CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated robbery - assault - excellent prospects for rehabilitation - suitability for Intensive Correction Order

Crimes Act 1900 (ACT) s 26

SCC 154 of 2019; SCC 155 of 2019

1. Mr David Crowther, you have pleaded guilty in this Court to one offence of aggravated robbery (CAN 2019/7286) on 24 June 2019, contrary to s 310(b) of the Criminal Code 2002 (ACT) (the Criminal Code) and one offence of assault (CAN 2019/7287) on the same day, contrary to s 26 of the Crimes Act 1900 (ACT) (the Crimes Act). A comprehensive Agreed Statement of Facts has been tendered. I will not go through the Statement of Facts in detail.

2. It is sufficient to note that you robbed a petrol station attendant at knifepoint. During the robbery you, with knife in hand, grabbed the victim by the front of his shirt. In the course of the victim pulling away from you, he received a small cut from the knife that you were holding to the top of his left index finger.

3. You threatened to stab the victim if he did not give you money. The victim backed away from the cash register and you took money from the register's tray and put it into a shoulder satchel that you were carrying at the time. About $800 was stolen from the register. You then left the store and ran away. Police identified you by means of Closed-Circuit Television (CCTV) footage of the robbery. On 28 June 2019, police attended an address in Wanniassa and spoke to you. They recognised you as the person that they had seen in the video stills from the CCTV video recording.

4. You were arrested, cautioned and then transported to the ACT Watch-House. You participated in a record of interview with police in which you made a number of frank admissions as to your conduct. You are entitled to a degree of leniency in sentencing with regard to these offences because of your cooperation with the police. You have remained in custody since 28 June 2019.

5. On 29 June 2019 you pleaded guilty to the charge of aggravated robbery as it was originally laid in the ACT Magistrates Court. That plea was entered at the first mention before that Court. It has properly been conceded by the Crown that it was a plea at the earliest opportunity.

6. On 2 July 2019, you pleaded guilty to the charge of assault in the ACT Magistrates Court. That plea was entered on the second mention before the ACT Magistrates Court, but again it appears to me that that was a very early plea. I propose to reduce by approximately 25 per cent the sentences that would otherwise be appropriate with respect to these offences in order to mark your pleas of guilty. I accept that your pleas of guilty not only had utilitarian value but they also demonstrated a degree of remorse on your behalf.

7. It is clear that the Statement of Facts reveals an offence of aggravated robbery which is quite a serious example of that type of offending. You not only possessed a knife, but you brandished it in the face of the victim. There was also a slight wounding of that victim, albeit I am not prepared to find that there was any intentional wounding on your behalf. There is always, however, the danger of injury being sustained by a victim in circumstances where, as here, a weapon such as a knife is brandished in close quarters to the victim.

8. A Pre-Sentence Report was prepared for the purposes of sentencing. You are currently 24 years of age and you were born in Canberra some eight weeks premature. You suffered from a hearing condition necessitating significant medical interventions in your early years. When you were eight years of age, your father passed away by way of suicide which had a deleterious emotional effect on you which continues to affect you to this day. The author of the Report notes that your schooling years were impacted by your hearing impairment which gave rise to bullying from peers.

9. In spite of this, and also a significant cranial injury sustained when you were 12 years of age following a skateboarding accident, you completed Year 10 formal education and entered an apprenticeship in cabinet making. Your younger step-sister passed away some three years ago at 37 years of age from an existing medical condition and the author of the Report notes that this loss has further compounded your grief and loss issues.

10. The author of the Pre-Sentence Report notes that you are well supported by your mother, who is a regular visitor to you at the Alexander Maconochie Centre (AMC), and you enjoy positive relationships with your step-siblings. This is, of course, a very important issue when considering your prospects for rehabilitation. Your mother disclosed having read a psychological report prepared for you recently, which advised of you being sexually assaulted in your adolescent years. That report, which is a Report of Dr Danielle Clout dated 7 August 2019, was tendered on your behalf during the sentence hearing.

11. You have had a number of significant relationships of which one resulted in the birth of a child who is now six years of age. It appears that you have had little recent contact with that child, but the mother of the child agreed to contact commencing when you had demonstrated abstinence from illicit drug use. All of your relationships are reported to have ended due to your continued use of illicit drugs.

12. It is proposed that upon release you will reside with your mother in Canberra.

13. The Pre-Sentence Report notes that having left school, you worked for the same employer where you undertook your cabinet making apprenticeship for seven years before resigning in November 2018, again as a consequence of your illicit drug use. Contact with your employer revealed that you were encouraged and supported in your work and development throughout your career. Your previous employer advised that you were highly skilled and assisted in mentoring and coaching more junior or less experienced employees. Your resignation was described as having been driven by your illicit drug use which you sought at that time to address by leaving the ACT and residing with your step-sister and her family in Melbourne. Since your resignation and prior to you being placed in custody, you were relying on Centrelink benefits. Your previous employer has indicated that it is willing to re-employ you conditional on you demonstrating an abstinence from illicit drugs.

14. You told the author of the Report that you commenced use of alcohol at 14 years of age. The Pre-Sentence Report described your current alcohol use before being remanded in custody as intermittent and you were described as having consumed alcohol to the point of intoxication on those occasions when you did drink. You also commenced the use of cannabis at age 14 years. I note that the assessment for an Intensive Correction Order notes that you stated that the information contained in the Pre-Sentence Report was inaccurate in relation to your cannabis use.

15. In the Assessment, you clarified that you had been a heavy cannabis user between the ages of 14 and 20 years. You stated that you had not used cannabis since that time. At that time, you agreed that the rest of the information contained in the Pre-Sentence Report was correct. I should note that in the Assessment for an Intensive Correction Order it states that on 25 September 2019, the self-reported drug use screening tool was administered which indicated that your use of illicit substances over the preceding 12 months was considered substantial and required assessment. A similar screening tool relating to your use of alcohol was administered on the same day, which indicated that your use of alcohol over the preceding 12 months was considered high risk and almost certainly dependent.

16. Returning to the Pre-Sentence Report, you told the author of that Report that you commenced the use of amphetamine from 18 years of age. This commenced with the use of methylenedioxymethamphetamine and progressed to smoking crystal methamphetamine at age 21 years. Your pattern of consumption in that reported age range was typically weekend use, which increased from the age of 23 years to the injection of crystal methamphetamine. You described intermittent periods of abstinence from use of amphetamines and attributed those periods to recognition of your diminished capacity for work and the impact on your interpersonal relationships.

17. You reported regretting each lapse back into drug use and described your worst lapse occurring in Melbourne following your resignation from your long-term employment and your movement to Melbourne in order to try and address your drug addiction. When you were in Melbourne, as a consequence of your relapse into drug addiction, you were evicted from your step-sister's house at which time you became homeless and itinerant. You described developing associations with criminal acquaintances in Melbourne and the commencement of a gambling addiction.

18. It is of some significance that following your return to Canberra in May 2019 and your commission of the current offences, you have sought opportunities for rehabilitation whilst within the AMC. The Intensive Correction Order Report notes that you have applied for several residential rehabilitation programs whilst in custody, however, the Report noted it can be difficult to remain on waiting lists due to the need to contact them regularly to demonstrate your interest.

19. You indicated that you would like to remain in the ACT to complete rehabilitation and agreed that you would apply to, and complete, a residential rehabilitation program should you be released to an Intensive Correction Order. The Pre-Sentence Report, as I have already indicated, noted that you had attempted previously to deal with your drug addiction by removing yourself from the ACT, which was the scene of your drug use at that time, and moving to Melbourne. While that was unsuccessful, it is a matter of some significance that the move was due to a desire on your part to try to address your drug addiction. I am satisfied that you are motivated to attempt to deal with your drug addiction.

20. I should also note that you have been drug tested whilst in the AMC on three occasions and each sample has been negative for illicit drugs. The material before me also speaks of a history of mental health problems. I will not refer in detail to the report of Dr Clout. The executive summary, however, notes that based on the material provided to Dr Clout, you were diagnosed as suffering from symptoms consistent with Borderline Personality Disorder, Stimulant Use Disorder, Alcohol Use Disorder and Gambling Disorder.

21. You reported symptoms and behaviours indicative of Borderline Personality Disorder dating back to your mid-adolescence, including a long-standing diagnosis that pre-dates your offending behaviour. These symptoms included a history of intense and volatile interpersonal relationships, impulsivity and damaging behaviours, marked affective instability, suicidal ideation, identity disturbance and an unstable self-image, feelings of chronic emptiness, severe dissociative symptoms, and a history of anger outbursts and difficulty controlling anger emotions.

22. Dr Clout noted that you were assessed as having an average risk of general recidivism. You also expressed some insight into the role of your mental health and drug abuse in your offending behaviour, including your use of drugs to give you a "break" from your mental health issues. You also identified that drugs significantly exacerbate your mental health impairments, behavioural dysregulation and impulsivity after a brief period of use. You also appeared to have some insight into the factors increasing your vulnerability to relapse into drug abuse.

23. Dr Clout stated that due to the nature and severity of your multiple addictions, you would benefit from engagement in a full-time and long-term residential rehabilitation program such as those offered by Karralika or the Canberra Recovery Service. On the material before me, I am satisfied that it is probable that your commencement and continued use of illicit drugs is linked to your mental health issues. It is vitally important therefore in terms of any prospects for rehabilitation that your mental health issues, together with your drug and alcohol and gambling issues, should be appropriately addressed. I am satisfied that if those issues are appropriately addressed then there are excellent prospects for rehabilitation based upon your community support and also your clear ability to be able to obtain and retain employment.

24. I note that whilst you have a criminal history, it is not a significant criminal history and you have never previously been sentenced to a term of imprisonment. It has not been disputed by your counsel, and rightly so, that these offences, or at least the offence of aggravated robbery, calls for a sentence of imprisonment. The question is how is that sentence to be served.

25. On all of the material before me, I am satisfied that it is appropriate to impose a sentence of imprisonment, with respect to the offence of aggravated robbery (CAN 2019/7286), to be served by way of an Intensive Correction Order. I will impose a further short period of imprisonment with respect to the offence of assault (CAN 2019/7287). I note that I cannot backdate the commencement of an Intensive Correction Order in order to take into account the period that you have already spent in custody, so any Intensive Correction Order can only commence from today, 29 October 2019.

26. I will commence the sentence for the offence of assault (CAN 2019/7287) on the date that you were taken into custody. I will record a conviction with respect to the offence of assault and in that regard you will be sentenced to a term of imprisonment, commencing on 28 June 2019 and expiring 27 October 2019. So, in effect, that is a sentence of four months' imprisonment and I do note that I have, in that regard, taken into account the reduction for your plea of guilty.

27. My starting point in relation to the offence of aggravated robbery (CAN 2019/7286) is three years' imprisonment. I will reduce that by nine months in order to reflect your plea of guilty which leaves a sentence of two years and three months' imprisonment. You will be convicted of that offence and you will be sentenced to a term of two years and three months' imprisonment commencing today, 29 October 2019, and expiring on 28 January 2022. That sentence is to be served by way of an Intensive Correction Order.

28. There will be a curfew condition for a period of six months requiring you to be present at [your mother's address] each night between the hours of 8.00 pm and 6.00 am the following morning. There will be an exception to the curfew, being if you are continuously in the company of your mother or in residential rehabilitation.

29. Mr Crowther, I have recorded convictions in relation to the two offences that are before the Court. I have sentenced you to imprisonment with respect to the assault and I have backdated that to the date that you were taken into custody so, in effect, most of the time that you have spent in custody pre-sentence will be taken up by the sentence for the assault matter.

30. I have imposed a sentence of two years and three months' imprisonment with respect to the aggravated robbery charge. That is to be served by way of an Intensive Correction Order.

31. You will be told more about the requirements of that. I understand that you have already been given information about such an Order and what is required, but you will be provided with further information. It is sufficient at the present time that I say to you that if you comply with the terms of the Intensive Correction Order then you do not need to serve any further period of full-time imprisonment. However, if you do not comply with the terms of the Order or if you commit some further offence then you will be returned to prison to serve that two years and three months' imprisonment. I am satisfied that you have reasonable prospects for rehabilitation if you take the opportunity that is given to you in order to address your drug and alcohol and gambling addictions, and also to deal with your mental health issues. The ball is now very much back in your court.

32. To be clear, the Intensive Correction Order is intended simply to cover the length of the term of imprisonment that has been imposed.

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