R v Hawkins [2019] ACTSC 10

Offender convicted and sentenced to a total of 4 years and 8 months' imprisonment, with a non-parole period of 2 years and 4 months.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Aggravated robbery - Obtain property by deception - Ride in motor vehicle without consent - Objective seriousness of the offences - Where the offender has lengthy criminal history - Where there is some prospect of rehabilitation

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33

Crimes (Sentence Administration) Act 2005 (ACT) s 149

R v Dennis [2018] ACTSC 239

R v Hawkins [2015] ACTSC 333

R v Henry [1999] NSWCCA 107; 346 NSWLR 367

R v King [2017] ACTSC 252

R v Lock [2016] ACTSC 319

R v Oeti [2019] ACTSC 229

R v Percival [2018] ACTSC 230

R v Sampson [2018] ACTSC 59

R v Williams [2018] ACTSC 325

Legal Aid ACT (Offender)

1. On 13 November 2018, following a criminal case conference, the offender entered pleas of guilty to the following offences:

(a) Count 1: between 15 January and 5 February 2017 at Canberra, he dishonestly rode in a motor vehicle contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is five years' imprisonment and/or a fine.

(b) Count 2: on 30 January 2017 at Canberra, he committed robbery in company with an unknown man, and had an offensive weapon with him, contrary to s 310 of the Criminal Code 2002 (ACT). The maximum penalty is 25 years' imprisonment and/or a fine.

(c) Count 3: on 30 January 2017 at Canberra, by deception, he dishonestly obtained property belonging to Barry Thomas, intending to permanently deprive Barry Thomas of the property, contrary to s 326 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years' imprisonment and/or a fine.

(d) Count 4: on 19 February 2017 at Canberra, he committed robbery and had an offensive weapon with him, contrary to s 310 of the Criminal Code 2002 (ACT). This offence carries a maximum penalty of 25 years' imprisonment and/or a fine.

2. The Crown agreed to discontinue associated charges.

3. Having regard to the utilitarian value of the pleas (considering the timing of the pleas and the savings to the victims in the criminal justice system), the offender is entitled to a sentence discount in the range of 15 to 20 per cent. Due to the strength of the case against him on all charges, the discount should not be at the upper end of that range.

4. On 15 January 2017, a Mazda vehicle was stolen. On 21 January 2017, a set of New South Wales number plates was stolen from another motor vehicle while it was parked in the ACT. Prior to 30 January 2017, the New South Wales number plates were attached to the Mazda vehicle.

5. On Monday, 30 January 2017, the offender sent a text message containing an image of a hunting knife to an associate. The associate replied, "I reckon we can handle it with these ones". The offender responded to this message with emojis of guns and money bags.

6. At about 9.45 am on 30 January 2017, the offender and an unknown male drove to the Narrabundah Shops in the Mazda vehicle displaying the New South Wales number plates. They parked the vehicle in a laneway (Count 1).

7. The two men entered the Narrabundah Newsagency/Australia Post Office where the victim, Mr Thomas, was standing behind the counter. The offender was wearing gloves and a balaclava and carrying a small axe. His associate was similarly attired and carrying a backpack.

8. The victim was told to get on the floor. He complied. The offender held the axe to the victim's neck, and told the victim to get onto his stomach. The offender and his associate then removed cash from the cash registers and took a wallet belonging to the victim from a drawer. $2,707.77 was stolen from Australian Post and $2,634.99 was stolen from the Newsagency, which was owned by the victim (Count 2). The stolen wallet contained credit cards and other personal items belonging to the victim.

9. Later on the same day, the offender attended the Woden Westfield Shopping Centre in the company of three others, including his father and his partner, Natalie Andrews. The three used a credit card that had been removed from Mr Thomas' wallet to purchase food, cigarettes, telephone recharge vouchers, and clothing, with a total value of about $400 (Count 3).

10. On 4 February 2017, police located the Mazda vehicle bearing the stolen New South Wales number plates in a location where it had been abandoned. A folding knife was on the driver's seat. A number of finger and palm prints were developed and matched to the offender. DNA swabs taken from the driving surfaces and the knife were matched to the offender.

11. At about 10:43 AM on 19 February 2017, the offender went to the Griffith Shops on a small motorcycle and entered a newsagency wearing a motorcross helmet. He was carrying a backpack and he was armed with a tomahawk.

12. The offender walked around the counter and confronted the victim with the tomahawk. The victim opened the cash register and handed coins totalling $30 to the offender. When the offender gestured towards other money using the tomahawk, the victim grabbed the tomahawk and helmet, placed the offender in a bear hug and pushed him towards the exit. As he was being pushed out, the offender struggled and bit the victim's left forearm, causing an open wound.

13. The victim told the offender that he would release him if he left immediately. The offender agreed to do so and departed on his small motorcycle (Count 4).

14. During the struggle, items belonging to Mr Thomas (the victim of the first armed robbery), fell from the offender's backpack. Later, DNA samples obtained from the forearm of the victim of the second armed robbery and from the tomahawk were matched to the offender.

15. The bite injury to the victim's arm was associated with bruising and abrasions. The victim lost significant blood from the wound and the injury will leave a permanent scar.

16. On 1 March 2017, police executed a search warrant at the Narrabundah residence of the offender and Ms Andrews. They located clothing and other items associated with the offences.

17. In assessing the objective seriousness of the armed robbery offences, it is relevant to consider the general principles set out in the New South Wales guideline decision of R v Henry [1999] NSWCCA 107; 346 NSWLR 367 (Henry). That decision concerned a "typical example" of an offence of armed robbery in New South Wales, where the maximum penalty was 25 years' imprisonment, as is the case with the offences in this jurisdiction.

18. The "typical case" discussed in Henry involved only a limited discount for the plea of guilty; the starting point for the sentence must have been about five and a half years' imprisonment.

19. Henry identified factors that are often present in cases of armed robbery, many of which existed in the two armed robbery offences before me. Each was a reasonably typical example of such an offence in that the victim was a shop attendant, the weapon was an axe or a tomahawk (reasonably equivalent to a weapon such as a knife), and a relatively small sum of money was taken. There was a very immediate threat of force, but no actual force, except in the case of the second offence where significant force was used in an attempt to escape from the victim. Both offences involved some degree of planning. In relation to the first offence, balaclavas and gloves were worn and text messages were exchanged earlier on the morning in question. In relation to the second offence, the offender was in possession of the tomahawk weapon. However, neither offence was conducted in a sophisticated manner.

20. Unlike many offences of armed robbery, in each case before the Court the offence was committed during daylight hours and in a shopping centre. Armed robberies frequently occur at night and in circumstances where the victim is quite isolated from others.

21. On the other hand, the objective seriousness of the offence committed on 30 January 2017 is heightened because the offender was both in company and armed. Further, the threat to the victim involved the offender holding an axe to the victim's neck while the victim was on the ground.

22. The objective seriousness of the offence that occurred on 19 February 2017 is heightened by the fact that the victim suffered a bite injury while attempting to defend himself. Although the biting was not part of an aggressive manoeuvre by the offender, it was part and parcel of the offence and it caused a very nasty injury. Not only did it leave a permanent scar but at the time that it occurred, and no doubt for some time thereafter, the victim was confronted with the possibility that he had received a communicable disease.

23. Each offence would have been terrifying to the victim and both victims would remain somewhat traumatised by the event. It is remarkable that the second victim felt able to restrain the offender and persuade him to depart despite the fear that he must have been experiencing.

24. The offence of riding in the stolen car was of significant objective seriousness as the car carried stolen plates and was utilised in a robbery. On the other hand, the evidence relates solely to one episode of driving, that which occurred in association with the armed robbery offence of 30 January 2017.

25. The offence of obtaining property by deception was an offence of moderate objective seriousness. Although the total sum involved was not great, the offence is a rolled up offence relating to six transactions. The transactions were not conducted in a sophisticated way; the offender utilised the tap-and-go properties of the credit card in question.

26. At the time of the offences, the offender was 25 years old. He has an extensive criminal history.

27. In 2012, the Magistrates Court sentenced him to various periods of imprisonment that, in total, extended from January 2012 to May 2013. The offences included reckless threat to kill a person, possessing an offensive weapon with intent, taking a motor vehicle without consent and robbery, for which he received a sentence of nine months' imprisonment.

28. On 19 October 2015, Refshauge ACJ sentenced the offender for offences of burglary, attempted burglary and attempt to take a motor vehicle without consent, which had been committed in 2014. A total sentence of two years and nine months' imprisonment was imposed, from July 2014 to April 2017: R v Hawkins [2015] ACTSC 333. While in custody serving those sentences, the offender undertook the Solaris Rehabilitation Program. His nonparole period expired in May 2016 and he was released to parole on 8 June 2016.

29. In November 2016, the Queanbeyan Local Court sentenced the offender for attempting to take and drive a conveyance without consent, and imposed a suspended 11-month sentence from November 2016.

30. The current offences occurred in January 2017. At that time, the offender was serving the suspended sentence that had been imposed by the New South Wales court and was also on parole for the offences for which Refshauge ACJ had sentenced him in October 2015.

31. The fact that he was on conditional liberty must be taken into account in the sentences that I impose.

32. I note that s 149 of the Crimes (Sentence Administration) Act 2005 (ACT) does not apply in the present circumstances to cancel parole. There is no parole in force as at today's date, which is the date of the finding of guilt and the conviction.

33. On 7 March 2017, the parole relating to the sentences imposed by Refshauge ACJ was cancelled in the ACT. The offender was returned to prison, where he undertook the Solaris Rehabilitation Program for the second time. On 9 August 2017, he was granted parole and parole was completed on 17 December 2017.

34. In May 2017, the Magistrates Court sentenced the offender for a number of traffic offences and imposed various fines.

35. There was some delay in charging the offender with the present offences. No reason has been advanced. It was not until 16 November 2017 that the offender was charged with these offences, by which time his parole relating to the sentences imposed by Refshauge ACJ had been cancelled and then reinstated, and it was about to expiry.

36. In relation to the offences before me, the offender was granted bail immediately. However, in December 2018, he was returned to custody following alleged further offending in September 2018. In relation to those allegations, I am advised that the offender intends to enter pleas of not guilty and will next appear in the Magistrates Court on 4 April 2019.

37. The offender has spent much of his adult life in custody. The longest period spent in the community as an adult was probably the period from August 2017 to December 2018, during which, as will become apparent, he demonstrated significant progress in relation to rehabilitation.

38. After he was returned to custody in December 2018, the offender enrolled in the Worldview Program, which is a holistic program available to detainees who identify as Indigenous. He has asked to undertake the Solaris Program for a third time once he is sentenced. He is on the waiting lists for other short drug treatment programs that are available within the Alexander Maconochie Centre.

39. The offender is an Aboriginal man who had an extremely disadvantaged upbringing. He was the second oldest of 12 children, two of whom are now deceased. His parents abused drugs and alcohol. His father was often absent as he was incarcerated. The offender's father introduced the offender to weapons at a young age.

40. The offender's mother died from a drug overdose in 2016 while the offender was in custody. With 12 children to contend with, an absent husband and a substance abuse problem, it is little wonder that the offender's mother struggled to cope with her brood, or that the offender had behavioural problems as a child. From the age of about nine or 10, the offender was the subject of various foster and refuge arrangements. This string of placements disrupted his schooling as it caused numerous changes of school.

41. The offender informed the author of the pre-sentence report that he had run away from all placements to return to the family home. He had felt a responsibility to care for his younger siblings and had returned to fulfil that responsibility in the hope that his younger siblings would not be farmed out to placements.

42. The offender completed Year 9 at school. Later, he completed his Year 10 Certificate at the Canberra Institute of Technology. He has been employed only once during his adult life. He worked three to five days per week as a landscaper for five months in the latter half of 2018, until bail was refused in December 2018. His employer has provided a reference stating that the offender was a reliable employee with an excellent work ethic, a good communicator, and overall an outstanding employee who is missed, and whom he would not hesitate to re-employ.

43. For about two years, the offender has been in a relationship with Ms Andrews. In May 2014, Ms Andrews was diagnosed with an aggressive cancer and treated as a matter of urgency. By the time that she commenced a relationship with the offender, her condition was in remission, although the prognosis remains uncertain. Together, the couple has made a concerted effort to forgo substances and build a better lifestyle. Ms Andrews' letter to the Court indicates that she is an intelligent and motivated person. She is probably well paired with the offender, as his employer's reference indicates that he is of a similar disposition.

44. Regrettably, but perhaps understandably, most of the offender's associates are involved in illegal activity and/or have criminal records.

45. The offender himself has a long history of polysubstance abuse. He commenced using alcohol at 10 years of age. Between 15 and 17 years of age he consumed alcohol to the point of intoxication on most days. He commenced using cannabis at nine or 10 years of age, and by the age of 13 he was a daily user. He graduated to become a very heavy user of cannabis. He informed the author of the pre-sentence report that he is now an infrequent and low level user, largely because his partner has ceased to use drugs. Drug testing tends to confirm this statement.

46. The offender began using methamphetamine at 19 years of age and was a regular user until he was incarcerated in March 2017. He claims that he did not use the substance again until November 2018 and thereafter used it intermittently until he was remanded in custody in December 2018. The offender used heroin between the ages of 21 and 24 and he has also used benzodiazepines and ecstasy. He has been a chronic user of cigarettes since age 11.

47. The offences committed in January 2017 were motivated by the offender's desire to obtain money to relieve his craving for drugs. When sentencing the offender in October 2015, Refshauge ACJ said at [68]:

I also take into account the childhood disadvantage suffered by Mr Hawkins. It is difficult to see how, in the circumstances under which he was brought up, he could realistically have avoided his descent into drugs and crime. That disadvantage remains with him (see Bugmy v The Queen (2013) 87 ALJR 1022 at 1032, [43]-[45]) and it does not diminish over time.

48. Those observations remain apposite today. The author of the pre-sentence report summed up the position as follows:

Mr Hawkins is a young Aboriginal man with an extensive criminal history. Having spent a large part of his adult life in custody, it appears he has made more effort over the past three years. Having had lengthier times between periods of incarceration, he had acquired employment and had completed rehabilitation whilst in custody on two occasions.

49. Despite positive actions by the offender, his recent relapse into drug use remains a significant concern, especially as drugs and alcohol have contributed significantly to his offending behaviour.

50. The Crown referred to a number of decisions of this Court where sentences were imposed in circumstances somewhat similar to those in the present case. Of course, each case is different and sentences in other cases can only serve as a rough yardstick to indicate what might be the appropriate sentencing pattern relevant to this case. In relation to offences of armed robbery, I was taken to the decisions in R v Oeti [2019] ACTSC 229, R v Dennis [2018] ACTSC 239, R v Williams [2018] ACTSC 325, and my decision in R v Percival [2018] ACTSC 230. I have had regard to each of those decisions.

51. The Crown also took me to the sentencing statistics, which indicate that armed robbery offences usually result in a sentence of full-time imprisonment, often in the range of two to three years and, not infrequently, for a longer term.

52. In relation to offences of driving or riding in a motor vehicle without consent, I was taken to the decision of R v Lock [2016] ACTSC 319, in which the facts were quite similar to those in the present case. The decisions in R v Sampson [2018] ACTSC 59 and R v King [2017] ACTSC 252 were also of some assistance.

53. In sentencing the offender, I have regard to the relevant sentencing considerations in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

54. I also have regard to the sentencing purposes in s 7 of the Sentencing Act. Most of those sentencing purposes are relevant to the present exercise, including the purposes of imposing adequate punishment, general deterrence, specific deterrence, accountability, denunciation, and recognition of harm to the victims and to the community.

55. In relation to the sentencing purpose of rehabilitation, the offender no longer qualifies as a very young adult. However, at the time of the offences he was only 25 years of age - still relatively young. However, rehabilitation does assume a high level of significance in this case. The events prior to and during the period of August 2017 to December 2018, when the offender was at large, indicate that he may well be at a turning point in his life where he is able to seize upon opportunities for rehabilitation and build a law-abiding lifestyle, despite his extremely disadvantaged upbringing and the very significant criminal history.

56. Two important events have motivated the offender to make significant changes to his life. First, he commenced a relationship with Ms Andrews and became aware of her very serious medical problem. The offender is now in a relationship with someone who is clearly motivated to change her own lifestyle and very supportive of the offender doing the same thing.

57. Second, the fact that the offender's mother died in 2016 while he was in custody and unable to be with her, and that her death was caused by a drug overdose, was a "wake-up call" to the offender.

58. When he was at large between August 2017 and December 2018, the offender responded by making some obvious lifestyle improvements. Perhaps the most significant objective evidence of his commitment to change was his strong engagement with employment. It is commendable that someone with his background of disadvantage and lack of employment experience proved himself to be an outstanding employee within the short period of employment during the latter part of 2018. In the future, consistency in employment will be a very stabilising influence and a motivator to refrain from substance abuse.

59. Although the offender has failed to seize the many opportunities offered in the past, I am reasonably optimistic about his future. Accordingly, I am prepared to impose a relatively short nonparole period to enable him to demonstrate to the parole authority a continuing commitment to change and to allow for the possibility of support for an extended period while he reintegrates into the community.

60. The offender is convicted of each offence. I impose the following sentences:

(a) Count 1 - ride in motor vehicle without consent - 8 months' imprisonment (after a discount from 10 months' imprisonment), commencing 21 December 2018 and concluding 20 August 2019;

(b) Count 2 - aggravated robbery - 3 years and 8 months' imprisonment (after a discount from 4 years and 4 months' imprisonment), commencing 21 December 2019 and concluding 20 August 2023;

(c) Count 3 - obtain property by deception - 6 months' imprisonment (after a discount from 8 months' imprisonment), commencing 21 March 2019 and concluding 20 September 2019;

(d) Count 4 - aggravated robbery - 2 years and 11 months' imprisonment (after a discount from a head sentence of 3 years and 6 months' imprisonment), commencing 21 June 2019 and concluding 20 May 2022.

61. The total period of imprisonment is 4 years and 8 months, commencing 21 December 2018 and concluding 20 August 2023.

62. Having regard to what I hope are very good prospects for rehabilitation, I impose a nonparole period of 50 percent. The offender will be eligible for release to parole after serving two years and four months' imprisonment, on 20 April 2021.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.