R v Morales [2019] ACTSC 88

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - joint indictment - co-offenders sentenced at the same time - attempted aggravated robbery of taxi driver at night while carrying a sheathed knife - dishonestly ride in a motor vehicle without consent - possess prohibited weapon - guilty pleas - young offender played less significant role to co-offender in offending conduct - criminal history - abuse of illicit drugs - parity considered - prospects of rehabilitation considered - sentence of imprisonment to be served by way of intensive correction

Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 78, 80

Prohibited Weapons Act 1996 (ACT), s 5

R v Muell [2019] ACTSC 77

1. Stephanie Morales has pleaded guilty to four offences:

(a) attempted aggravated robbery (a contravention of s 310(b) of the Criminal Code 2002 (ACT), the maximum penalty for which is 25 years imprisonment, 2500 penalty units or both);

(b) dishonestly riding in a motor vehicle without consent (a contravention of s 318 of the Criminal Code, the maximum penalty for which is five years imprisonment or 500 penalty units or both);

(c) possessing a prohibited weapon (a contravention of the Prohibited Weapons Act 1996 (ACT), s 5, the maximum penalty for which is five years imprisonment or 500 penalty units or both); and

(d) a further charge of dishonestly riding in a motor vehicle without consent.

2. As at 8 January 2018 Ms Morales and Mr Paul Muell were in a relationship and were living together. On 7 January 2018, Mr Muell had been involved in an aggravated burglary at apartments in Lyneham and during the course of the burglary a Toyota Hilux was stolen.

3. Around 5:30am on 8 January 2018, a taxi driver was sitting in the driver's seat of his taxi on Lonsdale Street in Braddon. The ignition of the car was turned off and the window next to the driver's seat was open. The Toyota Hilux containing Mr Muell and Ms Morales drove back and forth past the taxi driver's taxi a few times. Mr Muell then ran up from behind the taxi and pointed what appeared to be a black handgun and a 30cm silver bladed knife with a black handle through the taxi driver's open driver's side window. Mr Muell held the handgun in his right hand and the knife in his left hand. Mr Muell opened the driver side door and demanded the taxi driver hand over his money and his wallet. He threatened the taxi driver with the handgun and the knife. At one point he held the gun to the taxi driver's head and began counting down from five, saying he would shoot him if he did not give him the money. The taxi driver said that he did not have any money. Mr Muell reached through the driver's door of the taxi and pulled down the driver's side sun visor.

4. Ms Morales also approached the taxi and stood next to Mr Muell before touching his shoulder. She was wearing a vest with the hood up. She carried a large pink knife which she held out from her body in the direction of the taxi driver while keeping a lookout. Both offenders ran away from the taxi and got into the Toyota Hilux which was parked just behind the taxi. No money or property was stolen from the taxi driver during the attempted robbery. The taxi driver obtained a partial registration number for the Toyota Hilux. Just after midday the same day, police located the Toyota Hilux in an apartment complex on Haddon Street in Hackett. There was some damage to the driver's side lock and Ms Morales' fingerprint was located within the vehicle.

5. The Crown cannot establish beyond reasonable doubt that what appeared to be a handgun was capable of firing or was loaded, although it would have appeared to be a handgun and have that capacity to the driver who was threatened with it.

6. During the execution of two search warrants at the Haddon Street premises, Ms Morales did not make any relevant admission. During the course of one of the searches, a taser type device was found. That gives rise to the charge of possessing a prohibited weapon.

7. The facts in relation to the subsequent charge of riding or driving a motor vehicle without consent are as follows. Ms Morales was charged with the earlier offences on 18 January 2018. She was on bail relating to those offences. On 9 September 2018, a Toyota Landcruiser which had been parked at an address in Lyneham was stolen.

8. The stolen Landcruiser was then seen by police on 13 September 2018. Police attempted to block the path of the vehicle when it was in the drive-through section of McDonald's at Emu Bank in Belconnen. The occupants of the vehicle exited and one of them was arrested. Ms Morales had exited the vehicle and run away from the scene. When subsequently approached by police elsewhere in Belconnen and asked about the earlier incident, she ran across the road away from police and sent text messages to her mother attempting to create an alibi. A short time later she was arrested by police.

9. In addition to being on bail at the time of the offending, she was also the subject of two good behaviour orders for unrelated matters.

10. A victim impact statement prepared by the driver of the taxi was read to the court by counsel for the Crown. I have taken this into account in considering the appropriate sentence. The statement indicates that following the incident the victim had difficulty sleeping and struggled to go to work. He changed his working hours so as to avoid working when it was dark when he no longer felt it was safe. It had an effect on his wife and family. In particular, his children's behaviour changed and is only starting to return to normal a year after the incident. He has become more conscious of security, less trusting and has been financially affected by his change in hours.

11. In relation to the attempted aggravated robbery for the reasons I have given in relation to the sentence imposed upon Mr Muell, that was an offence in the mid range of objective seriousness for that offence: see R v Muell [2019] ACTSC 77 at [16]. However, it is clear that the role played by Ms Morales in the offence was less significant than that played by Mr Muell, she arriving later at the scene and deploying her knife when it was sheathed and in a less obviously threatening manner.

12. The offence of possessing a prohibited weapon is at the low end of the spectrum for this offence. That is because the offence relates to possession rather than use of the weapon and there is no evidence as to what the effect of the use of the taser type device was. The offender must be sentenced on the basis that it had a nominal effect only.

13. Each of the two dishonestly riding in a motor vehicle offences is in the low to mid range of objective seriousness, although the first is more objectively serious having regard to the fact that the vehicle was being used for the purposes of commission of an offence.

14. The personal circumstances of the offender are disclosed in an intensive correction order assessment report and in the oral evidence that she gave at the sentencing hearing.

15. The offender is now 22 years old. She was born in Canberra. She has had only limited contact with her father during her life. She was one of four children. She lived with her grandmother from the age of 18 months to 14 years. While she lived with her grandmother, her siblings lived with her mother. She came to resent this. Her behaviour and her relationship with her grandmother and mother deteriorated. Her schooling suffered as her conduct deteriorated. She moved out from her grandmother's house and lived with friends. She moved schools several times before leaving school in Year 8.

16. From the age of 15 she was in a relationship, suffering a miscarriage at the age of 16 for which she blamed herself. At this stage her family remained supportive. She separated from her partner on a date that I cannot presently identify. In 2013 at the age of 17, she obtained housing of her own through Barnardos. This led to a period of some stability and her record contained no offences committed between February 2013 and September 2017. She was free of drugs and alcohol for an 11-month period. Her new partner was however abusive.

17. In early February 2015 her sister's child was stillborn. In the next month the offender suffered a miscarriage of twins. After that she started using methamphetamine regularly. She was using at a rate of about 0.5g daily. She gave up the house that she had obtained through Barnardos.

18. She returned to her relationship with her first partner at the end of 2015, moving into his flat until the middle of 2017. There were times when he was in detention. One day he left and ended the relationship. She was not able to stay in his public housing flat after that.

19. She then got into a relationship with her co-offender, Mr Muell, who she had known since she was 14. At that stage Mr Muell had money from a settlement arising from being sexually assaulted as a child. He was able to afford to pay for them to stay in hotels and to purchase drugs. She was using methamphetamine every day.

20. There was a period of four or five months when Mr Muell was remanded in custody in New South Wales because he had been refused bail.

21. After he came out of custody, they lived together in a flat underneath one of Mr Muell's friend's houses in Hackett. At that point, Mr Muell's money was no longer available and they turned to crime to fund their use of illicit drugs. It is during that period that she committed the present offences.

22. She had a strained relationship with her mother during her teenage years. Her relationship with her mother now appears to be positive. Her grandmother is now prepared to have her live with her again. She has a recent poor history of compliance with community-based sentences. While in custody she has maintained employment at the bakery since December 2018. She expressed willingness to comply with the conditions of an intensive correction order. There is no evidence of illicit substance use whilst in custody. She has been subject to a number of disciplinary charges whilst in custody, although these are relatively minor and appear to arise from the particular circumstances of jail.

23. She has never held employment other than the employment that she now has in the detention system.

24. She wishes to maintain employment once released from custody. She has a Centrelink liability which she needs to pay off. She has a mixture of prosocial and antisocial friends and acquaintances in the community. Letters tendered for the purposes of sentencing indicate that she does have a network of friends and family who would assist her in compliance with the requirements of an intensive correction order.

25. She has no physical health problems and no mental health diagnoses. However, she claimed to have suffered from anxiety and depression during her life.

26. She expressed to the author of the intensive correction assessment empathy towards her victims and appeared to show insight into the impact of her offending behaviour. She expressed her willingness to engage in restorative justice.

27. She was assessed as being at a medium to high risk of general reoffending. She was assessed as suitable for community service work. She was assessed as suitable for an intensive correction order.

28. [Redacted for legal reasons.] The offender has a criminal history as an adult. She has convictions for possessing a prohibited substance, namely cannabis, riding or driving a motor vehicle without consent, failing to appear pursuant to bail undertaking (two counts), destroying or damaging property and common assault. In addition, in New South Wales she has convictions from 2017 for possessing a prohibited drug and having custody of a knife in a public place. As pointed out earlier, there is a gap in her offending between February 2013 and September 2017. This is consistent with her having a capacity to live lawfully if her housing is stable and her illicit drug use is under control.

29. The charge of attempted aggravated robbery and the first charge of dishonestly riding in a motor vehicle without consent were the subject to pleas of guilty when the matter was in the Supreme Court but prior to it being listed for trial. I will allow a reduction of 15% on account of the guilty pleas.

30. The charge of possessing a prohibited weapon and the second charge of dishonestly riding in a motor vehicle were both subject of pleas in the Magistrates Court and I will treat them as early pleas and discount the sentence that I would have otherwise imposed by 25%.

31. The offender has spent 117 days (that is three months and 25 days) in custody prior to today solely attributable to this offending. The sentence that I will impose will be backdated so as to take this into account.

32. The three more serious offences are clearly, in the light of their gravity and the offender's criminal history, matters in relation to which only a custodial sentence is appropriate. I will come in a moment to the possess prohibited weapon charge.

33. The offender has clearly had a disrupted childhood. She has not had stable accommodation other than for limited periods. She has a long history of use of illicit drugs. She has not been imprisoned prior to the current period of imprisonment. Because her offending has been associated with her disrupted childhood and unstable accommodation, the absence of the inability to complete her school education and the absence of employment, her prospects of rehabilitation appear to be reasonable.

34. On the attempted aggravated robbery, the appropriate starting point is a sentence of 36 months imprisonment reduced to 31 months on account of the plea of guilty. On the charge of dishonestly riding in a motor vehicle without consent, the starting point is a sentence of 12 months imprisonment reduced to 10 months on account of the plea of guilty. On the charge of possessing a prohibited weapon, the appropriate sentence would be a conviction and a good behaviour order for a period of 12 months, although the making of such an order would interfere with the capacity to make an intensive correction order: Crimes (Sentencing) Act 2005 (ACT), s 80. For the reasons which I will give in a moment, I am satisfied that the making of an intensive correction order is appropriate and in order to avoid the legislative impediment upon doing so, the appropriate sentence becomes one of 40 days imprisonment, reduced to one month on account of the plea of guilty. On the second charge of dishonestly riding in a motor vehicle without consent, the appropriate starting point, having regard to the earlier commission of the offence, is a sentence of 12 months imprisonment reduced to nine months on account of the plea of guilty.

35. A degree of concurrency is warranted having regard to questions of totality. Adopting the attempted aggravated robbery as the base sentence, the first charge of dishonestly riding in a motor vehicle without consent will be cumulative as to four months on that sentence and otherwise concurrent. The possess prohibited weapon charge will be cumulative on the previous sentence. The sentence for the second count of dishonestly riding in a motor vehicle without consent will be cumulative as to five months upon the previous sentence. This gives an aggregate custodial sentence of 41 months imprisonment.

36. The principal submission made on behalf of the offender was that the matter could be appropriately dealt with by way of an intensive correction order. The Crown submitted that a sentence of full-time imprisonment was clearly within range having regard to the objective gravity of the attempted aggravated robbery charge.

37. I am satisfied that the offender is suitable for an intensive correction order: Crimes (Sentencing) Act, s 78. I am satisfied that it is appropriate for the offender to serve each custodial sentence by intensive correction. That is largely because of the prospects for rehabilitation and the availability of support and supervision under an intensive correction order. I am also satisfied that the offender has given informed consent to serving a sentence by intensive correction. The sentence imposed for the attempted aggravated robbery exceeds two years. Taking into account the matters set out in s 11(3) of the Crimes (Sentencing) Act, I consider that it is appropriate to make an intensive correction order in relation to that sentence.

1. On the charge of attempted aggravated robbery (CC2018/1467), the offender is convicted and sentenced to 31 months imprisonment commencing on 13 October 2018 and ending on 12 May 2021.

2. On the charge of dishonestly riding in a motor vehicle without consent (CC2018/1468), the offender is sentenced to 10 months imprisonment commencing on 13 November 2020 and ending on 12 September 2021.

3. On the charge of possessing a prohibited weapon (CC2018/1469), the offender is sentenced to one month imprisonment commencing on 13 September 2021 and ending on 12 October 2021.

4. On the charge of dishonestly riding in a motor vehicle without consent (CC2018/11494), the offender is sentenced to nine months imprisonment commencing on 13 June 2021 and ending on 12 March 2022.

5. Each of those sentences is to be served by way of intensive correction.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.