to repeat here.

Medical, Emotional and Mental Health 39 ․ The offender has a number of psychological health issues affecting his emotional stability and personality. They include, but are not limited to, complex Post Traumatic Stress Disorder. It appears that he requires medication. It was submitted at the hearing that he was now taking medication, and this is obviously a positive step.

Attitude to Offence

40. The offender confirmed that drugs were the cause of the offence in question and that he was remorseful and regretful. The offender explained that to prevent similar situations from happening in the future, he plans on remaining abstinent from illicit substances and not associating with anyone residing in his current ACT Housing complex (which was a source of anti-social activity).

Plea of guilty (s 33(1)(j) of the Sentencing Act)

41. Where an offender pleads guilty, the Court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act. The penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.

42. In doing so, it is necessary to consider the particular circumstances in which the plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act: (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims' families and anyone else who may make a victim impact statement.

43. The offender pleaded guilty to the offence on 19 May 2023, post case conferencing (which occurred in February 2023) and with the trial due to commence on 22 May 2023. The plea is appropriately classified as a late, if not, a last minute, plea. The seriousness of the offence and other mandatory matters stated have been discussed elsewhere in this judgment. There was no submission made that the prosecution’s case was overwhelmingly strong.

44. The discount for a guilty plea is a discretion for the court (Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]). While there is no tariff, the timing of the plea is important in assessing the appropriate discount: Monfries v R [2014] ACTCA 46; 19 ACTLR 99 (Monfries) at [47]. As seen in cases such as Monfries at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49], utilitarian value is the primary consideration in the exercise of the discretion.

45. As I explained during the hearing, where a plea of guilty is made late, then absent unusual circumstances, the discount for a guilty plea is not as high as the discount that would have applied had the offender pleaded guilty at an earlier stage, including at the criminal case conferencing stage: R v Nicholas; R v Palmer [2019] ACTCA 36 at [52]- [53]. Accordingly, a discount of 10% is the appropriate discount here.

Victim impact statement, resultant damage (ss 33(1)(e) and 33(1)(f) of the Sentencing Act)

46. No victim impact statement was before the Court. By operation of s 53(1)(b) of the Sentencing Act, I must not draw any inference about the harm suffered by a victim from the fact that a victim impact statement is not given to the court in relation to the offence. However, the Prosecution submitted, and I accept, that the Court can take judicial notice of the fact that the victim would have suffered a degree of emotional trauma in being subjected to the offending conduct. The financial loss would also have caused a degree of inconvenience.

Criminal history (s 33(1)(m) of the Sentencing Act)

47. The offender has a history of assault, possession of prohibited weapons, drugs, family violence orders, obstruction or resistance of public officials, failure to appear in court, property damage, trespass common assault, and damage to property offences. I have taken the history into account in the manner described in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. The offender’s prior criminal history does not mean that a longer sentence is to be imposed, but it speaks against leniency when compared with someone who comes to be sentenced as a person of prior good character.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

48. I have taken into account a number of cases by way of comparison to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].

49. The Prosecution provided a table of cases to assist the court in considering the sentencing practice in respect of aggravated robbery. It included DPP v Girvan [2023] ACTSC 35 (Girvan), R v Haddara [2022] ACTSC 224, DPP v Trewartha [2023] ACTSC 13, R v Apps (No 2) [2019] ACTSC 369, R v Evans; R v Reid [2020] ACTSC 169; R v Batcheldor [2021] ACTSC 208 (Batcheldor); R v Lockwood [2018] ACTSC 288, and R v Wilson; R v Beath-Williams [2022] ACTSC 20. It was agreed that each of those cases involved conduct of a significantly greater objective seriousness than that under consideration here.

50. In Girvan, the offender was 19 years old and motivated by the need to obtain money from drugs. He had also commenced drug and alcohol use at an early age following exposure to family alcohol abuse and aggression. The conduct involved was a carjacking and use of a large machete (so, objectively much more serious than that involved here). Sentences of imprisonment for between 22 and 27 months were imposed for each of the aggravated robbery or attempted aggravated robbery offences. However, a discount of 20% was applied for the guilty pleas entered into by the offender before Criminal Case Conferencing.

51. In Batcheldor, the offender was 30 years of age, 28 at the time of offending, was of Aboriginal descent, had a history of drug use and had extensive and numerous custodial sentences. The objective seriousness of the offending conduct was greater in that it was a violent home invasion involving repeated infliction of actual violence upon the victim and the theft of items totalling approximately $2600. A sentence of 3 years and 5 months imprisonment was imposed following a plea discount of approximately 20%.

52. I have also reviewed R v Hodge [2015] ACTSC 214, R v Murray [2016] ACTSC 173 and R v Hawkins [2020] ACTSC 29 as they formed the basis of comparison in Batcheldor. Again, however, the objective seriousness of those cases was significantly greater than the conduct for which the offender here is being sentenced.

Time in Custody

53. The offender has spent 217 days in custody solely referable to the current offence, and that period has been taken into account by way of backdating the sentence, pursuant to s 63 of the Sentencing Act.

Disposition

54. This offender is not a “young offender” as defined in the Sentencing Act, such as to require the Court to apply s 133C and the promotion of rehabilitation. However, he is nevertheless a young adult offender which, the parties accepted, means that rehabilitation features more heavily in the Court’s discretion. It need hardly be said that a person may reach adulthood before they develop the maturity of an adult. Added to this is the reduced moral culpability for a disadvantaged background. All of this results in less weight being given to punishment or denunciation, albeit this must be balanced against the need for specific deterrence for reoffending. That is particularly where the offender identifies as an Indigenous Australian and has participated in the Galambany Court for previous offending, which is how he came to be subject to the Good Behaviour Orders that he then breached. The offender’s interaction with the justice system is at the point where a sentence of imprisonment, as a last resort, becomes the only appropriate sentence, and this was not disputed.

55. As seen from the history, including the criminal history, there remains an underlying drug and possibly alcohol abuse problem which has occurred since the offender was very young. The prime focus, in my view, is how to support this offender to treat his drug problem. The reason the proceeding was adjourned initially was to enable the offender to be assessed for a Drug and Alcohol Treatment Order (DATO). Subsequent outstanding matters in the Magistrates Court for which the offender has been separately charged, mean that he may become ineligible under s 12A(1)(c) of the Sentencing Act, although he has pleaded not guilty to the charge(s). There is little point imposing a DATO if it is at risk of being mandatorily cancelled within weeks. I was minded to delay this sentence until the Magistrates Court had dealt with the other charge, but the parties urged the Court not to delay the sentence further as the offender has already spent 8 months in custody. It is my firm view that such a program would be the most appropriate means of targeted intervention.

56. The offender has taken positive steps towards rehabilitation by way of attendance and completion of the Triple Care Farm program, but he has not yet attempted a sustained residential rehabilitation program, including psychological support and treatment, which is what is required to lift this offender out of his world of criminality and into a world where he is able to be a contributing member of the community.

57. Having discussed various options at the hearing as to which was the best way to craft an appropriate sentence for this offender, all parties involved were concerned to ensure that the sentence itself does not set this young man up to fail. For example, a suspended sentence that had conditions attached to it without the structured supportive environment of a residential rehabilitation program may not be in the offender’s long-term interests. That is a consideration for the Court as the community is best protected by a person whose addiction has been treated so that it does not feed criminal habits.

58. Counsel for the offender submitted that a shorter non-parole period would promote the offender’s rehabilitation and I agree. In imposing a shorter non-parole period, it should be emphasised to the offender that this does not necessarily mean he will be entitled to leave custody in a shorter period of time. What I am really hoping to achieve is flexibility for the Sentence Administration Board (Board) when considering parole. I recommend (pursuant to s 67 of the Sentencing Act) that either the offender undertake a targeted drug intervention program while in prison, or alternatively, that he be discharged into a residential rehabilitation program that is more substantial than the three-month program he has already completed. Because there are unknowns as to when such programs will be available to the offender, and what may be the most appropriate course for him, a shorter non-parole period will give the Board the flexibility to craft the outcome that gets the offender into treatment and support as soon as possible.

Sentence

59. The orders of the Court are as follows: (1) For the offence of aggravated robbery contrary to s 310(b) of the Criminal Code 2002 (ACT) a sentence of 1 year 9 months and 18 days’ imprisonment is imposed, reduced from 24 months’ imprisonment on account of the guilty plea, backdated to commence on 7 July 2023 and conclude on 24 April 2025. (2) A non-parole period is set of 11 months, to commence on 7 July 2023 and conclude on 6 June 2024. I certify that the preceding sixty [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: