Solicitors:
CR: Mr A Lynch
File Number(s): 2015/00334775
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Judgment:
In this matter, Marcus Buchanan appears for sentence in respect of two offences, each being an offence of robbery while armed with a dangerous weapon, contrary to section 92(2) of the Crimes Act 1900. The maximum penalty provided in relation to each offence is 25 years imprisonment. There is no relevant standard non-parole period.
On 7 August 2017, the offender entered pleas of not guilty at the Port Macquarie District Court and on 14 August 2017 a jury returned a verdict of guilty in respect of each of the offences.
Consistent with the jury verdicts, a short abbreviated summary of the facts consistent with the jury verdicts is that on 2 November 2015 the offender attended at the Kempsey central shopping complex.
Being armed with a dangerous weapon, namely, a shortened model 1B Slazenger (Lithgow) single barrel bolt action .22 calibre rifle, he attended at the Target premises in that complex, and after a short excursion into the store, most likely to determine what other staff were present at the time, he proceeded to rob Jordan Haigh of a sum of money, Jordon Haigh being a member of staff who had access to the cash till from which the money was taken.
The robbery itself lasted for a short period of time. The attendance of the offender at the premises was recorded by CCTV. It was unable to be determined exactly how much money, the property of Target Australia Pty Limited, had been stolen.
Having completed the robbery of the Target store, he then walked from the Target premises to the Coles premises located on the same level, where he entered behind the till, still armed with the same weapon, and proceeded to rob Ebony Raison of a sum of money.
There was no evidence capable of demonstrating that the weapon was in fact loaded, although when it was later recovered at the offender's uncle's premises at Burnt Bridge, some short distance from Kempsey, similar cartridges were located within the premises in a different room to where the firearm was located, hidden under the cushions of the lounge.
Again, in respect of the money stolen from Coles Supermarket Australia, the quantity was not capable of being determined, although there were observations of him removing $50 and $20 notes from the till, all being removed at his request. In each case the shortened .22 was presented at Mr Haigh and Miss Raison.
I note Victim Impact Statements were not provided to the Court from either of the victims. However, from watching the CCTV footage of each of the premises, it is clear that at least Miss Raison was substantially affected by the event, as when the offender departed from the premises, she appeared to collapse over the till.
At the time of the offences, the offender had recently escaped from the Glen Innes Correctional Centre. He had attended the Kempsey Central shopping complex in a motor vehicle driven from Burnt Bridge by Michael Doyle and his then partner, Karene Baker, together with Kissy Linwood. The vehicle was captured by CCTV prior to arriving at the Kempsey shopping centre, and was also captured driving into the underground car park.
The offender and Miss Linwood were captured on CCTV going up the escalator to the level on which the shops were located. Both he and Miss Linwood attended in the Target store, but took varying routes through the store. Miss Linwood exited the store shortly before the offender accosted Mr Haigh, although on the CCTV footage she was observed standing outside looking back at the offender.
After the robberies were completed, the offender returned to the car park and entered the motor vehicle in which he had arrived, and the four persons left tpgether. At the time of his arrival, and throughout the robberies, he was observed by witnesses and recorded on CCTV footage wearing a disguise, being an army-type camouflage hooded jacket. He was identified by a number of witnesses and also by Michael Doyle.
The defence was essentially run on the basis that the identification evidence was unreliable and that it may have been the offender's uncle, Howard Lebrocq, who in fact was the robber.
Howard Lebrocq gave evidence in the trial, denying that he had committed the offence, which gave the jury the opportunity to observe what he looked like. Also an indigenous person, as is the offender, he was substantially older, and in general did not fit the descriptions given by any witness, nor even as a subject of any actual identification-type line up.
Of note, having left the premises, the evidence establishes that the motor vehicle in which they had arrived travelled back to Burnt Bridge, and the shortened .22 was eventually recovered under the cushions of the lounge in Mr Lebrocq's premises, where he was then residing with his daughter, Kissy Linwood, the offender's cousin.
Although not relevant for present purposes, I note that there is a strong inference in this matter that Michael Doyle, Karene Baker, and Kissy Linwood were in fact all part of the criminal enterprise to rob the premises at the Kempsey shopping centre, and that they all returned to Howard Lebrocq's premises after having done so, and that at least part of the proceeds were then used to obtain methylamphetamine, each of those persons, including, if my memory is correct, Howard Lebrocq, being users of prohibited drugs. Indeed, it was Howard Lebrocq together with Michael Doyle who apparently went to purchase the prohibited drugs after the robbery.
Although the amount that was stolen on each occasion cannot be established, each of the matters is objectively a serious matter. Offences of robbery while armed with a dangerous weapon, whether loaded or not, are serious matters because they cause considerable concern to the community and stress to the victims. A shortened .22 rifle, having most of the butt removed, would be likely to terrify any citizen against whom it was presented, as is the case in relation to each of these matters.
The Crown has submitted that in the circumstances the matter could be properly assessed as falling within the mid-range of objective seriousness. Mr Gleeson, on behalf of the offender, has accepted that that is an appropriate finding, and in the circumstances I accept that the matters each fall within the mid-range of objective seriousness, even though the sum of money stolen in each case cannot be established. The two robberies took place in close sequence of each other, the Target robbery taking some approximately four minutes, and the Coles robbery taking approximately half a minute, there was a very short space of time between the two robberies as the offender walked from Target to Coles.
I accept in the circumstances of the offender attending at the shopping centre, armed with a shortened rifle, wearing garments to effect a disguise or to make his identification more difficult, indicates that the offences were pre-planned and involved the use of a vehicle to attend the premises and to provide an escape route.
No other person was charged in relation to the robbery because of the lack of specific evidence which might prove beyond reasonable doubt an inferred joint criminal enterprise.
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Subjective Matters:
The only material before the court is a Pre-Sentence Report under the hand of Luke Flanagan, dated 20 October 2017, the offender's criminal history, and a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report.
The offender did not give evidence at the trial, nor has he given evidence on sentence. The offender's criminal offending commenced as a juvenile, and he has a significant juvenile history, including periods of supervision on parole and probation orders. He was first in contact with Community Corrections when released on juvenile parole in December 2000. The order was revoked the following year in May 2001 for failing to comply with the conditions of supervision and failing to be of good behaviour.
While being supervised on parole in 2006 difficulty was experienced in motivating the offender to participate in any interventions, and contact was intermittent. Although he was not detected re-offending, a breach report was submitted on 22 August 2006, recommending revocation due to failure to engage, and the order was revoked.
In 2014, he was subject to s 12 good behaviour bond for offences of contravening an Apprehended Violence Order and assault occasioning actual bodily harm, being domestic violence related, which he breached by further offending.
Case management and strategies in the past have focussed on his substance abuse and domestic violence and anger management issues. However his overall response to prior supervision is described as poor.
Since being returned to custody in January 2016, he has been subject to three matters of internal misconduct, failing a prescribed drug test x 2, and one offence of possessing an offensive weapon/instrument.
He is an indigenous person, said to be separated from his partner, with whom he has three children. He has had a relationship breakdown, which he attributes to Family and Community Services intervening to prevent him from residing with or having access to his children, as a result of his drug use and offending. The children remain with his ex-partner, with ongoing Family Community Services involvement, and he continues to be denied contact with them.
He is said to have had an upbringing absent any contact with his parents or siblings until he was 12 years of age, as a result of being placed in care and being made a ward of the state due to his parents' inability to care for him. He is said to have endured 25 different placements with family members in foster care during this time.
The Pre-Sentence Report states that the consistent instability of his placements appears to have negated the opportunity of providing extensive and stable intervention, which may have been beneficial. During his period of ward-ship, the record indicates he was subjected to physical and emotional abuse, as well as spending time in detention centres. He left school after completing Year 7, only having attended sporadically during his secondary years, before eventually completing Year 10 at TAFE. He ceased his education at 16 years of age but has subsequently obtained a certificate in aged care and mental health, presumably while in custody, although he has never been employed in this field. He originally stated to the pre-sentence officer that he has never been employed, but it was established that he had been employed for a period of two to three years as a machinery operator in the Kempsey area. When not in custody in recent years he has relied on Newstart payments.
He commenced using cannabis at twelve years of age on a social basis which quickly escalated to regular daily use prior to further experimentation with heroin, ecstasy and LSD at fifteen years of age, and amphetamines by eighteen years of age. He has used daily as much as he could acquire since the age of 15. He has regularly binged on alcohol, which, when intoxicated, has led to him getting into trouble. While in custody he has been using Buprenorphine not prescribed for him.
He has been on and off the opioid treatment program from 2000 to 2015 and has apparently been refused treatment since being returned to custody. The report indicates, however, that he was afforded the opportunity of reassessment appointments to be reinstated on the opioid substitute program on three separate occasions which he failed to attend, and as a result he was removed from the waiting list.
Of serious concern is the following statement contained in the Pre-Sentence Report:
"The offender advised he is not willing to attend any form of drug and alcohol rehabilitation unless it was part of his sentence."
Under "Attitude to Offending" is recorded the following:
"Mr Buchanan did not agree with the police facts. He denied any involvement in the offences and deflected blame onto other family members, stating he has been set up by his uncle and his friends. He further advised he intends to appeal his conviction on the grounds that he 'did not commit the offence'. He agreed to reluctantly engage in supervision if he was unsuccessful winning in his appeal."
He has been assessed as being at high risk of re-offending.
Taking into account his significant criminal history, which I will refer to shortly, the assessment of being at a high risk of re-offending must be accepted. Clearly he has not been willing to address any of his underlying problems in the past and has no self-motivation to do so and will not do so unless he is specifically required to do so as part of his sentence.
I accept that he experienced a dysfunctional and unstable childhood with limited connection to his family, resulting in continued periods of out of home care and no real contact with his parents until he was 12 years of age. I accept that that has resulted in negative behaviour and attitudes towards social conventions as a child, which continued into adulthood with the offender committing a substantial number of serious offences as both a juvenile and adult.
As stated in the Pre-Sentence Report:
"He is yet to address this issue in any meaningful way."
That is, his substance dependency.
The matter proceeded as a defended trial. There can be no discount for utility because there was no utility, and there is, in the light of the content of the Pre-Sentence Report, clearly no evidence of remorse or contrition.
As to his criminal history, the offender has a record of previous convictions including offences involving serious personal violence. There are four previous robbery offences, including one whilst armed with a dangerous weapon committed as a fifteen-year-old and dealt with according to law when he was seventeen; one assault with intent to rob in company committed as a seventeen-year-old and dealt with as an eighteen-year-old in the Children's Court; and two aggravated robbery offences committed as a nineteen-year-old and dealt with at Coffs Harbour District Court.
He has some twenty six convictions in adult courts for personal violence offences ranging over common assault, intimidation and contravening AVOs, assault occasioning actual bodily harm and assault police.
Of note is that none of the section 21A(3) mitigating factors apply to the offender. I accept that his deprived background as previously referred to brings into consideration the factors referred to in Fernando, (1992) 76 A Crim R 58; Bugmy v R [2013] 249 CLR 571 at 37.
Those factors in the ordinary course must have some effect in reducing the moral culpability of an offender to whom they apply. However, that effect is diminished where the offender has committed similar serious offences in the past, Currie v R [2013] NSWCCA 267 at 83 and 86.
In Veen v R (No 2) (1987-1988) 164 CLR 465 at 477 it was said:
"The criminal history is relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law...it is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows a dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."
In the light of the two consecutive occasions of offending while an escapee, the nature of the offences, the offender's past similar criminal offending over an extensive period and the absence of any acceptable evidence to the contrary I am satisfied that it is appropriate to regard the offender as a significant ongoing risk to the community as referred to in Veen v R (No 2) (1998) 164 CLR 465. However, I note that such a conclusion cannot lead to any extension of an appropriate penalty for the offence to provide preventive detention for the protection of society.
I have taken note of the guideline judgment in R v Henry (1999) 46 NSWLR 346 which of course was directed at offences in relation to section 97(1) of the Act rather than (2). The offending here is significantly distinguishable and is significantly more serious in nature.
For the purpose of sentencing the Court must have regard to section 3A of the Crimes (Sentencing Procedure) Act 1999 and take into account such of the aggravating or mitigating factors outlined in section 21A(2) and (3) of that section as are present, and any other relevant factor.
Any sentence imposed must reflect all the circumstances of the offence including its objective seriousness and the need for general deterrence and specific deterrence, as well as meeting the fundamental purpose of punishment, that is, the protection of society. I am satisfied pursuant to section 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate. I note that, appropriately, Mr Gleeson on behalf of the offender has not suggested that there is any alternative to full time custody.
I am unable to find in the circumstances that there is even a reasonable prospect that the offender will not re-offend. Nor am I able to find that there is a reasonable prospect that he can be rehabilitated, noting that he is now approximately 34 years of age.
His adult criminal history indicates that from 2001 he has spent the majority of his life serving periods of custody. There is no information before me that he has become institutionalised, but it would appear to be an inevitable conclusion from the perusal of his record. The last period that the offender was in the community was during the period he was an escapee between 28 October 2015 and 14 January 2016 when he was recaptured.
From 14 January 2016 to 3 November 2016 he served the balance of the non-parole period he had been subjected to for offences of assault occasioning actual bodily harm and contravening an AVO, being the sentence he was serving at the time of his escape. As a result of the escape, he was sentenced to a fixed term of imprisonment of four months from 4 November 2016 to 3 March 2017. Accordingly, since 3 March 2017, his custody has been solely in respect of these offences.
It has been submitted by Mr Gleeson on behalf of the offender that the Court could find special circumstances designed to assist the offender with addressing his problems with drug abuse and to assist him in not re-offending in the future. In view of his criminal history and the content of the Pre-Sentence Report, I am satisfied that the offender has no genuine interest in addressing any of his problems or participating meaningfully in any programs designed to assist him to rehabilitate, and in imposing sentence I decline to find special circumstances.
Mr Buchanan, would you please stand? I intend to proceed by way of an aggregate sentence in which case it is necessary to provide an indicative sentence in relation to each of the two offences.
In relation to each of the two offences, the indicative sentence is seven years imprisonment. The aggregate sentence, not having found special circumstances for any reason, including the significant period of time in continuous custody of approximately one year after being recaptured, the sentence will be a non-parole period of six years commencing on 3 March 2017. The non-parole period will expire on 2 March 2023. The balance of term is two years. The sentence is accordingly eight years imprisonment with a six year non-parole period. The full term of the sentence will expire on 2 March 2025.
I am fully aware of the ability of the Court to find special circumstances on the basis of the total time of continuous custody since his recapture as warranting a variation in the non-parole period, to reduce it to reflect a relationship of 75 per cent to 25 per cent. In this matter I decline to do so.
Is there anything by way of any error in relation to the facts?
GLEESON: No thank you, your Honour, not on behalf of the offender.
LYNCH: No, your Honour
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Decision last updated: 16 February 2018