R v Bramley [2015] ACTSC 51

Term of imprisonment from 25 February 2015 until 6 September 2015, suspended upon the offender entering into a good behaviour order for the period of the suspended sentence

CRIMINAL LAW - Sentence - rehabilitation - mental health - drug abuse

Crimes (Sentencing) Act 2005 (ACT) ss 7, 12(2), 33

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

Legal Aid ACT (Offender)

1. The offender adheres to a plea of guilty entered in the Magistrates Court at an early opportunity, although not at the earliest opportunity, to the offence that on 5 September 2013, he attempted a robbery while armed with a knife, that being a circumstance of aggravation.

2. The offence is contrary to s 310 of the Criminal Code 2002 (ACT) (by virtue of s 44(1)). The maximum available penalty for such an offence is 25 years imprisonment and/or a fine of $375, 000.

3. The offence places the offender in breach of a good behaviour order imposed by the Magistrates Court on 5 June 2013 in relation to the contravention of a protection order.

4. At about 7.25pm on 5 September 2013, the offender went to the North Lyneham shopping complex and attended the Mini Mart shop, which was, at that time, open for business. There was only one staff member in the store. When the offender entered, he was wearing sunglasses and a hooded jumper with the hood over his head. He went to a fridge where he handled a can of energy drink. He then walked to the front counter. He produced a 15 centimetre knife from his pocket, showed the knife to the staff member on duty and demanded all the money from the cash register. The staff member pretended that he did not understand. The offender became very irate and aggressive. The staff member reached under the counter and pressed the silent hold up alarm. The offender realised what was occurring and yelled abuse at the staff member. The offender then left the shop.

5. Police attended and viewed CCTV footage. They seized the can of energy drink that had been handled by the offender. They later matched the offender's fingerprints to fingerprints found on the can. The following day, they spoke to the offender, who agreed to attend the city police station on the next day.

6. However, on that day, 7 September 2013, the offender did not attend the police station. Instead, he flew to the Gold Coast. The offender's mother had purchased the ticket. The offender wanted to go to Queensland to detoxify with the support of a friend. On prior occasions, the offender had travelled to Queensland and met up with the friend in question for that purpose.

7. The offender was taken into custody on 7 September 2013 and he has remained in custody since that date.

8. The good behaviour order imposed by the Magistrates Court on 5 June 2013 concerned contravention of a protection order made in favour of the offender's former de facto partner. The contravention involved attempting to telephone the protected person, sending her text messages and then attending her premises and causing her to become frightened. The offender attempted to gain entry to the residence. The police were called and they found the offender in the carport of the residence. He admitted that he was not meant to be there and asserted that he was only picking up his property. He agreed that he was aware that a protection order prohibited him from being at the premises.

9. The offender is 27 years of age. He had a difficult upbringing. There was acrimony in his parents' household. His parents divorced when he was 19 years of age. The offender suffered from behavioural difficulties, possibly attention deficit hyperactivity disorder. He displayed problems with behaviour at school and he was expelled at least once. His schooling ended relatively early because of his behavioural difficulties.

10. From 14 years of age, the offender was in a relationship with his former de facto partner, the protected person in relation to the protection order. The couple has three children, aged three, seven and eight years. They were removed from the couple's care due to concerns about the household.

11. The offender's de facto partner continues to have contact with the children and she is taking steps to recover care of the children. The offender has had no contact with the children for about six months. However, he feels very committed to them and would like to resume contact. His former de facto partner is very supportive of the offender. However, she is not prepared to resume a relationship while the offender has a drug problem or other behavioural difficulties. She is prepared to review the relationship if the offender rehabilitates.

12. The offender has a longstanding problem with polysubstance abuse. This commenced when he was 14 years of age. He has used a variety of drugs, including cannabis, amphetamines and methylamphetamine. In the period leading up to commission of the offence, the offender was, in effect, homeless. He said that he was "on a bender" and, over a period of seven days, he consumed a large quantity of alcohol and smoked ice.

13. The offender informed the author of the PreSentence Report (PSR) that he obtained the knife he took to the store from a friend.

14. The offender was in poor mental health at the time of the offence. When arrested two days later, he was manifesting the symptoms of a druginduced psychosis or, at least, some sort of a psychosis. He was highly anxious and was experiencing auditory hallucinations. According to his mother, in the period immediately prior to commission of the offence, the offender was behaving abnormally and he was "obviously unwell". He was panicky. He informed his mother that he needed help and he believed that he was being chased. All the psychotic symptoms that the offender experienced at that time were of a paranoid nature.

15. The offender received antipsychotic medication and nonstimulant medication in custody. His mother observed a complete change in his behavior. By all accounts his mental health has vastly improved. His medication is stable, although his general mental condition could be described as still stabilising. The offender is very interested in engaging with mental health and drug and alcohol treatment. He has been assessed as suitable for admission to the residential treatment program at "Wayback" in Sydney. He has also been accepted to the Karralika Program, although there is no bed available at present.

16. He accepts that he needs help. He has displayed insight into the offending behaviour, into the impact that it would have had on the victim and the role that his substance abuse and mental health has played. The offender is well placed to stabilise his condition. When his mental condition stabilises he can attempt residential rehabilitation. He is very strongly motivated to reform. He is fortunate to enjoy the support of his mother and the conditional support of his former de facto partner.

17. The New South Wales guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 is of some relevance. A number of the features mentioned in that judgment are relevant in the present case. I would not describe the victim as vulnerable in the same sense as the victim in the Henry judgment. The offender is a little older than the offender in Henry. Unlike Henry, the offence here was attempt aggravated robbery.

18. The mental condition of the offender at the time of the offence is relevant in terms of moral culpability. The offender was not thinking normally at the time. This does not in any way excuse the offending conduct. There was an interaction between drug taking and the offender's mental condition. The consumption of drugs played a significant role in the mental condition displayed at the time.

19. The offender is spending his first time in custody.

20. He has a criminal history. The history includes some matters of dishonesty, but the matters are relatively minor. The criminal history is not insignificant but it is not a major factor in the sentencing exercise.

21. In sentencing the offender, the Court is required to consider the sentencing purposes listed in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Rehabilitation is an important purpose in this case. Other significant purposes include punishment, accountability and denunciation. The considerations must be balanced.

22. The Court is required to consider the relevant factors set out in s 33 of the Sentencing Act. I have referred to the relevant matters elsewhere in my reasons.

23. Having regard to Henry and other relevant features, two and a half years is the starting point for the term of imprisonment. I will deduct 20% to reflect the plea of guilty, which was not entered at the earliest opportunity, but still entered at an early opportunity in the Magistrates Court. The sentence will therefore be two years' imprisonment. Twelve months of that two year period should be served. However, there should be some flexibility in the way that it is served. The first six months should be served by way of fulltime imprisonment. After that, the offender should be released to residential rehabilitation.

24. The time that the offender serves in residential rehabilitation should be taken into account. The time will vary depending upon the establishment that he attends and the program in question. Presumably, he will go into a program that lasts six to 12 months, of which the first period will be a livein period and thereafter he will gradually reenter the community. It would then be appropriate for the remainder of the sentence to be suspended.

25. The matter is adjourned until 20 February 2014 to enable the identification of a residential rehabilitation place for the offender.

27. The offender was offered a placement at Wayback, a residential rehabilitation centre. It was necessary to make orders to enable the offender to attend. The offender was granted bail from 4pm on 6 March 2014 on the following conditions:

(a) The offender travel in the company of his mother to the address stipulated in the letter notifying him of his placement with Wayback; 65 Marion Street, HARRIS PARK;

(b) From the time of his release until his admission to Wayback, the offender is to remain in the immediate company of his mother;

(c) The offender is to arrive at Wayback prior to 11am on 7 March 2014;

(d) Upon arrival, the offender is to provide a urine sample and that sample is to be done for the purpose of satisfying Wayback's admission requirements;

(e) The offender is to comply with Wayback requirements in relation to the payment of rent;

(f) While a resident at Wayback, the offender is to remain abstinent from drugs and alcohol;

(g) The offender's residence whilst under the direction of the staff of Wayback is to be 31 Fallon Street, RYDALMERE and the offender is to reside at those premises or elsewhere as directed by the staff of Wayback;

(h) The offender is to comply with all conditions of residence at Wayback;

(i) In the event that the offender leaves Wayback, whether voluntarily or otherwise, he is to immediately report to Canberra City Police Station for the purposes of having his matter relisted before the Court as soon as possible; and

(j) Within 24 hours of being released from Wayback, the offender is to report to the Canberra City Police Station.

28. I received a progress report from Wayback. The report noted that the offender had "significantly reduced his harmful drug use, despite the occasional lapse over the last 6-8 weeks." This is concerning. The report also noted that the offender had "begun effectively addressing his mental health diagnosis, his relationships with family and friends, and created a vocational opportunity for himself." The report recommended that the offender complete one more month of rehabilitation at Wayback and then be allowed to travel to the Gold Coast to take up an employment opportunity.

29. Given the overall progress that the offender has made at Wayback, I will grant bail. Bail is granted on the following conditions:

(a) The offender report to ACT Corrective Services at Eclipse by 4pm today, 6 November 2014;

(b) The offender accept the supervision of ACT Corrective Services through the bail period;

(c) The offender is to remain at Wayback until he is permitted to leave by ACT Corrective Services;

(d) The offender is to reside as directed by ACT Corrective Services.

(e) The offender is to accept such treatment and undertake such drug testing as requested by ACT Corrective Services; and

(f) If he is not at Wayback the offender is to attend at least two NA meetings per week unless excused by ACT Corrective Services.

31. The matter is relisted for mention on 25 February 2015.

32. In the event that the updated PSR is satisfactory, I propose to finalise the proceedings by the imposition of a suspended sentence in accordance with my reasons of 17 December 2013.

33. Given the offender's substantial compliance with previous orders it is appropriate to finalise this matter.

34. The offender is convicted and sentenced to a term of imprisonment from 25 February 2015 until 6 September 2015. Pursuant to s 12(2) of the Sentencing Act I suspend the total term of imprisonment upon the offender entering into a good behaviour order for the period of the suspended sentence. The good behaviour order is subject to the offender complying with the following additional conditions:

(a) Report by 4pm today, 25 February 2015, to Eclipse House and submitting to the supervision of ACT Corrective Services;

(b) Undertake such interventions as recommended for alcohol and other drug abuse as directed by ACT Corrective Services ;

(c) Undertake drug testing as directed by ACT Corrective Services; and

(d) Otherwise comply with requests of the ACT Corrective Services.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.