(i) For the first offence of aggravated robbery (XO 30975/16), the offender is sentenced to a period of imprisonment of 2 years commencing on 4 July 2016 and ending on 3 July 2018.

(ii) For the second offence of aggravated robbery (CC 4698/16), the offender is sentenced to a period of imprisonment of 2 years commencing on 4 July 2017 and ending on 3 July 2019.

(iii) For the offence of dishonestly driving a motor vehicle belonging to someone else (CC 3897/16), the offender is sentenced to a period of imprisonment of 6 months commencing on 4 July 2016 and ends on 3 January 2017.

(iv) I set a non-parole period to expire on 13 December 2017, being a period of 17 months and 10 days.

(v) I make reparation orders in the sum of $75 in favour of Big Pizza Company Pty Ltd and Domino's Pizza Enterprises in the sum of $35.

(vi) Any breaches of good behaviour orders are referred back to the relevant sentencing court.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - findings of guilt - aggravated robbery - dishonestly drive motor vehicle belonging to someone else - relevant criminal history

Crimes (Sentencing) Act 2005 (ACT), ss 6,7,10, 33(1)(za)

Barrett v The Queen [2016] ACTCA 38

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

R v Hutchison (ACTSC, 4 April 2013, Higgins CJ, unreported)

R v Monaghan (ACTSC, 11 December 2012, Refshauge J, unreported)

Taylor v R [2014] ACTCA 9

1. On 17 November 2016, following a judge alone trial which had occupied the previous two days, the offender was found guilty of the following offences:

(a) XO 30975/16 - aggravated robbery in contravention of s 310(b) and s 45A of the Criminal Code 2002 (ACT).

(b) CC 4698/16 - aggravated robbery in contravention of s 310(b) and s 45A of the Criminal Code 2002 (ACT).

(c) CC 3897/16 - dishonestly driving a motor vehicle belonging to someone else in contravention of s 318(2) of the Criminal Code 2002 (ACT).

2. The offender had been tried with a co-offender (Dylan Kane Stacker) who was also convicted of essentially the same offences.

3. The maximum penalty for each of the above offences is as follows;

(a) For each offence of aggravated robbery, 25 years imprisonment, a fine of $375,000 or both; and

(b) For the offence of dishonestly driving a motor vehicle belonging to someone else, 5 years imprisonment, a fine of $75,000 or both.

4. In short summary, on 6 December 2015, the offender and Mr Stacker, armed with knives, robbed two pizza stores - one in Holt and the other in Wanniassa. In the first robbery the offender remained in the vehicle as the getaway driver. In the second robbery both robbers entered the store and threatened the occupants. The offender also committed a related offence involving the use of a stolen motor vehicle.

5. The detailed facts behind the offences are set out in the judgment I gave following the trial (R v Stacker; R v Campbell [2016] ACTSC 334).

6. The robbery offences are serious. They involved the threatening of staff with an offensive weapon and no doubt the associated terrifying of those staff. The takings were small but this is more an indication of the robbers' ineptitude and the security provisions in place at the stores, rather than a reflection of the seriousness of the offences.

7. The offender was born in 1997 so that he is now 19 years of age. He was raised locally and, from the age of nine, was brought up by his mother. He has a good relationship with his mother and also has a stepfather. He has two brothers and a sister and also two half-brothers.

8. The offender is in good physical health but has had significant mental health problems. He has been involved with mental health services since the age of nine. It appears he may have been treated for depression or an anxiety condition. He is not having any mental health treatment at present.

9. The offender left school at the end of year 10. He had been suspended on a number of occasions. He started a painting apprenticeship but did not finish it.

10. Not unexpectedly the offender has a significant alcohol and drug use history. He first started to drink when he was 12 years of age and became a regular drinker from age 15. Although he reduced his intake in April of this year to once or twice weekly, the amount he consumes on these one or two days is substantial, sometimes as much as 24 cans of premixed spirits.

11. The offender started smoking cannabis when he was 13. A year later, he switched to amphetamines. He has also been a regular user of cocaine and ecstasy. He smokes about 10 cigarettes a day. He also gambles, sometimes spending $200-$300 in a session.

12. The offender appears to have a gambling problem as well as a propensity to live beyond his means. I note he has a motor vehicle loan of $40,000. I do not know the details but I wonder at the conduct of and investigation by the company that loaned him the money.

13. The offender has a partner with whom he has had two children, one aged three years and the other nine months. His children reside with their mother, as does the offender.

14. Not surprisingly, having regard to the offender's involvement with drugs and alcohol, he already has a long and serious criminal history. His offences include driving matters, possessing offensive weapons, aggravated robbery, attempted burglary and aggravated burglary. The offender's dealings with the courts do not seem to have impressed upon him any inclination to modify his behaviour.

15. His attitude is regrettable especially as it involves both the setting of an appalling example to his young children and also the disregard of his obligations to them and to their mother.

16. The offender gave oral evidence before me today in which he expressed his remorse for his conduct, his acknowledgement that his place is with his family rather than amongst criminals and his regret at pleading not guilty to crimes that he had so obviously committed.

17. The offender is not to be punished for not pleading guilty, however he will be deprived of the discount that a plea of guilty would have attracted.

18. I however note that unlike his co-offender, he did not enter the witness box during the trial and provide an unbelievable version of events.

19. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

20. It is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). Some of the cases I have considered include: R v Monaghan (ACTSC, 11 December 2012, Refshauge J, unreported), R v Hutchison (ACTSC, 4 April 2013, Higgins CJ, unreported), Taylor v R [2014] ACTCA 9 and Barrett v The Queen [2016] ACTCA 38

21. Any armed robbery is almost, by definition, serious. There are obviously circumstances, such as perhaps where a gun is used, which are more serious. However, a knife is a very threatening weapon especially when accompanied by gesturing and threats as occurred in the present matter.

22. There is no evidence to suggest that the offender played a greater or lesser part in the offences than the co-offender. This means that the starting point should be parity in their respective sentences, although the sentences could be affected by differing criminal records and subjective factors.

23. Sentencing here presents a difficult problem. The offender is a young man with a young family. His family supports him and wishes to have him back with them. His more extended family is also supportive. He has made some efforts recently to deal with his drug taking but does not seem to accept he may have a gambling problem.

24. The offender has been in custody since 4 July 2016 and this needs to be taken into account.

25. The other side of the picture is the need to deter both the offender and other potential robbers from conduct of this type. It is too easy to say that no harm was intended. By simply entering premises where innocent people are going about their business, with a knife, is inevitably going to cause harm. This type of harm was emphasised in R v Henry [1999] NSWCCA 111; 46 NSWLR 346.

26. The offender must continue to remain in custody. I see no other choice having regard to general sentencing principles and the severity of the offences. Counsel for the offender asked me to consider an Intensive Corrections Order. I do not think such an order is appropriate for offences of this nature.

27. I am very mindful that a custodial sentence carries with it a potential danger arising from the occupation of a close relative of the offender. This relative gave evidence of a threat about a month ago. I was asked to make non-publication orders in respect of the relative, which I have made. I do not think it appropriate to give further detail of the submissions made concerning this relative other than to say that I have taken those submissions into account. Unfortunately I do not see any alternative to a custodial sentence.

28. Although the robberies were committed within a short time of each other, I do not think the sentences imposed can be entirely concurrent. I think there needs to be a degree of both accumulation and concurrency. With respect to the driving offence however, because it was a part of the robbery scheme I think the sentence can be wholly concurrent. I do however bear in mind that the vehicle was not used as for a simple joyride but was used to facilitate the commission of serious offences.

29. I think the appropriate sentence for each robbery should be a period of imprisonment of 2 years but there should be a degree of concurrency so as to make the total sentence a period of 3 years.

30. In order to enhance the prospects of rehabilitation, and taking into account subjective factors that can influence me, such as the offender's desire to provide a responsible family environment and the position regarding the close relative, I will set a non-parole period to expire in 12 months from today's date.

31. I will also make reparation orders but will half the amounts involved so that reparation orders for the balance can be made against the co-offender.

(i) For the first offence of aggravated robbery (XO 30975/16), the offender is sentenced to a period of imprisonment of 2 years commencing on 4 July 2016 and ending on 3 July 2018.

(ii) For the second offence of aggravated robbery (CC 4698/16), the offender is sentenced to a period of imprisonment of 2 years commencing on 4 July 2017 and ending on 3 July 2019.

(iii) For the offence of dishonestly driving a motor vehicle belonging to someone else (CC 3897/16), the offender is sentenced to a period of imprisonment of 6 months commencing on 4 July 2016 and ending on 3 January 2017.

(iv) I set a non-parole period to expire on 13 December 2017, being a period of 17 months and 10 days.

(v) I make reparation orders in the sum of $75 in favour of Big Pizza Company Pty Ltd and Domino's Pizza Enterprises in the sum of $35.

(vi) Any breaches of good behaviour orders are referred back to the relevant sentencing court.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim