R v Stacker [2017] ACTSC 240

Criminal Code 2002 (ACT) ss 45A, 310(b), 318(2) and 326

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 33(1)(za)

Barrett v The Queen [2016] ACTCA 38

R v Campbell (No 2) [2016] ACTSC 368

R v Hutchison (Unreported, Supreme Court of the Australian Capital Territory, Chief Justice Higgins, 4 April 2013)

R v Monaghan (Unreported, Supreme Court of the Australian Capital Territory, Justice Refshauge, 11 December 2012)

R v Stacker; R v Campbell [2016] ACTSC 334

Taylor v R [2014] ACTCA 9

Office of the ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

1. On 16 November 2016, the offender pleaded guilty to the following counts on an indictment dated 5 October 2016:

(a) Obtain property by deception (CC 11704/15), contrary to s 326 of the Criminal Code 2002 (ACT);

(b) Obtain property by deception (CC 11705/15), contrary to s 326 of the Criminal Code 2002 (ACT);

(c) Obtain property by deception (CC 11440/15), contrary to s 326 of the Criminal Code 2002 (ACT);

(d) Obtain property by deception (CC 11706/15), contrary to s 326 of the Criminal Code 2002 (ACT); and

(e) Obtain property by deception (CC 11707/15), contrary to s 326 of the Criminal Code 2002 (ACT).

2. On 17 November 2016, following a judge alone trial which had occupied the previous two days, the offender was found guilty of the following offences:

(a) Aggravated robbery (CC 3093/16), contrary to s 310(b) and s 45A of the Criminal Code 2002 (ACT);

(b) Aggravated robbery (CC 3094/16), contrary to s 310(b) and s 45A of the Criminal Code 2002 (ACT); and

(c) Dishonestly ride in a motor vehicle belonging to someone else (CC 2762/16), contrary to s 318(2) of the Criminal Code 2002 (ACT).

3. The offender had been tried with a co-offender (Tyler Campbell) who was also convicted of the same offences.

4. The maximum penalty for each of the above offences is as follows;

(a) For each offence of aggravated robbery, a fine of $375,000 and/or 25 years imprisonment;

(b) For the offence of dishonestly ride in a motor vehicle belonging to someone else, a fine of $75,000 and/or 5 years imprisonment; and

(c) For each offence of obtain property by deception, a fine of $150,000 and/or 10 years imprisonment.

5. In short summary, on 6 December 2015, the offender and Mr Campbell, armed with knives, robbed two pizza stores - one in Holt and another in Wanniassa. In the first robbery, the offender entered the store and the co-offender remained in the vehicle as the getaway driver. In the second robbery, both men entered the store and threatened the occupants. The offender also committed a related offence involving the use of a stolen motor vehicle.

6. The detailed facts behind the offences are set out in the judgment I gave following the trial (R v Stacker; R v Campbell [2016] ACTSC 334).

7. The robbery offences are serious. They involved the offender threatening staff with an offensive weapon, no doubt terrifying them. While the takings were small, this is more an indication of the robbers' ineptitude and the security provisions in place at the stores, rather than a reflection of the seriousness of the offences.

8. Mr Campbell was sentenced on 13 December 2016 (R v Campbell (No 2) [2016] ACTSC 368). Many of my remarks on sentencing are a repeat of what I said in respect of Mr Campbell.

9. The offender was born in 1994. He is now 22. He left school in Year 8. He has limited literacy skills. He has a close relationship with his mother. He has no relationship with his father.

10. The offender was introduced to illegal drugs at a young age. They continue to be a problem for him. At times, he also consumed far too much alcohol. While he was still a teenager, the offender attended a residential rehabilitation program. On three occasions, he has also attended non-residential programs. They did not seem to keep him away from drugs for very long.

11. On 15 February 2017, I granted the offender bail to enable him to attend the Karralika drug rehabilitation program. He apparently did well in this program and was transferred to the Nexus program. His bail was continued on 20 June 2017. He was due to return for a mention of this matter on 9 August 2017.

12. Regrettably, the offender did not continue to do well and was discharged from the program on 22 July 2017 after returning a positive urine sample.

13. On 23 July 2017, the offender reported to the City Police Station, as required by his bail conditions. As he was in breach of his bail, he was arrested and came back before me on 24 July 2017. I continued his bail for two days to enable him to return to Karralika and ascertain if he could be re-admitted.

14. When the offender returned to Court on 26 July 2017, I was informed that the offender was able to re-enter the program on 1 August 2017. I continued the offender's bail to allow this to occur. The Crown consented. I also confirmed the new sentence date of 15 November 2017, to allow the program to be completed.

15. Unfortunately the matter came back before me on 14 August 2017. The offender had left the rehabilitation program and surrendered himself to court. He is obviously struggling to rid himself of his addiction. A new sentence date was allocated.

16. The offender has a history of mental health problems. These are detailed in the Court Alcohol and Drug Assessment Service (CADAS) Report, dated 13 December 2016. As at the date of the report, the offender was on medication addressing symptoms of schizophrenia, depression and attention deficit hyperactivity disorder (ADHD).

17. I have also been provided with a report from Dr Sullivan, a psychiatrist, which states from paragraph [43]:

Mr Stacker has an established diagnosis of psychotic illness, namely schizophrenia as set out in (DSM V). The course of this illness has been relapsing and is associated with poor insight, substance use and non-compliance with prescribed medication.

Mr Stacker has a severe substance abuse disorder involving cannabis, alcohol and amphetamines, as well as problems with gambling which might be accentuated with intoxication.

He has features of autism and also of attention deficit/hyperactivity disorder, which are clinically significant. These diagnoses are associated with poor judgment or rash, ill-conceived ideas, related to the impaired social knowledge of autism spectrum disorders, as well as the poor attention to detail and reduced impulse control seen in attention deficit/hyperactivity disorder.

18. Although the report is dated in 2013, it is equally applicable today.

19. The offender has a significant criminal history. It has no doubt been influenced by his inability to distance himself from unlawful drugs.

20. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing, as stated in s 7. I am also particularly mindful of s 10, which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

21. It is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). Some of the cases I have considered include: R v Monaghan (Unreported, Supreme Court of the Australian Capital Territory, Justice Refshauge, 11 December 2012); R v Hutchison (Unreported, Supreme Court of the Australian Capital Territory, Chief Justice Higgins, 4 April 2013); Taylor v R [2014] ACTCA 9; and Barrett v The Queen [2016] ACTCA 38.

22. Any armed robbery is, by definition, serious. There are obviously circumstances, such as where a gun is used, which are more serious. However, a knife is a very threatening weapon, especially when accompanied by gesturing and threats as occurred in the present matter.

23. Although arguably the offender played a more significant part in the first robbery than his co-offender, I do not think that is a relevant sentencing consideration in this case because the role of a getaway driver is equally essential to the carrying out of this kind of offence.

24. This means that the starting point should be parity in their respective sentences. I sentenced the co-offender on 13 December 2016 (R v Campbell (No 2) [2016] ACTSC 368). I did say in sentencing Mr Campbell that parity could be affected by differing criminal records.

25. There is no doubt that this offender's criminal record is more extensive than that of Mr Campbell. However, as the Crown has fairly conceded, I can take into account subjective factors to return to parity.

26. In this case, there are significant subjective factors arising from the offender's mental health condition and the series of diagnoses provided by Dr Sullivan. I have also taken into account the moving letter from the offender's partner, Ms Crowe, which confirms my view that the offender seems to be realising that crime is an inappropriate career and there is an overwhelming need to defeat his drug problems.

27. Ultimately, I have concluded that this offender should be treated in the same way as Mr Campbell. I repeat here the comments I made in sentencing Mr Campbell, concerning the severity of the offences and the need for both personal and public deterrence.

28. Subject to a small adjustment for the deception charges, I have also decided to apply the same non-parole period as Mr Campbell in recognition of the offender's attempts, although so far unsuccessful, to escape from his drug addictions.

29. The deception charges are all relatively minor. They involve five occasions of using of a stolen credit card. The offender urged me to treat them concurrently with each other and also concurrently with the sentences for the more serious charges. I am prepared to treat them concurrently with each other but, as they are separate offences involving a separate victim, I think that there needs to be an element of accumulation.

30. In addition, because of the offender's record, I think there needs to be a short period of imprisonment for these offences. I intend to sentence him to one month imprisonment for each offence, to commence a week before the end of the otherwise total sentence.

31. The parties agreed that, taking into account time already served, the starting point for sentencing is 29 May 2016.

(i) For the first offence of aggravated robbery (CC 3093/16), the offender is sentenced to a period of imprisonment of 2 years commencing on 29 May 2016 and ending on 28 May 2018.

(ii) For the second offence of aggravated robbery (CC 3094/16), the offender is sentenced to a period of imprisonment of 2 years commencing on 29 May 2017 and ending on 28 May 2019.

(iii) For the offence of dishonestly ride in a motor vehicle belonging to someone else (CC 2762/16), the offender is sentenced to a period of imprisonment of 6 months commencing on 29 May 2016 and ending on 28 November 2016.

(iv) I make reparation orders in the sum of $75 in favour of Big Pizza Company Pty Ltd and Domino's Pizza Enterprises in the sum of $35.

(v) For each of the offences of obtaining property by deception (CC 11704/15; CC 11705/15; CC 11440/15; CC 11706/15; CC 11707/15), the offender is sentenced to a period of imprisonment of 1 month commencing on 21 May 2019 and ending on 20 June 2019.

(vi) The total sentence is a period of 3 years and 23 days.

(vii) I set a non-parole period of 17 months and 17 days to expire on 14 November 2017.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim.