R v Miller [2018] ACTSC 244

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33, 35

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22

Hili v the Queen [2010] HCA 45; 242 CLR 520

Johnston v The Queen [2017] NSWCCA 53

Legge v R [2007] NSWCCA 244

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Monfries v The Queen [2014] ACTCA 6

_R v Hart (_Unreported, Supreme Court of the ACT, Refshauge J, 7 December 2012)

R v Hemsley [2004] NSWCCA 228

R v Henry [1999] NSWCA 111; 46 NSWLR 346

R v Hill [2016] ACTSC 310

R v Johnson [2018] ACTSC 137

R v Pham [2015] HCA 39; 256 CLR 550

R v Rootsey [2018] ACTSC 63

R v Toumo'ua [2017] ACTCA 9

R v Zocchi (Unreported - Supreme Court of the ACT, Burns J, 24 February 2012)

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

Zocchi v The Queen [2013] ACTCA 12

1. On 1 March 2018, Jake Miller (the offender) pleaded guilty to the offence of aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT).

2. This offence carries a maximum penalty of 25 years imprisonment, a fine of $375,000.00, or both.

3. The agreed facts are set out in the Statement of Facts, which forms exhibit C1. The facts in short summary follow.

4. At about 8:00pm on Sunday 22 January 2017, the victim commenced his shift at the 7-Eleven Service Station on Hardwick Crescent, Holt, in the ACT.

5. At about 9:15pm that evening, the offender walked into the Service Station, and approached the service counter. He picked up a chocolate bar and placed it on the counter, whilst waiting to be served. He was wearing a black baseball cap, a black t-shirt with "Daiwa" printed on the front, and beige knee-length shorts. He was barefoot and his face and hands were exposed.

6. The victim approached the offender to serve him. As he did so the offender took a black replica pistol from his pants. As he did so, he pulled the slide of the replica pistol back and released it, giving the appearance of having actioned the replica pistol. The victim heard a metallic sound and observed that the replica pistol looked heavy. The offender held the replica pistol in his right hand and rested its butt on the counter, pointing the muzzle towards the victim. He put his left hand on the counter. The victim was scared, believing the replica pistol to be real. The offender appeared to be composed as he said, "Give me whatever you have, open the till right now. Be quick, notes only".

7. The victim removed the tray from the till and placed it in front of the offender. The offender took $10, $20 and $50 notes (amounting to about $500) from the tray, put the notes in his pocket and left the service station, still holding the replica pistol. The victim pressed the emergency button which notified police.

8. Police attended and the victim told them he would not be able to recognise the person who had robbed him as he was so frightened by the incident. Police obtained CCTV footage that captured the incident.

9. Police used stills images from the CCTV to broadcast a media release. They received some anonymous information identifying the offender. The offender's fingerprints were also located on the glass countertop at the 7-Eleven, in an area where the CCTV captured him resting his left hand during the incident.

10. Police attended the local Raiders Club, where the offender was a member, and obtained a document being a 'Self-Exclusion from Gambling Deed' signed by the offender on 15 December 2016 and being for a period of three years.

11. On 7 May 2017, police executed a search warrant at the offender's residence. The offender was not present during the search, but his parents were. During the search police seized a black t-shirt with "Daiwa the next level" printed on its front. It matched the t-shirt worn by the offender as captured by the CCTV footage from the 7-Eleven.

12. On 8 May 2017 the offender attended City Police Station and participated in a record of interview. He was subsequently arrested. In July 2017, the victim participated in a police photo board array that included a photograph of the accused. He was unable to identify anybody from the photo board.

13. The extent of the impact upon the victim was made clear by the victim impact statement which was read out by the prosecution at the sentence proceedings on 15 May 2018. The reading of the victim impact statement is important as the offender heard what the victim had to say. Courts know of the serious effects of such offences as aggravated robbery. Nevertheless, it is valuable to hear the words of the victim. The victim in his victim impact statement spoke of the psychological impact that the commission of the offence has had on him. The court acknowledges the significant impact that the offence has had and continues to have on the victim.

14. It was conceded by Counsel for the offender and Counsel for the prosecution that this was a serious matter. The prosecution referred me to R v Henry [1999] NSWCA 111; 46 NSWLR 346 (Henry), and the prosecution submitted that the offender's case is in the category of cases identified by Spigelman CJ at [162] being:

(i) Young offender with no or little criminal history

(ii) Weapon like a knife, capable of killing or inflicting serious injury

(iii) Limited degree of planning

(iv) Limited, if any, actual violence but a real threat thereof

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver

(vi) Small amount taken

(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

15. Spigelman CJ went on to identify an appropriate range for such cases in New South Wales as follows at [165] as four to five years.

16. I was also referred to the judgment of Wood CJ at CL in Henry at [273]-[275] as to addiction not being a matter of mitigation itself.

17. However, the point was made there that the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as impulsivity.

18. It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might impact on the prospects of rehabilitation.

19. The second case I was referred to in this regard was Johnston v The Queen [2017] NSWCCA 53 (Johnston), which at [40] refers to the passage of Wood CJ at CL in Henry cited above. The prosecution submitted that Johnston was authority for the point that the offender's gambling addiction was "not a mitigating circumstance per se".

20. The offence of aggravated robbery is a very serious offence. This is indicated by the maximum penalty for the offence: see R v Johnson [2018] ACTSC 137 (Johnson).

21. References to low range, middle range and high range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: see R v Toumo'ua [2017] ACTCA 9 (Toumo'ua).

22. It is clear that the objective seriousness of this case falls broadly within the category identified in NSW in Henry. Nevertheless, the relevant sentencing regime in this matter is to be determined by ACT sentencing cases.

23. A pre-sentence report was prepared for the sentence hearing. The offender is now 29 years of age. The offender moved to Canberra with his family at the age of 12. He describes a positive upbringing. He has been in a supportive relationship with his current partner, and has a three year old daughter from a previous relationship whom he cares for. He resides in his parents' home with his daughter. He completed an apprenticeship in refrigeration and air-conditioning, and worked in that trade. He had a gambling problem and has amassed a significant debt as a result. The offender reported to the author of the report that he spends the majority of his time with his daughter, partner, and family. The report also refers to his history of alcohol and drug use. In relation to his attitude to the offence, the offender agreed with the statement of facts and did not try to minimise or justify his actions according to the author of the report. The offender acknowledged the correlation between alcohol abuse and his offending behaviour. He acknowledged the effects of his crime on his victim. Overall, the author of the report stated that the offender is a single father who works full-time and has stable accommodation at his family's home. He has been assessed at a low risk of reoffending and appears to have taken positive measures to address his gambling and substance abuse issues. The author of the report also opines that the offender would benefit from engaging in counselling for ongoing support.

24. There was also a Court Alcohol and Drug Assessment Service (CADAS) report before the court. The CADAS report reinforced many of the matters included in the pre-sentence report. The report also refers to the offender speaking with a GP in early 2017 which resulted in a referral for counselling as part of a Mental Health Care Plan, including management of anxiety. The report referred to the night in question, and that he had been drinking heavily. On being charged with the offence, the offender indicated he stopped consuming alcohol for six months and stated that he now drinks one or two glasses of wine on one or two nights per week. The report also detailed his previous drug use. At the time of taking steps to cease gambling, the offender said his debt had grown to over $50,000 and he had also spent $15,000 which he had saved for a house deposit. He is now repaying the debts. Having been charged with the current offence the offender sought counselling with a clinical psychologist and saw the psychologist on eight occasions. This has assisted him in developing the inner-strength to control urges to gamble and drink alcohol. In conclusion, the report stated that the offender's current circumstances appear stable. He resides in the family home and he has the care of his daughter with the child's mother, and he notes the positive influence of his current partner. He maintains full-time employment and the consumption of alcohol appears to be under control and in a different context.

25. The offender gave evidence before me on 15 May 2018 expressing his remorse. The references and testimonials I will refer to which were tendered before me in the sentence proceedings referred to the remorse expressed by the offender. I accept that the offender is remorseful. In his evidence before me I formed the view that he was forthright and sincere in this regard.

26. A number of character references and testimonials are in evidence before me in relation to the offender. The first was from the parents of the offender. His parents speak of the offender's background and the positive changes in the offender's behaviour in recent times. The offender's parents emphasise that he is truly remorseful for his actions. His parents also underlined that the offence was "totally out of character".

27. The second reference was from his current partner. They have been in a relationship since August 2017. His partner works in child protection services. She emphasised his remorse and the out of character nature of the offence. She also emphasised that ultimately she:

...would not continue to be with someone who I did not feel was remorseful for what he did, and did not have ambition for himself, relationships, family, work, having a home, living a reasonable and fun life with supportive and positive people; away from unconstructive people, behaviours and activities.

28. The third reference is from a friend who has known the offender for 12 years. He speaks of the offender's remorse and taking responsibility for his actions. The fourth letter is from a counsellor of the ACT Gambling Counselling and Support Service at Relationships Australia Canberra and Region. The fifth document is a self-exclusion from gambling deed. The sixth document is a GP Mental Health Care Plan dated 23 May 2017. The seventh document is from a clinical psychologist in relation to counselling undertaken, the most recent appointment being 3 October 2017. The eighth document is from Care Inc. referring to two appointments in relation to financial counselling, the most recent appointment being 31 January 2018. The ninth document was a letter of apology from the offender to the victim.

29. As stated above, the offender gave evidence before me on 15 May 2018. He currently works as a concreter, as he lost his employment as an air-conditioning technician as a result of the charge. He gave evidence in relation to caring for his daughter and he also gave evidence in relation to his former gambling and drug issues. He also gave evidence in relation to the positive relationship between himself and his current partner, and his ongoing rehabilitation. He expressed his remorse in relation to the offence and its impact upon the victim.

30. The offender's current partner also gave evidence. She has a responsible job in child protection services. She indicated that she was giving evidence in a personal capacity, and that she was shocked to learn of the offence that occurred prior to the commencement of their relationship. She confirmed the matters detailed in her letter to the court and her belief in the offender while acknowledging the seriousness of the offence.

31. I was impressed by the sincerity of the evidence given by both the offender and his partner.

32. The offender indicated a willingness to participate in restorative justice. To that end, enquiries were made as to whether this was a realistic proposal. A report dated 30 July 2018 indicated that restorative justice was not suitable for the referred offence. The Intensive Corrections Order (ICO) report indicated that this was because the victim declined to participate.

33. The offender has no criminal history of violent offences. The offender has recorded convictions for driving offences.

34. The Offender pleaded not guilty to the charge laid in the ACT Magistrates Court on 30 May 2017. The offender was subsequently committed for trial to the Supreme Court. The offender entered his guilty plea in the Supreme Court on 1 March 2018. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo'ua at [41]-[48].

35. Monfries v The Queen [2014] ACTCA 6 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50].

36. I also note in this context that the Henry guideline was for a late plea: R v Hemsley [2004] NSWCCA 228 at [30].

37. It is also convenient to note at this juncture that the guideline is "not a tramline" and should not be used to impermissibly confine the exercise of sentencing discretion: Legge v R [2007] NSWCCA 244 (Legge) at [59].

38. The offender has spent one day in custody solely referable to this offence.

39. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].

40. In R v Rootsey [2018] ACTSC 63, the offender was sentenced for an offence of aggravated robbery. The offence involved the offender climbing through a window at a McDonald's outlet armed with a double bladed knife, and demanding money from an employee. The offender stole $1,912.90, and caused a minor injury to a staff member. The offence also involved a co-offender and the use of a stolen vehicle. A sentence of 18 month's imprisonment was imposed which was suspended after 9 months on the condition that the offender enter into a Good Behaviour Order for a period of 15 months.

41. In R v Zocchi (Unreported - Supreme Court of the ACT, Burns J, 24 February 2012), the offender was sentenced for an offence of aggravated robbery. The offence involved the offender robbing a victim at the Canberra Institute of Technology Bruce Campus. The offender stole $480.00 after punching the victim in the face, causing his nose and mouth to bleed, and then producing a replica black pistol. The offender also demanded a fortnightly payment of $200.00. The offender had a significant criminal history dating back to 1971 and included some 57 prior convictions for criminal offences. The offender was sentenced to six years and six months imprisonment, with a non-parole period of four years. This sentence was remitted to the sentencing judge on appeal on the basis that the sentencing judge failed to take account of all relevant pre-sentence custody: Zocchi v The Queen [2013] ACTCA 12.

42. In Johnson, the offender was sentenced for an offence of aggravated robbery in company. The first co-offender was picked up by the victim, and they drove to Stromlo High School where the co-offender said that he was waiting for two female friends. The offender and the second co-offender approached the car asking for direction. The offender then unsheathed a knife, and then punched the victim in the right cheek. The offender then got into the driver's seat and stole the 2009 Holden Commodore Sedan, with the intention of later selling the car. The offender was sentenced to a term of imprisonment of 16 months, to be served by way of ICO.

43. In R v Hill [2016] ACTSC 310 (Hill), the offender was sentenced for an offence of robbery amongst 10 other lesser charges relating to a "three-week offending spree". The offender approached the victim from behind near Casino Canberra and knocked her to the ground. The offender then stood over the victim with one leg on either side and punched her right cheek. The victim relinquished her handbag, which contained $800 and personal items. The offender was sentenced to three years imprisonment for that offence, to be served by way of intensive correction in the community.

44. In _R v Hart (_Unreported, Supreme Court of the ACT, Refshauge J, 7 December 2012), the offender was sentenced for an offence of aggravated robbery, to which he pleaded guilty. The offender and his co-accused drove to a liquor store, where the offender got out and pulled a stocking over his head, taking with him a black hand-un. The offender entered the store and pointed the gun at the only employee present. He demanded money and smokes, and left with $1,514.70 in cash and approximately 25 packets of cigarettes. Upon the offender's arrest, it was revealed that the gun was a replica and not a real gun. The offender does not recall the offending due to heavy intoxication. The offender had a minor criminal record and three positive character references from his family. The offender was sentenced to imprisonment for three years and seven months to be served by way of periodic detention, suspended on 7 May 2015 for two years, alongside a two year good behaviour order, with a probation condition of 12 months.

45. When this matter originally came before me on 15 May 2018, I determined that I should give serious consideration to the sentence being served by way of ICO. To that end I referred the offender for assessment.

46. The ICO Assessment report dated 30 July 2018 concludes with a recommendation that the offender has been assessed as suitable for an ICO and has signed an undertaking to comply with all of the obligations of an ICO.

47. The report is a detailed assessment of the offender's suitability for an ICO. The assessment involved seven interviews with the offender, a visit to the offender's proposed address, discussions with the offender's mother, and the perusal and scrutiny of a number of relevant and important documents.

48. The report indicates that the offender engaged appropriately during the assessment period and provided honest and clear information throughout. The report also refers to 4 urinalysis drug tests, each of which were negative.

49. The report also refers to the fact that the offender is aware that he will not be permitted to provide a breath alcohol reading above 0.02 and may be subject to a condition to not consume any alcohol should he be sentenced to an ICO.

50. The report further refers to the offender's acknowledgement of the seriousness of the offence and taking full responsibility for his actions, and that he displayed victim empathy and awareness acknowledging the physical harm caused to the victim of the offence and how this may have impacted the victim's life. The report also refers to the offender's past use of illicit drugs, and indicates that there are no current issues with illicit substances based on the offender's reported abstinence over the preceding 12 months.

51. The report also stated that the offender attended all scheduled appointments for the preparation of the report, and demonstrated a willingness to comply with an ICO if so sentenced.

52. The report also refers to the offender's outstanding debt of $40,000, which the offender attributed to a severe gambling issue he was experiencing prior to committing the offence. The report notes that the offender has not engaged in gambling activities since the offence, and that he has attended gambling support programs.

53. The report also refers to the offender's acknowledgment of the seriousness of the offence, and that he does not attempt to justify his behaviour or minimise his actions. The report notes that the offender thinks about the incident every day and the negative effects of his actions upon the victim.

54. The report states that the offender is assessed as low risk of general reoffending, and that he is suitable for a community service work condition. The report recommends that an ICO contain a condition that the offender is not to consume alcohol.

55. The prosecution submitted that a period of full-time imprisonment is appropriate. The offender's plea of guilty, his remorse, his suitability for an ICO, and his good prospects for rehabilitation point in a direction other than a term of imprisonment served by way of full time custody.

56. It must be underlined as stated by Spigelman CJ in Legge at [59], "a guideline is not a tramline". Justice must be individual.

57. Relevantly, in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

58. Where two highly relevant considerations are incompatible it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: see for example R v Hopkins [2004] NSWCCA 105.

59. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.

60. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration.

61. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

62. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO, including community service work as a condition.

63. It must be recognised by the Court that the aggravated robbery has had a significant impact upon the victim. Both the short and long-term consequences of being the victim of such a crime must be acknowledged. It must also be recognised that no sentence that the court imposes will rectify the consequences of what has occurred to the victim in the commission of the offence by the offender.

64. Both parties accept that the offender must receive a sentence of imprisonment. In my view, a custodial sentence is appropriate. The issue is the length of the sentence and whether it is essential that it be served by way of full-time imprisonment or whether it can be served by way of ICO.

65. I do not consider a wholly suspended sentence is appropriate. I do not consider that the objective seriousness of the offending conduct compels a sentence of full-time custody as part of partially suspended sentence or otherwise. The subjective circumstances are such that the requirement for punishment and deterrence may be achieved within the framework of an ICO.

66. In my view, the purposes of sentencing will be best addressed by imposing an ICO. The capacity to maintain full-time employment is likely to be an important component of his long-term rehabilitation and an ICO permits that to be maintained: see also Johnson.

67. As stated by Murrell CJ in Hill, where a person has very good prospects of rehabilitation, the Court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm to the community and protection of the community. It was also emphasised in Hill that sentencing must always deliver individualised justice. There will be exceptions to the necessity for full-time custody. In coming to a conclusion, by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offence, the guideline judgment of Henry, the offender's plea of guilty, his remorse as expressed in his evidence before me, the ICO report, and the very good prospects for rehabilitation of the offender.

68. In my view, the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be remembered that the imposition of an ICO is not a lenient sentence. Its content will require strict adherence and if this is not followed could result in a period of full-time custody. The appropriate sentence for the offence of aggravated robbery is 36 months imprisonment which I reduce by approximately 15% because of the plea of guilty. Additionally, in light of the seriousness of the offence, it is appropriate that there be a condition relating to the undertaking of Community Service. Further, in light of the need for ongoing rehabilitation, a condition relating to rehabilitation programs is also appropriate. A recommendation that was sought in this matter and in my view that it is appropriate that I request that the Director-General give consideration to conditions that might permit the offender, from time to time, to visit his partner at her residence which is in Queanbeyan NSW, a short distance from the ACT border. Such visits would contribute positively to the offender's rehabilitation due to the ongoing and positive support he receives from his partner.

(a) In respect of the offence of aggravated robbery (CC2017/5121) the offender is sentenced to 30 months imprisonment commencing on 31 August 2018 and ending on 28 February 2021.

(b) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the offender is to serve his sentence by way of Intensive Corrections Order. I impose the core conditions. I impose the following additional conditions:

• (i) That the offender perform 250 hours of community service within 30 months;
• (ii) That the offender attend any programs or counselling that he is directed to by the Director-General including in relation to alcohol, drug use, and gambling;
• (iii) The offender is to report to the Director-General of corrective services by 4:00pm on Monday 3 September 2018.

I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson