DPP v Sullivan

1. The offender, Joshua John Sullivan, is to be sentenced for several offences he committed in November 2022.

2. On 22 May 2023, Mr Sullivan entered pleas of guilty to the following offences in the Magistrates Court, committed on 20 November 2022 (the ‘Robbery 3 series’): (a) CC2022/11462: aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT), which carries a maximum penalty of 2500 penalty units, imprisonment for 25 years or both. (b) CC2022/11464: unlawful possession of stolen property, contrary to s 324 of the Criminal Code, which carries a maximum penalty of 50 penalty units, imprisonment for 6 months or both. (c) CC2022/11465: possession of offensive weapon with intent, contrary to s 381 of the Crimes Act 1900 (ACT), which carries a maximum penalty of a fine of $2000, imprisonment for 1 year or both.

3. On the same day the Robbery 3 series was committed and transferred to this Court to be finalised.

4. On 25 September 2024, I found Mr Sullivan guilty of the following offences after a judge-alone trial: (d) Count 1 (CC2022/11479): aggravated robbery contrary to s 310(b) of the Criminal Code committed on 13 November 2022 (‘Robbery 1’), which carries a maximum penalty of 2500 penalty units, imprisonment for 25 years or both. (e) Count 2 (CC2022/11463): aggravated robbery contrary to s 310(b) of the Criminal Code committed on 20 November 2022 (‘Robbery 2’), which carries a maximum penalty of 2500 penalty units, imprisonment for 25 years or both.

Facts

5. The findings of fact made in relation to Robbery 1 and Robbery 2 are set out in DPP v Sullivan (No 2) [2024] ACTSC 296 at [10]-[37], [100]-[120] and [138].

6. The facts of each offence now for sentence can be summarised as follows.

Robbery 1 – Drakeford IGA (CC2022/11479)

7. At about 2:20pm on 13 November 2022, a gold-coloured sedan drove along Jenke Circuit, Kambah. Mr H was driving behind the sedan and saw the sedan slow as it passed the Drakeford IGA located at 13/9 Jenke Circuit, Kambah. Mr H followed the sedan as it circled through the adjacent carpark before re-joining Jenke Circuit and driving left towards ‘Storage King’.

8. At around 2:20pm, the offender ran from the Jenke Circuit exit of the Drakeford IGA side carpark and into the Drakeford IGA. Inside the Drakeford IGA, Ms O was working at the cash register when the offender walked into the store holding a black axe. The offender walked to the tills where words to the effect of the following conversation took place: The offender: Give me all the money. Ms O: I can’t open the tills. The manager has to do it. The offender: I’m pretty sure you can open the tills.

9. The offender leaned towards the registers as Ms O moved back towards the wall and motioned to the duty manager Mr R to come to the counter. Mr R was in the liquor freezer in the store. Mr R approached the counter where he saw the offender. The offender walked towards Mr R, pointed the axe at him and said words to the effect of, “all the cash out of the register”.

10. Mr R took all of the money from the till closest to the entrance and put it in a white plastic shopping bag belonging to the Drakeford IGA and handed it to the offender. During this time, the offender slammed his hands onto the glass partition separating the counter from the customer entrance.

11. The offender then moved to the second register and Mr R took money out of the register and put it into the white shopping bag the offender was holding. Nine hundred and seventy-eight dollars in total was emptied into the bag. After Mr R had emptied the second till, the offender ran out of the store towards the carpark adjacent to the IGA.

12. While Mr H was shopping, he saw the offender in front of the registers holding the axe in his right hand. Mr H moved to the alcohol aisle and tried to call 000 but got distracted and hung up. Mr H ran after the offender. Pedestrians pointed Mr H to the right. Mr H ran around the corner and saw the gold sedan, in which the offender was in, speed away in a westbound direction on Jenke Circuit. Mr H got into his car and drove right onto Jenke Circuit before entering O’Halloran Circuit, Kambah to find the gold sedan but lost sight of it. After he lost sight of it, Mr H returned to the shops and waited for police.

Robbery 2 – Manuka Newsagency (CC2022/11463)

13. On 20 November 2022, Mr D was working at the Manuka Newsagency. At about 6:30am, the offender entered the shop and asked Mr D to open the till. A conversation to the effect of the following took place: Mr D: How you doing, mate? I’ve got 25 in the till. The offender: Open it. Mr D: There’s not much. The offender: Open it up.

14. The offender raised a hammer and leaned towards Mr D. Mr D walked behind the counter, opened the till and gave the offender about $40. The offender told Mr D to open the safe. Mr D replied that he did not have a key.

15. The offender hit Mr D’ right thigh with the hammer. Mr D told the offender that there were cameras everywhere and directed him to get out. The offender remained at the counter. Mr D moved towards him. The offender used the hammer to knock over items on the counter. The offender left the newsagency, turned left and ran towards Furneaux Street, Forrest.

Robbery 3 series – Friendly Grocer Gowrie (CC2022/11462; CC2022/11464; CC2022/11465)

16. Approximately three hours after Robbery 2, the offender robbed the Friendly Grocer Gowrie by approaching the counter and threatening Mr S with a tomahawk while saying words to the effect of “money”. Mr S opened the registers and put cash into the offender’s plastic bag. The offender ran out of the supermarket. (CC2022/11462: aggravated robbery)

17. The offender was chased by a number of civilians. The offender threw money and cash register dockets onto the ground during the pursuit, which a member of the public, Mr D, collected and handed to police. There was $30 in $5 denominations.

18. When Mr D first approached the offender, the offender swung the tomahawk at Mr D and another member of the public while shouting words to the effect of, “get back, I’ll hit you”. (CC2022/11465: possession of offensive weapon with intent)

19. The offender was ultimately pinned down to the ground by a number of civilians, one of whom was an off-duty New South Wales police officer. That off-duty police officer informed the offender that he was under arrest for armed robbery. Within a few minutes, ACT police officers attended and took the offender into custody.

20. Upon searching the offender, the police located an official Australian Federal Police badge in a warrant card holder in the offender’s pant pocket. (CC2022/11464: unlawful possession of stolen property) Sentencing considerations

Nature and circumstances of the offending Aggravated robberies

21. In sentencing the offender, I must assess the nature and circumstances of the offending which includes a consideration of the objective seriousness of the offending conduct.

22. The maximum penalty for the offence of aggravated robbery, 25 years of imprisonment or 2500 penalty units or both, is a “yardstick” against which to assess the objective seriousness of the offending: Markarian v R [2005] HCA 25; 228 CLR 357 at 372 [31]. As I observed in DPP v Peacock [2024] ACTSC 348 at [29], the significant penalty puts the offence among the most objectively serious offences in the ACT, consistent with it being both a crime against the person and a property crime: see R v Watson [2021] ACTSC 339 at [38] citing R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 368 [99].

23. In Hall v the Queen; Barker v The Queen [2017] ACTCA 16, the Court of Appeal cited with approval the judgment in Henry, in which the New South Wales Court of Criminal Appeal outlined the following factors as relevant to assessing the objective seriousness of robbery offences: (a) The nature of any weapon used; (b) The degree of planning involved; (c) Whether the offending involved violence; (d) The vulnerability of the victim; (e) The nature and value of the property taken; (f) The number of co-offenders; and (g) The effect on victims.

24. The following features of the aggravated robbery offences inform their objective seriousness.

25. In each offence, the offender was armed with a weapon.

26. In Robbery 1 and 3, the offender was armed with a black tomahawk, a large weapon capable of inflicting serious injury. In both offences, the offender brandished the tomahawk at the victims whilst demanding cash. In Robbery 3, the offender ran past members of public whilst carrying the black tomahawk.

27. In Robbery 2, the offender was armed with a hammer which he used to hit the victim on his right thigh. The blow did not appear to be especially forceful and did not cause any injury to the victim. This was consistent with his statement that it did not appear to him that the offender’s “heart was in it” when he used the weapon against him. While noting the victim’s observation, the offending nonetheless involved the actual use of some violence.

28. None of the offences were particularly sophisticated, though there was evidence of premeditation. In addition to being armed, in each case, the offender sought to conceal his identity by covering his face, wearing dark clothing and gloves, and covering his shoes with dark socks.

29. In each aggravated robbery, the victim was at their place of employment which did not feature any security presence upon which they could call for assistance. In each instance, the victims were directly engaged by the offender and subjected to either the threat of violence or actual violence to ensure their co-operation.

30. The offender obtained approximately $978 from Robbery 1, $40 from Robbery 2, and $600 from Robbery 3. The amount the offender was able to obtain in Robbery 2 was limited by the cash in the cash register at the time of the offence.

31. Each aggravated robbery offence is properly characterised as a serious example of the offence.

Possess offensive weapon with intent

32. As Mossop J noted in DPP v Larkham [2023] ACTSC 68 at [16], “[w]hat is required for this offence is that the person has an offensive weapon in circumstances indicating an intent to use the weapon or a substance to commit an offence involving actual or threatened violence”.

33. The offensive weapon used by the offender, a tomahawk, was capable of inflicting severe damage. The offender brandished the weapon at members of the public while shouting words to the effect of “get back, I’ll hit you”, indicating a preparedness to inflict violence on the victims. Those victims were ordinary civilians in a suburban area rather bravely attempting to intervene, the offender just having committed a serious crime. Undoubtedly, the offender’s conduct with respect to this offence would have caused them fear and alarm.

Unlawful possession of stolen property

34. The offender was found in possession of an official Australian Federal Police badge in a warrant card holder in his pocket. The evidence did not establish how the offender came to be in possession of the badge. The offender was not a member of the Australian Federal Police nor has he ever been a member. There was no evidence as to the value of the item.

35. I accept the submission that I could not be satisfied that the offender’s possession of the badge was indicative of a sinister motive in terms of his possession of the stolen item and there was no evidence that the offender had used or was intending to use the police badge.

36. I do not consider this to be a serious example of the offence.

Subjective circumstances

37. The material before the Court included a Pre-Sentence Report completed on 27 February 2025 and an expert psychological report prepared by Dr Bruce Stevens on 28 February 2023.

Pre-Sentence Report

38. The offender is a 32-year-old man who has spent significant periods in full-time custody.

39. The offender reported a positive upbringing with no adverse events. He reported ongoing telephone contact with his parents. The offender advised that his brother had recently been released from the Alexander Maconochie Centre (AMC), however, he has had no contact with him since his release.

40. The offender left school after completing Year 10 and has a minimal employment history, which is limited to working at a fast-food restaurant for 18 months. The offender acknowledged that the significant period that he has spent in full-time custody has impacted his employment prospects. Whilst in custody, the offender has maintained employment in grounds maintenance for the past 15 months, which the author of the report indicated is a trusted position for detainees who demonstrate positive behaviour.

41. The offender reported a history of alcohol and drug use to which I will come. The offender has been prescribed Buvidal and plans to continue with this treatment to assist with maintaining abstinence from heroin.

42. The offender has completed the Solaris Therapeutic Community program in the AMC on three previous occasions and told the author of the report of his future plan to pursue residential rehabilitation in the community.

43. The offender advised that he had been diagnosed with schizophrenia and, more recently, autism spectrum disorder. Records from Canberra Health Services dated 7 February 2025 revealed that the offender had been diagnosed with schizophrenia, as well as post-traumatic stress disorder and depression. The offender is engaged with Custodial Mental Health Services, which includes clinical management and psychiatry reviews, as well as prescribed medication, which the offender believed to be beneficial.

44. The offender admitted that he had ceased taking prescribed medication when he was last in the community. The offender identified that this contributed to a decline in his mental health. The author reported that the offender turned to illicit substance use to self-medicate. The offender reported having been approved for support with the National Disability Insurance Scheme (NDIS), however the details of that support has still yet to be confirmed.

45. The offender pointed to his declining mental health as the basis for the difficulties he experienced adjusting to his return to the community after a significant custodial sentence. He reported heavy illicit substance use at the time of the offending and identified that he had no income at the time he offended as a result of his Centrelink payments ceasing.

46. The offender stated to the author of the report that he was aware of the need to address his illicit substance use in order to address his offending. The author noted that the offender did not express insight into the impact of his behaviour on the victims of the offences. The offender has limited support in the community, having ceased contact with friends and associates he believed to be negative influences. He reported no pro-social supports outside his family.

47. The report detailed that on each occasion the offender has been admitted to parole, it has been cancelled. The author considered the offender would benefit from intensive support in the community upon his release to maintain mental health treatment.

Responsibility, remorse and rehabilitation

Psychological report

48. Dr Stevens recorded that the offender commenced drinking alcohol at the age of 11 years and by 14 years of age, the offender had begun to use alcohol every day to “manage [his] depression and anxiety from being picked on”.

49. The offender began using cannabis at the age of 12 years and by his mid-20s he was smoking “1-2 gms a day”. Around 17 years of age, the offender began using methamphetamine and at 21 years of age the offender was using heroin approximately 3 times per week. The offender acknowledged that when he has previously been released from the AMC, he “goes straight back to drugs”.

50. Dr Steven diagnosed the offender with stimulant use disorder (amphetamine type) and noted the offender’s previous history of alcohol use disorder, cannabis use disorder and opiate use disorder.

51. Dr Stevens also diagnosed the offender with major depressive disorder (recurrent) and schizophrenia. The offender has experienced periods of low mood since adolescence which has affected his sleep and appetite as well as reducing his concentration and energy levels. The offender attempted suicide at the age of 25 years. Following methamphetamine use when he was 21 years old, the offender reported that he “went into psychosis”, with his psychotic symptoms becoming worse after the age of 25 years. He also experienced paranoia, believing that “people were setting [him] up or plotting against [him]”.

52. Dr Stevens detailed that the offender saw the Mental Health Team every three months for medication and had been on antidepressant medication since 2015, and antipsychotic medication since 2017. The offender still experienced some symptoms of paranoia even whilst taking medication.

53. In 2014, while the offender was in the community, he saw a counsellor “for one or two sessions”, however he did not return to see the counsellor as he was “too messed up on drugs”. The offender has participated in a six-month long drug rehabilitation course while in custody and at the time of the assessment, he had been seeing a psychologist weekly for the last 18 months. He reported “I like seeing [the psychologist]” and that he benefitted from “positive self-talk, cold shower if [he] hear[s] voices”.

54. Dr Stevens reported that the offender acknowledged the offences were committed when he had been “only out for three weeks”, being a reference to the period he had been in the community after release from full-time imprisonment before he re-offended. The offender reported hearing voices at the time he committed the offences, which told him to commit the offences “or they would come after [his] family”. The offender reported that he experienced internal conflict because he did not want to commit the offences however, he ultimately succumbed to the pressure of the voices he was hearing.

55. The offender reported financial motivation for committing the offences, stating that he had offended to pay the debts that he had accrued through drug use. He told Dr Stevens that he was hearing the voices of the people to whom he owed money.

56. The offender reported that although he knew it was wrong to threaten people, he believed himself to be under the command of the voices he was hearing when he offended which were telling him that his parents would be threatened with guns if he did not pay his debts. Additionally, the offender told Dr Stevens that he was “pretty sure” that he was under surveillance when he offended. When asked by Dr Stevens why he put a mask on, the offender acknowledged, “I knew if I didn’t have a mask, I go back to jail and let my family down”.

57. Although the offender reported that he was not affected by alcohol or heroin at the time of the offending, he told Dr Stevens that he had used cannabis, ‘ice’ and Xanax.

Responsibility

58. The offender has been diagnosed with schizophrenia, described by Dr Stevens to be a “chronic and serious” mental illness. The effect of which is the offender experiencing paranoid delusions and hallucinations.

59. The offender also has a history of substance abuse. Dr Stevens considered the offender was “strongly influenced by psychotic processes” at the time of the offences, which included hallucinations and delusions. Dr Stevens determined that the offender was under “strong pressure” from those psychotic symptoms and additionally, he was “disinhibited” and “highly impulsive” by his use of illicit substances; both of which would have impaired his ability to exercise appropriate judgment at the time he engaged in the offending conduct. Notwithstanding that impairment, Dr Stevens considered the offender had “some control” over his actions and retained some awareness that his “actions were wrong but he may not have fully appreciated the seriousness of his conduct”.

60. As the unchallenged report from Dr Stevens revealed, it is difficult to disentangle the symptomology of the offender’s serious mental illness from the effects of the use of illicit substances. The offender’s engagement with treatment and supports, as well as his use of illicit substances, are relevant factors when assessing his prospects for rehabilitation and the need to protect the community and deter him from offending. But neither the offender’s use of illicit substances nor his inconsistent use of medication, detract from the seriousness of the mental illness he suffers.

61. Dr Stevens makes plain that even without the complication of illicit substance use, the offender suffers with a major mental illness which was directly influencing his conduct at the time he offended. Accordingly, the prosecutor’s submission that the situation facing the offender at the time he offended was “self-inflicted” was of limited assistance. True it is that the offender was not medicated for schizophrenia at the time of the offending conduct. That said, Dr Stevens recorded that the offender’s paranoia, a direct symptom of his schizophrenia and operating at the time of the offending, often persists even when he is medicated.

62. I am satisfied that the offender’s chronic and severe mental illness, namely schizophrenia, materially contributed to his offending conduct in that it impaired his ability to make rational, reasoned decisions. The offender’s mental illness reduces his moral culpability for the offending: R v Verdins [2007] VSCA 102; 16 VR 269 and Cooper v Corvisy [2010] ACTSC 165 at [37]. Accordingly, I am satisfied that the weight to be given to general deterrence and punishment should be “sensibly” moderated though not entirely extinguished: Verdins at [15]-[22].

Remorse

63. The Pre-Sentence Report author recorded that the offender had not expressed remorse or victim empathy. In contrast, Dr Stevens reported that the offender demonstrated “some remorse” and recognised that his actions “hurt people physically and emotionally”. Dr Stevens’ report comprehensively recorded direct statements made by the offender consistent with a focus on an assessment of the offender’s thoughts and feelings. There is no basis to doubt the accuracy of the statements recorded by Dr Stevens. I am satisfied on the material before me that the offender has expressed some remorse for his offending conduct as well as some empathy for the victims of his offending.

Prospects of rehabilitation

64. An assessment of the offender’s prospects of rehabilitation is not straight forward. The relationship between his mental illness, his engagement in treatment and his ongoing use of illicit substances presents a significant challenge for effecting sustainable behavioural change. So much is exposed by the offender’s consistent history of offending.

65. The offender is still a relatively young man at 32 years of age. He has a supportive family. He has demonstrated willingness to engage in rehabilitation and mental health supports. He has enjoyed periods of mental health stability when he engages in those supports and complies with medication regimes which assist him to manage his mental illness.

66. The offender has completed the Solaris Therapeutic Community program on three prior occasions. This is a credit to the offender. It is also a concern because despite his repeated participation in the program, the effects have not been long lasting. It has, on the one hand, demonstrated his commitment to confront his illicit substance use and on the other, revealed the abject failure of his participation in the program with him having re-offended just three weeks into his parole period.

67. The offender has been in full-time custody, apart from the three-week period within which he committed these offences, since 4 April 2021. When asked by Dr Stevens about the effects of being in full-time custody upon him, the offender stated, “If I am not hearing voices, I’m fine. I’m used to jail”, and that the “voices” were worse for him upon his release from prison because he was not accustomed to being in the community. The offender reported being less anxious when he was incarcerated as he found comfort and stability in the routine and predictable environment. Unsurprisingly and somewhat insightfully, the offender described himself to Dr Stevens as “institutionalised”.

68. While the offender’s remorse is a factor to consider in his favour, it cannot obscure the significant challenge presented by the offender’s use of illicit substances and his inconsistent engagement in mental health treatment. Both of which loom large in an assessment of his prospects for reform.

69. As noted in the Pre-Sentence Report, while in custody, the offender has “displayed positive behaviour with no disciplinary action recorded” and has remained in a trusted employment position as a groundkeeper for the past 15 months. There is a foundation for the proposition that when the offender is compliant with his medication regime and free from the use of illicit substances, his risk of re-offending is dramatically reduced. The real challenge for the offender is remaining compliant and abstinent upon his release into the community.

70. Counsel for the offender submitted that the offender’s prospects of rehabilitation are inextricably linked with overcoming his substance dependency. So much is clear. The offender has demonstrated insight into the challenges he faces and has expressed a desire to access residential rehabilitation in the community. Despite the offender’s expression of commitment in that regard, his response to parole when it was granted to him on 2 November 2022 told a different story. It was a condition of his parole that he attend a residential rehabilitation facility. Almost immediately upon his release, the offender breached that condition.

71. The circumstances of the offending, occurring so soon after his release from a period of imprisonment, having completed the Solaris Therapeutic Community program and with the prospect of residential rehabilitation, do not bode well for his capacity for reform. Undoubtedly, the offender struggled with the transition from full-time custody to living in the community; the result of which was the repeated commission of serious offences. The offender’s almost immediate return to the use of illicit substances and the subsequent swift decline in his mental health, illustrates the compelling requirement for significant supports and mechanisms for accountability when he is in the community.

72. Counsel for the offender highlighted the prospect of support from the NDIS for the offender upon his release as well as the endurance of the support from his family. The NDIS support would be a new support available to the offender.

73. It would seem Burns J predicted a possible future for the offender when he sentenced him in 2019, observing in R v Sullivan [2019] ACTSC 163 at [17] and [25]: 17. Your prospects for rehabilitation at the present time are guarded. Your prospects would be greatly enhanced if you were to address your drug addiction, but you presently appear to be unmotivated to do so, or at least not consistently. Without successfully addressing drug addiction, your risk of reoffending is, in my opinion, quite high. You are not beyond rehabilitation at the age of 26 but you presently show little desire or consistent commitment to addressing criminogenic factors such as drug addiction. … 25. I will just say a few words to you Mr Sullivan. At 26 years of age you are still somebody who is not beyond redemption and indeed rehabilitation is still a significant sentencing consideration. You have a very unenviable criminal history. You are rapidly getting to the stage where rehabilitation will no longer have any significance, and protection of the public will be more important when sentencing you for serious criminal offences. If you do not want to spend most of your young adult life in prison, you really need to do something about addressing drug addiction. That is something that only you can address.

74. The years since 2019 have not made the prospects of rehabilitation for the offender any brighter despite his repeated completion of drug intervention programs while he has been in custody. The period since 2019 has cemented the challenge of illicit substance use for the offender and reinforced the risk of institutionalisation. The offender’s most recent brief period in the community was entirely disastrous.

75. There are factors that remain in the offender’s favour, notably the stability he has demonstrated that he can achieve with mental health treatment and abstinence from illicit substances, as well as his family support. Those factors pull against a finding that rehabilitation is entirely lost to the offender. The fact is that the outcome of the offending must be a substantial period of imprisonment. The result of which is that the parole authorities will be better equipped to assess the offender’s prospects of successful release to the community and the supports that will assist him in that endeavour, when he becomes eligible for parole.

Criminal history

76. The offender has an extensive criminal history in the ACT. His offending history consists of burglary, robbery, property, firearm, arson and assault offences. He is also recorded for failing to comply with several community-based orders.

77. The offender’s criminal history is not an aggravating factor, though it does limit the leniency that can be afforded to him. The pattern of conduct revealed in the offender’s history demonstrates that the current offences are not aberrations: Veen v The Queen (No 2) [1998] HCA 14; 164 CLR 465. Conditional liberty

78. The offender committed these offences while subject to a parole order. He was therefore on conditional liberty at the time; his offending representing a betrayal of the opportunity to remain in the community: R v Tran [1999] NSWCCA 109 at [15].

79. The fact that the offender committed these offences while on parole is an aggravating feature which must be considered in sentencing: DPP v Jacka [2024] ACTSC 376 at [51]-[53]; DPP v Longmore [2024] ACTSC 278 at [96]. This is relevant to the determination of the appropriate punishment for an offence and does not influence the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [61].

Time in custody

80. The offender has not spent any time in custody solely in relation to these offences. The time the offender spent in custody after he was refused bail on 20 November 2022, was recognised as parole time credit.

81. As at the time of sentencing, the offender has already spent a substantial period in full-time custody. The sentence imposed upon him by Mossop J, the existing sentence, imposed on 7 August 2020 was 4 years and 8 months of imprisonment to commence on 4 April 2021. The existing sentence was imposed as entirely consecutive upon a sentence imposed on the offender by Burns J in 2019 for which parole was granted and cancelled. The existing sentence was in relation to offences committed while the offender was on parole for the 2019 sentence. It is appropriate that I have regard to the period of pre-sentence custody as time served for the purposes of considering the totality principle in sentencing: R v Elphick (No 2) [2015] ACTSC 23 at [91]-[92].

Parole time credit

82. It is necessary to briefly deal with parole time credit.

83. On 7 August 2020, the offender was sentenced to a total term of imprisonment of 4 years and 8 months commencing on 4 April 2021 (‘the existing sentence’). The non-parole period expired on 3 October 2022. The offender was released on parole on 2 November 2022.

84. Accordingly, at the time he committed these offences, the offender was subject to a parole order. Immediately following the commission of the Robbery 3 series, he was arrested on 20 November 2022.

85. On 12 December 2022, pursuant to s 148 of the Crimes (Sentence Administration) Act 2005 (ACT), the offender’s parole was cancelled by the Sentence Administration Board (SAB) after a finding that the offender had breached a condition of his parole, namely that he enter a residential rehabilitation program on the day of his release. Section 160(2) provides that if a parole order is in force immediately before it is cancelled, the cancellation ends the parole order. In circumstances where the SAB cancels the parole order, as was the case here, the SAB is the “recommitting authority”: s 161(7)(b).

86. The SAB recommitted the offender to full-time detention pursuant to s 161 of the Crimes (Sentence Administration) Act and determined that he was liable to serve 2 years, 11 months and 22 days. The order recommitting the offender to full-time detention recorded that parole time credit ended on 11 December 2022. Parole time credit is the period spent on parole in the community taken as time served against the offender’s parole sentence (the sentence to which the offender’s parole order relates).

87. The effect of the SAB order was the application of the ‘general rule’ with respect to parole time credit. The ‘general rule’ is that an offender’s parole time credit, calculated by reference to s 161G, is taken to be time served against the offender’s parole sentence: s 161C(1). In this instance, the application of the general rule resulted in recognition of the entire period the offender spent on parole in the community as parole time credit, as time served against the offender’s parole sentence.

88. Accordingly, the end date of the existing sentence remained as it was when it was originally imposed being 3 December 2025.

89. Section 161D of the Crimes (Sentence Administration) Act contains exceptions to the ‘general rule’ with respect to parole time credit. An issue was raised in the proceedings as to whether s 161D was enlivened by the applicability of s 161D(1)(a).

90. Section 161D provides: 161D Exceptions—certain ACT offences (1) This section applies if an offender breaches a parole obligation by committing an offence (the second offence) and— (a) the second offence was committed within 3 months after the offender’s parole release date; or (b) the offender’s parole offence is a serious offence or a serious non-ACT offence, and the offender’s second offence is a serious offence; or (c) the offender’s parole offence is a family violence offence or a non-ACT family violence offence, and the offender’s second offence is a family violence offence. (2) The sentencing court for the second offence must make an order about whether the offender’s parole time credit is to be taken as time served against their parole sentence. Note A court sentencing an offender is required to explain to the, and notify the offender of, the application of parole time credit (see Crimes (Sentencing) Act 2005, s 82 and s 84). (3) In making the order, the court— (a) must not take parole time credit as time served against the parole sentence unless the court is satisfied there are special circumstances to warrant it; but (b) if satisfied there are special circumstances—may take the parole time credit, either wholly or partly, to be time served against the parole sentence.

91. The application of s 161D results in parole time credit only being taken as time served against a parole sentence if the court is satisfied that there are ‘special circumstances’ to warrant it.

92. The prosecution submitted that s 161D has no application in this matter because the parole order has already been cancelled by the SAB pursuant to s 148 and there is no longer any “parole order” for the Court to deal with upon conviction. The Court’s role in this instance, the prosecution contended, was to sentence the offender for the offences and re-set the non-parole period without recalculating parole time credit.

93. The interpretation contended for by the prosecution treats s 161A as only applying pt 7.5A ‘Parole time credit’ at the time a parole order is cancelled pursuant to s 148 (by the SAB) or s 149 (automatic upon conviction by a court). That is, parole time credit is calculated by a ‘recommitting authority’ at the same time that a parole order is cancelled and there is a requirement to calculate the period an offender is liable to serve in full-time detention.

94. The parole order having already been cancelled by the SAB in this instance, the prosecution contended that, because the Court is not cancelling the parole order pursuant to s 149 and accordingly is not the recommitting authority, there is no part for the Court to play in calculating or recalculating parole time credit.

95. Section 161A provides: This part applies to an offender if— (a) while the offender is under a parole order for a sentence of imprisonment for an offence (the parole offence), the offender breaches 1 or more parole obligations; and (b) the offender’s parole order is cancelled. Note A parole order may be cancelled after it has ended (see s 151).

96. I accept that the construction of the provision as contended for by the prosecution is available. I note that there is however an alternative construction in which s 161A captures the circumstances of the offender. That is, he is an offender who breached a parole obligation by committing an offence and as I now come to sentence him, the parole order is cancelled. It may well be that the alternative construction would be strengthened if the text of the provision was expressed in the past tense and read “has been cancelled”, but I do not consider the alternative position on a textual or purposive analysis is necessarily ruled out.

97. Initially a curious position arose whereby counsel for the offender, in accordance with his duty to assist the Court, made submissions against the construction contended for by the prosecution. However, noting that the prosecution’s position was favourable to the offender, and in circumstances where the construction advanced was open, counsel for the offender informed the Court that he considered that the offender was “no longer the appropriate contradictor for this issue”.

98. Accordingly, the operation of the parole provisions in ch 7 of the Crimes (Sentence Administration) Act was not argued.

99. The result for this offender, as both parties acknowledged, is largely academic. He had additional parole time credit recognised by the SAB which amounted to days, that would not have been recognised had I recalculated parole time credit applying s 161D upon conviction. That said, included in the SAB parole time credit calculation, were days that the offender spent in custody by virtue of having bail refused for these offences, which was time in custody in relation to these offences that I would have been obliged to take into account when sentencing the offender.

100. Whilst the consequences of this position for the offender are positive, but minor, it is appropriate for me to note that the effect of the approach I will adopt at the urging of the prosecution has potential to take on much greater significance in other circumstances, particularly noting the exceptions to the general rule contained in s 161D include offenders on parole for family violence offences who commit another family violence offence at any time that a parole order is in force.

101. In addition to the question over the application of s 161A, there are reasons to think on a textual and purposive analysis that s 161D may apply to this sentencing task.

102. First, s 161D makes no reference to ‘cancellation’ of a parole order. The provision does not require the Court to make any order with respect to a parole order. The provision applies at the point in time of sentencing an offender if the offence was a breach of a parole obligation by committing an offence. The provision acknowledges that which the legislation defines and that is, a parole obligation is an obligation that the offender must comply with “while on parole” and includes the “core conditions” which prohibit the commission of an offence against a territory law punishable by imprisonment: ss 117, 136 and 137.

103. The provision does not require the court to do anything in relation to a “parole order”. Indeed, the text of the provision does not include reference to a “parole order”. The provision is clearly directed to the consequences for an offender who commits an offence while subject to a parole order. That circumstance does not alter if, by the time an offender comes to be sentenced for the offence, the parole order has been cancelled.

104. Secondly, s 161I clearly contemplates the calculation of parole time credit on more than one occasion because it dictates that the shortest parole time credit period is to apply. The section is not limited to decisions made by the SAB.

105. The prosecution conceded that provisions in ch 7 contemplate the need for “further cancellations and re-calculation of parole time credit” (ss 157, 161I). It was submitted that those provisions only relate to decisions made by the SAB, not to the circumstances presented by this or any offender who might have a parole order cancelled by the SAB for a breach of a parole obligation and later be convicted by a court of an offence committed while the parole order was in place in circumstances contemplated by ss 161D(1)(a), (b) or (c).

106. The prosecution submitted that the offender involved a “unique set of circumstances” because his parole order was cancelled by the SAB in the face of an unequivocal breach of a parole obligation before he was convicted or found guilty of an offence that was committed when the parole order was in force.

107. I do not share the prosecution’s confidence that the circumstances presented by the offender are “unique”. The exceptions contained in s 161D to the general parole time credit rule clearly have broader application than the circumstances presented by the offender.

108. The prosecution accurately observed that s 157 relates to the SAB. It creates an obligation for the SAB to provide a ‘notice’ to the offender when cancelling their parole order and to include in the notice the end date of their parole time credit. The note to the section reads, “the end date for parole time credit is set under pt 7.5A and may change if further breaches of parole are proven at a later date (see s 161I)”.

109. The prosecution submitted that the note should be read as only contemplating circumstances where the SAB finds multiple breaches of a parole order proven because s 157 “applies to the SAB, not the Court”. This is accurate in so far as s 157 dictates the form and substance of the SAB notices. It is not a provision that has any application for the purposes of determining whether s 161D applies to the circumstances presented by the offender. Putting aside any argument as to the significance of the note for the purposes of statutory interpretation, the terms of the note do not confine the prospect of multiple breaches of a parole order as a circumstance only for the SAB.

110. The prosecution conceded that s 161I contemplates a circumstance where parole time credit is recalculated. The provision provides: 161I Parole time credit—shortest period to apply (1) Not more than 1 parole time credit per parole order is to be taken as time served against an offender’s parole sentence. (2) However, if an order has been made under this part that parole time credit is not to be taken as time served against an offender’s parole sentence, no parole time credit for the parole order is to apply to the offender’s parole sentence. (3) The parole time credit to be taken as time served against an offender’s parole sentence is the shortest parole time credit that applies under this part. (4) To remove any doubt, subsection (3) applies despite— (a) a longer parole time credit having been previously taken as time served against an offender’s sentence for the parole order; and (b) any other document stating a different parole time credit for the offender. Example Parole time credit was taken to be time served against an offender’s parole sentence, ending on the day the order was cancelled and the offender was recommitted to full-time detention under s 161. Later, the offender is convicted of an offence committed while on parole. The offender’s parole order is taken, under s 151, to have been cancelled on the day the offence was committed, and the offender is recommitted to full-time detention by the recommitting authority. On the second recommittal, the parole time credit to be taken as time served against the offender’s sentence is the later parole time credit, being the shortest parole time credit that applies under this part.

111. The prosecution also conceded that the example is “unhelpful” as the reference to s 151 does not apply in the circumstances described in the example.

112. Ultimately though the prosecution submitted that the note in s 157 and the terms of s 161I should be read and applied as contemplating “multiple breaches” of a parole order as only within the remit of the SAB.

113. Finally, I observe that the effect of the prosecution’s position is that an offender can avoid the consequence of that which s 161D attempts to capture. Offenders who have their parole order cancelled by the SAB because they are found in breach of a parole obligation and who are later convicted of an offence committed in the ACT while the parole order was in force in circumstances captured by s 161D, will have the general parole time credit rule applied to them by the SAB, calculated by reference to s 161G.

114. Offenders in that category, as with this offender, could potentially have a period of parole time credit taken to be served against their parole sentence more generous than if s 161D was applied by the Court at the time of the conviction for the offence committed while the parole order was in force.

115. An offender on parole who might come within any one of the exceptions contained in s 161D for ‘certain ACT offences’ could avoid the consequences of the exception by prolonging the finalisation of the offence committed while on parole. The SAB is only able to deal with the category of exceptions created by s 161D in relation to parole time credit for ‘certain non-ACT offences’ pursuant to s 161E. So even allowing for what the prosecution described as the SAB having “retrospective power” to cancel parole and/or review an offender’s parole order after it has ended (s 152), if the offence breaching a parole obligation was an ACT offence, the SAB could not apply the exceptions in s 161D, for the purposes of calculating parole time credit; retrospectively or otherwise.

116. In short, there are textual and purposive indications which point against the construction advanced by the prosecution. However, where the outcome of the construction was favourable to the offender, and where no submission was advanced to contradict the construction of the provisions urged by the prosecution, I have determined to approach this matter as the prosecution submitted I should.

117. Accordingly, the offender has been in custody since 20 November 2022 and his existing sentence of imprisonment is set to expire on 3 December 2025. The existing sentence commenced on 4 April 2021.

118. As a result of the sentence I impose, I will be required to reset a non-parole period pursuant to ss 65 and 66 of the Crimes (Sentencing) Act 2005 (ACT). The non parole period must not make the offender eligible for release earlier than if the primary sentence had been imposed: s 64 of the Crimes (Sentencing) Act.

Guilty pleas

119. The offender pleaded guilty to the Robbery 3 series in the Magistrates Court after a brief of evidence was provided.

120. The prosecution submitted that s 35(4) of the Crimes (Sentencing) Act applied to the Robbery 3 series, the case against the offender being “overwhelmingly strong”. In oral submissions that characterisation for the unlawful possession offence was withdrawn, as to which I adopt my analysis in DPP v Joliffe-Cole [2024] ACTSC 256 at [42]-[58] to conclude that a 25 per cent reduction in the sentence imposed for that offence, in recognition of the plea of guilty, is appropriate.

121. Section 35(4) of the Crimes (Sentencing) Act prohibits the Court from making any “significant” reduction for the fact that the offender pleaded guilty if, based on established facts, the Court considers the prosecution case for the offence to be “overwhelmingly strong”. A consideration of this issue “calls for a practical assessment of the reality of the situation” and an overwhelming case means “so great as to render opposition useless”: R v Newby [2022] ACTCA 20 at [31].

122. The prosecution submitted that the case against the offender, which consisted of closed-circuit television footage which captured the entirety of the offending and the offender effectively being caught “red-handed”, having been detained by members of the public until police arrived, was “overwhelmingly strong”. Counsel for the offender conceded this characterisation with respect to the aggravated robbery and the possess offensive weapon with intent offences. The concession was appropriate. The case against the offender with respect to the aggravated robbery offence and the possess offensive weapon with intent offence was “overwhelmingly strong”.

123. The consideration of what might be a “significant reduction” falls to be considered by reference to the nature of the case: R v Snowden [2022] ACTSC 186 at [47]; DPP v Stewart [2023] ACTSC 252 at [90], Director of Public Prosecutions v Matas [2024] ACTSC 234 at [125]. In this instance I consider the reduction for the “overwhelmingly strong” offences in recognition of the plea of guilty is best expressed as a period rather than as a percentage.

Totality

124. I have had regard to the principles in relation to accumulation and concurrence as set out by the Court of Appeal in Dawson v The Queen [2019] ACTCA 9 at [37].

125. There is no one correct approach to structuring multiple sentences. The principle of totality “can be implemented in a variety of acceptable ways”: R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]. The outcome must reflect the total criminality involved in the conduct and be “just and appropriate” in all the circumstances: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8].

126. The three offences of aggravated robbery were committed within a relatively short period and Robbery 3 occurred within hours of Robbery 2. Each aggravated robbery involved serious, separate criminality. The offences do not involve any overlap in elements or facts. It is not a case where one offence of aggravated robbery comprehends the criminality of another. The offences in the Robbery 3 series are legally and factually intertwined such that I consider the sentence imposed on the aggravated robbery offence does comprehend the criminality of the conduct.

127. Accordingly, there must be some degree of accumulation between the three aggravated robberies in recognition of the discrete nature of the offences and the separate victims of each offence. It is necessary to impose the sentence for these offences cumulatively upon the offender’s existing sentence given the distinct criminality involved between the offending conduct: see O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26]. That said, the overall outcome should not crush the offender and extinguish his aspiration for reform. To avoid such an outcome, some concurrency with the existing sentence will also be necessary.

128. I acknowledge that the imposition of periods of full-time imprisonment, being the only just and appropriate outcome for the aggravated robbery offences, in circumstances where the offender has effectively been in full-time custody since 4 April 2021, will inevitably serve to further entrench the effects of institutionalisation. A factor that undermines the offender’s capacity to be safely in the community. I have taken this consideration into account.

Sentencing practice

129. Comparable cases assist in ensuring consistency in the application of sentencing principles. No sentencing outcome is a precedent.

130. The prosecution drew my attention to the following sentencing outcomes: R v Twerd [2018] ACTSC 153; R v Percival [2018] ACTSC 230; R v LM [2021] ACTSC 71; R v Murphy [2021] ACTSC 94 and Peacock. I have had regard to them as well as the principles applied in those cases.

131. In Twerd, the offender was sentenced for the offences of aggravated robbery, theft, attempted aggravated robbery and dishonestly driving a motor vehicle without consent. The offender in Twerd stole approximately $1260 from a store whilst armed with a small axe, which he brandished at the employees. The offender masked his identity by wearing a face mask and dark clothing. On another occasion, the offender and a co-offender attempted to rob a supermarket armed with a knife. The offender in Twerd was on parole at the time, had a long history of drug use and an extensive criminal history. Following a reduction in sentence because of guilty pleas, the offender was sentenced to three years and two months of imprisonment for the offence of aggravated robbery, and three years and two months of imprisonment for the offence of attempted aggravated robbery.

132. The offender in Percival was sentenced for three counts of aggravated robbery and one count of attempted aggravated robbery. The offending saw the offender enter various suburban retail businesses, armed with a knife which he brandished at employees whilst demanding cash. In Percival, the offender demonstrated remorse and was found to have good prospects of rehabilitation. After a 25 per cent reduction because of early guilty pleas, the offender was sentenced to 18 months of imprisonment for the first in time robbery, 22 months of imprisonment for the second in time robbery, 27 months of imprisonment for the third in time robbery and 27 months of imprisonment for the attempted aggravated robbery.

133. In LM, the offender was sentenced for one count of attempted aggravated robbery, one count of aggravated robbery, and one count of aid and abet aggravated robbery. For each count the offending occurred in commercial premises and the offender was armed with a knife. The offender was 21 years of age and had a significant criminal history, which included previous offences of aggravated robbery. Taking into account the offender’s guilty pleas following criminal case conferencing, the offender was sentenced to 18 months of imprisonment for the attempted aggravated robbery, 3 years of imprisonment for the aggravated robbery and 2 years and 3 months of imprisonment for the aid and abet aggravated robbery.

134. The offender in Murphy was sentenced for one count of aggravated robbery. The offender entered a store while holding a steak knife which he brandished at the employee, demanding money. At the time of the offence, the offender was subject to an intensive correction order in NSW and a good behaviour order in the ACT. The offender had a significant criminal history, including theft and robbery offences as well as violent offences. The Court applied the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571. After the application of a 25 per cent reduction, the offender was sentenced to 3 years of imprisonment.

135. In Peacock, the offender was sentenced for the attempted aggravated robbery of a victim walking along the street. The offender brandished a knife at the victim and looked through the contents of the victim’s bag after she dropped it while fleeing. The ‘attempt’ was not “predestined to fail”; the offender was unsuccessful in completing the robbery because he did not consider the victim’s bag to contain anything of value to him. The offender in Peacock was diagnosed with treatment resistant paranoid schizophrenia, complicated by long term addiction to illicit substances. In Peacock, after applying Bugmy and Verdins, and the application of a 20 per cent reduction for the offender’s plea of guilty, I sentenced the offender to imprisonment for 2 years, 4 months and 24 days.

136. I have also had regard to other sentencing outcomes from this Court for the offence of aggravated robbery, usefully summarised in DPP v Muell [2024] ACTSC 184 at [109]- [127] as well as the sentence ultimately imposed in that matter.

137. Having regard to those cases above, I also note the observations of the Court of Appeal in R v White [2023] ACTCA 35 at [52]: In Barrett v The Queen [2016] ACTCA 38, the Court of Appeal noted at [40] that most sentences recorded in the ACT sentencing database for aggravated robbery following a plea of guilty were in the range of 30 months to four years’ imprisonment. In R v Lovelock [2014] ACTSC 229 at [13], Murrell CJ, when considering current sentencing practice in the ACT Supreme Court, observed that a common sentence for aggravated robbery was three years’ imprisonment. In each case, the Court was referring to the length of sentences after application of discounting for pleas of guilty. Determination

138. In sentencing the offender, I have had regard to the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act.

139. I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, applying the principle of totality: Pearce v The Queen [1998] HCA 27; 194 CLR 610 at 623-624 [45]. The sentence imposed must be “just and appropriate” for all the offences: Mill at [8]. I bear in mind that an offender should not benefit from committing more than one offence and I must avoid any suggestion that a discount is extended to an offender who commits multiple offences: R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [112].

140. It was conceded by counsel for the offender that the only appropriate outcome for the offences of aggravated robbery and possess offensive weapon with intent was a period of imprisonment. This was an appropriate concession in light of the gravity of the offending. The offending was brazen and premeditated. It was undoubtedly frightening for the victims on each occasion, as well as the community members who watched on and bravely intervened in Robbery 3. The reduction in the offender’s moral culpability by virtue of his serious mental illness diminishes to a substantial degree the significance of general deterrence and punishment. That said, it is also a factor which underscores the need for personal deterrence and the need to protect the community. Notwithstanding the effect of the reduction in the offender’s moral culpability, I am of the view that only a substantial period of imprisonment will give proper effect to the purposes of sentencing.

141. I do not consider that the offence of unlawful possession of stolen property warrants the imposition of a period of imprisonment. There is little utility to imposing a good behaviour order. I intend to impose a fine for the offence.

142. While Dr Stevens concluded that incarceration would not have a significantly negative effect upon the offender, he did highlight the need for careful consideration of supports for the offender in the community to assist him to adjust on the next occasion that he is released from custody. History dictates that the offender will struggle to adjust to life outside of the custodial environment because of the complex interaction between his mental illness, his illicit substance dependency and his institutionalisation.

143. Both parties supported Dr Stevens’ conclusion with respect to the offender’s return to the community and acknowledged the need for there to be a regime of structure and accountability to enhance the prospects of the offender successfully completing a parole order.

144. The principles guiding the setting of a non-parole period have been the subject of consideration in the following cases: Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 at 283-285 [61]-[66]; Taylor v R [2014] ACTCA 9 at [19], Henry v The Queen [2019] ACTCA 5 at [33]-[37] and The Queen v Ruwhiu [2023] ACTCA 18 at [18] (citing Taylor with approval). I have had regard to the principles articulated therein.

145. A non-parole period is the period that justice requires the offender to serve in custody, being the minimum period of actual incarceration warranted, having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, protection of the community and the offender’s prospects of rehabilitation: Ruwhiu at [18]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-140 [57].

146. The prosecution sought a recommendation to the SAB that the offender be granted parole to a suitable residential rehabilitation program. Release on parole to a structured residential rehabilitation program is necessary, the prosecution submitted, in light of the offender’s history. As at the time of sentencing so much is true. Clearly the SAB were of such a view when they released the offender on parole on 2 November 2022. I do not consider there to be significant utility in such a recommendation in circumstances where the offender will be required to serve a substantial period of full-time imprisonment before he becomes eligible for parole. When that time arrives, the SAB will have the benefit of the offender’s full history, as well as any progress he has made in the custodial environment, to be able to craft a release plan which will enhance the offender’s prosects of parole success.

147. The starting point for the charge of aggravated robbery (CC2022/11463) is three years of imprisonment. In recognition of the offender’s plea of guilty, the sentence will be reduced by two months.

148. The starting point for the charge of possess offensive weapon with intent (CC2022/11465) is eight months of imprisonment. In recognition of the offender’s plea of guilty, the sentence will be reduced by one month.

Orders

149. Accordingly, I make the following orders: (1) On the charge of aggravated robbery (CC2022/11462), the offender is convicted and sentenced to 2 years and 10 months of imprisonment commencing on 3 February 2025 and ending on 2 December 2027. (2) On the charge of aggravated robbery (CC2022/11479), the offender is convicted and sentenced to 3 years and 3 months of imprisonment commencing on 2 February 2027 and ending on 1 May 2030. (3) On the charge of aggravated robbery (CC2022/11463), the offender is convicted and sentenced to 2 years and 10 months of imprisonment commencing on 1 July 2029 and ending on 30 April 2032. (4) On the charge of unlawful possession of stolen property (CC2022/11464), the offender is convicted and fined $1500 and allowed no time to pay. (5) On the charge of possess offensive weapon with intent (CC2022/11465), the offender is convicted and sentenced to 7 months of imprisonment commencing on 1 October 2031 and ending on 30 April 2032. (6) The total period is 7 years, 2 months and 28 days of imprisonment. The non-parole period starts on 4 April 2021 and ends on 26 November 2027.

I certify that the preceding one hundred and forty-nine [149] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: