R v Denniss [2018] ACTSC 239

Crimes Act 1900 (ACT), s 162

Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(m), 71, 72

Legal Aid ACT (Offender)

1. The offender, Tian-Jarrah Denniss, has pleaded guilty to two charges. Both were committed on 24 May 2018. The first (CC2018/6973) is a charge that he was a person who had permission to leave a prison where he had been in custody and failed, without reasonable excuse, to return to that prison in accordance with that permission. This is a contravention of s 162 of the Crimes Act 1900 (ACT). The maximum penalty is 100 penalty units, imprisonment for five years or both. The second (CC2018/6974) is a charge of aggravated robbery of a liquor store in Braddon: Criminal Code 2002 (ACT), s 310(b). The items dishonestly appropriated were a bag, two bottles of Scotch whisky, an unknown quantity of cigarettes and between $1000 and $2000 belonging to the owner of the business. The maximum penalty for aggravated robbery is 2500 penalty units, imprisonment for 25 years or both. The circumstance of aggravation was that he had an offensive weapon with him, namely, a glass bottle.

2. On 24 May 2018 the offender, who was remanded in custody, was granted conditional release on bail from the Alexander Maconochie Centre (AMC) as a result of an order of the Magistrates Court. This was in order to make accommodation arrangements that were necessary if he was to obtain a place in a rehabilitation program. He was required to return to the AMC by 5pm that day. He did not do so. This gives rise to the contravention of s 162 of the Crimes Act.

3. At about 10:44pm that evening, the offender entered the Cellarbrations liquor store in Lonsdale Street, Braddon. He was carrying a shopping bag that contained grocery items. There was only one employee present in the shop at the time. He asked the employee to get a bottle of Glenfiddich Scotch whisky and a bottle of rum out of a locked cabinet. The employee kept the items on the counter being worried that the offender was not going to pay for them. The offender asked about the purchase price of other items, apparently unable to make up his mind about what to purchase. The employee believed that he was stalling so as to allow other customers to leave the store. At about 10:50pm, the offender pulled out a glass bottle of sweet chili sauce from the grocery bag that he was holding, smashed it so as to create sharp jagged edges on the bottle and then leaned over the counter and held the broken bottle close to the employee's face. The offender handed the employee a blue shopping bag and demanded that he put all of the store's cigarettes in the bag. The employee, fearing that the offender was going to stab him, complied with his request. The offender placed a big bottle of wine into another bag from the store. He told the employee to "get all the money and put it in the bag". The employee handed him between $1000 and $2000 in notes and the offender put them into the bag with the cigarettes. The offender then removed a promotional Glenfiddich branded bag from the counter and put a bottle of Glenfiddich Scotch whisky and a bottle of Johnny Walker Scotch whisky in the bag. He then tried to fit the bag with the large bottle of wine into the promotional bag but when he was doing so he dropped the blue shopping bag that contained the cigarettes and the money. He bent down to pick the items off the ground and the employee was able to move away from the counter, walk to the front of the store and close and then lock the sliding door. He then closed a roller door that was on the outside of the sliding door locking the offender in the store. He flagged down a passer-by and used that person's mobile phone to call police.

4. The offender ran to the rear of the store and tried to log into the computer that controlled the store's closed circuit television (CCTV). He then ran to the front of the store and retrieved the shopping bag containing the cigarettes and the money and the promotional bag containing the two bottles of Scotch whisky. He tried to climb out of the store through the roof space, but when police arrived at 10:59pm they found him hiding in the roof space at the rear of the store.

5. The offending conduct was unsophisticated. The weapon was improvised. It was obviously of a less serious nature than other forms of weapon. The robbery involved some immediate threat to the employee. It did not involve any application of force. The value of the items stolen was significant. It was committed whilst the offender was on conditional liberty. I assess this as just below the mid range of objective seriousness for this offence.

6. The charge of failing to return to lawful custody is in the mid range of objective seriousness for this offence. The offender took advantage of the permission granted to him to improve his position by arranging accommodation that would allow him entry into a rehabilitation program. Very soon after leaving the AMC he decided that he would not return and made no attempt to do so. There are no relevant mitigating circumstances in relation to that decision or his failure to return.

7. The offender is currently aged 28 years old. He is of Aboriginal heritage. Most of his adult life has been spent in prison.

8. He was born in Tamworth. He is the only child born to his father and mother. However, he has at least 19 siblings due to his parents re-partnering. He was raised, at least in part, by his maternal grandmother. He reported to a psychologist at ACT Health that he had been sexually abused by his stepfather during his childhood and that his mother had substance abuse problems. Although the evidence was not particularly detailed, I accept that he had a deprived and dysfunctional childhood and that fact must be taken into account in determining the appropriate sentence.

9. He has had two significant relationships in his life, one when he was 16 which lasted for around 12 months, the other about two years ago which lasted for nine months.

10. Many members of his family do not want contact with the offender due to his ongoing substance abuse, theft of their medications and other criminal behaviours.

11. The pre-sentence report records that his father's side of the family live in the Tumut and Wagga Wagga areas but that his grandmother did not refer fondly to that side of the family because of a history of criminal offending.

12. He was at least partially home schooled. He completed year 12 while in custody. The author of the pre-sentence report records that he has been assessed as having a mild intellectual disability and that he was diagnosed with attention deficit hyperactivity disorder (ADHD) as a child and medicated as such from a young age.

14. When in the community he has been a recipient of welfare payments. He has a history of requesting money from his family which he has used to obtain alcohol and illicit substances.

15. His history of using alcohol and cannabis goes back to when he was 14 years old. When he was 16, his newborn half-brother died and he went on a "bender" using cannabis, methamphetamine, heroin, ecstasy, Oxycontin and fentanyl. He began using methamphetamine regularly when he was around 21 years old. When out of custody in 2017 he reported that he used all classes of drugs. He reported to the psychologist at ACT Health that he would spend around $5000 a week on illicit substances when in the community. He indicated that he wanted to cease using heavy drugs such as methamphetamine, cocaine and heroin but that he had no intention of ceasing use of marijuana.

16. On 24 May 2018, after his release from the AMC, he went to Ainslie Village, a homeless person's accommodation service, and while there used heroin and consumed about 500mL of spirits. It was after that that he went to Braddon and committed the robbery.

17. He previously attended quite a few residential rehabilitation programs, the first at the age of 15. The longest he has stayed in any such facility was eight days. His main motivation in entering such programs has been to be released from custody.

18. He is clinically managed by Forensic Mental Health in the AMC. His working diagnosis is "schizophrenia disorder (bi polar type), anti-social personality disorder, borderline personality disorder, psychoactive substance related disorders, mild intellectual disability and attention deficit hyperactivity disorder (ADHD)". He is subject to depot injections in order to administer his antipsychotic medication.

19. He told the author of the pre-sentence report that by the time he arrived at Ainslie Village on 24 May 2018, he had no intention of returning to custody. He had called his grandmother requesting that she arrange a train or bus ticket for him to travel home to Tamworth.

20. He was released on parole on 19 October 2017 from the Mid North Coast Correctional Centre in New South Wales.

21. By 3 November 2017 he was detained at the AMC as a consequence of further offending. There is a warrant for his arrest in New South Wales due to his breach of parole, and a further warrant for his arrest upon a charge of assault. In January 2017, the offender was sentenced to two months imprisonment in the ACT for minor theft. He was released on about 17 March 2017 and committed a further series of offences including burglary, attempted burglary and theft on 20 March 2017. At the time of the offences on 20 March 2017, the offender had used multiple drugs - methamphetamine, cocaine and marijuana - and reported symptoms of paranoia. Those symptoms continued when he was taken into custody. It is those circumstances which led to him being detained at the AMC and it is during that period of detention that he committed the present offences.

22. During his period of detention his behaviour has been unsatisfactory. The pre-sentence report refers to the fact that in just July 2018 he received 21 disciplinary charges or officers' warnings.

23. A report prepared by a psychologist at ACT Health indicates that whilst in custody he has presented with numerous behaviours and symptoms of mental illness including auditory hallucinations, manic behaviours, impulsive behaviours, self-harm and suicidal behaviours.

24. The psychologist at ACT Health expressed the opinion that in the light of his clinical history and self-reported information about his selfharm behaviours, his selfharm and suicide behaviour increases considerably in a custodial environment and, in that sense, further imprisonment may weigh more heavily upon him than a person of normal health. However, the report also notes that the level of mental health care that he receives in prison is commensurate with that which he would receive in the community.

25. The offender also tendered a letter to the Court. It indicated that he was at an age where wished to take responsibility for his actions and that he had plans for the future to obtain employment and work as a farm-hand. He wished to one day own his own property and have a family.

26. The offender has a poor criminal history. He has had sentences of imprisonment for offences of shoplifting (2010), larceny (2010), breaking and entering, common assault and shoplifting (2010), reckless or furious driving, taking and driving a conveyance without the consent of the owner, unlicensed driving, driving under the influence (2011), assault occasioning actual bodily harm and breaking and entering (two counts) (2011), armed robbery (2013), breaking and entering (2014), damaging property (2015), larceny (two counts) (2016), shoplifting (2016), receiving property, dishonestly obtaining property by deception (two counts) (2016), assaulting a law officer (not police) (two counts) (2016), shoplifting (two counts) (2016) and shoplifting (2017).

27. As I indicated earlier, he was sentenced in January 2017 for minor theft in the ACT to two months imprisonment ending on 17 March 2017. He then committed a series of other offences on 20 March 2017. In July 2018, he was given an aggregate sentence of 12 months imprisonment from 3 August 2017 until 2 August 2018.

28. The only positive things that can be said about his criminal history is that he has only one conviction for a similar offence to the aggravated robbery, namely, armed robbery in 2013, and that his criminal history is largely property related rather than violence related.

29. The offender was first before the Court on 25 May 2018, the day after committing the current offences, and pleaded guilty to both counts. The plea of guilty was obviously at the very earliest stage. It was in the face of what would have been a strong Crown case. The plea of guilty certainly has utilitarian value and it involves acceptance of responsibility by the offender for the offending conduct.

30. The offender was in custody at the time of the offending conduct. At that point he was remanded in custody in relation to charges that he was facing in the ACT Magistrates Court. Sentences were subsequently imposed that were backdated so that, from 3 August 2017 until 2 August 2018, he was serving a sentence of imprisonment. It is only in the period 3 August 2018 up until today, 20 August 2018, that his time in custody was solely attributable to the present offences. That is a period of 17 days excluding today. Taking account of the time in custody, the relevant backdate date is 3 August 2018.

31. This is a very unfortunate case of serious offending by someone who has been unable to conduct himself lawfully. It was committed at a time when the offender was very obviously on conditional liberty and with no regard to the consequences of his actions. This is one of the more serious offences that he has been convicted for. He appears to have little capacity to think through the consequences of his actions or assess the risk of apprehension.

32. His criminal history leaves little room for leniency. His criminal record and life history leaves little room for optimism. I have taken into account his deprived childhood and his early introduction to drugs and alcohol. He does have some insight into his offending conduct, but his history is such that it is not clear that he has the capacity to change course. It may be that age or further time in custody results in a change of approach, but his history to date has been inconsistent with a capacity to live lawfully outside of prison. [Redacted for legal reasons]. He has not had the capacity to take the benefit of rehabilitation programs, but rather, seems to have cynically exploited the possibility of entry into rehabilitation programs in order to get out of custody. While rehabilitation must always be hoped for, in the circumstances of the offender, it cannot be a principal consideration because of his past history.

33. While specific deterrence remains a consideration and general deterrence will always be a significant consideration for this kind of offending, the most significant consideration in the present case must be protection of the community and punishment.

34. The offender's mental health conditions are likely to make his time in custody somewhat more burdensome than would otherwise be the case. However, they also seem to contribute to the likelihood of further offending and hence increase the need for the protection of the community. His mental health conditions also moderate (but do not eliminate) the extent to which he is a suitable vehicle for general deterrence. In addition to assessing the likely impact of a further period of imprisonment, I also take into account his mental health conditions more generally under s 33(1)(m) of the Crimes (Sentencing) Act 2005 (ACT).

35. There is clearly no sentence other than a sentence of full-time detention that would be appropriate.

36. On the aggravated robbery charge, the starting point is a sentence of four years imprisonment, reduced to three years on account of the plea of guilty.

37. On the charge of failing to return to lawful custody, general deterrence is the most prominent sentencing consideration because persons who have the benefit of release must recognise that failing to return to custody will carry with it significant consequences. Having regard to what I have said about the moderate reduction in the significance of general deterrence in light of the offender's mental condition, the starting point is a sentence of 12 months imprisonment, reduced to nine months on account of the plea of guilty.

38. Having regard to the close temporal relationship between the offending and questions of totality, five months of the sentences will be served concurrently. Section 72 of the Crimes (Sentencing) Act provides a different default rule as to concurrency than applies under s 71 of the Act. In order that there be no doubt that s 72 has been complied with, I will formally direct that five months of the sentence for failing to return to custody be served concurrently with the sentence for aggravated robbery. This gives an aggregate head sentence of three years and four months.

39. The non-parole period will be 28 months, which is 70 per cent of the head sentence. The offender's history of offending makes any shorter nonparole period inappropriate. The sentence will be backdated to the day after the end of the offender's previous sentence in order to take into account the time in custody solely attributable to these offences.

1. On the charge of aggravated robbery (CC2018/6974), the offender is sentenced to imprisonment for a period of three years from 3 August 2018 until 2 August 2021.

2. On the charge of failing to return to custody (CC2018/6973), the offender is sentenced to imprisonment for nine months from 3 March 2021 and ending on 2 December 2021.

3. I direct that the sentence in order 2 be concurrent with the sentence in order 1 from 3 March 2021 until 2 August 2021.

4. The non-parole period commences on 3 August 2018 and ends on 2 December 2020.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.