R v Percival [2018] ACTSC 230

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated robbery - attempted aggravated robbery - sentencing purposes - general deterrence - adequate punishment - good prospect of rehabilitation

Crimes (Sentencing) Act 2005 (ACT) s 35(4)

Hall v The Queen [2017] ACTCA 16

R v Henry [1999] NSWCCA 107; 346 NSWLR 367

Legal Aid ACT (Offender)

1. The offender was committed for sentence on the following offences:

(a) 17 March 2018, aggravated robbery, being an armed robbery at the North Lyneham Mini Mart.

(b) 2 April 2018, aggravated robbery, being an armed robbery at the Braddon Supermarket.

(c) 4 April 2018, attempted aggravated robbery, being an armed robbery at the Lyneham Newsagency.

(d) 4 April 2018, aggravated robbery, being an armed robbery at the O'Connor IGA Supermarket.

2. The maximum penalty for each offence is 25 years' imprisonment, and/or a fine.

3. The offender entered pleas of guilty in the Magistrates Court on 20 April 2018 (the second mention), a little over two weeks after he was arrested. He was committed to the Supreme Court for sentence. The prosecution case on all counts was reasonably strong, particularly in relation to the second offence, where it was very strong.

4. Nevertheless, the very early pleas have a high utilitarian value. In addition, at an early stage the offender co-operated with the police when he was interviewed on 5 April 2018, (albeit after he had been identified as the perpetrator).

5. I acknowledge the provisions in s 35(4) of the Crimes (Sentencing) Act 2005 (ACT). However, given the circumstances to which I have referred, I will allow a 25 per cent discount on the sentences that would otherwise have been imposed.

6. The offender has been in custody since his arrest on 4 April 2018, and the sentences will date from then.

First offence - 17 March 2018 at North Lyneham

7. At about 12:45 PM on Sunday, 17 March 2018, the offender walked into the North Lyneham Mini Mart. He walked around the shop before approaching the counter and informing the female sales assistant that he wished to purchase credit for his mobile telephone. No one else was present in the store.

8. The offender produced a knife like a "chef's knife". It was 18 to 20 centimetres in length. He demanded that the sales assistant give him money, then walked behind the counter and held the knife towards the sales assistant, about 10 centimetres from her body. He repeated his demand for money. The sales assistant pointed out that the store had security cameras, but he repeated his demand for money.

9. The sales assistant asked the offender to put the knife away and he complied by placing the knife in his backpack. The sales assistant opened the cash register and handed cash in smaller notes to the offender. The offender demanded more money, observing that there would be $50.00 notes under the drawer of the till. The sales assistant gave the offender the $50.00 notes that were under the tray. In all, the offender received $1000.00 in cash.

10. The evidence against the offender was strong. It included CCTV footage.

11. At about 10:45 AM on Monday, 2 April 2018, the offender entered the Braddon Supermarket wearing a backpack while his companion, Mr Kim Bundy, stayed outside. The offender selected liquor from a shelf, approached the counter, and asked to purchase cigarettes. The sales attendant recognised the offender as a former customer who had purchased cigarettes on credit and not paid for them. He told the offender that he would not be served until he had paid for the cigarettes purchased previously.

12. At that stage, the offender produced a knife that was about 30 centimetres long and held it at chest height. He demanded the cash in the cash register.

13. The sales attendant became very distressed and attempted to grab the register and give it to the offender. The offender reiterated that he wanted the cash from inside the register.

14. The offender placed the knife in the backpack. The sales assistant opened the register and gave the offender a total of $550.00. The offender also took the liquor that he had selected without paying for it.

15. The evidence against the offender was very strong. It included CCTV footage. When police executed a search warrant on the offender's residence, they seized a backpack and clothing that matched the clothing worn by the robber depicted on the CCTV footage. In addition to the identification evidence from the sales assistant, as a result of the earlier credit arrangement the sales assistant had a note of the offender's mobile telephone number.

16. At about 8:20 AM on Wednesday, 4 April 2018, the offender entered the Lyneham Newsagency holding a knife. He demanded money.

17. The store attendant grabbed the offender's wrist, in which he was holding the knife, and tried to push the offender away. The offender fell against the counter.

18. The offender recovered himself, walked around the counter, raised the knife and demanded money. The shop attendant said that he had no money.

19. The offender left the store and walked across the street, meeting up with Mr Bundy.

20. The evidence against the offender was strong. There was CCTV footage. When arrested, the offender was wearing the same clothing as was depicted in the footage.

21. At about 8:30 AM on Wednesday, 4 April 2018, the offender rode a bicycle to the O'Connor shops and entered the IGA Supermarket.

22. When the shop assistant opened the register, the offender approached the counter holding a knife that appeared to be a 10 centimetre steak knife. He demanded the money in the till.

23. The shop assistant was shocked and frightened. He activated the duress button and began to open the register. The offender urged him to "hurry up". After the shop assistant handed all the $50 and $20 notes to the offender - a total of $750.00 - the offender said, "that will do", and rode away on his bicycle.

24. The evidence against the offender was strong. It included CCTV footage. When arrested, the offender was wearing the same clothing as was depicted in the footage, which was also the same clothing worn during the Lyneham Newsagency attempted robbery. Mapping of the accused's mobile telephone showed that it was in the vicinity of the O'Connor shops at the time of the robbery.

25. On Thursday, 5 April 2018, Mr Bundy participated in a record of interview and implicated the offender in the offences of 2 and 4 April 2018. He stated that he had been in the company of the offender on 2 April 2018 at the Braddon Mini Mart. Later that day, the two men had purchased heroin. Mr Bundy also stated that he had been in the company of the offender on 4 April 2018 outside the IGA Supermarket. Later, he saw the offender enter the newsagency and other shops.

26. The offences of 4 April 2018 occurred in quick succession.

27. The offender was arrested on 4 April 2018. On 5 April 2018, he participated in a record of interview, admitting his participation in each offence. He was shown CCTV images of the offences and he confirmed that he was the person depicted in the images. He stated that he had committed the robberies to fund a heroin addiction.

28. The weapon that was used was a knife. Offences of armed robbery may involve a range of weapons, including weapons more serious than a knife. Nevertheless, a knife is a very frightening weapon and, in the case of these offences, a knife was held in close proximity to the victims. To them, it posed a very immediate threat.

29. The premises were commercial premises. On the other hand, they were local suburban shops where one would not expect a high degree of security for the store attendants. They were just doing their job.

30. The offences occurred in daylight. That is a factor to be taken into account in the sense that there may well have been more members of the public in the general vicinity than would have been the case in the middle of the night.

31. In relation to the first offence, it is clear that the store attendant was alone. The position is not entirely clear in relation to the other offences but I infer that at the very least no one was in the immediate vicinity of the relevant part of the store and in a position to provide any assistance to the victim.

32. In relation to all offences, the offender made persistent demands for money. In relation to the third offence - the newsagency offence - the demands persisted even after the offender fell as a result of the struggle between himself and the store attendant.

33. In each case, a relatively small amount of money and/or stock was taken, but the value of the theft was still significant considering that the businesses in question were small local businesses.

34. No actual violence was used, although in each case the threat of violence was very immediate and frightening. It can be inferred that each victim not only suffered immediate, serious distress, but in each case there was the potential for more lasting harm.

35. In relation to the first offence, the offender complied when asked to put the knife away. In relation to the second offence, he voluntarily put the knife in his backpack when he observed that the victim was so distressed that he was attempting to remove the register rather than the cash inside the register.

36. The duration of each robbery was relatively short, but that is common for robberies of this nature.

37. I accept that the motivation for each robbery was to fund a heroin addiction. That is an explanation rather than an excuse for any offence. However, at least it indicates that the motive was not to accumulate assets.

38. The possession of a knife on each occasion shows there was some pre-meditation, but the offences were unsophisticated. The offender obviously did not think about the fact that his capture or his identification was almost certain; he made no attempt to avoid premises with security cameras, nor did he attempt to disguise himself in any way. Further, in relation to the second offence, had he thought about it, he would have realised that the store attendant would recognise him as a former customer.

39. The objective features of the offences bear a reasonably close similarity to those identified as present in the typical case of armed robbery discussed in R v Henry [1999] NSWCCA 107; 346 NSWLR 367 (Henry). Henry concerned armed robbery in New South Wales, where the maximum penalty was 25 years' imprisonment (as is the case with these offences). The Court of Criminal Appeal indicated that in the typical case (as identified in those proceedings) a sentence of between four and five years' imprisonment would generally be imposed.

40. As Henry discussed a typical case that involved only a limited discount for the plea of guilty, it may be reasonable to consider that the starting point for the sentence was about five and a half years' imprisonment.

41. The decision is now somewhat dated, although recently in Hall v The Queen [2017] ACTCA 16 at [49], the Court of Appeal indicated that, while not binding on this Court, the decision in Henry was persuasive.

42. At the time of the offences the offender was 34 years old.

43. His prior criminal history comprises driving matters, including two offences of driving with alcohol in his blood or breath in 2015 and 2017. He has not committed an offence of the seriousness of these offences and he has never served a sentence of full-time imprisonment. He has no prior convictions for violence or property related matters.

44. The offender was raised in Melbourne. His mother was a heroin user until four years ago. The offender has had no contact with his biological father, at least in recent times and probably for a very long time. The offender's mother re-partnered when the offender was five years old. The offender developed a very good relationship with his step-father whom he regarded as his father.

45. Regrettably about three years ago the offender's step-father went missing. The circumstances in which that occurred are mysterious. The offender's mother says that the loss of the offender's "father" took its toll on the offender, who has found it very hard to cope with his step-father's disappearance. That is quite understandable.

46. The offender has three step-sisters but he has not spoken to them in some time. The offender has been in a relationship for three years but the relationship has been volatile.

47. The offender left school in Year 10. He has had a number of relatively unskilled positions. His mother says that he was a very good worker until the latter part of 2017 when his most recent employment terminated.

48. This brief, three-week series of offences, was an extreme aberration given his age and criminal history. The offender immediately accepted full responsibility for his conduct. Among other things, he participated in the police record of interview on 5 April 2018 and made full admissions and he entered very early pleas. He told the author of the pre-sentence report that he was glad that he had been apprehended because otherwise he may have hurt someone. He was able to identify the victims of his offending and the impact of his behaviour upon them. He reiterated similar sentiments in this Court.

49. Consistent with his acceptance of responsibility, the offender was willing to engage in restorative justice. In relation to the first offence, an indirect restorative justice conference occurred with a positive result in that it was agreed that if he was released from custody by January 2019 - which is not going to occur - he would complete at least six hours of community service work and write a brief report about his experience. The offender and the victim are to be commended for their willingness to engage in that process.

50. The offender's mother identified anger management as an issue that the offender needs to address.

51. The offender has a propensity to abuse substances. His self-reported alcohol use places him at a risky level. In about October 2017, he began to use heroin. His use of heroin quickly escalated into a significant daily habit. He has not used heroin since his arrest in April 2018. He was under the influence of drugs at the time that each offence was committed, and he used or intended to use the proceeds of the offences for the purpose of purchasing heroin.

52. The development of a significant heroin habit at age 33 or 34 is quite unusual; the offender did not report a previous history of drug use, apart from the abuse of alcohol to some degree and a brief period of about one month some years ago when he abused methyl-amphetamine. He now realises that he dealt inappropriately with the problems that he experienced in late 2017, and he should have confided in his mother and girlfriend concerning his problems rather than resorting to the use of drugs.

53. The offender has been assessed as at medium to low risk of re-offending. The main risk factor is untreated illicit substance abuse. It is unusual to see a person facing sentence on four counts of aggravated robbery who is assessed as at medium to low risk of re-offending. This reflects of the offender's lack of significant criminal history, and also the steps that he has taken towards rehabilitation from the risk factor of substance abuse.

54. The offender has been proactive in relation to rehabilitation. He has applied for admission to the Way Back Rehabilitation Centre, and has been placed on a waiting list. There is a significant waiting list to enter the Program. It is unclear whether he will be able to enter the Program, given the sentence that will be imposed. However, his initiative in placing himself on the waiting list demonstrates his commitment to rehabilitation. He also plans to undertake the Solaris Program while in the Alexander Maconochie Centre.

55. As indicated by the maximum penalty, offences of aggravated robbery are very serious. They are very harmful to victims, and they may constrain the way in which commercial activities are conducted.

56. Considerations of adequate punishment and general deterrence mean that, generally, such offences will result in significant sentences of full-time imprisonment. In this case, it was conceded that the only appropriate sentence is one of full-time imprisonment, and I agree with that concession.

57. I have indicated by reference to Henry the length of sentence which might be appropriate in NSW and persuasive in the ACT.

58. However, in the ACT sentences are usually lower than in New South Wales, regardless of whether the maximum penalties are the same. The statistics that have been provided confirm that, in the ACT, a sentence for an offence of this type is lower than the Henry guideline judgment would suggest and are often around three years' imprisonment. I have not analysed the statistics, and the dangers of relying too heavily on statistics are well known and have been the subject of repeated caution by the High Court.

59. I infer that a typical sentence of three years' imprisonment in the ACT reflects two things: first, that most sentences are imposed after a plea of guilty; second, that most offenders have a criminal history involving offences of violence and property damage which has gradually escalated to the point where they commit the very serious offence of aggravated robbery.

60. I am satisfied that the offender has very good prospects of rehabilitation given the facts that:

(a) he has reached 34 years of age without a significant criminal history;

(b) he has not committed previous offences of anything like the seriousness of the present offences;

(c) the offences occurred within a very short space of time, and seem to have been attributable to a decline in mental health and an associated rapid development of a dependence on heroin; and

(d) he has shown remorse and insight into his offending behaviour, and has taken positive steps to address the primary risk factor of substance abuse.

61. The offender is convicted of each offence and I impose the following sentences:

(a) For the first offence, the starting point is two years' imprisonment, which I reduce by 25 per cent to 18 months' imprisonment, from 4 April 2018 to 3 October 2019.

(b) For the second offence, the starting point is two and a half years' imprisonment, reduced by 25 per cent to 22 months' imprisonment, from 4 October 2018 to 3 August 2020.

(c) For the third offence, the starting point is three years' imprisonment, reduced by 25 per cent to 27 months' imprisonment, from 4 January 2019 to 3 April 2021.

(d) For the fourth offence, the starting point is three years' imprisonment, reduced by 25 per cent to 27 months' imprisonment, from 4 April 2019 to 3 July 2021.

62. The total sentence is from 4 April 2018 to 3 July 202, a period of 39 months. I fix a non-parole period of 19 months, from 4 April 2018 to 3 November 2019. The offender is eligible for release to parole on 3 November 2019.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell