R v Hodge [2015] ACTSC 214

CRIMINAL LAW - Sentence - aggravated robbery in company - assault occasioning actual bodily harm - co-offenders armed -- on conditional liberty when offences committed - combined discount of 40% for early guilty plea and assistance to law enforcement authorities - mental health problems make imprisonment more onerous

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35, 36

Crimes Act 1900 (ACT) s 24

Regina v Minnis (2014) ACTSC 268

Rubino v The Queen (2015) ACTCA 22

Legal Aid ACT (Offender)

1. The offender adhered to pleas of guilty entered at an early stage to offences of aggravated robbery (robbery in company), contrary to s 310 of the Criminal Code 2002 (ACT), and assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT).

2. The maximum available penalties for the offences are 25 years' imprisonment and five years' imprisonment respectively.

3. The offender was on parole when the offences were committed. On 27 January 2015, he was taken into custody and, from 3 March 2015, parole was cancelled. On 26 July 2015, the outstanding sentence will expire.

4. At about 9.45 pm on Monday, 26 January 2015, the offender went with the co-offenders Ms Murray and Ms Wedge to the home of the victim and his partner in Kambah.

5. The victim was watching television when he heard a noise outside. He saw that the offender and the co-offenders were outside. He spoke to the offender through the window. The offender asked whether the victim had any "weed", and the victim said that he did not. The offender said that he proposed to take a bike from the premises for the purpose of going to purchase drugs. The victim asked the offender not to take the bike as it belonged to the victim's children. The offender started to yell and punch at the window. He grabbed the victim's hand. The offender then moved to the front fly-screen door and, together with the cooffenders, began to bang on the front door, demanding money and drugs.

6. The front door was open. Eventually the fly-screen door, which had been shut and locked, buckled and opened, enabling the offender and co-offenders to enter the premises. Ms Murray was carrying a knife. Ms Wedge was carrying a chair leg. The offender and co-offenders pushed the victim back into the house, continuing to demand money and drugs. After some time, a demand was made for the keys to the victim's motorbike. The victim provided the keys to the offender because he was fearful for his safety. Ms Murray asked for the victim's wallet and the victim provided the wallet to her.

7. The victim then ran from the house, chased by Ms Murray. He attempted to call triple zero (000). Holding the knife in her right hand, Ms Murray continued to approach the victim. He managed to grab her right wrist. The offender then approached the victim and hit him on the back of the head, presumably to secure the release of Ms Murray. The victim landed on the ground. While the victim was lying on the ground, the offenders hit him several times. Fortunately at that stage, two neighbours came to the victim's rescue. One was armed with a golf club. The offender and co-offenders ran from the scene.

8. The victim spoke to the triple zero (000) operator and police later attended the premises. They took photographs of abrasions to the victim's head and forearm.

9. In the early hours of the following morning, police executed a search warrant at the offender's premises. They placed him under arrest. The offender admitted to "hitting" someone. During the search, the offender made admissions to police in relation to the robbery and the assault.

10. Further assistance was provided, during a recorded interview, about three weeks later. The offender identified the co-offenders and confirmed that Ms Murray had been carrying a knife and Ms Wedge had been armed with a chair leg.

11. The offence has been charged as an aggravated robbery on the basis that the offender was in company. An additional feature that aggravates the objective seriousness of the offence is that the co-offenders were armed. The offender must have been aware of that fact.

12. There was a degree of planning associated with the robbery. The co-offenders were armed. However, I am not suggesting that this was a sophisticated operation.

13. Each of the offences is of significant objective seriousness.

14. The robbery had the character of a home invasion; the victim was minding his own business watching television at night when the incident occurred.

15. As far as the assault is concerned, the offender delivered more than one blow to the victim. He hit the victim on the back of the head and also while he was on the ground. A person's head is a vulnerable part of the body. A person who is on the ground is in a vulnerable situation. The victim sustained abrasions to the head and forearm, although it is not clear that the offender caused those injuries. Nevertheless, he was part of a joint enterprise when the injuries were sustained.

16. The offender was born in early 1988 and was 27 years old at the date of the offences.

17. He has a significant criminal record for matters of dishonesty and violence. The more recent record commences in 2006, and since then there have been a number of offences of aggravated burglary and aggravated robbery as well as other matters.

18. In 2006, the offender received a three year suspended sentence in relation to an aggravated burglary offence and an associated aggravated robbery matter. There was a re-sentencing exercise in 2008, associated with sentencing for further matters of aggravated robbery and aggravated burglary. The offender received an effective sentence of 47 months' imprisonment from 15 September 2007 to 14 September 2011, with a non-parole period of two years, expiring in September 2009. He was released on parole in September 2009, and saw out the sentence without further incident.

19. The offender says that, for a 12-month period, while in the community, he was employed as a removalist. That is probably the longest and perhaps the only significant period during which the offender has held down employment.

20. The offender committed further offences in April and June 2013. In 2014, he was sentenced in the Magistrates Court to an effective sentence of 14 months' imprisonment from 12 December 2013 to 11 February 2015, with a non-parole period of 11 months, expiring on 11 November 2014. The offender was released on 18 November 2014. In January 2015, prior to committing the subject offences, he breached his parole by failing to comply with supervision. About two and a half months after the offender was released, he committed the subject offences.

21. The offender's significant criminal history for like matters does not aggravate the sentence. However, it does disentitle him to any leniency that might be associated with a more favourable criminal history. It is very significant that the offender committed the offences while on conditional liberty for similar matters and only two and a half months after he had been released.

22. The pre-sentence report provides helpful information about the offender's background. The author of the report attended Court and provided further information.

23. The offender had a disadvantaged upbringing. His childhood home was marred by substance abuse and physical abuse. The offender's parents separated when he was young. His mother had a number of subsequent partners and the offender witnessed some of those partners assaulting his mother. At times, he was placed in foster care because of his mother's inability to care for him. As a youth, the offender came in to contact with the criminal justice system.

24. The offender met his biological father two years ago for the "first time". In the future, he would like to spend more time with his father in New South Wales.

25. The offender has what the author of the pre-sentence report describes as "limited pro-social companions in the community". He has had one personal relationship of significance. It lasted three years. Both he and his partner used illicit substances and the relationship did not last. There is one child of that union. The offender continues to have contact with his son.

26. The offender left school when he was 13 years of age. He completed his Year 10 certificate at a later time, and he has also completed short certificate courses in mechanics.

27. The offender has debts totalling about $5,000.

28. The offender has a significant history of polysubstance abuse. He commenced using cannabis when he was 12 years of age and he has been a consistent cannabis user while in the community. From 18 years of age, he used methylamphetamine and, at one stage, he was injecting methylamphetamine valued at about $300 on a daily basis. In 2014, he increased heroin use as a substitute for methylamphetamine. The offender has a poor recollection of the offences due to the level of his intoxication at the time.

29. The offender has had a number of drug and alcohol interventions both in the community and in custody. Currently, the offender is prescribed methadone. He was enrolled in the Alexander Maconochie Centre's Smart Recovery Program (a sevensession relapse prevention program). However, he was expelled from the program for non-attendance. He has made inquiries about placement in residential rehabilitation establishments, but no beds are available currently. It is difficult to obtain a bed because many establishments do not accept people who are on methadone.

30. The offender has a history of psychological problems. In the past he has been diagnosed as suffering from drug induced psychosis and also hyperkinetic disorder, which is associated with attention deficit hyperactivity disorder. Reference has also been made to the offender suffering from an adjustment disorder. Recently, diagnoses have focussed on anxiety and depression. When the offender was about 18 or 19 years of age, he was sexually assaulted while in the Belconnen Remand Centre. That experience was very significant for the offender. For obvious reasons, he finds incarceration particularly difficult and anxiety-provoking. The offender is on protection at his own request because of fears arising from the incident. Although there is no evidence before the Court that protection per se makes incarceration more difficult, I readily accept that the offender's prior experience makes imprisonment generally much more difficult and a source of constant anxiety.

31. I infer that the offending behaviour is closely related to heavy substance abuse. The offender's attempts to address substance abuse have been less than wholehearted. It remains a very significant problem. No doubt, the challenge of overcoming substance abuse is increased by the offender's anxiety and by the other psychological problems from which he suffers. Currently, the offender is taking antidepressant medication. He has completed a six-week anger management program in the Alexander Maconochie Centre, with satisfactory attendance and engagement.

32. The author of the pre-sentence report did not express an opinion about the offender's prospects of rehabilitation and risk of reoffending. I am of the view that his prospects of rehabilitation are uncertain and the risk of reoffending is moderate to high. The offender has had a number of episodes of offending involving aggravated burglary, aggravated robbery or theft.

33. The offender entered a plea of guilty while the matter was still in the mention phase before the Magistrates Court. The plea had strong utilitarian value because it occurred before any prosecution brief had been prepared. Taking into account the utilitarian value, but in the context that it was a strong prosecution case, I would in the ordinary course allow a discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) of 25%.

34. Consideration must be given to a discount under s 36 of the Sentencing Act, which enables a court to impose a lesser penalty than it would otherwise have imposed, having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities. In making a decision under s 36(2), the Court is to consider the matters enumerated in s 36(3). In this case, about three weeks after the offence, the offender participated in a recorded interview in which he identified the two co-offenders. That was the only source of information identifying the co-offenders. While the victim had described the co-offenders, he was unable to further identify them. The description given by the victim matched the appearance of the co-offenders named by the offender. Consequently, the offender's information was significant and it has been accepted as truthful and reliable by the authorities. It was given in a timely way. It concerned the offence in question rather than an unrelated offence. The co-offenders are at large and the prosecution authorities have taken steps to apprehend them. I note the other matters in s 36(3), particularly s 36(3)(j).

35. Given the significance and usefulness of the offender's assistance and the other matters to which I have referred, including his plea of guilty, it is appropriate to discount the sentence that would otherwise have been imposed by 40%.

36. In sentencing the offender, I have regard to the sentencing purposes in s 7 of the Sentencing Act. It is important to impose a sentence that reflects adequate punishment, particularly in the context of the s 35 and s 36 discounts that may apply. In this case, general and specific deterrence are important considerations, as are protection of the community and the related issue of rehabilitation, to which I have referred. Accountability, denunciation and the recognition of harm to the victim and the community generally are also important. The community abhors offences in the nature of home invasion. The violent invasion of a person's home is one of the worst types of offences.

37. I am also required to have regard to the matters in s 33 of the Sentencing Act. I have referred to those matters, to the extent that they are known to the Court and relevant.

38. I have considered comparable cases, although most of the cases to which I was taken concerned aggravated burglary, an offence that carries a maximum available penalty of 20 years' imprisonment, not 25 years' imprisonment. The most comparable matter is that of Regina v Minnis (2014) ACTSC 268. The objective seriousness of the offence in that case was greater than the objective seriousness of the present matter. I have also considered Rubino v The Queen (2015) ACTCA 22.

39. I am aware of the need to consider the relationship between the sentences that I impose and the sentence that is about to expire, and the need to fix a non-parole period that is appropriate when one has regard to the overall period of imprisonment.

40. I convict the offender of each offence and impose the following sentences:

(a) For the aggravated robbery offence, the starting point for the sentence was four and a half years' imprisonment. Because of the offender's plea of guilty and assistance to authorities, I have reduced that figure by 40% to two years and eight months' imprisonment, to be served from 17 June 2015 to 16 February 2018.

(b) For the offence of assault occasioning actual bodily harm, the starting point for the sentence was 18 months' imprisonment. Due to the offender's plea of guilty and assistance to authorities, I have reduced that figure by 40% to 11 months' imprisonment, to be served from 17 June 2015 to 16 May 2016.

41. I fix a new non-parole period to expire on 26 January 2017. That period is just under two thirds of the total period of imprisonment when one takes into account the sentence that is the subject of the revocation of parole. The offender is eligible for release to parole on 26 January 2017. Parole is subject to the extra condition that the offender report to ACT Corrective Services at Eclipse House within two working days of release and submit to their supervision for as long as Corrective Services consider to be necessary.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.