R v Muell [2019] ACTSC 77

[2019] ACTSC 77

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - joint indictment - co-offenders sentenced at the same time - aggravated burglary of underground carpark of apartment complex where vehicle taken and motorbike stolen - aggravated burglary of Subway store - attempted aggravated robbery of taxi driver at night while carrying a handgun and knife - young offender with more significant role than co-offender in offending conduct - guilty pleas - poor criminal history - abuse of illicit drugs - parity considered - prospects of rehabilitation considered - general deterrence, punishment, denunciation and protection to the community - custodial sentences

Criminal Code 2002 (ACT), ss 308, 310(b), 312, 318

Hall v The Queen; Barker v The Queen [2017] ACTCA 16

R v Beattie [2019] ACTSC 12

R v Billington [2014] ACTSC 350

R v Lock [2016] ACTSC 31

R v Lowe [2015] ACTSC 116

1. Paul Muell has pleaded guilty to five charges for offences committed on 7 and 8 January 2018.

(a) aggravated burglary (being a contravention of s 312 of the Criminal Code 2002 (ACT), the maximum penalty for which is 20 years imprisonment, 2000 penalty units or both);

(b) theft (a contravention of s 308 of the Criminal Code, the maximum penalty for which is 10 years imprisonment, 1000 penalty units or both);

(c) dishonestly taking a motor vehicle without consent (a contravention of s 318 of the Criminal Code, the maximum penalty being five years imprisonment, 500 penalty units or both);

(d) a further charge of aggravated burglary; and

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

3. The first three offences were committed on 7 January 2018, the last two were committed on 8 January 2018. All of the offending occurred within a seven and a half hour period.

4. The facts relating to the first three offences listed above are as follows.

5. About 10:26pm on 7 January 2018, the offender and an unknown male entered the underground carpark of the Axis Apartments located in Miller Street in Lyneham. The underground carpark was secured by a swipe card. The offender and the unknown male entered the carpark on foot by following behind a car as it drove through the sliding access gate. The offender attempted to partially cover his face with a black face covering with a white graphic design around the mouth and nose area. The unknown male also had his face covered. The offender tested the door handles of various cars in the carpark to see if they were locked while holding a cloth. He also removed items of property from various cars. The unknown male rode a mountain bike through the carpark and removed property from the rear tray of a white Ford utility vehicle. The offender and the unknown male attempted to open a number of car doors without success. The offender and the unknown male drove a white Toyota Hilux through the carpark with a motorcycle and mountain bike in the rear tray. The Toyota Hilux left the carpark about 11:30pm. The offender was in the passenger seat. The charge of theft relates to the motorcycle that was in the rear tray of the Hilux.

6. The facts relating to the aggravated burglary committed on 8 January 2018 are as follows. At about 4:40am on 8 January 2018, the Toyota Hilux, which had been stolen, was reversed into the front glass doors of a Subway store on Wollongong Street in Fyshwick. Two offenders, one of which was the offender, stood at the glass doors. It is not clear whether the offender was driving the vehicle when it was reversed into the glass doors. Both persons had face coverings. One of them entered the store with a torch and turned on the lights. One of the offenders approached the drinks fridge and opened the door before leaving it. What is described as a small 8-in-1 screwdriver torch was subsequently found on the floor near the drinks fridge. A minute after the incident commenced, the Toyota Hilux left the location. The offender was identified as being involved because his DNA was found on the screwdriver torch. Nothing was taken from the premises.

7. The attempted aggravated robbery which occurred on 8 January 2018 involved the cooffender Stephanie Morales. The relevant facts are as follows. Around 5:30am on that morning, 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 involved in the earlier incidents drove back and forth past the taxi driver's taxi a few times. The offender then ran up from behind the taxi and pointed a black handgun and 30cm silver bladed knife with a black handle through the taxi driver's open driver side window. The offender held the handgun in his right hand and the knife in his left hand. The offender 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, the offender held the gun to the 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. The offender reached through the driver's door of the taxi and pulled down the driver's side sun visor. The Crown is not able to establish beyond reasonable doubt that either the item described as a handgun was capable of discharging or that it was loaded at the time that it was used. However, it would clearly have been perceived by the taxi driver to be a genuine gun and the threats made using it real.

8. Ms Morales also approached the taxi and stood next to the offender before touching his shoulder. She was wearing a vest with the hood up. She carried a large pink knife in a sheath 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 whole of the interaction with the taxi driver took approximately 30 seconds.

9. 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. Ms Morales' fingerprint was located within the vehicle. The offender's DNA was found upon clothing in the vehicle and on the vehicle itself.

10. At the time of the offending, the offender was on bail in relation to other unrelated offences.

11. A victim impact statement prepared by the taxi driver was read to the court by counsel for the Crown. I have taken this into account in considering the appropriate sentences. 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 safe. It had an effect on his wife and family. In particular, his children's behaviour changed and only returned 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. It is very clear that the attempted aggravated robbery was a dramatic incident which has significantly affected the taxi driver.

12. The aggravated burglary on 7 January 2018 is in the low to mid range of objective seriousness. It did not involve breaking in order to enter, it was a burglary to a nonresidential part of a residential building complex, there were no interactions with people in the complex and there was no unnecessary damage.

13. The offence of theft is in the mid range of objective seriousness having regard to the fact that a substantial item, namely a motorbike, was stolen.

14. The charge of dishonestly taking a vehicle without consent is in the mid range of objective seriousness having regard to the fact that the vehicle was a substantial item that was then used for further criminal activity.

15. The aggravated burglary at the Subway store on 8 January 2018 is also in the low to mid range of objective seriousness. It was on commercial premises rather than residential premises. It took place at night and did not involve any contact with persons present on the premises or the likelihood of that occurring. There was damage to the glass doors to effect entry. Nothing was taken during the burglary.

16. The attempted aggravated robbery committed on 8 January 2018 was a very serious offence. The offender played the more significant role in the attempt. He was there first on the scene and played a major role in threatening the driver. He had both a knife and what appeared to be a handgun. The use of what appeared to be handgun during the attempted robbery significantly aggravates the offence. That is particularly so when it was not simply possessed but was used in a manner which involved holding it to the head of the victim in a way that led him to believe that he would be shot. As I have indicated, it was not proved that the gun was capable of discharging or that it was loaded at the time. However, that was not apparent to the taxi driver who was faced both with the gun and a substantial knife. The offences did not involve sophisticated planning. It is clear that although searching for a target when travelling in the Toyota Hilux, the taxi driver was a target of opportunity. The offending conduct was directed to an obviously vulnerable class of persons, namely taxi drivers whose job will often require them to be on the road early or late in the day and carrying money. The taxi driver was not in fact injured during the attempt other than psychologically and those psychological impacts upon him and his family are those that one would expect from such serious conduct. I assess the offence as being in the mid range of objective seriousness for attempted aggravated robbery.

17. The offender is 23 years old. He was 22 at the time of the offending. He was born in Shepparton and has six siblings. His father did not play much of a role in his life. His father misused alcohol and drugs. He died five or six years ago. His mother died when the offender was seven years old. He spent time in foster care, living with his grandmother and living with his eldest sister. He suffered from sexual abuse at the ages of seven and eight. The abuser was a friend of his foster mother's brother. Unfortunately, the abuser later married his sister and the abuse continued until the age of 12. At the age of 12 a positive change occurred and he was living with a different foster family to whom he disclosed the abuse. As a result of that disclosure, his sister left the abuser and he was able to move back in with her. At that point he was in trouble with the law and at the age of 13 he moved into housing run by the Richmond Fellowship. After that he was consistently in trouble with the law. At the age of 13 he was introduced to cannabis, methamphetamine and MDMA. At the age of 15 he was introduced cocaine. At the age of 18 or 19 he was introduced to heroin.

18. He only completed Year 7 at school. He has subsequently completed Year 10 at the Canberra Institute of Technology.

19. The offending occurred in order to support his drug habit. There was a period during which he had access to funds as a result of compensation received because of his sexual abuse. He had sufficient insight to realise he was abusing those funds and put an amount in a term deposit. As he was unable to access those funds, he turned to crime to support his drug use.

20. The offender has a poor criminal history. [Redacted for legal reasons.] As an adult he has convictions for failing to appear, failing to alleviate an animal's pain, common assault, obstructing or resisting a territory public official, aggravated burglary, minor theft, choking, possessing a knife without reasonable excuse, failing to stop for police, driving while suspended, driving unaccompanied, driving without L plates, possessing cannabis, using an uninsured vehicle, unlawful possession of stolen property, using an unregistered vehicle and furious, reckless or dangerous driving. As an adult the longest sentence that he has been given was for choking for which he was given a sentence of 22 months imprisonment.

21. The offender pleaded guilty to these offences when the matter was in the Supreme Court but prior to it being listed for trial. I will allow a reduction in the custodial sentences that I otherwise would have imposed of approximately 15% on account of the pleas of guilty.

22. The offender has spent 395 days in custody (that is 12 months and 30 days) prior to today. His sentence will be backdated to take this period into account.

23. For offending of this nature general deterrence, punishment, denunciation and protection of the community are all important sentencing considerations. Having regard to the offender's criminal history, protection of the community and specific deterrence are significant considerations.

24. It is necessary to take into account his disrupted childhood and the abuse that he suffered during that period. It is likely that the absence of secure parental figures and the abuse that he suffered was causally significant in his commencement of the use of illicit drugs at a young age and the criminal activity associated with it.

25. So far as his current offending was driven by addiction to drugs and the need to fund that drug use, I take into account as a mitigating factor that he was introduced to drugs at a very young age when he was not able to make a mature decision about their use.

26. While the youth of the offender must be taken into account and given significant weight, that consideration must be weighed against his continual recidivism. I take into account the fact that until these offences, it was possible to say that the gravity of the offending as an adult disclosed in the criminal history was less serious than his earlier criminal history. I also take into account that there has been at least one period between May 2013 and May 2015 where his record does not disclose any offending.

27. Notwithstanding the long history of offending, the offender is still a young man. His offending appears to have been driven by drug use which in turn has been influenced by his disrupted childhood. There must remain hope that with increasing age and some psychological assistance he will be able to address his drug use and hence work towards a lawful life. Having said that, the material before the court is insufficient to indicate how likely that is. Nevertheless, a sentence for a man in his position must take this factor into account.

28. So far as the most serious offence, that of attempted aggravated robbery is concerned, I was provided by the parties with a number of comparable cases which I have taken into account: R v Billington [2014] ACTSC 350; R v Lowe [2015] ACTSC 116; Hall v The Queen; Barker v The Queen [2017] ACTCA 16; R v Lock [2016] ACTSC 319; and R v Beattie [2019] ACTSC 12.

29. Because of the close relationship between the offences committed on 7 January 2018, there will be a significant degree of concurrency in relation to those offences. It must also be borne in mind that the overall period of offending is brief, being seven and a half hours across the two days. Because of the gravity of the course of conduct and the seriousness of the offences, totality of the overall sentence will be a significant consideration. Further, a significant degree of concurrency must be introduced in relation to the separate occasions of offending for reasons of totality.

30. The structure of the sentences that I will impose is as follows. On the aggravated burglary offence of 7 January 2018, the starting point is 30 months reduced to 26 months on account of the plea of guilty. For the theft, the starting point is 24 months reduced to 20 months on account of the plea of guilty. For the take motor vehicle without consent, the starting point is 24 months reduced to 20 months on account of the plea of guilty. The sentence for theft will be cumulative as to six months upon the aggravated burglary sentence but otherwise concurrent. The take motor vehicle without consent will be cumulative as to six months on the sentence for the theft but otherwise concurrent.

31. In relation to the offence of aggravated burglary committed on 8 January 2018, the starting point is 30 months imprisonment reduced to 26 months on account of the plea of guilty.

32. On the charge of attempted aggravated robbery, the starting point is four and a half years imprisonment reduced to three years and 10 months on account of the plea of guilty. This contrasts with the sentence of 31 months that I will impose upon Ms Morales. I have considered the question of parity as between offenders having regard to their different roles in the offending conduct and their personal circumstances.

33. The first sentence to be imposed will be that for the attempted aggravated robbery. The sentences for the aggravated burglary on 8 January 2018 (the Subway store) will be cumulative as to 12 months upon that sentence. The sentences for the aggravated burglary, theft and taking a motor vehicle without consent committed at the Axis Apartments in Lyneham will be cumulative as to 18 months upon the previous sentence.

34. This gives an aggregate sentence of imprisonment of six years and four months (76 months). I will set a non-parole period which is approximately 55% of the head sentence, namely three years and six months. This is a lesser period than I would have routinely imposed, but it appears that it is warranted by the offender's relative youth and the possibility that the offender demonstrates a commitment to his own rehabilitation during his period in custody and would therefore benefit from the conditional freedom permitted by a longer than usual period on parole.

35. The sentence will be backdated to take into account the time spent in custody attributable to these offences.

1. On the charge of attempted aggravated robbery (CC2018/2413), the offender is convicted and sentenced to imprisonment for three years and 10 months from 8 January 2018 until 7 November 2021.

2. On the charge of aggravated burglary (CC2018/1066), the offender is convicted and sentenced to imprisonment for 26 months from 8 September 2020 until 7 November 2022.

3. On the charge of aggravated burglary (CC2018/2410), the offender is convicted and sentenced to imprisonment for 26 months from 8 March 2021 to 7 May 2023.

4. On the charge of theft (XO2018/31353), the offender is sentenced to 20 months imprisonment from 8 March 2022 to 7 November 2023.

5. On the charge of dishonestly take a motor vehicle without consent (XO2018/31451), the offender is sentenced to 20 months imprisonment from 8 September 2022 to 7 May 2024.

6. The non-parole period starts on 8 January 2018 and ends on 7 July 2021.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.