R v Hawkins [2020] ACTSC 29

The offender is convicted and sentenced to imprisonment for 37 months: see [16]

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated robbery - joint commission - offender on conditional liberty at time of offence - premeditation by planning an excuse to enter the premises - actual violence - possession of knife - relevance of the offender's childhood disadvantage - history of drug and alcohol abuse - substantial criminal history - rehabilitation an important consideration because of offender's relative youth - sentence of imprisonment

R v Hawkins [2019] ACTSC 10

R v Hawkins [2019] ACTSC 103

1. Christopher Hawkins has pleaded guilty to a single count of aggravated robbery. The offence occurred by reason of the joint commission provision in s 45A of the Criminal Code 2002 (ACT). The maximum penalty is 25 years' imprisonment, a fine of 2500 penalty units or both.

2. On 24 September 2018 the offender and an unidentified female co-offender entered premises where Mr JK lived. He was present at home with a friend Mr QF. The ruse used to obtain access to the premises was a request by the unidentified female co-offender to use the bathroom at the house. The female was led in to use the bathroom and the offender also entered the premises. When JK sat back down the offender removed a large black handled knife from its sheath and pointed it towards JK saying "give us everything you've got, your money, everything". JK said that he only had five dollars. The offender hit him twice in the back of the head with the butt of the knife. JK walked to his bedroom and showed the offender his wallet that had a single five dollar note in it. The offender said "we are out of here". The offender closed the door of the bedroom leaving JK inside. JK left the bedroom and saw the offender still with his knife. He grabbed the offender's face with his left hand and pushed his fingers into the offender's eyes and punched him with a closed fist. He wrestled with the offender which resulted in both of them falling on the floor. QF attempted to intervene but was struck in the left hand by the offender's knife, causing a deep laceration.

3. The offender kept saying "give us what you've got" JK replied "I've only got the five dollars". The offender broke free and ran out the front door with the female following closely behind. The female picked up QF's telephone which was on a coffee table. JK gave chase and saw them run down the alleyway which led in front of what is known as Building B of Gowrie Court. The police were called. JK's head was bleeding profusely. A search resulted in QF's mobile phone being located in the alleyway. The offender's DNA was located at the scene of the crime. QF required 11 stitches to his left hand.

4. The offender was on conditional liberty at the time, in that he was on bail for other matters. The offending involved a degree of premeditation and planning insofar as the offenders concocted the excuse to get access to the premises. It involved the actual use of violence. The statutory aggravation was the possession of the knife but it was clearly also in company. The theft was that of the mobile phone by the co-offender. It was committed on residential premises. It is in the mid-range of objective seriousness.

5. The subjective circumstances of the offender are described in a pre-sentence report as well as two relatively recent sentencing decisions of other judges of this court: R v Hawkins [2019] ACTSC 10; R v Hawkins [2019] ACTSC 103.

6. The offender is of Aboriginal descent. He had an unstable childhood marred by his parents' illicit substance use. He spent time in foster care and refuges. His mother died in 2016. He is presently out of contact with his father. He has 11 siblings, two of whom are dead. He has a female partner who is supportive and a good influence on him. He completed his Year 10 certificate at the Canberra Institute of Technology. Prior to December 2018 he had been employed for five months as a landscaper. He commenced alcohol use from the age of 10, binge drinking until the age of 16. He commenced cannabis use from the age of 10 and daily use from the age of 14. He commenced methamphetamine use from the age of 19 and heroin from the age of 21.

7. He is recorded by the author of the pre-sentence report as displaying limited victim empathy and stating that he did not believe the victim was traumatised as a result of the offence. He was assessed as being a medium to high risk of general reoffending. The principal risk factors are illicit substance use, mental health issues and antisocial associates.

8. The observations made by Refshauge ACJ in 2015 as to his childhood disadvantage remain applicable today as they were applicable in January 2019 when sentenced by the Chief Justice ([2019] ACTSC 10 at [47]-[48]) and in April 2019 when he was sentenced by Loukas-Karlsson J ([2019] ACTSC 103 at [32]).

9. The offender has a substantial criminal history, mainly in the Australian Capital Territory. As an adult he has had a number of sentences of full-time imprisonment. He was sentenced for a number of offences committed in January 2012, including robbery, possessing a knife, possessing an offensive weapon, damaging property, threatening to kill and taking a motor vehicle without consent for which he received a sentence with a non-parole period of 16 months. He was then sentenced in the Supreme Court in 2015 for offences committed in 2014. Those included going equipped for theft, burglary, attempting to take a vehicle without consent and attempted burglary. He received a head sentence of two years and nine months and the non-parole period was 22 months.

10. He received a one month sentence of imprisonment for a driving offence in 2017. In 2019 he was sentenced by the Chief Justice for offences committed in 2017. These included obtaining property by deception, two offences of aggravated robbery and driving a motor vehicle without consent. The total sentence was four years and eight months' imprisonment with a non-parole period of two years and four months, that is, 50% of the head sentence. In April 2019 he was sentenced by Loukas-Karlsson J for offences committed in 2016. The offences included negligent driving occasioning death or grievous bodily harm and riding or driving in a motor vehicle without consent. The aggregate sentence was 16 months' imprisonment, 14 months of which were cumulative upon the existing sentence imposed by the Chief Justice.

11. The plea of guilty was entered on day one of the trial, after the trial had commenced. The trial was listed for four days. JK had given his evidence in chief at the point where the offender indicated that he would plead guilty. The matter which triggered the change of plea by the offender was the disclosure by the Crown of DNA evidence which counsel for the offender had requested be obtained. The DNA sample was from a door of the premises. The DNA was shown to be that of the offender. For reasons which were not explained these DNA tests had not been carried out earlier. For reasons which were not explained the disclosure was made seven days after the result had been received by the police. It is appropriate to treat the plea of guilty as if it had been entered some days prior to the commencement of the trial. In those circumstances a reduction in the sentence of 12% on account of the plea of guilty is appropriate.

12. The offender has spent no time in custody solely attributable to this offence. That is because when being dealt with for other matters he has had sentences of imprisonment imposed and backdated to the date when he went into custody for the present offence.

13. Each of the purposes of sentencing is relevant. Having regard to the offender's relative youth the prospect for rehabilitation must be firmly borne in mind. So too must his deprived and disrupted upbringing and the long-term consequences of that. Yet at the same time it is necessary to denounce the conduct, hold the offender accountable, deter him from committing further offences and recognise the harm done to the victim and the community. The sentence imposed today must be seen in the context of the other significant sentences for which he has recently been sentenced.

14. Clearly the only appropriate sentence is one of imprisonment. It is important to recognise that this robbery has a number of aggravating features: it involved serious actual violence, it was committed in the home of the victim, it was committed while the offender was on conditional liberty.

15. The appropriate starting point is a sentence of 42 months (three years and six months) imprisonment. That is to be reduced by 12% on account of the plea of guilty which gives a sentence of 37 months. Having regard to the totality of the sentences which he will be presently serving, it is appropriate that two years (24 months) of that sentence be cumulative upon the existing sentences. The sentence imposed by Loukas-Karlsson J ends on 17 October 2024. That means that the present sentence will commence on 18 September 2023 and end on 17 October 2026. Taking the sentences imposed by the Chief Justice, Loukas-Karlsson J and myself together the total period of imprisonment is just short of seven years and 10 months (21 December 2018 to 17 October 2026). It is appropriate that, consistent with the earlier sentences imposed, the non-parole period be approximately 50% of the head sentence. The non-parole period will be a period of three years and 11 months, commencing on 21 December 2018 and ending on 20 November 2022.

1. On the charge of aggravated robbery (CC2019/500) the offender is convicted and sentenced to imprisonment for 37 months, commencing on 18 September 2023 and ending on 17 October 2026.

2. The non-parole period is from 21 December 2018 until 20 November 2022.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.