R v Beattie [2019] ACTSC 12

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33

Crimes (Sentencing Administration) Act 2005 (ACT) s 110

R v BI (No 4) [2017] ACTSC 71

R v Keenan [2014] ACTSC 342

R v Sampson [2014] ACTSC 210

R v Thompson [2017] ACTSC 141

1. On 22 November 2018, the offender was found guilty by a jury on two counts in an indictment dated 11 April 2018. The first count was that he had attempted to commit an aggravated robbery in company with another person and at the time had an offensive weapon with him. The maximum penalty for this offence is 25 years' imprisonment and/or a fine of $375,000.

2. The second count was that he dishonestly drove a motor vehicle belonging to someone else. The maximum penalty for this offence is 5 years' imprisonment and/or a fine of $75,000.

3. The two offences were part of the same criminal enterprise. The stolen vehicle, a VW Jetta, was taken by the offender and another man. Using the vehicle, they tried to rob the McDonald's drive-through in Griffith in the early hours of 15 June 2017.

4. The offender was alleged to have been the driver of the vehicle. His passenger had a gun and threatened the cashier accompanied by a demand for cash. The unquestionably amateur robbers did not foreshadow the quick thinking of the cashier, who in response to the demand, simply closed the window.

5. The availability of CCTV footage of the robbery essentially answered the need to prove the ingredients of the offence. There was really only one issue left for the jury to decide and that was whether or not it was the offender who was the driver of the VW Jetta. His presence in the motor vehicle was not disputed because his DNA and fingerprints were found in different parts of the vehicle and on an object within it. The offender, through a record of interview, gave an explanation for his presence and that of his DNA and fingerprints, but this was clearly not accepted by the jury.

6. The jury's verdict indicates that they were satisfied beyond reasonable doubt that it was the offender who was the driver of the vehicle. Once that fact was established it followed, without dispute, that the offender was guilty of the two offences.

7. I have no doubt this was a very frightening experience for the cashier. The CCTV footage plainly shows his quick reaction but also his fright in jumping back away from the window after receiving the threat.

8. Armed robbery, by definition is a serious offence. This is evident from the maximum penalty. Although the ineptitude of the robbers meant this offence did not proceed beyond an attempt, there was a gun involved and a threat was issued to use that gun. I think this offence must be viewed as being of approaching medium objective severity.

9. The offender was born in 1990. He had a supportive upbringing and maintains a good relationship with his parents and sister. He completed Year 11 and then obtained a Certificate II in automotive engineering. He did work but his employment stopped in 2018 when he became unreliable because he was using drugs. Drugs have been the bane of this man's life.

10. There were many positive elements to his life but they have been overwhelmed by his use of drugs. As stated in the Pre-Sentence Report, his rehabilitation and, in reality, his whole future depends on him doing something about his drug use and putting it behind him.

11. The offender has written to the court expressing his remorse and stating his now appreciation of life in prison. I think his remorse as stated in his letter is genuine and I take it into account. I will reflect the hopes for the future in the non-parole period. I have no doubt that when parole is available the authorities will take into account any positive measures he has made towards dealing with his drug problems.

12. In addition to sentencing him for the above two offences it is necessary for him to be dealt with in respect of his sentencing by Magistrate Campbell on 10 November 2016 when he received an effective sentence of five months imprisonment but which was suspended provided he enter a good behaviour order for a period of 12 months. The current offences were committed during the period of suspension.

13. The offences for which he was sentenced by Magistrate Campbell were offences of dishonesty and entirely separate to the offences for which I am dealing with him. I think he needs to serve the five months (less 10 days for which he has a credit) separately to the offences for which he was found guilty by the jury. The requirement for the offender to serve the sentence arises from s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT). However bearing in mind this accumulation I need to consider principles of totality.

14. The sentencing exercise involves consideration of the principles and objects of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) as well as s 10 which says that a person should not be sent to prison other than as a last resort. The considerations in s 33 are also important.

15. I cannot see an alternative to full-time imprisonment. Armed robbery with a gun demands this result. No suggestion was made to the contrary.

16. I was referred to a number of authorities (R v Keenan [2014] ACTSC 342; R v Sampson [2014] ACTSC 210; R v Thompson [2017] ACTSC 141) but as conceded by the Crown they were of limited value because they all involved offences of aggravated robbery but not attempts. It is of course correct that an attempt can be dealt with applying the same principles for the substantive offence. However as the considerations set out by Refshauge J in R v BI (No 4) [2017] ACTSC 71 illustrate, an important aspect is the likelihood of the offence, in retrospect, being completed.

17. Although it might be said that this robbery would have been successful but for the cashier's quick thinking, I think it was doomed to failure because the whole history of the attempt was so riddled with ineptitude that something was bound to go wrong. I note for example that while the offenders pulled on their balaclavas in anticipation of a CCTV camera at the pickup point they had not anticipated any cameras when placing their orders.

18. The offender has been in custody since 22 November 2018 so that the first part of his sentence (as imposed by Magistrate Campbell) must start from this date.

(a) In relation to the offences for which the offender was sentenced by Magistrate Campbell on 10 November 2016 (CC 6810, 5691, 5692, 5693 and 5694 all of 2016) the offender is to serve a term of imprisonment of four months and 20 days commencing on 22 November 2018 and ending on 10 April 2019.

(b) In relation to Count 1, attempt aggravated robbery (CC2017/10365), the offender is sentenced to three years imprisonment commencing on 10 April 2019 and ending on 9 April 2022.

(c) In relation to Count 2, dishonestly drive a motor vehicle without consent (CC 2017/10366) the offender is sentenced to nine months imprisonment commencing on 10 April 2019 and ending on 9 January 2020.

(d) The total sentence is three years four months and nineteen days.

(e) I set a non-parole period of 23 months to expire on 21 October 2020.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.