R v Gordon [2018] ACTSC 94

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated robbery - robbery committed in company - offensive weapon used to commit robbery - make demand with threats - young offender - significant criminal history - substance abuse - mental health issues

1. The offender pleaded guilty to the following offences committed on 24 September 2016:

(a) aggravated robbery contrary to s 310(a) of the Criminal Code 2002 (ACT) (Criminal Code) - maximum penalty 25 years' imprisonment; and

(b) make demand with threats contrary to s 32(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act) - maximum penalty, 10 years' imprisonment.

2. In relation to both offences, s 45A may but does not have to, be applied.

3. The co-offender was a juvenile who will be dealt with separately.

4. The offender pleaded guilty at the sixth mention in the Magistrates Court and was committed to the Supreme Court for sentence. He had been selfrepresented at the first two mentions. The brief of evidence was served before the pleas were entered. The Crown case was very strong. Nevertheless, having regard to the timing and utilitarian value of the pleas, he should receive a 20 per cent discount on the sentences that I would otherwise have imposed.

5. Prior to 5 January 2018, the offender spent four days in custody in connection with his arrest and breaches of bail. On 5 January 2018, bail was refused. The offender has been in custody since that date. Having regard to the four days spent in custody before 5 January, the sentences will commence on 1 January 2018.

6. At about 1.00 am on Saturday, 24 September 2016, the victim posted on his Facebook profile requesting a lift from Civic to Bonython. Using his Facebook alias, the cooffender offered a lift for $20.00.

7. At 1.35 am, the offender and co-offender drove the offender's vehicle to agreed location at the rear of the Canberra Centre. When the pair arrived, the offender moved from the front passenger seat to the rear passenger seat. This enabled the victim to sit in the front passenger seat. The offender identified himself to the victim by his correct first name of Isaac. The victim paid $20.00 for the lift.

8. During the journey to Bonython, there was an unusual conversation between the co-offender and the victim. The offender admired the victim's watch. From the rear passenger seat, the offender filmed a short video clip on which he made a comment to the effect that the victim did not know what was coming.

9. At about 1.55 am, the vehicle stopped at the Bonython shops car park. The victim provided the offender and co-offender with cigarettes and the three men began to smoke. The co-offender then grabbed the victim from behind while the offender punched him in the head. During the assault, the offender asked the victim whether he had heard of the "Graff Gang". The co-offender released the victim, who dropped to the ground. The victim was bleeding from his face.

10. The victim stood up. The co-offender told him that he should not run or fight back and should "take it." The co-offender punched the victim in the face.

11. Moments later, the offender produced a silver knife which was in his possession. He held it to the victim's throat and asked whether the victim was scared. When the victim replied in the affirmative, the offender said that the victim should be thankful that he was not going to kill him as he was in the mood to do so. The co-offender then produced a mobile telephone. Both offenders demanded that the victim speak while he was filmed. He was told to say his name, say that he was a "little bitch" and that the "Graff Gang were the best". Meanwhile, the offender continued to hold the knife to the victim's throat. A short video depicting at least part of this incident was played in Court.

12. The offender then instructed the victim to remove his watch (which was valued at $680.00) and his mobile telephone (which was valued at $1400.00). The co-offender told the victim to restore the factory settings on the phone before handing it over. As the victim feared for his safety, he did so. It is those events that are the subject of the aggravated robbery charge.

13. The victim was then released. He was directed that he should not report the robbery to police or his parents as the offender knew where he lived and would "run through his house" if he failed to heed the direction. The victim understood this threat to mean that, if the matter was reported, the offenders would conduct a home invasion.

14. At about 2.15 am, the victim arrived home. He reported the incident to his mother and her partner. Initially, the victim said that he did not intend to contact the police because of the threats that the offenders had made. He attended the Canberra Hospital where he received treatment, including six sutures to his bottom lip to close a laceration that he had received during the assault.

15. Despite his original intention that he would not report the matter, that afternoon the victim did report the matter to the police.

16. Later, police located the victim's mobile telephone in the possession of a third party. It contained the video clips that were played in Court, including a clip of the three men travelling in the vehicle towards the scene of the crime which was filmed by the offender. In the clip, the offender can be heard saying "he unaware the Graff Gang is sitting in the back...it's on in a couple of minutes". The mobile telephone also contained the video clip of the victim with blood on his face and the offender holding a small silver bladed knife to his throat.

17. The offender was arrested on 28 July 2017 and granted bail.

18. At the time of the offences, the victim was 18 and a half years old.

19. All offences of aggravated robbery are very serious, as is indicated by the maximum penalty. This offence was a serious example of offences of this nature.

20. There is no evidence that the offence was pre-planned. Indeed, it could not have been pre-planned in a very specific way because the victim was the one who initiated the contact when he advertised for a lift. However, once the arrangement was made and the victim entered the vehicle occupied by the offender and co-offender, he was very vulnerable, particularly given that it was the middle of the night.

21. The offence was charged on the basis that the aggravating feature was that the offenders were in company. However, it could also have been charged on the basis that the offender possessed an offensive weapon, the knife. This additional circumstance adds significantly to the objective seriousness of the offence. Beyond that, the knife was actually used. It was held to the victim's throat for a brief, albeit not insignificant period while he was made to say demeaning things. The victim was also subjected to a physical assault. He was punched first by the offender and shortly thereafter by the co-offender. Actual violence was used as well as the threat of violence. The victim's mobile telephone was seized. It would have contained important personal details as well as being an item of significant value. In addition, the victim's watch was taken. It was of significant value. These features make the offence one of significant seriousness.

22. The threat offence was also a serious matter. The threat was delivered just after the aggravated robbery and was closely connected to it. The sentence that I impose for that matter will be largely concurrent with the sentence imposed for the robbery. However, the elements of the threat offence are different and there must be a small degree of accumulation to reflect that fact.

23. At the time of the offences, the offender was 20 years and five months of age. He was still a very young man.

24. The offender has a significant criminal history. It includes convictions for damaging property, assault occasioning actual bodily harm and an offence of aid/abet damage to property that occurred in 2015. It also includes offences that occurred subsequently to the subject offences, including an attempted robbery that occurred in November 2016.

25. In May 2017, Special Magistrate Hunter activated a suspended sentence. Her Honour sentenced the offender for an offence of attempted robbery committed in November 2016 and another matter. As a result, the offender spent five months and three weeks in custody from November 2016 to May 2017. From May 2017, the remainder of the sentence for attempted robbery was suspended. It was submitted that this period of full-time incarceration was a "wakeup call" for the offender. Since then, there has been only one minor incident; an offence of damaging a window allegedly occurred in January 2018.

26. The offender completed Year 9 at school. He has had periods of intermittent employment. He resides with his mother and sister in stable accommodation. He maintains regular contact with his father and extended family. The offender's mother suffers from serious health issues and requires considerable care, which is currently provided by the offender's 25-year old sister. When he is released from custody, the offender hopes to provide support to his sister and help her to care for their mother

27. At 14 years of age, the offender commenced abusing substances. Since then, he has done so sporadically. Over the past 12 months his abuse of illicit substances was severe. In the past, he has engaged in binge drinking at a "risky level". The offender said that he was under the influence of methylamphetamine at the time of the offences.

28. The offender has struggled with mental health issues since he was a teenager. He has been diagnosed with ADHD and impulse disorder. From time to time, he has been depressed and suicidal. The most recent episode of self-harm occurred in January of this year. From time to time, the offender has been medicated for ADHD and impulse disorder, but without long-term success. ADHD and impulse disorder are associated with poor decision making. The conditions affected the offender's school performance although, when he was taking his medication, his performance improved dramatically.

29. It was submitted that the offender's mental health conditions affect the sentences that should be imposed. I do not accept that his conditions mitigate his moral culpability to any significant extent. As noted, the offender was, by his own admission, affected by methylamphetamine at the time of the offences. It is likely that the drug had a far greater influence on his decision making than did an underlying and long-standing condition of ADHD or impulse disorder.

30. The offender is making very concerted attempt to rehabilitate. He has gained considerable insight and maturity, which should help him in the future. He is motivated to address his substance abuse issues, including by participating in the Solaris program in the Alexander Maconachie Centre (AMC). He told the author of the pre-sentence report that he has not abused substances within the prison for a period of at least six weeks. He has considered the relationship between his behaviour and the medication that has been prescribed in the past. He wishes to investigate means of addressing his mental health problems aside from medication. That indicates insight and maturity in relation to addressing his mental health problems.

31. The offender is motivated to engage in pro-social activities and to disassociate himself from negative peers. He has taken some steps in that regard within the prison setting. The offender's mother said that the offender wants to re-engage with the church. The offender intends to look for an apprenticeship. He has indicated an interest in attending education programs within AMC. He wants to complete Year 12 to improve his employment prospects.

32. The offender has expressed shame and remorse for his conduct.

33. During February 2018, the offender engaged in a restorative justice process involving indirect conferencing with the victim. As a requirement of the conferencing, the offender described what happened during the offence and why he behaved as he did, and he addressed the likelihood of repeating the behaviour. Engagement in restorative justice is a relevant matter under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). In addition, in the circumstances of this case, it is indicative of his generally remorseful and contrite attitude towards the offence. Engaging in restorative justice has assisted the offender to understand the victim's perspective and to accept responsibility for the victim's injuries, including emotional injuries.

34. No doubt, restorative justice has been a positive process for both for the offender and the victim. Nevertheless, the victim must have suffered very significantly and almost certainly continues to suffer psychologically from the offences in September 2016.

35. It was submitted that the offender is at a crossroads in his life. That may well be the case. In late-2016 and early-2017 he benefitted from a period in custody which caused him to reflect upon the negative consequences of criminality generally. In addition, he seems to have gained considerable insight into what has caused past criminal behaviour and what needs to be done in the future. He knows that to become a useful member of the community he must address his mental health and substance abuse problems and improve his education so that he can obtain good employment. The offender has the benefit of a supportive family

36. In sentencing the offender, I am required to have regard to the sentencing purposes in s 7 of the Sentencing Act. General deterrence, accountability, denunciation and recognition of the serious harm that has no doubt been suffered by the victim are important sentencing purposes. Given the age of the offender and his motivation to change for the better, rehabilitation is also a very important sentencing objective.

37. The parties accept that imprisonment is the only appropriate sentencing option. Given the objective seriousness of the offence of aggravated robbery, the only available sentencing option is a significant period of full-time imprisonment. However, given the offender's prospects for rehabilitation, I will suspend the sentence after the offender has served the minimum period that is necessary to recognise the sentencing purposes to which I have referred.

39. For the offence of make demand with threats, I would have imposed a sentence of six months' imprisonment. Applying the discount of 20 per cent, the offender is sentenced to five months' imprisonment from 1 January 2018 to 31 May 2018.

40. For the offence of aggravated robbery, I would have imposed a sentence of three years and nine months' imprisonment. Applying a discount of 20 per cent, the offender is sentenced to three years' imprisonment from 1 February 2018 to 31 January 2021.

41. The sentence for aggravated robbery will be suspended after 12 months, i.e. from 31 January 2019, upon the offender entering a good behaviour order (GBO). The GBO will be subject to the conditions that the offender reports to Corrective Services within two working days of release and submits to their supervision for as long as they consider necessary. The GBO is for a period of two years from 31 January 2019.

42. In relation to the GBO imposed by Special Magistrate Cush on 7 July 2016, I find that it has been breached but I take no further action.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell.