CRIMINAL LAW - Sentence - early guilty plea - aggravated robbery - rehabilitation of young offender - reduction of nonparole period for assistance

Crimes (Sentencing) Act 2005 (ACT) ss 7, 35, 35A

Crimes Act 1900 (NSW) s 97

R v CK (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 26 February 2014)

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v MC (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 June 2013)

R v Nattrass (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 6 December 2013)

R v WJ (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 October 2012)

1. The offender adhered to pleas of guilty entered at the earliest reasonable opportunity to two offences of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). Each offence carries a maximum available penalty of 25 years' imprisonment and/or a substantial fine.

2. As the offender pleaded guilty at the second mention in the Magistrates Court, under s 35 of the Crimes (Sentencing) Act 2005 (ACT), he should be allowed the usual maximum discount relating to the utilitarian value of the pleas, being 25 per cent in each case.

3. The offender has been in custody since his arrest on 19 June 2014, soon after the second offence was committed.

4. The facts in relation to the offences are set out in Exhibit 1. In the early hours of Saturday, 14 June 2014 the offender was in the vicinity of the Rivett shops when a taxi driver attended at that location in response to a call to pick up a passenger. He was hailed by the offender, who entered his taxi and gave vague directions to a friend's house that he said was near the Fisher shops. As the destination was approached, the offender's directions did not gain clarity.

5. Ultimately the offender directed the taxi driver into a cul-de-sac, and directed him to turn at the end of the cul-de-sac and proceed back towards the street entry. He was told to stop in a dark area within the cul-de-sac. Upon stopping, the taxi driver turned on the interior light. The offender produced a knife about 120 millimetres in length. He also pulled up his shirt to cover the lower part of his face as a form of partial disguise. He pointed the tip of the knife towards the taxi driver. The taxi driver activated the emergency button in the taxi.

6. The offender demanded money. The taxi driver said, "Please don't kill me." The offender replied, "I'm not going to kill you. Just give me the money." He appeared to be serious about obtaining the money. The offender began making stabbing motions towards the victim with the knife, and the blade came within inches of the victim. The victim became increasingly fearful. He handed a $50 note to the offender, who demanded more. The victim said that he had no more money. The offender exited the vehicle, making an objectionable comment directed at the victim. The victim notified police.

7. On 18 June 2014 at about 4.30 pm, the offender entered the Rivett newsagency. He was armed with a knife that he had taken to the newsagency for the purpose of committing an armed robbery. He was partially disguised. He was wearing a hooded jumper with the hood over his head and he was wearing a bandage over his face so that only his eyes were visible. After unsuccessfully attempting to close the front door, he approached the register where the victim was located, he being the sole staff member working within the newsagency.

8. The offender demanded cash from the victim and produced a knife from the sleeve of his jumper. The victim described it as a 30 centimetre kitchen knife with a non-serrated blade. The offender pointed the knife in the direction of the victim, who volunteered to give him cash. The victim opened the cash register and gave the offender about $310. He did this because he felt scared and thought that the offender may stab him. As he handed the money over, the victim's hand was shaking. The offender ran from the newsagency.

9. The victim pressed the duress alarm and then attended the Woden Police Station. Police put out an alert. A short time later, the offender was located in Duffy. He was arrested at about 4.55 pm. After being cautioned, police asked the offender whether he was at the Rivett shops on that day and he replied, "Yeah, I was at the shops. I was the one with the knife that did the robbery." While speaking to the police, the offender also admitted to committing the aggravated robbery of the taxi driver on 14 June 2014.

10. The offender was taken to the Woden Police Station where he made full and frank admissions about both robberies. The offender stated that he had not intended to rob the taxi driver prior to committing the offence. In his evidence the offender said that he was the victim of an attempted sexual assault some years ago. Since that time, he has often carried a knife, particularly when out late at night. However, in relation to the robbery on the newsagency, he had left his residence on that day with the intention of committing a robbery. In evidence, the offender confirmed that he had formed a plan to rob the newsagency. After the success of the robbery of the taxi driver, he saw it as an opportunity to make quick money. He needed money because work was slow at the time and he needed funds in order to pay for repairs to his vehicle.

11. The offender was 18 years of age at the date of the offences. He is now a slight and young-looking 19 year old. He has no prior criminal record. His mother describes him as having had a level of maturity younger than his chronological age. She says that, since he has been in custody, he has matured a lot.

12. The offender has always resided in the family home. He is the oldest of six boys, the youngest of whom is three years of age. His family is supportive. Members of the family have attended court today and the family visits him regularly in custody. They will continue to support him following his release.

13. After the offender completed Year 10, he began to work in his father's window cleaning business. He worked there until his arrest. That employment is available to him upon his release and he intends to avail himself of that work opportunity.

14. His background is unremarkable except that, when he was about 18 years of age, he began to consume alcohol heavily. He was intoxicated at the time of the first aggravated robbery. He has occasionally used other drugs.

15. The pre-sentence report is quite positive. It indicates that the offender has insight into the impact of his actions upon the victims. He said in evidence that he realises that he may have scared them to the extent of interfering with their work capacity, at least in the short term. He expressed to the author of the pre-sentence report a desire to write letters of apology. The author of the pre-sentence report noted a lack of pro-social peers. Many of the offender's friends are unemployed. The offender has a low to medium risk of reoffending, and the risk of reoffending depends on what the offender does about his alcohol and drug use and lack of pro-social peers.

16. The Court received a letter from the offender's father that describes the offender as a hard worker with many positive qualities. It says that the offender is very regretful in relation to his conduct and confirms the availability of full-time work upon the offender's release.

17. The Court received a victim impact statement from the taxi driver victim, who stated that he continues to be frightened of a similar occurrence while he is driving a taxi, and he is particularly anxious when driving at night. Unfortunately, he needs to drive at night in order to earn sufficient funds to support his family. Unsurprisingly, the taxi driver avoids working in the Rivett area. He took a week off work because he was feeling very anxious after the incident. These are the sort of impacts that one would expect to occur in response to this type of offence.

18. Although I have not received a victim impact statement from the victim of the offence on 18 June 2014, I expect that the victim suffered considerable fear and anxiety as a result of the offence committed against him.

19. The Court is not bound by the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (Henry) in relation to s 97(1) of the Crimes Act 1900 (NSW), which incidentally carries a maximum available penalty of 20 years' imprisonment rather than 25 years' imprisonment. However, the observations made in that case are helpful. The Court of Criminal Appeal referred to a typical case of armed robbery, involving a young offender with little or no criminal history, who used a weapon like a knife, where there was a limited degree of planning and limited, if any, actual violence, where the victim was in a vulnerable position, where a small amount was taken, and where a plea of guilty was entered in the face of a strong Crown case. The Court indicated that a starting point for the sentence in such a case would be in the range of four to five years. Henry involved a late plea of guilty, and the reference point of four to five years should be seen as reflecting a starting point of, perhaps, five and a half years' imprisonment.

20. I have considered the helpful table of comparable sentences provided by the Crown. I have also referred to other decisions, including R v Nattrass (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 6 December 2013); R v WJ (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 5 October 2012); R v CK (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 26 February 2014); R v MC (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 4 June 2013).

21. I have considered the sentencing statistics, limited as they are, on the ACT Sentencing Database, which indicate that, for an aggravated robbery committed by an offender 18 to 20 years of age where multiple offences are involved, the average sentence is 36 months' imprisonment. The nonparole period is typically between one and two years. In New South Wales the JIRS statistics show that for a robbery, either armed or in company, under s 97 of the Crimes Act 1900 (NSW) where the relevant considerations are multiple offences, no priors, plea of guilty and 18 to 20 years of age, 70 per cent of offenders receive a sentence of imprisonment. The average sentence is three years and the 80 per cent range is from two years to four and a half years.

22. Typically, for a young offender with a limited prior criminal history, in the ACT a nonparole period of about 50 per cent would be imposed. That is at the lower end of the usual range. All else being equal, that is the sort of nonparole period that I would have imposed.

23. However, the fact that the offender immediately volunteered his involvement when he was confronted by police and immediately made full and frank admissions, particularly in respect of the matter that occurred on 14 June 2014, means that under s 35A of the Crimes (Sentencing) Act (which concerns reduction of sentence for assistance in the administration of justice), there should be a slight adjustment to what would otherwise have been a nonparole period of about 50 per cent. Section 35A(2) makes it clear that, when imposing a lesser penalty for assistance in the administration of justice, the Court may do so by way of imposing a shorter nonparole period, provided that any reduction in sentence is not unreasonably disproportionate to the nature and circumstances of the offence.

24. In relation to objective seriousness and in the context of the Henry considerations, the first offence involved a very young offender, who was only 18 years of age. He had no prior criminal history. He had a knife. There was very limited planning. There was a real threat of violence, although no actual violence. The victim was in a vulnerable position, being a taxi driver who was alone, late at night, responding to a call. A small amount was taken. There was a plea of guilty.

25. The strength of the Crown case is not known and one cannot necessarily say it would have been a strong Crown case, or indeed even a moderately strong Crown case absent the admissions made by the offender himself. I am primarily taking those admissions into account under s 35A. Of course, they cannot be taken into account twice in the offender's favour. The first offence of armed robbery committed on 14 June appears to be very similar to the typical case referred to in Henry. The few points of distinction generally favour the offender.

26. In relation to the objective seriousness of the second offence of 18 June 2014, again that was a fairly typical case. There was a greater degree of planning (although not a large degree of planning) in that the offender deliberately took a knife from his residence for the purpose of committing an armed robbery. It is questionable whether the victim was in an especially vulnerable position. The offence occurred during the afternoon, although the victim was the sole employee in the shop, and I infer the sole person in the shop at the time that the offence occurred. A small amount was taken.

27. The value of the plea of guilty is somewhat mitigated by what must be regarded as a reasonably strong Crown case in that the offender was apprehended shortly after the offence and matched the description of the perpetrator, and he was found in possession of cash that was consistent with the money that had been stolen. Of course, he chose to admit his involvement.

28. Each of the offences is of moderate objective seriousness and similar to the typical case discussed in the Henry New South Wales guideline judgment.

29. In sentencing the offender, I have had regard to sentencing patterns in the ACT, and I have considered the approach taken in New South Wales.

30. In sentencing the offender, the Court must have regard to the sentencing purposes in s 7 of the Sentencing Act. Important sentencing purposes include accountability and general deterrence, particularly as the offences were not committed in order to obtain money for drugsand there was not that imperative that applies so frequently. Rather, the offences were an opportunity to obtain money quickly and conveniently, for normal living expenses.

31. However, having regard to the age of the offender, his lack of prior history and his good prospects for rehabilitation, promotion of rehabilitation is a very important sentencing objective. It is important to take into account the offender's relative emotional immaturity. He has already learned a lot in the short period that he has been incarcerated, and those lessons will be reinforced by the further period that he spends in custody. He will benefit from a supportive family upon release. If he does mature in custody, I am reasonably confident that he will avoid future significant interaction with the criminal justice system.

32. I convict the offender of each matter. The starting point for the sentence in each case was three and a half years' imprisonment, but I have deducted 25 per cent for the early plea of guilty. In each case, the offender is sentenced to two years and eight months' imprisonment. The sentence for the first offence will run from 18 June 2014 to 17 February 2017. The sentence for the second matter will run from 18 June 2015 to 17 February 2018. That is a total of 44 months. The nonparole period will be 18 months (reduced from 50% to take into account the matters under s 35A), and it will run from 18 June 2014 to 17 December 2015.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.