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[2014] ACTSC 380
Supreme Court of the ACT
2014-10-30
Refshauge J
Original judgment source is linked above.
CRIMINAL LAW - Judgment and Punishment - Sentencing - Re-sentencing following breach of Good Behaviour Order - Breach constituted by commission of further offence
Crimes (Sentencing) Act 2005 (ACT), ss 7(a)(c), 12(3), 33, 61, 63, 110, 112
Supreme Court Act 1933 (ACT), s 68B
Auld v The Queen [2013] ACTCA 21
Azzopardi v The Queen (2011) 35 VR 43
Baldwin (1988) 39 A Crim R 465
Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen (16988) [1988] HCA 70; 166 CLR 59
R v Bloomfield (1998) 44 NSWLR 734
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Eimerl and Carbone (Unreported, ACTSC, Penfold J, 6 February 2012)
R v Gordon (1994) 71 A Crim R 459
R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v JM (Unreported, ACTSC, Refshauge J, 16 March 2012)
R v JM (Unreported, ACTSC, Refshauge, 11 December 2012)
R v JM (Unreported, ACTSC, Refshauge J, 13 December 2012)
R v Laundess (Unreported, ACTSC, Nield AJ, 25 February 2011)
R v McFarlane [1993] TASSC 161; (1992) 2 Tas R 201
R v Roberts (1994) 73 A Crim R 306
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Zafiropoulos v Zafiropoulos [1972-3] ALR 800
1. To sentence a repeat offender can sometimes be more difficult than to sentence someone for the first time. A repeat offender has the prior record to show that leniency may not be appropriate, especially where earlier efforts at rehabilitation have not been successful, or where severe sentences have not deterred the offender from further offending.
2. Past behaviour is also some predictor of future behaviour, here the risk of further offending. It is then easy to be sceptical of claims that the offender will try harder or has more insight, or for other reasons he or she has turned the corner and will put more effort into rehabilitation or in avoiding further offending.
3. Indeed, the courts, in cases such as R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35], have stated that courts should be sceptical of such claims. Nevertheless, experience has shown that offenders, even those with a bad record, can grow out of their criminality, can mature to where they are ready to engage successfully with reform.
4. Thus, the challenge for the courts is to recognise whether, despite a history of ongoing offending, there is a real chance of rehabilitation and to find a way to permit that while appropriately punishing the offender for the crimes for which he or she is to be sentenced or where the further offending needs to be recognised as deserving of such punishment, and yet encouraging rehabilitation which French CJ has pointed out in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [82] is, if it can be achieved, a surest guarantee of the protection of the community.
5. In this case, I need to consider the sentencing of JM for the very serious offence of aggravated robbery to which he has pleaded guilty, but which offence also breaches a good behaviour order I earlier made. An offence of common assault was transferred to this Court under s 68B of the Supreme Court Act 1933 (ACT), but was dismissed when no evidence was offered by the Crown.
6. Aggravated robbery is an offence contrary to s 310 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 2,500 penalty units (that is, a fine of $350,000), or imprisonment for twenty-five years, or both.
7. The courts have regularly pointed out, in cases such as Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]- [32], that the maximum penalty set by the legislature is of great relevance in determining the relative seriousness of the offence. By this yardstick, the offence of aggravated robbery is one of the most serious in the criminal calendar, though there are more serious offences.
8. Sentencing JM for that offence, however, is complicated because of prior offending for which I sentenced JM on 11 December 2012, including in the sentence a period of conditional liberty, the conditions of which the commission of this offence has breached. In order to determine the just and appropriate sentence (s 7(a)(c) of the Crimes (Sentencing) Act 2005 (ACT)), I must put the matter in context, namely, the facts of the offence, the prior sentencing, JM's personal circumstances as well, of course, as assessing the seriousness of the offence.
9. On 27 January 2014, JM came upon the victim of the offence and one of the victim's friends when, at about 7:15 pm, they were sitting in the King O'Malley's beer garden, the victim having placed his laptop computer on the table at which he was sitting. JM sat down at the same table and asked the victim if he had some change but the victim said no. JM then picked up the laptop and asked the victim's friend for his laptop but the friend said no. JM then walked away with the laptop under his arm.
10. The victim followed JM, asking for the computer back and tried to grab it, but could not do so. The victim then grabbed JM's left shoulder and pulled him round so they were facing each other. JM said, "Don't touch me. I'm a criminal. I'm dangerous". The victim then asked for the computer back, but JM turned around and walked away, with the victim and his friend following behind. The victim grabbed JM's shoulder again and JM turned and punched him in the face, hitting his left jaw. Although feeling stunned, the victim said he did not feel any pain.
11. JM turned his back and continued to walk away. Another person intervened between JM and the victim but the victim pushed him aside and, with his friend, continued after JM. As they approached him, JM pulled out of his shorts a screwdriver about fifteen centimetres long and turned and faced the victim and his friend, pointing the screwdriver at them. The two reacted immediately to the threat and turned and ran, fearful of being assaulted. They ran back to King O'Malley's and called the police.
12. Police later saw JM entering a flat and cordoned off the block in which the flat was located. They then forced entry into the flat and arrested JM. He refused to participate in an identification parade but was identified from CCTV that recorded the incident at King O'Malley's and by the victim from a photoboard. He was refused bail when appearing in court and has remained in custody since that time.
13. JM has a history of offending. In sentencing him on 16 March 2012, I described it as follows:
JM also has a history of offending. He has spent a lot of his time in detention or custody. His record shows 55 offences which have been dealt with by the courts in seven court appearances. These offences include many of the same offences he now faces; robberies, burglaries, dishonest use of motor vehicle without the owner's consent, damage property and theft.
14. I then sentenced him for fifteen other offences, all dishonesty offences including an offence of aggravated robbery and of aiding and abetting an aggravated robbery, two offences of aggravated burglary and two offences of burglary.
15. For these offences, I imposed a total sentence of imprisonment for, after applying the usual principles as to concurrency and making due allowance for totality, six years backdated to 16 December 2009 to take into account pre-sentence custody. I directed that the sentence be suspended on 15 September 2012; that is, after a period of full-time custody of two years and nine months.
16. As required under s 12 of the Crimes (Sentencing) Act, I made a good behaviour order for four years, that is, until 25 March 2016, with a community service condition to perform one hundred hours of community service work and a probation condition for the term of the order.
17. A matter of some concern, which is relevant to the sentencing of JM, is that JM has not been supervised under the probation condition of that good behaviour order, nor has the community service condition been implemented. This was blandly explained as being "due to an administrative oversight". It seems to me entirely reasonable to suppose that, had the supervision been carried out, JM may well have been assisted to avoid committing further offences, one of the important purposes of probation. At the least any behaviour such as continued drug-taking or disobedience to lawful directions may well have been identified and addressed before his conduct became out of hand.
18. On 11 December 2012, I dealt with JM for five further offences, all committed, however, on 5 March 2012, that is, eleven days before I had earlier sentenced him, as set out above (at [13]). These offences were three offences of theft, an offence of aggravated robbery and an offence of dishonestly driving in a motor vehicle without the owner's consent.
19. I imposed a sentence that, after taking into account the principles as to concurrency and applying the principles of totality, was of imprisonment for three years and six months to commence from 16 August 2013 and to end on 15 February 2017. The effect of that was to add, in reality, fifteen months' imprisonment to the earlier sentence, for I considered this would, given the principles of totality set in Mill v The Queen (16988) [1988] HCA 70; 166 CLR 59 at 66, have been added to the sentence I imposed on 16 March 2012, had I been, as would have been desirable and appropriate, sentencing JM for these offences at the same time.
20. I directed that the sentences be suspended from 11 July 2013 for a period of four years. I made, as required, a good behaviour order for four years from that date with a probation condition for that period and a community service condition to perform one hundred hours of community service work. I have no information as to whether he has completed any or all of that community service work. Regrettably, that information was not included in the Pre-Sentence Report.
21. In the sentence orders made on 11 December 2012, I also revoked the good behaviour order made on 16 March 2012, that is, the order made when I suspended the sentence of six years.
22. Unfortunately, my remarks on sentence, R v JM (Unreported, ACTSC, Refshauge, 11 December 2012) (to which I will refer as R v JM (11 December 2012) in these reasons), do not explain why this was done. It was clearly not done under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), for the convictions for these offences did not breach any of the conditions of the earlier order, and there was no other breach found by me. I had power under s 112(1)(b) of that Act to discharge the order and, although I used the word "revoke", I consider the effect to be the same. See Zafiropoulos v Zafiropoulos [1972-3] ALR 800 at 807. No submissions were made to me at the time of sentencing about the revocation even though the Crown was represented by a very experienced senior prosecutor.
23. It has since been suggested that the effect of this revocation may have made the original sentence contrary to law. That may be, but it remains a valid sentence. It could be amended under s 61 of the Crimes (Sentencing) Act, but no application for that was made. In any event, such amendment could not make this current offence constitute a breach of any good behaviour order that was reinstated by such an amendment.
24. Regrettably, the orders I made on 11 December 2012 were contrary to law, and on 13 December 2012, because, while the sentences imposed on 11 December were continuous with the sentences imposed on 16 March 2012, the periods of custody were not continuous. On 13 December 2012, I amended them. See R v JM (Unreported, ACTSC, Refshauge J, 13 December 2012) (which I will refer to as R v JM (13 December 2012) in these reasons).
25. I amended the sentences under s 61 of the Crimes (Sentencing) Act to rectify the position without altering the overall effect of the sentences. That is to say, the effective sentence was for three years and six months' imprisonment, from 16 September 2012 and suspended from 31 July 2013 for four years, with the same good behaviour order. No submissions were made to me at this time about the revocation of the earlier good behaviour order.
26. A reason for the further period of custody was to permit JM to undertake the Solaris Program whilst in custody. The Solaris Program is a program of drug and alcohol rehabilitation conducted in the Alexander Maconochie Centre for those offenders who are in custody but who have drug and alcohol addiction problems. It applies what is termed the "therapeutic community model of treatment for substance abuse". Thus, it provides a structured environment where the participants are used as the main tool to effect personal change, though they are provided with individual support interviews and educational therapeutic sessions. It is conducted by the Alcohol and Drug Foundation ACT.
27. Regrettably, it turned out that, despite the specific recommendations I had made, JM was not admitted to the program. I was not advised, nor was any formal explanation offered. In particular, I was not approached to vary the good behaviour order to take account of the fact that the contemplated rehabilitation had not been undertaken while in custody. This could have led to an amendment to the good behaviour order under s 112(1)(a) of the Crimes (Sentence Administration) Act to provide for such drug and alcohol rehabilitation while JM was in the community under that.
28. This failure is also relevant to sentencing, for had JM undertaken the rehabilitation program, or been required as a condition of the good behaviour order to undertake some rehabilitation such as residential drug and alcohol rehabilitation, his likely recidivism may have been reduced. The upshot of this context is that on sentencing JM, I must now take into account the matters to which I have referred already but I must also, under s 110 of the Crimes (Sentence Administration) Act, cancel the good behaviour order made on 11 December 2012 and amended on 13 December 2012, and either impose the sentence then suspended or re-sentence JM. There is no occasion to cancel the good behaviour order made on 16 March 2012, for that has already been revoked.
29. JM was born in 1990. He is, therefore, still a relatively young man, being twenty-three at the time the offences were committed. His youth is still relevant, though it cannot overcome the need for a properly deterrent sentence. See R v Gordon (1994) 71 A Crim R 459 at 469 and Azzopardi v The Queen (2011) 35 VR 43 at 53-7.
30. There has, in the past, been confusion as some official documents such as the Pre-Sentence Report in these proceedings and the Australian Federal Police prepared prior criminal record record state his year of birth as 1989. In R v JM (Unreported, ACTSC, Refshauge J, 16 March 2012) (which I will refer to as R v JM (16 March 2012) in these reasons) I said:
[JM] was born in 1990. The Pre-Sentence Report and the criminal record tendered in the proceedings both asserted that he is born in 1989. I have, however, seen a copy of the birth certificate which clearly states that his year of birth is 1990. I am satisfied from the sworn evidence given before me, corroborated by a number of other matters, such as the aliases recorded on JM's criminal record, and the birth year of 1990 recorded in all the forensic mental health reports, that that is the correct birth year. And I find that [JM] was born in 1990.
31. When the documents produced on 11 December 2012 still showed the year of birth as 1989, I gave the following direction in R v JM (11 December 2012):
32. I assumed that this was done. I am concerned that the official documents still contain this error. The Pre-Sentence Report and the prior criminal record tendered in these proceedings still show JM's birth year as 1989. I will again address that matter in the final orders I make.
33. I have, in the earlier remarks on sentence, set out his subjective circumstances. I refer to them and, in particular, the details set out in R v JM (16 March 2012). I will, however, repeat and supplement the summary I recounted in R v JM (11 December 2012). The summary is as follows:
Briefly, he is a young Aboriginal man who was adopted at four months and who has strong relationships with his adoptive family but also a strong connection to his Aboriginal heritage and culture. This has been expressed by his art which he has practised while in custody. He has developmental deficits, especially in the areas of verbal intelligence and adaptive functioning. He has, however, learnt to read and write and participate in some Year 10 studies whilst in custody.
He has had no employment, though he wants it. He has engaged in some horticulture work while in custody. He is good at sport and has played sport while in custody. He has a son who lives with his ex-partner and he wants to reconnect with him. His ex-partner is not opposed to that.
He has a strong and entrenched drug habit which centres on alcohol, cannabis and amphetamines. He sought earlier to address that by approaching the Karralika residential rehabilitation facility when I granted him bail to attend there. He left after a few days. The reasons he gave are not entirely satisfactory. He said that he felt isolated and restricted by the discipline. Rehabilitation does take a considerable effort, and without commitment and a degree of acceptance of the need for external discipline and compliance with it, he is unlikely to succeed in drug rehabilitation.
34. He has continued to use drugs and, while under supervision by ACT Corrective Services, urinalysis showed the use of illicit drugs. This also included a time when he was in custody at the Alexander Maconochie Centre. Recently, he has had a consultation with Directions ACT, a local drug and alcohol rehabilitation agency, and had a telephone interview with a New South Wales agency, Oolong House, though I was informed that he would not be offered a place there.
35. I have referred to his criminal record earlier. In total he has now at least eighty-three offences recorded against his name. I have, however, found it difficult to interpret the record of New South Wales offences. The majority, namely forty-eight offences, are offences of dishonesty, which I can accept are in the main due to his drug habit. There are, however, fourteen offences of violence, into which category I have put the robbery, aggravated robbery and aiding and abetting aggravated robbery offences, which is of concern, though there are only a few non-robbery offences of violence. He has seven traffic matters on his record, three of which were committed on 10 September 2013.
36. The most recent offences of dishonesty were committed on 5 March 2012. Prior to that, the offences are from 2011 and earlier. There have, accordingly, been gaps in his criminal activity, though some of these were because he was in custody.
37. An important matter is that JM has some mental health challenges. He has developmental deficits, especially in the area of verbal intelligence. He has a relatively low IQ, although it appears to have improved in recent years.
38. His adaptive functioning is estimated to be in the "average to low average range". He has been diagnosed with a disorder that can impact significantly on his ability to understand and use language, making school a particular challenge for him. Thus, I commented in R v JM (16 March 2012)
In the Special Education Unit [at school] he associated with children experiencing behavioural issues and soon he was drinking alcohol, smoking cannabis and developing anti-social habits. He did not proceed to high school.
39. He has learned to read and write whilst in custody and wrote me a letter as well as giving evidence at the sentencing hearing. In the letter, he said he took full responsibility for his behaviour and expressed empathy for the victim of his offence. He expressed a strong wish to change and a recognition that rehabilitation would be a benefit to him and give him the skills he needed to be a law-abiding citizen. He also referred to the newly born baby, a son, whom he fathered. The child, born earlier this year, is under the care of Care and Protection Services as the baby's mother, with whom his relationship has ended, is unable to care for him on account of her drug and alcohol issues.
40. Despite telling me in March 2012 that he wished to reconnect with a son born to an earlier relationship, he has had no contact with that child since then. He says here, however, that he wants to play a significant role in the life of his second son and says he will "do anything" to get him out of care. He told me that he had a plan to complete rehabilitation and to show Care and Protection Services that he really wants to be a father. I accept these expressions to be genuine, though I am sceptical about whether he actually has the long-term commitment and the capacity to carry them out.
41. He expressed to me a similar goal with the relationship with his older son, but that has not yet shown any improvement in his commitment to rehabilitation or progress with that relationship. In his oral evidence to me, he stated that, on release from custody, he lived with his mother and gained employment. He said, however, that a personality clash with his employer resulted in him leaving his job after a month. He denied, under cross-examination, that he had been fired from the job, saying that he "quit". This led him to "just sitting around all day" and he became bored, returning to smoking and drinking and using ice up to three times a week and consuming alcohol three or four times a week. He accepted, in cross-examination, that he took no steps to find new employment.
42. He has little memory of some details of the offences, but had read the Statement of Facts and agreed with the allegations in it. He told me that he feels disgusted with what he did.
43. He has experienced traumatic events in custody. His grandmother died on the day his second son was born. He was not able to attend the birth of his second son. He went to his grandmother's funeral in handcuffs but was only able to speak briefly to his family there. He recognises that he will require intense rehabilitation if he is to be crime-free in the future.
44. He told me that he had applied for admission to Wayback Ltd, a drug and alcohol addiction agency founded by Dr Stella Dalton AM, a pioneer in methadone treatment for drug addiction. He has not yet been offered a place. He says the events that have happened while he has been in custody have given him motivation to attend and participate in rehabilitation unlike his earlier experiences where he failed to complete the Ted Noffs program when he was fourteen and did not complete the Karralika program in 2012.
45. He acknowledged, in cross-examination, that once he stops using drugs he will stop committing crime and accepted that he had had such opportunities to address his drug addiction but had not taken advantage of them. The birth of his second son and his wish to gain custody of him, he said, was now a strong motivation.
46. He said he really did not like being in custody; indeed, he said he "hated" being in custody and that this would motivate him also. The fact is, however, that he has been in custody for much of his life, with relatively short periods of no more than twelve months between periods in custody, and his efforts at rehabilitation have not been very successful or intense.
47. The Pre-Sentence Report author suggested that JM appeared "to minimise some responsibility [for the offence] by claiming that he had limited memory of it". This implies, in context, that his claim is untrue. No basis for that suggestion was set out. Given his mental condition and the fact that before the offence he had drunk eight pre-mixed drinks of spirits and had smoked cannabis, this scepticism does not seem so obvious as not to require some further evidentiary justification.
48. I note also that, in his evidence before me he accepted responsibility expressly, agreed with the allegations in the Statement of Facts and described feeling "disgusted" at his actions, although stating that he did not remember producing the screwdriver, about none of which he was challenged in cross-examination.
49. I accept that he is remorseful and has taken full responsibility for his actions. I also accept, as noted above, that he shows signs of insight into the victim's feelings no doubt of fear when the screwdriver was produced.
50. JM is assessed as having a moderate to high risk of re-offending, primarily due to his alcohol and drug abuse, his criminal companions and his limited education and employment history. These latter issues will not be successfully addressed until he successfully addresses his drug and alcohol abuse. I had a letter from the Aboriginal Case Manager from the Alexander Maconochie Centre which confirmed that JM had made contact with Wayback Ltd and that he had also made contact with Bennelong's Haven Family Rehabilitation Centre, another alcohol and drug rehabilitation agency located at Kempsey, New South Wales, a non-government organisation providing residential services for indigenous Australians with a dependence on alcohol and other drugs. There was, however, no indication from that letter, or from JM's evidence, that a place was presently, or in the foreseeable future, available to JM in either facility.
51. I did not have a victim impact statement. The Court knows from experience that there must have been an effect on the victim from the offence. Some of this was described in the Statement of Facts, which was an agreed document which JM expressly accepted as a correct statement of the events.
52. As I noted above (at [10]), the victim felt no pain from the assault, though he felt stunned. When JM later turned on the victim and produced a screwdriver, the victim and his companion feared that they were going to be attacked. They were able, however, on their return to King O'Malley's, to contact the police and to give them a description of the clothes JM was wearing.
53. As I have earlier noted, the offence of aggravated robbery is a very serious offence. Indeed, it is regarded as one which should carry a custodial sentence, other than in the most exceptional circumstances, as stated in cases such as R v Roberts (1994) 73 A Crim R 306 at 308.
54. Although a very serious offence, there are an enormous variety of ways in which the offence can be committed and it will always be necessary to identify the individual facts and circumstances to determine where in the range of seriousness the particular offence may be located. The courts have identified relevant factors. A range of them, both aggravating and mitigating, are set out in R v McFarlane [1993] TASSC 161; (1992) 2 Tas R 201 at 221-2. A list is also set out in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 381; [170].
55. There was no evidence of planning or premeditation in the offence. It was motivated by JM's desire for drugs and precipitated by his use of drugs. This lack of premeditation or planning puts it at a lower range of seriousness.
56. A weapon was used. The weapon was not a knife, but a screwdriver, which could cause a serious stab wound similar to that of a knife. It could cause serious injury. I am not so sure about death.
57. The victim was not particularly vulnerable, unlike a taxi driver or an attendant at an all-night service station. The incident happened at 7:15 pm, when it could be expected that there would be other people around.
58. The victim was understandably fearful but obviously able to act rationally and with clarity about the incident immediately after the incident and I have no evidence of any serious or long-lasting effects on him.
59. JM was not in company when the offence was committed. Another person did appear on the scene and appeared to try and protect JM from the victim and his friends, but there was no evidence and the Crown did not contend that JM was in company with that person at the time of the robbery.
60. The Crown did not assert a value of the property, but I do not consider a laptop computer to have a high value, though it may have had personal significance to the victim. I do not know whether it was returned. These are matters that it would be desirable for the Crown to address in the statement of facts for such offences, as they are issues of importance to an assessment of the seriousness of the offence.
61. Actual force was used. The force was not of a serious kind, however, for although he felt stunned, the victim said he did not feel pain from the assault. Although separately charged, a charge which has now been dismissed, it is a circumstance of the offence which, on the authorities, I can take into account, notwithstanding that it could be an element of a separate offence. See R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
62. A seriously aggravating factor was that JM was on conditional liberty at the time of the offence.
63. All these matters go to suggest, as submitted by Ms T Warwick, who appeared ably for JM, that the offence was at the lower end of seriousness for the offence. This position was not expressly controverted by the Crown, but the objective seriousness of offences of this kind was emphasized. I do not, however, consider it to be a low or insubstantial version of the offence, although Ms Warwick's description is one that I can accept.
64. Section 63 of the Crimes (Sentencing) Act provides that I can commence a sentence before the day on which it is imposed. If so, I must take into account "any period during which the offender has already been held in custody in relation to the offence".
65. Unlike in some jurisdictions, the Act does not refer to periods where the offender has been held in custody "only in relation to the offence". Thus, if there is any relationship to the offence and his period of custodial detention, then it is a matter which I must take into account, although how I take it into account is not necessarily specified.
66. Thus, if JM is in custody in respect of an offence, but he is then taken into custody in respect of another offence, or, at least arguably, sentenced to imprisonment during that period of time, it seems to me that that unbroken period of custody remains a "period during which the offender has already been held in custody in relation to the offence".
67. This makes the process somewhat complicated, for a judgment has to be made as to whether JM has been held in custody in relation to the offence even when he has been held in custody for other reasons, such as in relation to other offences, or indeed, when serving a sentence at the same time.
68. It seems to me that the following periods apply. For the matters dealt with on 11 December 2012, JM was arrested on 6 March 2012. It appears that he remained in custody but the charges were not preferred at that time. He was sentenced on 16 March 2012. He was charged with the offences dealt with on 11 December 2012 on 9 May 2012, and so was in custody in relation to them from that time, but not between 16 March 2012 and 9 May 2012. He was sentenced on 11 December 2012 and the sentence suspended on 31 July 2013. This period should not be taken into account.
69. He was then arrested in relation to the current offence on 27 January 2014 and has remained in custody since then. He was sentenced to imprisonment for a period during this time, but remained in custody from the earlier arrest until I sentenced him today in relation to the offence. That he has served a sentence of imprisonment during this time does not, in my view, affect the force of s 63 of the Crimes (Sentencing) Act in this case.
70. It seems to me that I should take into account the six hundred and seven days that these periods represent, and I will do so.
71. I take into account JM's plea of guilty. It was not entered at an early time; he was committed for trial to this Court by the Magistrates Court on 8 May 2014. Indeed, it was only formally entered today, as this had been overlooked at an earlier time. A plea of guilty, however, was indicated at the second mention before the Registrar of this Court on 5 June 2014, well before a trial date was set. I do note, however, that the Crown case was relatively strong. It does seem to me that JM is entitled to a discount on the plea of guilty nevertheless.
72. JM was identified both by the victim and on CCTV and a screwdriver found on the premises where he was arrested. When police arrested him, JM was hiding in a wardrobe.
73. I take into account the objective seriousness of the offence as I have described it above. It is a serious offence and there are no truly exceptional circumstances about the commission of the offence that would justify a non-custodial sentence. It was, however, at the lower end of seriousness for the offence for the reasons earlier given, but by no means the lowest end, and there are a number of seriously aggravating factors involved, including the use of the weapon, the actual violence and the fact that JM was at conditional liberty at the time.
74. I take into account the subjective circumstances of JM as I have set them out earlier. His prior record denies him any significant leniency and raises a real question about his ability and determination to engage genuinely at rehabilitation. I accept, however, that his expressed wish to gain custody of his son is genuine and genuinely expressed, but I doubt that his motivation is strong enough to withstand the pressures and difficulties that this aim will confront him. Nevertheless, I accept that he has genuine remorse and that he has insight on the effect that his actions had on the victim and empathy as to the fear and distress he caused him.
75. I accept the position, now well known, that the fact that JM was affected by alcohol and drugs when he committed the offence is not mitigatory. See Baldwin (1988) 39 A Crim R 465 at 467. Had JM shown genuine steps to rehabilitation, it could play a greater role, but he has made some limited inquiries at some assessment only and they are very tentative steps. His past record does not inspire confidence that his commitment will remain strong after he leaves custody.
76. I accepted, in R v JM (16 March 2012), that the mental impairment that JM experiences does affect the sentence that should be imposed, and I referred to the well-known decision in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32]. I accepted there that his mental impairment meant that his moral culpability was less and that denunciation was accordingly a less significant sentencing objective. I also considered that it moderated the sentencing consideration of general deterrence. I see no reason to change my view and no submissions were made to that effect. I also note that I referred in that decision to his indigenous status, but the kind of deprivation that may be taken into account, as referred to in Bugmy v The Queen [2013] HCA 37; (2013) 87 ALJR 1022 at 1031; [37], 1032; [43]-[45], was not his experience, and I see no effect of this on his sentencing.
77. As to the consequence of the required cancellation of the Good Behaviour Order made on 11 December 2012, I consider that I should impose the sentence then suspend. That, however, may need to be effected by re-sentencing because of the need, for example, to set a non-parole period and re-state the commencement of each relevant offence. I also take into account that JM has, by administrative failure, been denied rehabilitation opportunities expressly ordered or recommended by this Court. That cannot reduce his culpability for his own actions but moderates the punitive aspects of the punishment that must be imposed.
78. For completeness, I note that he has been assessed as unsuitable for a community service condition to a good behaviour order and for periodic detention because of his unaddressed dependence on alcohol and illicit substances. In any event, having carefully considered the options, I do not consider these to be appropriate. In fact, I consider that no other sentence than a sentence of imprisonment is appropriate in the circumstances.
79. I have considered current sentencing practice. Conscious as I am of the limit on the use that can be made of generalised statistics and the reservation about them expressed by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 at 739, I have consulted the ACT Sentencing Database, which shows that of the sentences that were imprisonment imposed for the offence of aggravated robbery, fifty-five percent are of three years or less, indeed, thirty-five percent are for three years. Further, eighty percent are for four years or less.
80. Ms Warwick provided her useful helpful conspectus of relevant cases in summary form. I have regard to the sentences there set out and the circumstances as set out in her conspectus. Where relevant, I have had recourse to the actual sentencing remarks; see, for example, R v Eimerl and Carbone (Unreported, ACTSC, Penfold J, 6 February 2012), R v Laundess (Unreported, ACTSC, Nield AJ, 25 February 2011) and Auld v The Queen [2013] ACTCA 21.
81. As the Court said in Auld v The Queen (at [15]):
We have been referred, by both the Crown prosecutor and the appellant's counsel, to a number of cases in which an offender was sentenced for the offence of aggravated robbery. We note that the factors in each case differ from the factors in each other case and from the subject case. As the appellant's counsel wrote in his submissions, "No two crimes and no two offenders are alike". Frankly, we do not get much help from these cases other than the general principle that a sentence of imprisonment is appropriate for the offence of aggravated robbery.
82. I accept the general thrust of what the Court there says, but it is always useful to have some sense of sentencing practice. Indeed, it is mandated by s 33(1)(a) of the Crimes (Sentencing) Act, where known. While not all sentencing decisions can be completely reconciled or made consistent, a reasonable spread of examples, supported by statistics, can provide general assistance with principle as range, as acknowledged by the High Court in Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323. Finally, I will have to impose a number of sentences because of the cancellation of the good behaviour order and the re-sentencing.
83. I have had access to the statements of facts for the earlier offences and the sentencing remarks I then made. In determining those sentences, I have carefully considered the length of each of the sentences to ensure that, where there are overlapping common elements between any of the offences, JM is not punished twice. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise.
84. I have reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected, and that the total sentence is adequate to reflect the criminality of the offences committed, but not more that that, that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of JM's goals when he returns to the community. Where necessary to achieve that, I have adjusted the cumulation or concurrency of the individual sentences.
87. JM, no doubt your counsel will explain the sentence that I have imposed. I cannot accede to your request to allow you just to go to rehabilitation. That is not going to happen at this stage.
88. You have to be punished for the offence, but I have taken what I hope is all the relevant factors into account, and I appreciate that there is a long time yet before you will be free, but I hope you take the opportunity in custody to address your drug and alcohol addiction and to take some steps to obtain some kind of assistance that might help you get employment when you are released.
89. The summary is that it is six years, from 2 March 2013 to 1 June 2019, but a non-parole period has been set, which will allow you to be released on 1 September 2016 if you apply for parole and are granted parole.
90. In order to get parole, I suggest that you need to do some work in prison to show that you actually are committed to rehabilitation. I hope that if you do that and are released and perform well on parole, that you will have a chance to connect to both of your sons but, really, you will have to work very hard for that and you have not shown, at this stage, that you have that capacity yet to justify any other sentence.
I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.
R
JM [2014] ACTSC 380
(2011) 35 VR 43
(2014) 305 ALR 323
(2013) 87 ALJR 1022
(2011) 243 CLR 506
(2005) 228 CLR 357
(1998) 44 NSWLR 734
(1981) 147 CLR 383
(1999) 46 NSWLR 346
(1992) 2 Tas R 201
(2007) 16 VR 269