R v Britt [2015] ACTSC 402

[2015] ACTSC 402

See [46] to [49] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offender found guilty by jury of aggravated robbery, making a demand with a threat to kill, forcible confinement and dishonestly driving a motor vehicle - victim impact statements - whether consequences of offences not able to be included in victim impact statements must therefore be disregarded - offender subject to good behaviour order at time he committed offences - significant criminal history - history of illicit drug use, but not relevant in commission of offences - diagnosis of Anti-social Personality Disorder - no Verdins implications according to psychologist - disorders may be treatable - offender's lack of insight - offender sentenced.

Crimes Act 1900 (ACT), ss 32(1), 34

R v Verdins [2007] VSCA 102; [2007] 16 VR 269

Legal Aid ACT (Offender)

1. Adam Britt has been found guilty by a jury of four offences as follows:

(a) aggravated robbery, arising under s 310 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 25 years imprisonment;

(b) making a demand accompanied by a threat to kill, arising under s 32(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including 20 years imprisonment;

(c) forcible confinement, arising under s 34 of the Crimes Act and carrying a maximum penalty including 10 years imprisonment;

(d) dishonestly drive a motor vehicle, arising under s 318(2) of the Criminal Code and carrying a maximum penalty including five years imprisonment.

2. The incident from which these charges arose took place in August 2014.

3. Mr Britt and the victim, Trevor Moore-Enright, who lived in Bungendore, had become friends four or five months earlier while they were working together in traffic management. By August, the victim had tired of the friendship, and decided to use an impending move to the South Coast as an opportunity to end contact with Mr Britt.

4. On the evening of 11 August 2014, he went to Mr Britt's grandparents' unit, where Mr Britt was then staying, to return some clothes that Mr Britt had left at the victim's grandparents' home where he sometimes stayed in Canberra.

5. However, before the victim arrived, Mr Britt discovered, in a phone call with a former girlfriend of the victim's, that the victim had been talking about him behind his back. In a later phone call shortly after the victim had arrived at the unit, Mr Britt discovered that the victim was planning to end their friendship. The victim gave evidence that Mr Britt had taken him into the attached garage of the unit, forced a hacksaw against his chest and demanded his car keys, which the victim handed over. This was the aggravated robbery.

6. Mr Britt had then demanded that the victim write a document evidencing the transfer of his car to Mr Britt. The victim began to do so, but his hands were shaking and Mr Britt told him to stop writing. The victim told Mr Britt that the car was registered in his mother's name and so a document signed by him would not enable Mr Britt to transfer the registration. Mr Britt then demanded money, and when the victim told him that his bank account was overdrawn and he could not withdraw more than $200, Mr Britt said words along the lines of "you'd better be thinking more zeroes, a life is worth more than that". This constituted the demand with the threat to kill.

7. Having made the demand for money, Mr Britt then drove the victim's car, with the victim in the front passenger seat and Mr Britt's cousin, Luke Gray, in the back, to Cooleman Court at Weston.

8. At Weston, Mr Britt and the victim first went into the service station shop, where there was an ANZ ATM from which the victim could withdraw money. The victim gave evidence that he had insisted that Mr Britt come with him at the service station in order to get Mr Britt recorded on the CCTV cameras. The victim withdrew $200 and gave it to Mr Britt, who used some of it to buy drinks before the two men returned to the victim's car. Mr Britt then drove to the nearby supermarket, where he and the victim again got out of the car and Mr Britt bought cigarettes while the victim stood not far away. After this, Mr Britt drove the victim's car, with the victim and Luke Gray in it, back to his grandparents' unit. He parked the car outside and he and the victim talked for some time before Mr Britt returned the car keys and got out of the car. The driving offence was constituted by Mr Britt driving the victim's car to Cooleman Court and back to the house.

9. The forcible confinement offence was constituted by Mr Britt leading the victim to believe that he was not able to escape from Mr Britt's company. His confinement was said to have begun when Mr Britt forced the victim into the garage, and to have continued while the two men remained in the unit and possibly during the trip to Weston and until Mr Britt returned the victim's car keys and got out of his car later in the evening.

10. I shall sentence on the basis that the confinement did continue during the trip to Weston. At first glance, one might think that a person who (as appeared from the CCTV footage shown in the trial) is standing unrestrained in a shopping centre in the presence of a number of other people cannot said to be confined by another person who is some metres away and engaged in buying cigarettes from a shop assistant. However, although the victim was not physically restrained at that point, I am satisfied that he felt unable to "escape" given that he had been deprived of his car keys, had no immediate way to get himself to any place of safety, and could not be sure of how Mr Britt would react if he tried to leave. On the other hand, I consider that the confinement after the men left the unit to go to Weston was probably not as frightening as the confinement in Mr Britt's grandparents' unit, where the victim had no reason to believe that there was anyone who would come to his aid if Mr Britt's violence escalated.

11. After Mr Britt got out of the victim's car, the victim drove away, stopping a few minutes later to call his sister. She advised him to call their father who lived in Canberra. He went to his father's house and shortly afterwards he and his father reported the incident at the Woden police station. The police officer who first spoke to the victim gave evidence that he was pale and seemed shaky and frightened.

12. Before leaving the circumstances of the offences, I need to deal with the evidence about the tarpaulin.

13. At the trial, the victim gave evidence that early in the period when he was being bailed up in the garage, and certainly before he handed over his car keys, Mr Britt had pointed out a tarpaulin and said "Do you see that tarp on the ground? That's for you, you're not going to leave here alive".

14. Having regard to the evidence given in the trial, I am satisfied beyond reasonable doubt that the comment about the tarpaulin was made.

15. The victim also said that when they left the unit, Mr Britt had ordered his cousin, Luke, to bring the tarp but the victim did not know whether Luke did so. This might reasonably have been interpreted by the victim as a renewal of the threat implicit in the earlier mention of the tarpaulin, but it happened after the robbery and does not seem to have been clearly associated with the demand for money.

16. For this reason, and having regard to the fact that the victim did not notice whether Mr Gray did bring the tarpaulin and that Mr Gray mentioned only that he'd seen the tarpaulin in the garage, I do not propose to take account of the implied threat in relation to the tarpaulin in assessing the demand and threat offence. However, having found that Mr Britt's first comment about the tarpaulin was made, I shall take account of it as part of the generally threatening atmosphere in which the robbery and the forcible confinement took place.

17. Mr Britt was arrested on 12 August 2014. He has been in custody ever since, a total of just over a year.

18. Mr Britt pleaded not guilty in the Magistrates Court and was committed to this court for trial. After a trial lasting eight days, he was found guilty by the jury on all four offences on the indictment.

19. Mr Britt's offences were committed in breach of a 12-month good behaviour order made on 19 May 2014 by a Magistrate who dealt with him for a minor theft offence committed in December 2013, which involved an attempt to steal a $15 combination lock and cable from Kmart.

20. The following material is in evidence before me:

(a) two victim impact statements;

(b) Mr Britt's Criminal History;

(c) a pre-sentence report dated 31 July 2015;

(d) a CADAS report dated 17 July 2015; and

(e) the statement of facts for the minor theft offence just mentioned;

all of which were tendered by the prosecution. The defence, in due course, tendered a psychological report which I shall refer to later.

21. In considering the objective seriousness of the offences, I have had regard to the following matters.

22. The statutory aggravating feature of the robbery was that it involved the use of a weapon, namely the hacksaw, to underpin the threat of violence. Defence counsel pointed out that the car keys and indeed the car were eventually returned to the victim, so that the robbery as such did not benefit Mr Britt in the longer term. However, the eventual return of the car keys did not reduce the immediate impact of what must have been a terrifying experience for the victim; the element of violence or threatened violence is what makes robbery a significantly more serious offence than burglary.

23. I accept that Mr Britt's actions were largely un-premeditated, or premeditated to a very minor degree - it seems clear that he only decided to mistreat the victim after hearing, first, that the victim had been bad-mouthing him and, secondly, that the victim intended to end their friendship.

24. The pre-sentence report author reported that Mr Britt sought to blame the victim for the incident and showed no empathy for him, insisting that he, the victim, was "fine" during the incident.

25. Victim impact statements from the victim's mother and twin sister were tendered. The prosecutor conceded that those statements were inadmissible to the extent that they set out the impact of the offences on the authors, rather than on the victim, and it was agreed that I would disregard such parts of the two victim impact statements. What legitimately emerged from the victim impact statements, however, was that the victim had been traumatised by his experience to the extent that there were initially concerns that he was suicidal. When, several weeks after the incident, the victim's uncle invited him to stay with the uncle in a location apparently far from Canberra, the victim immediately accepted and left town within hours, leaving no time for proper farewells. It seems that the victim has not been back in Canberra since, except for Mr Britt's trial, and that there are economic constraints on his ability to visit his family. This has deprived him of much family support, perhaps especially from his twin sister from whom he had not previously been separated. The victim has missed out on a 21st birthday party for him and his sister and also was not able to attend his family's Christmas gathering.

26. I note also that closing the victim's bank account had required the repayment of the $200 taken from the victim by Mr Britt.

27. The victim has told his mother that he will never come back home for good. Although his mother was able to report that the victim is now returning to "his natural beautiful smiling self", it is clear that Mr Britt's offences have affected him dramatically and have had, and will continue to have, significant practical consequences.

28. Although such matters do not technically belong in a victim impact statement where the victim has not died, I do not consider that I am obliged to disregard the general ripple effect within a family of one of its members being apparently permanently scarred by an offence.

29. The offences were also aggravated by being committed while Mr Britt was subject to the Magistrates Court good behaviour order.

30. These offences in my view fall somewhere below the middle range of seriousness, some falling further below the mid-range than others.

31. Although the theft aspect of the robbery was in the end relatively insignificant, the violent component of the offence must, as noted, have been very frightening.

32. The threat to kill attached to a demand that the victim had no hope of meeting (irrespective of exactly how many extra zeroes Mr Britt had in mind), and the forcible confinement, must also have been frightening, although I do take account of the fact that the confinement lasted, at the maximum, from shortly after 7.00 pm until about 10.30 pm, three and a half hours, and as such was shorter than many of the forcible confinement offences dealt with in this court.

33. The driving offence seems to be of low-level seriousness given that, although the jury must have found that Mr Britt's action in driving the car was dishonest and without consent, the victim remained in the car while Mr Britt was driving it and was thus always aware of where the car was and what was happening to it.

34. I have also had regard in this sentencing to Mr Britt's subjective circumstances.

35. Mr Britt, who has only recently turned 30, has a significant criminal history, although perhaps surprisingly he seems not to have begun offending until he was 21. Since then, he has been convicted of 15 common assaults (one committed in New South Wales), three assaults occasioning actual bodily harm, eight offences of damaging property (one of those committed in New South Wales), and one each of threat to kill and possessing an offensive weapon with intent.

36. The pre-sentence report gives the following information about Mr Britt's background:

Mr Britt reported he is the oldest of four children born and raised in Canberra. He described a good childhood although he informed of a lack of structure due to him living with different relatives including his grandparents. He stated he had no contact with his father. He further informed of maintaining supportive relationships with his mother, three sisters and grandparents.

Mr Britt reported he married in 2005, divorced in 2011 and has been single for the past two years. [He] is the father of two children aged nine and 11 who live with their mother with whom he has contact. Mr Britt further reported he is the father of an eight year male child from another relationship who he sees every couple of months. [He] is the father of a five year old female child from another relationship with whom he has no contact.

Mr Britt reported he was educated to, and completed year 10. He ... attained a Certificate III in security approximately nine years ago. He [has] an employment history as a removalist, apprentice mechanic and in the food industry. He stated he was a traffic controller from 2010 to 2012 and has been in receipt of a Centrelink benefit continuously since 2012.

Mr Britt reported no problematic consumption of alcohol.

37. Mr Britt has used cannabis since he was 16, stopping only when he was remanded in custody last year. He has been using methamphetamine regularly, but not apparently particularly frequently, over the last five years. He had been diagnosed with Bipolar Disorder and was under the care of Forensic Mental Health Services while in custody in 2013.

38. No explanation for the offences was offered by Mr Britt; accordingly, I shall sentence on the basis that the incident was simply triggered by Mr Britt's discovery of what he apparently saw as the victim's disloyalty and intention to abandon him.

39. I note that Mr Britt's claim in evidence given at trial, that there had been a confrontation between the two men when Mr Britt discovered that the victim had brought drugs into Mr Britt's grandparents' home, was not said even by Mr Britt to trigger the behaviour that the jury clearly found had occurred. Even if Mr Britt's claim were true, it would be irrelevant to this sentencing.

40. Although Mr Britt's drug use, involving cannabis and methamphetamine, does not seem to have been directly relevant to these offences, I note that he has been attending drug rehabilitation counselling while in custody and has told the CADAS report author that he intends to remain abstinent from cannabis and methamphetamine. He has also been attending anger management sessions in custody. Counsel for Mr Britt said that Mr Britt has been receiving some mental health counselling, although no relevant medication, during the current period in custody.

41. As a result of a suggestion I made when this matter was originally listed for hand-down, Mr Britt was assessed by a psychologist who noted, among other things, that Mr Britt has difficulty regulating his emotions and, in particular, struggles to deal with anger. Dr Sellbom, the psychologist, concluded first that the earlier diagnosis of Bipolar Disorder is not supported by any evidence, but secondly that Mr Britt meets the diagnostic criteria for Anti-social Personality Disorder, and also shows several personality traits consistent with Borderline Personality Disorder, while noting that these latter are better accounted for by the Anti-social Personality Disorder diagnosis. He notes also that substance abuse may exacerbate the impact of these disorders.

42. Dr Sellbom also concluded that these diagnoses have no implications for the matters identified in the case of R v Verdins [2007] VSCA 102; [2007] 16 VR 269 as possibly requiring special consideration in sentencing - specifically, he notes:

(a) that they do not reduce Mr Britt's responsibility or moral culpability for the current offences;

(b) that they do not require either general or specific deterrence to be moderated or eliminated as a sentencing consideration; and

(c) that there is no reason why a sentence of imprisonment would weigh more heavily on Mr Britt than on a normal healthy person.

43. However, Dr Sellbom does advise that Mr Britt's disorders are dynamic - that is, they are susceptible to being changed - and that Mr Britt may be helped by mental health counselling to address emotional dysregulation and substance abuse, and to provide coping skills to deal with stress in general and to control his anger in particular.

44. The pre-sentence report author provided the following assessment of Mr Britt:

Mr Britt is a 30 year old man with a criminal history that includes numerous offences relating to the use of violence, for which he has previously been imprisoned, possessing weapons, damaging property and breaching Good Behaviour Orders.

It is concerning that Mr Britt continues to commit further offences involving the use of personal violence and exposing others to an unacceptable risk of harm. Mr Britt appears to lack insight into his offending behaviour and demonstrates values supportive of crime.

Although Mr Britt has engaged in and successfully completed illicit drug and anger management programs whilst in custody, his demonstrated lack of insight is of concern and his resolve is yet to be tested in the community. Mr Britt may benefit from engaging in a residential rehabilitation program. It is noted that such a program is available to sentenced prisoners at the AMC.

45. These are offences that require general deterrence and it is clear that Mr Britt also requires personal deterrence. For these reasons, and having regard to the seriousness of Mr Britt's offences, I am satisfied that no penalty other than imprisonment is appropriate.

46. Mr Britt, please stand. I record convictions on the charges of aggravated robbery, making a demand with a threat to kill, forcible confinement and dishonestly driving a motor vehicle without consent.

47. Those convictions put you in breach of the Magistrates Court good behaviour order mentioned earlier. That good behaviour order has already expired and I take no further action in relation to it.

(a) for the aggravated robbery, to three years imprisonment;

(b) for making a demand with a threat to kill, to two and a half years imprisonment, accumulated so as to add six months to the total sentence;

(c) for forcible confinement, to two years imprisonment, accumulated so as to add four months to the sentence; and

(d) for dishonestly driving a motor vehicle without consent, to eight months imprisonment, so as to add a further two months to the sentence.

49. That's a total of four years imprisonment, backdated to 12 August 2014 when you were taken into custody, and it will run until 11 August 2018. I set a non-parole period of 26 months from 12 August 2014 until 11 October 2016. The effect of the backdating and the non-parole period is that you will be eligible for parole in just over 11 months, namely 11 October 2016.

50. I further recommend that Dr Sellbom's report be provided to the appropriate prison authorities and that you be offered help of the kind that's suggested by Dr Sellbom while you're in custody.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.