R v Lock [2016] ACTSC 319

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Particular Offences - property offences - aggravated robbery - offensive weapon - obtaining property by deception - drive/ride motor vehicle without consent - pleas of guilty - reasonable prospects of rehabilitation - terms of imprisonment imposed.

R v Billington [2014] ACTSC 350

1. Kaine Lock, you appear before me today for sentence with respect to a number of offences. Those offences may be broadly described as occurring on two separate occasions.

2. I will deal initially with the offences of 30 December 2015. You have pleaded guilty to the following offences on that day: one count of attempted aggravated robbery in company with Jack Ford with an offensive weapon (CC16/4540), one count of aggravated robbery in company with Jack Ford with an offensive weapon (CC16/4541), and one count of dishonestly driving a motor vehicle without consent (CC16/4542).

3. You have also entered pleas of guilty to three counts of obtaining property by deception (CC16/4543, CC16/4544 and CC16/4546). Finally, you have entered pleas of guilty to two counts of aiding and abetting Jack Ford to obtain property by deception (CC16/4545 and CC16/4547).

4. A full Statement of Facts was tendered at your sentence hearing. It is not necessary at the present time to set out those facts in their entirety. It is sufficient to note that at approximately 8.00 am on 30 December 2015, you and your cooffender attempted to rob a member of the public, Ms Kuhn, at a petrol station in Melba armed with a knife and a replica firearm. Ms Kuhn refused your demands. Shortly after you then ran to the car park behind Melba shops. Armed with knives, you then approached another member of the public, Mr D'Elboux, as he was parking his Toyota Camry motor vehicle. You stole Mr D'Elboux's car and wallet containing a Commonwealth bankcard and used the card to purchase cigarettes, food and prepaid credit cards at several retail outlets.

5. The maximum penalty for the offence of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) (the Criminal Code) is 25 years imprisonment, a fine of $375,000 or both. The maximum penalty for the offence of dishonestly driving or riding in a motor vehicle without consent contrary to s 318(2) of the Criminal Code is 5 years imprisonment, a fine of $75,000 or both. The maximum penalty for the offence of obtaining property by deception contrary to s 326 of the Criminal Code is 10 years imprisonment, a fine of $150,000 or both.

6. On 29 April 2016, you were charged with the eight offences for which you must now be sentenced. You pleaded not guilty and your matters were listed for a case management hearing. A full brief of evidence was served. On 26 July 2016, at a case management hearing you entered pleas of guilty to these offences and the matters were committed to this court for sentence.

7. I will now turn to the offences of 27 April 2016. You have pleaded guilty to one count of aggravated robbery in company with Jason Thompson with an offensive weapon (CC16/5513) and one count of dishonestly riding in a motor vehicle without consent (CC16/5514). Again, a full Statement of Facts was tendered, but I do not propose to read that at this time. A brief summary is as follows.

8. On 27 April 2016, you robbed a liquor store in Nicholls in company with Jason Thompson who was armed with a rifle. You both arrived and left the scene in a stolen motor vehicle, taking $2,527.45 in cash and $1,596.40 worth of stock. Your cooffender at the present time is serving a sentence in New South Wales and as such, has not yet been charged with these offences.

9. As I have already indicated, the maximum penalty for the offence of aggravated robbery is 25 years imprisonment, a fine of $375,000 or both. The maximum penalty for the offence of dishonestly riding in a motor vehicle without consent contrary to s 318(2) of the Criminal Code is 5 years imprisonment, a fine of $75,000 or both. You entered pleas of guilty to these charges on an early occasion in the Magistrates Court and you were committed for sentence to this Court.

10. In assessing the objective seriousness of the offence of attempted aggravated robbery on 30 December 2015, I note that when the victim refused your demands, you called to your cooffender, "Shoot her." Now, of course the pistol that your cooffender was holding at that time was a replica pistol and as such, it could not have been discharged. While the victim was in no danger of being shot, of course she could not know that. It must have been a very tense and frightening moment for your victim. The victim was a lone female. This occurred in a public place and she was of course vulnerable. This is a serious offence and in my opinion, it is on the border of the low to mid-range of offences of this nature.

11. With respect to the aggravated robbery that occurred on the same date, again you were in company and you were also both armed. There were threats made to stab the victim. In my opinion, this offence falls within the midrange of these offences.

12. The offences of obtaining property by deception, or aiding and abetting the obtaining of property by deception, involved the use of credit cards or a debit card taken from the victim of the aggravated robbery. The property which was obtained as a consequence of that was of fairly slight value. In my opinion, these offences fall within the lower range of offences of this nature.

13. With respect to the charge of dishonestly and without consent driving a motor vehicle on 30 December 2015, I note of course that the vehicle was taken during the aggravated robbery on that day. The vehicle was subsequently abandoned. It had been partially repainted and had number plates attached which properly belonged to another vehicle connected with you. You were observed in this vehicle on occasions in January 2016. In my opinion, this is in the low to midrange of offences of that nature.

14. With respect to the offences of 27 April 2016 and the charge of aggravated robbery, this of course occurred not only in company, but also with your cooffender being armed with a shortened .22 rifle magnum bolt action. Both of you were wearing balaclavas. Your cooffender pointed the rifle at a store employee and demanded money. The firearm was real, although there is no evidence before me that it was in fact armed, that is, with ammunition at that time. Ammunition for it was later found in the vehicle which was used by the two of you to get away from the scene.

15. With respect to the charge of dishonestly and without consent riding in a motor vehicle, that vehicle was taken on 20 April 2016. It was used by you and your cooffender to travel to and from the aggravated robbery. The car was abandoned after the aggravated robbery and seized by police. In my opinion, both the aggravated robbery and the dishonestly and without consent ride in motor vehicle offences on that day fall within the midrange of offences of that nature.

16. I note that you are 20 years old. You had an unstable childhood. You were exposed to illicit drug use by both parents and you were placed in foster care at an early age. Your mother is currently in custody in South Australia and you have a continuing difficult relationship with your father. You do, however, have a good relationship with your grandmother.

17. You completed schooling to Year 11 standard and subsequently, you obtained one month's employment as a labourer in 2015. Prior to being remanded in custody with these matters, you were in receipt of job seeker benefit. You have been employed in the Alexander Maconochie Centre (AMC) and reports in that regard are positive.

18. You commenced using alcohol at age 17 and this involved binge drinking. You started cannabis when you were 14 and then commenced the use of methylamphetamine when you were 17.

19. You agreed with the Statement of Facts and you told the author of the PreSentence Report which was prepared for the sentence hearing that you accepted responsibility for these offences. The author recommended alcohol and drug rehabilitation, which was available within the AMC.

20. I have given significant weight to the letter from your grandmother which was attached to the PreSentence Report. She speaks of your unstable childhood and also speaks of you being neglected and abused in foster care. She feels that you are unable to express your feelings about your experiences whilst you were in foster care. She speaks of your rejection by your parents after you resumed contact with them, and indeed, says that you were assaulted by your father.

21. You have a criminal history, although it is a limited criminal history in South Australia [redacted for legal reasons].

22. I take into account the victim impact statement which was prepared by Mr D'Elboux, who was of course the victim of the aggravated robbery offence on 30 December 2015. It is clear that these events have had a continuing negative impact upon his life. I have also carefully noted the contents of the letter from you which was tendered in these proceedings in which you express remorse, a desire to rehabilitate and in which you take responsibility for your offending.

23. In sentencing you, I must acknowledge that you are still very young and have a limited criminal history, so that rehabilitation is a very important sentencing consideration. Unfortunately, aggravated robbery is an offence commonly committed by young males with limited criminal histories. I note that you have not previously been subject to a prison sentence.

24. Whilst I must give significant weight to rehabilitation, I must also give weight to the principles of general deterrence and punishment. I take into account that you commenced drug use at an early age, such that you are not to be held as responsible for commencing drug use as you would have been if you had commenced drug use as an adult. I accept that there are positive signs pointing towards good prospects for rehabilitation, that you have been willing to undertake rehab in the AMC and also have undertaken employment.

25. I have been assisted by the sentencing remarks of Murrell CJ in R v Billington [2014] ACTSC 350.

26. I take into account your pleas of guilty with respect to these matters. They were not at the earliest opportunity with regard to the offences of 30 December 2015, but nevertheless, they were pleas which were entered in the Magistrates Court and as such, should attract a significant discount on sentence. I will reduce the otherwise appropriate sentence by 20 per cent in order to reflect your pleas with respect to those matters.

27. I accept that there were very early pleas with respect to the offences of 27 April 2016 and I will reduce the otherwise appropriate sentences by 25 per cent in order to reflect those pleas.

28. I am satisfied however that, taking all matters into consideration, a sentence of imprisonment is the only realistic option, bearing in mind the significant objective seriousness of these offences.

29. With respect to charge CC16/4540, the attempted aggravated robbery on 30 December 2015, you are convicted and sentenced to two years imprisonment, commencing on 28 April 2016 and expiring on 27 April 2018. I have reduced this from two years and six months in order to reflect your plea of guilty.

30. With respect to charge CC16/4541, the aggravated robbery on the same day, you will be convicted and sentenced to two years and five months imprisonment, which I have reduced from three years for your plea of guilty, commencing on 28 October 2016 and expiring on 27 March 2019.

31. With respect to charges CC16/4543, CC16/4544, CC16/4545, CC16/4546 and CC16/4547, the charges of dishonestly obtaining property, you will be convicted and sentenced on each matter to four months imprisonment, which I have reduced from five months for your pleas of guilty. Each such sentence is to commence on 28 April 2016 and expire on 27 August 2016.

32. With respect to charge CC16/4542, the charge of driving a motor vehicle without consent on 30 December 2015, you are convicted and sentenced to five months imprisonment, which I have reduced from six months to reflect your plea of guilty. That will commence on 28 December 2018 and expire on 27 May 2019.

33. I will now turn to the offences of 27 April 2016. With respect to charge CC16/5513, the charge of aggravated robbery, you will be convicted and sentenced to two years and three months imprisonment, which I have reduced from three years to reflect your plea of guilty, commencing on 28 February 2018 and expiring on 27 May 2020.

34. With respect to charge CC16/5514, the charge of dishonestly ride in a motor vehicle, you will be convicted and sentenced to four months imprisonment, commencing on 28 February 2020 and expiring on 27 June 2020.

35. The aggregate sentence which I have imposed is therefore one of four years and two months imprisonment. I will set a nonparole period of two years and one month imprisonment, commencing on 28 April 2016 and expiring on 27 May 2018.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.