[2016] ACTSC 192

Rowland sentenced to four years and six months' imprisonment for aggravated robbery. Nonparole period of two years and four months. See [51]-[52].

Herceg sentenced to a total of 21 months' imprisonment, nine months to be served full-time and the remainder suspended on 12-month good behaviour order. See [53]-[55].

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - serious aggravated robbery on supermarket - armed and in company

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - driving motor vehicle taken without consent - accessory after the fact to robbery - driver of getaway car

Crimes (Sentencing) Act 2005 (ACT) s 35

R v Clarke [2013] NSWDC 335

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Keenan [2014] ACTSC 342

SCC 246 of 2015; SCC 247 of 2015; SCC 268 of 2015

1. Mr Rowland was committed to the Supreme Court to be sentenced for the offence that on 25 June 2015 he dishonestly appropriated $3,561.94 belonging to Woolworths Pty Ltd with the intention to permanently deprive it of the property and, at the time of doing so, used force with the intention of dishonestly appropriating the property and was armed with an offensive weapon (a replica gun) contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty is 25 years' imprisonment.

2. Mr Rowland pleaded guilty on 13 November 2015, the fourth mention in the Magistrates Court. In the context that Mr Rowland made immediate admissions to the police, under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), he should receive a 25% discount for the plea.

3. Mr Herceg was committed to the Supreme Court to be sentenced for the offences that on 25 June 2015 he:

(a) assisted the offenders Rowland and McCracken knowing that they had committed a robbery and did so with the intention of allowing them to escape apprehension contrary to s 717(1) of the Criminal Code (maximum penalty 15 years' imprisonment); and

(b) dishonestly without consent drove a motor vehicle belonging to another contrary to s 318(2) of the Criminal Code (maximum penalty 5 years' imprisonment).

4. Mr Herceg pleaded guilty on 10 December 2015, the fifth mention, which was the first opportunity to do so after count (a) was offered. In light of the considerations in s 35 of the Sentencing Act, he should receive a 25% discount for the pleas.

5. The co-offender, Mr McCracken, has pleaded guilty but has not yet been sentenced.

6. On 16 June 2015 there was a burglary in Monash in the ACT and the spare keys to a Subaru vehicle were taken. Two nights later, on 18 June 2015, the Subaru vehicle was stolen from the driveway of the residence. It had been locked and, when taken on 18 June, it was not broken into.

7. On 25 June, Mr Herceg drove the co-offenders to the Woolworths supermarket at Kambah in the stolen Subaru vehicle.

8. At about 9:00 pm, Mr Rowland and Mr McCracken ran from one of the supermarket car parks towards the front doors of the supermarket. Mr Rowland was holding what looked like a shortened rifle (but was a nail gun that had been altered to look like a shortened rifle) and Mr McCracken was holding what looked like a pistol (but was a cap gun that had been painted). Both were wearing hooded jumpers and dark pants. They approached the service desk. Mr Rowland pointed his firearm at a female attendant and repeatedly shouted at her, demanding that she open the till. She was unable to do so because she was so frightened. She was not sure whether the firearm was real. She crouched on the ground near the service desk. Mr McCracken came to the front of the service desk and produced a bag. Another female attendant removed money ($3,561) from the tills and placed it into the bag. She was very frightened and believed that if she failed to do so she would be shot.

9. Both men ran from the store to the front car park and entered the vehicle driven by Mr Herceg. The vehicle accelerated rapidly from the car park.

10. Police viewed the CCTV footage when they attended the scene.

11. Later, police received information that Mr Rowland and Mr McCracken had been involved in the robbery and Mr Herceg had driven the getaway vehicle. The information suggested that Mr Herceg was "a last-minute inclusion" after another person decided that he would not be involved.

12. An examination of Mr Herceg's phone revealed text messages from Mr Rowland on 25 June 2015 advising that "my driver to the club has pulled out" and asking Mr Herceg whether he would like to drive "us" and "make petrol money for it". Mr Herceg was warned that he should not tell anyone.

13. Police obtained a communication from Mr Rowland's phone at about 2:00 pm on 23 June 2015, stating that he and Mr McCracken needed "a hottie by tonight", i.e. they needed a stolen motor vehicle. On 26 June 2015 there was a communication that appears to have concerned the disposal of evidence in bushes. There were conversations between Mr Rowland and Mr McCracken expressing concern about the police investigation into the robbery.

14. On 23 September 2015, Mr Rowland was arrested. He participated in an interview in which he admitted that he had participated in the robbery. He stated that he was "high" on "ice" at the time. He stated that the stolen vehicle had been disposed of at Farrer and firearms had been hidden in nearby bushes. He indicated the location on a map. He said that the proceeds of the crime had been divided between the three participants. He had used his share to repay a drug debt. He had needed the money following a home invasion in which he was threatened with a firearm. He expressed regret at the fear that would have been caused to the Woolworths employees, observing that he himself had been frightened during the home invasion when a gun had been pointed at him.

15. Consistent with the principal charge as ultimately formulated, the statement of facts says that Mr Herceg was not aware of the intention of the co-offenders to rob the Woolworths supermarket until after the robbery was committed. At the sentencing hearing, Mr Herceg gave reasonably credible evidence to the same effect and was not cross-examined on the issue.

16. Mr Rowland has been in custody since 23 September 2015 solely in relation to this matter.

17. Mr Herceg was arrested on 30 June 2015 and has been in custody since 30 September 2015 solely in relation to these matters.

18. In relation to Mr Rowland, the offence is of high objective seriousness for the following reasons:

(a) Only one circumstance of aggravation is required to support the offence. In this case, the aggravating circumstance that was relied upon was the possession of an offensive weapon by Mr Rowland. An additional aggravating feature that could have been relied upon in the absence of an offensive weapon (and which aggravates the seriousness of the offence) was that Mr Rowland was in the company of Mr McCracken.

(b) It is an additional aggravating feature that both Mr Rowland and Mr McCracken were armed to the knowledge of Mr Rowland.

(c) Not only were both weapons visible to the victims but Mr Rowland pointed his weapon at a victim at the time that he aggressively demanded money.

(d) The offence was planned by Mr Rowland and Mr McCracken (a stolen vehicle and separate driver were secured and the offenders were wearing hooded tops). Although the planning could not be described as sophisticated, it was significant.

(e) It appeared to the victims that the weapons were firearms, capable of causing death.

(f) There were two immediate victims: the two female attendants. Although there are no victim impact statements, both victims must have been terrified and the incident would have had an ongoing impact on them.

(g) The offence was committed while the store was open and there was the potential for a number of people to have been terrified.

(h) A reasonably substantial amount of money was taken.

19. In relation to Mr Herceg, the principal offence is of low to moderate objective seriousness for the following reasons:

(a) He became involved at the last minute and his involvement was brief.

(b) Although he understood that something untoward was to occur, there is no evidence that he fully understood his role or appreciated the nature of what was to occur until after it had happened, at which stage he had little opportunity to withdraw.

(c) He was offered and accepted a share of the proceeds of the robbery.

(d) The assistance that he provided was active assistance, not merely passive assistance.

(e) There is no evidence that he assisted in any way other than as driver of the getaway vehicle, for example by disposing of evidence.

20. The offence of driving a motor vehicle without consent is of moderate objective seriousness because Mr Herceg not only realised that the vehicle had been taken without consent, but he also used it for an unlawful purpose.

21. The offender is 24 years old. He was 23 years old at the date of the offence.

22. He has a significant criminal history. There have been two episodes of possessing a prohibited weapon (on 27 September 2013 and 30 November 2014), the second of which also involved the unlawful possession of stolen property and led to the imposition of an 18-month good behaviour order which was breached by the commission of the offence. As a result of the first firearms offence in 2014, the offender served almost four months of a six-month sentence and the remainder was suspended on an 18month good behaviour order that the offender also breached by committing the offence before the Court. As a result of the second firearms offence, he served a twomonth sentence from August to October 2015. In 2014, the offender served a sixmonth sentence for making a false statutory declaration. From January to April 2015, he served a three-month sentence for common assault.

23. The offence for which I am to sentence the offender is by far the most serious offence that he has committed to date. It occurred about two months after the offender was released after serving a sentence for common assault. As already noted, the offence constituted a breach of good behaviour orders imposed for the unlawful possession of stolen property and was associated with the suspended portion of a sentence for unauthorised possession of firearms.

24. The offender's previous compliance with community supervision is described as "borderline" and he was subject to breach action during a 2015 bail period.

25. The offender is the oldest of three children and has reported no family conflict or dysfunction. However, he experienced a head injury when he was 14 years old and, since then, he has experienced tinnitus in his right ear. His parents consider that the head injury may have been significant. The offender's involvement with the criminal justice system commenced at about that time. The offender's parents and sister continue to support him.

26. Mr Rowland completed Year 12. He then worked as a trade assistant. He was unemployed at the time of the offence, but had commenced a Bachelor of Business Administration at the University of Canberra in April 2015. While in the Alexander Maconochie Centre (AMC), he will continue his studies remotely.

27. The offender commenced using cannabis at about 14 years of age and commenced using methamphetamines at about 19 years of age. He was an irregular user of heroin and other illicit drugs. He informed the author of the pre-sentence report that, prior to the home invasion, he had not used illicit substances for some months. However, after the incident he relapsed into drug use and was using amphetamines on a daily basis. While in the AMC, the offender returned a positive drug test as recently as March 2016. The author of the CADAS report stated that the offender "presented with limited insight into his substance use" and had not been motivated to access treatment. However, recently Mr Rowland has been more willing to seek treatment and has obtained a place on waiting lists for two residential rehabilitation programs.

28. Mr Rowland suffered a traumatic home invasion in June 2015. An unsavoury acquaintance came to reside with him. This acquaintance provided the home invaders with access to Mr Rowland's residence. During the home invasion, Mr Rowland and his girlfriend were assaulted and a demand was made for money. The offender says that this incident made him depressed, resulted in suicidal ideation and caused him to resume the consumption of methamphetamines. The incident was reported to police but the offender declined to provide a statement as he had been threatened. Consequently, the perpetrators were not charged.

29. Evidence in relation to the home invasion comes in the form of hearsay. It is hard to know what really occurred and what role the home invasion played in causing a deterioration of the offender's mental health and substance abuse. Without accepting the rather confusing details of what allegedly occurred, I do accept that an event generally similar to that described by the offender did occur and it did have a significant effect on the offender in the weeks prior to the offence.

30. In custody, the offender has been diagnosed with depression and placed on antidepressant medication. He is in protective custody, which is adding to his stress. If maintained, this custodial status will preclude the offender from participating in the Solaris Program at the AMC.

31. The author of the pre-sentence report assessed the offender as having a medium risk of reoffending, primarily due to his unaddressed illicit substance use. I agree with that assessment. However, Mr Rowland is a relatively young man who will spend a significant period of time in custody where he will find it difficult to access illicit substances. As he has not previously spent a significant period in custody, it is difficult to predict the effect of such a period on him. It may be that it enables Mr Rowland to reflect on his future and address his substance abuse problem. He aspires to complete a university degree and, upon his release, to manage his own business. There is a reasonable prospect that he will achieve those goals and that prospect should be supported by the sentence that is imposed.

32. Mr Herceg was 20 years old at the date of the offence. He is now 21 years old.

33. Putting aside relatively minor driving offences, the prior ACT offences committed by the offender are the possession of knife offence for which he received a six-month good behaviour order, a failure to appear that occurred about a month before these offences (for which he ultimately received a three-month suspended sentence) and an offence of riding in a motor vehicle without consent (that was committed after the offences before the Court). For that matter, the offender received a six-month term of imprisonment to start from 1 July 2015 and to be suspended after three months.

34. In addition, in New South Wales on 8 August 2013, the offender committed a number of offences in the context of a breakdown in a domestic relationship. For the most serious of those offences, he received 18-month good behaviour orders that had expired by the time that the offences before the Court were committed.

35. Having regard to the six-month partially suspended sentence referred to above, it is appropriate that the sentences that I impose should commence on 30 September 2015. The three-month period that was served should be taken into account in fixing the nonparole period.

36. Mr Herceg's parents separated when he was five years old. At that time, he moved with his mother to Canberra. Mr Herceg's father later moved to Canberra and Mr Herceg maintained a relationship with him. When Mr Herceg was eight years old, his mother re-partnered with his step-father. When he was nine years old, his natural father died suddenly of a heart attack.

37. Mr Herceg enjoyed a reasonable upbringing and he maintains supportive relationships with his mother, sister and grandmother. However, his childhood domestic situation was marred by violence on the part of both the offender's natural father and his step-father. The domestic violence has left its mark on Mr Herceg. Further, the grief that Mr Herceg felt at the sudden death of his father has never been fully addressed. Fortunately, while at the AMC, the offender has connected with his paternal half-brother, and together they have been able to process some of their shared issues.

38. Mr Herceg completed Year 8. He undertook two years of a four-year bricklaying apprenticeship with his step-father. However, relationship difficulties between the two and between the offender's step-father and mother caused the offender to leave that employment. He then worked driving vehicles and, for a short period, as a cleaner before beginning work as a fencer. He lost that employment because he lost his driver licence and was using drugs.

39. Mr Herceg is keen to return to the workforce and correctly perceives that employment will be critical to his rehabilitation. The offender's sister's fiancé has offered the offender employment in his piping business. A former employer is supportive and has told the offender's mother that, if the offender obtains his licence, he can return to his employment as a fencer. In any event, the offender should have little difficulty in obtaining employment as he is a courteous and well presented young man.

40. In his teenage years, Mr Herceg began to use cannabis and then progressed to amphetamines. He was using two points daily at the time of the offences. Initially, a continuing drug problem led to disciplinary matters in the AMC. However, he has now undertaken the Smart Recovery Program and he seems to be committed to remaining abstinent. He is pursuing a positive lifestyle at the AMC, involving daily exercise and a healthy routine. The CADAS reporter identified no treatment needs and determined not to make any referrals.

41. The offender said that he had a referral to Directions ACT and would seek counselling support if the need arose.

42. The offender expressed insight, shame and remorse about his offending. He understands the causes. He is committed to finding a more positive peer group.

43. The author of the pre-sentence report says that the offender has a medium to high risk of reoffending. However, I believe that his prospects of rehabilitation are good. He impressed as a sensible young man with insight into the problems associated with exposure to domestic violence, unresolved grief and his decision to turn to drug use to relieve boredom and as a means of self-medication. He is committed to obtaining employment and he has the support of family members.

44. Both offenders, particularly Mr Herceg, are young offenders and rehabilitation is a very important sentencing purpose.

45. In Mr Herceg's case, I am satisfied that he has good prospects of rehabilitation and, as far as it is possible given sentencing purposes such as punishment, the sentences should support his rehabilitation.

46. In relation to Mr Rowland, the purpose of general deterrence is very important; the community will not tolerate extreme threats of violence against strangers in relatively public places, particularly when the motive is financial gain. Other sentencing purposes including punishment, personal deterrence, accountability, denunciation and the recognition of harm to the victims are important. His youth and the fact that there are reasonable prospects of rehabilitation are also very relevant to the sentencing exercise.

47. In relation to the offence committed by Mr Rowland, I note the New South Wales guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (Henry). It is not a guideline judgment in this jurisdiction and the maximum penalty applicable to the offender in Henry was lower than that applicable in this case. However, it is at least useful in that it identifies what may be involved in a "typical case" of armed robbery and the factors that may aggravate such an offence. The offence that was committed in this case is significantly more serious than the "typical case" discussed in Henry.

48. In R v Keenan [2014] ACTSC 342, Burns J helpfully summarised a number of comparable cases.

49. In this jurisdiction, sentences in the range of 3-4 years' imprisonment are often imposed in "typical" cases, i.e. where a robbery is committed by one offender who is relatively young, has a limited criminal history and is armed with a weapon like a knife. In cases that are more serious, either because the objective circumstances are more serious or because the offender's subjective circumstances (including prior criminal history) do not allow for significant leniency, the starting point is often at least six years' imprisonment. In the most serious cases, the starting point can be significantly higher. This is not to say that the starting points for the sentences that have been imposed in other cases are necessarily correct, but the pattern of sentencing in other cases does provide a "yardstick" against which to assess the appropriate sentences in this case.

50. In relation to the offence committed by Mr Herceg, I have gained some assistance from the decision of Norrish DCJ in R v Clarke [2013] NSWDC 335.

51. Mr Rowland is convicted of the offence of aggravated robbery. The starting point for the sentence is six years' imprisonment, which I have reduced by 25%. The offender is sentenced to four years and six months' imprisonment to run from 23 September 2015 to 22 March 2020.

52. I impose a nonparole period of two years and four months, to expire on 22 January 2018.

54. For the offence of driving a motor vehicle taken without consent, from a starting point of 12 months, the sentence is reduced by 25% to nine months' imprisonment to run from 30 September 2015 to 29 June 2016.

55. In relation to the offence of being an accessory after the fact to robbery, a sentence of two years is reduced by 25% to 18 months' imprisonment from 31 December 2015 to 30 June 2017, but the sentence is suspended from next Monday, 11 July 2016. I also make an associated good behaviour order for a period of 12 months. It is a condition of the good behaviour order that the offender reports to Corrective Services at Eclipse House within 24 hours of release from custody, and submits to their supervision for as long as they consider necessary.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell