R v Hill [2016] ACTSC 310

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2016] ACTSC 310

Sentenced to 3 years and 10 months' imprisonment to be served by intensive corrections order. Reparation of $266.95 to be paid within 12 months.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - robbery - burglary - take motor vehicle without consent - drive motor vehicle without consent - obtain property by deception - minor theft - possess knife in public place - possess drug of dependence - strong subjective circumstances - strong rehabilitation prospects - Intensive Corrections Order - reparation order

Crimes (Sentencing) Act 2005 (ACT) ss 7, 11(3), 33

Legal Aid ACT (Offender)

SCC 5 of 2016; SCC 6 of 2016

1. The offender was committed for sentence on the following matters:

2. In addition, the Court is asked to sentence the offender on the following transferred matters:

Possess knife without reasonable excuse in a public place

s 382(1) Crimes Act 1900

Drugs of Dependence Act 1989

Minor theft 1 relates to burglary 1 and minor theft 2 relates to burglary 2.

3. In relation to the robbery offence (offence 3 in table 1), additional offences are to be taken into account: one offence of unlawful possession of stolen property (which carries a maximum penalty of six months' imprisonment) and three minor theft offences (which carry a maximum penalty of six months' imprisonment).

4. Pleas of guilty were entered in the Magistrates Court on 27 January 2016. At that stage, the charges had been pending in the Magistrates Court for different periods of time but no brief of evidence had been prepared by the prosecution. The reason for the slight delay in entering pleas of guilty in respect of some charges was to enable the consideration of the charges as a whole.

5. The pleas should be characterised as having been entered at the earliest reasonable opportunity. Having regard to other relevant matters, including the strength of the prosecution case, a discount of 25% is appropriate for all matters.

6. The offender was in custody from 14 November 2015 to 7 March 2016, approximately three months and three weeks, at which stage he was released to bail on the condition that he reside with Canberra Recovery Services and participate in their residential rehabilitation program. To date he has been a resident at that Program for approximately two months and two weeks. In accordance with convention, I treat that period as equivalent to approximately one month and one week of full-time imprisonment. The offender found the period that he did spend in custody to be a "sobering" experience.

7. At about 6:00 am on 22 October 2015, the offender went to the Westfield Belconnen Shopping Centre. He used a pair of bolt cutters to break into a wire cage at the end of a service tunnel on level 3. The cage was owned and used by a level 3 business, Espresso Room. The offender removed two boxes from the cage and placed them in a nearby trolley. Each contained a table base valued at $180. This is the subject matter of Count 1 and transferred matter 1, minor theft.

8. After loading the boxes into the trolley, the offender proceeded to nearby double doors, which led into the foyer of the Hoyts Cinema. He forced open the double doors and in doing so damaged a lock and closing mechanism. In the Hoyts Cinema area he removed 3D movie glasses, confectionary and other items. Most significantly, he removed a ticket machine valued at $1,000. The total value of the items removed, including the ticket machine, was approximately $1,200. He placed the stolen items in a black plastic bag and put the bag in his trolley. This is the subject matter of Count 2 and transferred matter 2.

9. At about 7.15 am, security staff approached the offender and questioned him about the contents of the trolley. The offender became angry and aggressive. Staff restrained him. The police arrived. They searched the offender's bum-bag and backpack. During the search, they located a clip-sealed bag containing white crystals. The offender stated that the substance was speed. This is the subject matter of the possess drug of dependence. The offender said that he had consumed speed earlier that morning.

10. The police also located a bolt cutter, box cutter and a pocket-knife, which is the subject of the possess knife without reasonable excuse in a public place transferred matter.

11. The offender was arrested, but he was released on bail on the following day. Consequently, he was on conditional liberty at the time when the later offences were committed. This is an aggravating feature relating to those offences.

12. On the night of 7 to 8 November 2015, Mrs Kemezys's car keys and Toyota vehicle were stolen from her home address. At about 11.30 pm on 8 November, the stolen Toyota vehicle followed another vehicle down a ramp into the secure basement car park of an apartment complex in Bunda Street, Canberra City. Sixteen minutes later, the stolen vehicle drove up the ramp and stopped near the garage roller-door. The offender exited the driver's seat and attempted to open the garage door without success. He then used the vehicle to ram the garage door, before rolling the vehicle back down the ramp. He left through the fire exit with a bike and large blue tool bag and rode away. This is the subject matter of Count 5, driving a motor vehicle without consent.

13. At about 11.50 pm that night, Mrs Chaiyabarn parked her BMW vehicle near Casino Canberra in Canberra City. She walked from the vehicle with her handbag over her shoulder. She was holding her car keys and mobile telephone in her hand. The offender approached her from behind and knocked her to the ground. He attempted to remove her handbag but it was difficult to do so because the victim had fallen on top of her bag and was holding onto it. She placed herself in a foetal position to protect herself from the offender. She screamed for help. The offender stood over the victim with one leg on either side of her body. He punched her right cheek area with his closed right fist numerous times and kicked her in the buttocks. The victim feared for her life. She relinquished her handbag. The handbag contained $800 and personal items. This is the subject of Count 3, the robbery charge.

14. The offender snatched the victim's car keys from her hand and ran to her nearby vehicle. He attempted to start it. As he was doing so, the victim used her mobile telephone to take photographs of him. She continued to scream for help. The offender was unable to start the vehicle and ran towards City Walk, Canberra City. This is the subject of Count 4, attempt to take the motor vehicle without the consent of Mrs Chaiyabarn.

15. Police attended and observed that the victim's right cheek area was swollen and bruised and she had a graze to her left elbow. She stated that she was in significant pain. She was frightened and shaken. Photographs tendered at the sentencing hearing show that the injuries to Mrs Chaiyabarn were not insignificant.

16. On 8 November 2015, Mr Pang parked his Mitsubishi vehicle at the front of his business in Fyshwick. At 1:00 am on 9 November 2015, the offender entered the business. Forty-five minutes later, he approached Mr Pang at the reception desk and spoke to him. Mr Pang offered to provide the offender with a glass of water and left the reception desk to fetch the glass, which the offender then declined. At 2:00 am, Mr Pang walked the offender to the front door of the business and observed that his vehicle was still parked out the front of the business. However, a short time later, Mr Pang noticed that his vehicle was no longer parked at the front of the business. He called the police. CCTV footage showed that while Mr Pang was absent from the reception counter getting the offender the glass of water, the offender walked behind the reception desk and picked up the keys to Mr Pang's car, placing them in his right pocket. CCTV footage also depicted the offender unlocking Mr Pang's vehicle and driving away. Mr Pang's wallet was in the vehicle. The wallet contained personal items including credit cards. This is the subject matter of Count 7, taking the Mitsubishi vehicle without consent.

17. The offender drove Mr Pang's vehicle to a service station and, at about 2.30 am, filled the vehicle with fuel to the value of $83.88, using Mr Pang's credit card, which the offender obtained from Mr Pang's wallet. This is the subject matter of Count 6.

18. At 7:00 am on the morning of 9 November 2015, police located Mr Pang's vehicle in Reid. A swab taken from a glove located inside the vehicle yielded a sample that matched the offender's DNA.

19. At 1:20 pm on 13 November 2015, police attended an address in Calwell and spoke to the offender. They observed that the back of his right hand was swollen and had minor cuts. His knuckles were scratched and swollen. I take these injuries to be consistent with the attack on Mrs Chaiyabarn.

20. At 8.55 pm on the same day, police attended the apartment complex in Bunda Street to investigate a report of a suspicious vehicle carrying stolen number plates that was in the basement car park. They identified the vehicle as the Toyota vehicle belonging to Mrs Kemezys. Under the front passenger seat there was mail addressed to the offender. Police located fingerprint evidence that matched the offender's fingerprints.

21. On 10 October 2015, the offender was at a residence where a Visa debit card had been left on the bench. Later that day, the owner of the card saw that it was missing. A number of fraudulent transactions were made on 11 October 2015. The card was cancelled. Two of those transactions are additional matters to be taken into account, the transactions for $44.90 and $47.90 at Supabarn and at BWS Liquor. CCTV images obtained from both locations revealed that the offender used the credit card.

22. On 25 October 2015, the offender committed what was, in effect, a shoplifting offence at Woolworths Petrol, Mawson, taking items with a total value of $26.57.

23. I accept the prosecution's submission (with which the defence does not disagree) that the robbery offence is the most serious matter before the Court because it is a very serious example of a robbery.

24. The robbery offence occurred late at night. The victim was alone, going about her legitimate business in a public place. Because it was late at night and, presumably, the streets were relatively quiet, the victim was in a relatively vulnerable position, although I would not place her in a special category of vulnerable victim. Significantly, the theft was enabled not just by threats of violence, but by the use of actual violence and the repeated use of physical force. She was on the ground in a foetal position when she was repeatedly hit and kicked by the offender. The assault resulted in actual injury, albeit injury of a soft tissue nature, but the injury was not insignificant. The offence was committed while the offender was on conditional liberty.

25. In the ordinary course, the only appropriate sentence for such an offence would be a significant sentence of full-time imprisonment because that would be required to adequately recognise the sentencing purposes of punishment, general deterrence, accountability and denunciation.

26. The burglary offences are of relatively low objective seriousness when one considers the spectrum of such offences. They were committed in daylight hours at commercial premises when the public was not about because the shopping centre had not yet opened to the public. Items of relatively small value were taken and the items would have had no sentimental value. The offence was impulsive. The offender made no attempt to disguise himself and committed the offences in full view of numerous CCTV cameras.

27. The motor vehicle offences are relatively low on the scale of objective seriousness. The vehicles appear to have been recovered. As far as the Court is aware, they were not damaged and they were utilised by the offender for a relatively brief period.

28. The offences of obtaining property by deception were also relatively low on the scale of objective seriousness given the circumstances and the fact that the value of the deception of the property obtained was relatively low.

30. He has no relevant criminal history as an adult.

31. The offender had a stable and supportive upbringing as the oldest of three children. His parents separated when he was eight years old. He has had no contact with his father since he was 12 years old, but he has a close relationship with the rest of his family, including his grandparents. His mother is a teacher and a long-term Canberra resident. However, in the period immediately prior to the offences, the family ceased meaningful contact with the offender due to his drug use and associated behaviour.

32. While at school, the offender enjoyed playing sport. He had a happy childhood. He completed Year 12 and began a sheet metal apprenticeship, which he did not complete. He has also studied online towards a youth diploma.

33. The offender has debts of approximately $15,000 accrued in the months preceding the offences. He has entered a repayment plan with the assistance of a financial planner, but there is a possibility that he will have to declare bankruptcy.

34. The offender began binge drinking at 18 years of age and was a heavy drinker for about three years until he lost his job as a result of alcohol abuse. In 2013, he entered the CRS Residential Rehabilitation program to address alcohol abuse. He left after three months, but returned in 2014 and stayed for four months. Thereafter, he was able to remain sober from alcohol for a significant period.

35. The offender used cannabis and other illegal drugs infrequently through his teens and early 20s. In late 2014, he commenced a relationship with a woman who seems to have been somewhat unstable and the offender became deeply involved in that relationship. The offender was living with his grandparents and, at one stage, his partner moved in. The family was not happy with that arrangement. As a result, the offender and his partner moved to separate accommodation and, for a short period, the family assisted with the rental of that accommodation. When the family ceased supporting the offender and his partner financially, they were unable to meet the rent repayments and were evicted.

36. In 2015, during this relationship, the offender was introduced to amphetamines. He quickly became a heavy user and continued using until his arrest in November 2015. The offender informed the author of the CADAS report that, at the time of the offences, he was using up to one gram of crystal methamphetamine intravenously at a daily cost of about $400. He was also abusing alcohol.

37. After he was arrested and admitted to the Alexander Maconochie Centre (AMC), the offender was placed on a methadone maintenance program. His methadone dosage is being reduced in the expectation that he will cease therapy in the near future.

38. The offender remained in custody at the AMC until 7 March 2016, when he was released on bail to attend Canberra Recovery Services. He has remained a resident at CRS and has engaged well with their program. He has demonstrated good insight into his substance abuse. He has acknowledged underlying problems with unresolved grief, low self-esteem and the difficulty with managing stress. He has disengaged from his 2015 associates and is developing strategies to avoid reengagement. He has demonstrated "a solid commitment to his ongoing recovery". He is highly motivated to complete the CRS program.

39. It is recommended that after completing the residential component he maintain contact with the Program and benefit from the Program's after care support. As previously mentioned, he has completed two months and two weeks of the Program, which conventionally I would equate to one month and one week of full-time imprisonment.

40. The offender's mother gave evidence confirming that the Program has had a very beneficial and substantial impact on her son. The offender's family are supporting his rehabilitation and will provide a pro-social influence in the future. In the long-term, the offender would like to study or complete his apprenticeship.

41. The offender has no history of treatment for mental health problems, but he believes that when heavily affected by methamphetamines he experiences drug induced psychosis. This is a matter that may warrant investigation in the future.

42. The offender stated that the offences were opportunistic and impulsive, often committed under the influence of methamphetamine withdrawal. The thefts were committed for the purpose of purchasing methamphetamines. In light of the surrounding history and the circumstances in which the offences were committed, I accept this explanation, although it is merely an explanation. It does not ameliorate, in any significant way, the objective seriousness of the offences.

43. The offender has expressed relief at his arrest and the fact that his criminal and drug abuse behaviour was involuntarily terminated. He has expressed remorse, particularly in relation to the impact of his conduct on the victim of the robbery. He has expressed shame and guilt for his conduct during the robbery.

44. The offender has been assessed by the author of the pre-sentence report as at medium risk of general re-offending, primarily because of illicit drug use, financial problems and unemployment. However, this is only a preliminary assessment. His engagement with rehabilitation, the fact that he has instituted a plan to address financial problems and that his planning for future employment are such that I consider his prospects of rehabilitation to be very good. His rehabilitation prospects are dependent on the offender remaining free of substance abuse.

45. I have referred to the ACT Sentencing Database in relation to sentencing outcomes and I am of the view that the sentences that I will impose are consistent with the statistics; in other words, they match that yardstick.

46. I accept that the offender seems to be at a crossroads in his life. At 26 years of age, he has a longstanding pattern of substance abuse. However, there has been only one short period of criminal behaviour, the three-week offending spree that occurred in October-November 2015 and for which I am to sentence him. Since then he has made a very strong commitment to rehabilitation and he is making excellent progress. Before the criminal spree the offender's general conduct was that of a person of generally good character, albeit that he has had a long-standing problem with substance abuse.

47. Both parties accept that the offender must receive a sentence of imprisonment. The issue is the length of the sentence and whether it is essential that it be served by way of full-time imprisonment.

48. The Court must address the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I have referred to the relevant purposes in connection with the robbery offence. In relation to all matters, rehabilitation looms large. Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the Court also addresses likely future harm to the community and protection of the community.

49. The Court must consider the matters in s 33 of the Sentencing Act insofar as they are relevant and known to the Court. I believe that I have addressed those matters above.

50. I reiterate that in relation to the robbery offence, in the ordinary course the offender would receive a significant sentence of full-time imprisonment, but in our system, sentencing must always deliver individualised justice. There will be exceptions to that rule. In my view, this case may be one such exception.

51. I will indicate the sentences that I propose to impose because it is my intention to request an intensive corrections order (ICO) assessment and to then proceed to sentence once I am informed about that assessment.

52. In relation to the first and second burglary, in each case I would have sentenced the offender to 12 months' imprisonment, but having regard to the guilty pleas I consider that in each case an appropriate sentence is nine months' imprisonment.

53. In relation to the robbery offence, I would have sentenced the offender to four years' imprisonment, but it is my view that with the 25% discount a sentence of three years' imprisonment is appropriate.

54. In relation to each of the motor vehicle offences, from a starting point of eight months' imprisonment to arrive at a sentence of six months' imprisonment.

55. In relation to the deception matter, I foreshadow a sentence of one month's imprisonment, which would be concurrent with the sentence for the Toyota motor vehicle offence with which it is connected.

56. In relation to the related matters of possess knife and possess a drug of dependence, brief sentences can address those matters, which could be served concurrently, two days' imprisonment for the knife and seven days' imprisonment for the drugs.

57. In relation to the theft offences that sit with the burglary offences, in each case I intend to impose a sentence of four months' imprisonment reduced to three months' imprisonment, to be served concurrently with the burglary to which it relates.

58. The sentences need to be accumulated in a manner that recognises the individual criminality, but also arrives at an overall sentence that adequately and appropriately reflects the overall criminality.

59. I propose to start with offence 7, a six-month sentence for the Mitsubishi car offence and then three months into that sentence I intend to commence the sentence for offence 1, the first burglary, a nine-month sentence. Three months after that, I intend to commence the sentence for the second burglary, which is another nine-month sentence. Two months after the second burglary, I intend to commence the sentence for the BMW offence, and one month after that I will commence the sentence for the robbery offence. The accumulation period would be 10 months, and the total sentence would therefore be three years and 10 months' imprisonment.

60. I have not referred to the Toyota offence and the related deception offence and I have not referred to the possess knife and the possess drug matters because, if the matter does proceed by way of an intensive corrections order, then I would treat what would be, in effect, the time served as satisfying those sentences because by the time the matter is adjourned for two months, and if that is served in residential rehabilitation, there will be an effective period of time served of six months, which I will then credit towards the Toyota offence, the deception offence and the transferred offences.

61. I am aware of the provisions of s 11(3), which require that certain matters need to receive particular attention before an ICO is made for a sentence of between two years and four years imprisonment. I have already considered and referred to those matters.

62. On 20 May 2016, I requested an intensive corrections assessment.

63. That assessment was received for the adjourned hearing on 20 July. It assessed the offender as suitable for an intensive correction order and noted that he had signed an undertaking to comply with all of the obligations of the intensive correction order. It recommended that the order contain two additional conditions.

64. The Court received a statement of facts concerning a minor theft that occurred on 2 November 2015, that is during the timeframe of the other offences and it was agreed that this matter should be taken into account, in relation to the sentence imposed for the robbery offence.

65. Neither party submitted that the sentence that I foreshadowed on 20 May for the robbery offence should be increased. I agree with that approach. The matter pales into insignificance compared to the robbery. There is no good reason to increase the sentence previously indicated.

66. Further, I note that a compensation order is sought and I proposed to make it.

67. The offender is convicted of the seven principal matters and the four transferred matters, and I impose the following sentences:

(a) For the offence of drive Toyota without consent - six months' imprisonment from 20 January 2016 to 19 July 2016.

(b) For the offence of possess knife - two days' imprisonment from 20 January 2016 to 21 January 2016.

(c) For the offence of possess drug, seven days' imprisonment from 22 January 2016 to 28 January 2016.

(d) For the offence of obtaining property by deception, two days' imprisonment from 29 January 2016 to 30 January 2016.

(a) For the offence of taking the motor vehicle belonging to Mr Pang, the Mitsubishi vehicle, six months imprisonment from 25 August 2016 to 24 February 2017.

(b) For the offence of burglary involving the storage cage, nine months' imprisonment from 25 November 2016 to 24 August 2017.

(c) For the associated minor theft, one month's imprisonment from 25 November 2016 to 24 December 2016.

(d) For the offence of burglary at Hoyts, nine months' imprisonment from 25 February 2017 to 24 November 2017.

(e) For the associated minor theft, one month imprisonment from 25 February 2017 to 24 March 2017.

(f) For the offence of attempting to take the BMW motor vehicle, six months' imprisonment from 25 May 2017 to 24 November 2017.

(g) For the offence of robbery, including the matters that are to be taken into account in relation to that offence, three years' imprisonment from 25 June 2017 to 24 June 2020.

That is a total sentence of three years and 10 months' imprisonment.

69. Pursuant to s 11 of the Sentencing Act I make an order that the sentences be served by intensive correction in the community. I have had regard to the matters in s 11(3) of the Sentencing Act. The intensive correction order will include the core conditions and the additional conditions:

(a) To continue to engage with the Program at Canberra Recovery Services.

(b) In the event that he leaves the premises of Canberra Recovery Services without permission, he is to report immediately to his supervising officer at Corrective Services.

70. In relation to the theft offence on 2 November 2015, I make an order that the offender pay compensation of $266.95 to Jaycar Electronics. I allow 12 months to pay.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell