R v Stacker [2019] ACTSC 219

Firearms Act 1996 (ACT) s 42(a)(iii)

Criminal Code 2002 (ACT) ss 45A, 310, 311, 403(1)

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

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

R v Campbell (Unreported, Supreme Court of Australian Capital Territory, Justice Refshauge, 24 April 2009)

R v Henry & Ors [1999] NSWCCA 111

R v Stacker [2017] ACTSC 240

SCC 152 of 2018; SCC 262 of 2018; SCC 110 of 2019

1. On 14 May 2019, the offender was committed for sentence from the Magistrates Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT), for the following two offences:

(a) Unauthorised possession of a prohibited firearm (CC2019/712), contrary to s 42(a)(iii) of the Firearms Act 1996 (ACT). This offence carries a maximum penalty of 10 years' imprisonment.

(b) Aggravated robbery (CC2019/1103), contrary to s 310(b) of the Criminal Code 2002 (ACT) (Criminal Code). This offence carries a maximum penalty of 25 years' imprisonment, a fine of $375,000, or both.

2. These offences relate to an incident on 7 January 2019.

3. On 29 May 2019, the offender was arraigned on two separate indictments dated 5 July 2018 and 9 November 2018. He entered pleas of guilty to the following three offences:

(a) Damaging property (CC 2018/2149), contrary to s 403(1) of the Criminal Code 2002. This offence carries a maximum penalty of 10 years' imprisonment, a fine of $150,000, or both.

(b) Burglary (CC 2018/2148), contrary to s 311 of the Criminal Code. This offence carries a maximum penalty of 14 years' imprisonment, a fine of $210,000, or both.

(c) Aggravated robbery by joint commission (CC 2018/6762) contrary to s 310 of the Criminal Code by virtue of s 45A. This offence carries a maximum penalty of 25 years' imprisonment, a fine of $375,000, or both.

4. On 28 January 2018 the offender and another man held up an IGA supermarket in Isabella Plains. The offender was armed with a kitchen knife. They obtained cash in the sum of $3046. This is the aggravated robbery (CC2018/6762).

5. There is a victim impact statement from one of the IGA workers. He was a school student working in his first job. His statement, to some degree, minimises the effects upon him. There is however another statement from his mother. It provides a more comprehensive picture of the effects on her son.

6. On 31 January 2018 the offender broke into a house in Kambah. The fly screen was damaged. This is the burglary and damaging property offences (CC2018/2148; CC2018/2149).

7. On 7 January 2019 the offender and another man robbed a person outside his workplace. The offender had a shot gun and demanded the victim's car keys. When the victim tried to run away the offender shouted "stop or I will shoot you". The keys were handed over. A number of items were stolen from the vehicle. The offenders left the scene in their own vehicle. The victim chased them. The offenders forced him to stop. They confronted the victim and tried to pull him out of his vehicle. The other offender aimed his gun at the victim and pulled the trigger. It did not fire. The victim was then struck with the rifle. These facts make up the aggravated robbery (CC2019/1103).

8. There is a victim impact statement from this victim. Not surprisingly the effect on him has been significant. He suffered some relatively minor physical injuries but an extensive psychiatric onslaught. This was exacerbated when he discovered that the firearm, which had been apparently discharged at him, was a real weapon. This paragraph from his statement summarises the effects upon him:

It could have been the end of it, if the gun hadn't of jammed, it would have been the end of it. I have a family, kids, grandkids, a life. It could have all ended. They all said how lucky I was. I told my daughter and she burst into tears, and we have kept it away from the grandkids as we are worried about the impact it would have on them. It's so hard to put into words what I really felt, then, and still now. Even at home, I have changed how I do things, fearful of another attack. Mowing my lawns, general gardening, leaving my home, it has just changed everything.

9. Criminals don't think of these basic matters when they carry out crimes against people. They should, and they should reflect on how their actions, even if resulting in no physical injury, can have lifelong consequences for innocent people whose everyday habits will change.

10. Later on 7 January 2019 the offender was found unconscious on the median strip of Drakeford Drive. There was a replica revolver in his pocket. The offender was taken to hospital and later arrested. This is the firearm offence (CC2019/712).

11. There is an element to the firearm offence that I think requires mention. It was suggested that the offender's actions in having the replica firearm were part of a self-destructive intent sometimes referred to as "cop suicide". This involves police being called to the scene of a person, apparently armed and dangerous, and then shooting that person in response to an apparent serious threat. As pointed out by the Crown, this type of conduct not only results in the death of a person but has a potentially very serious effect on the police involved, especially on their discovery that the firearm was not an operating weapon.

12. I have previously sentenced this offender (R v Stacker [2017] ACTSC 240). I refer to my comments about certain subjective aspects of his background. His counsel today urged me to take into account these features, together with other subjective matters that have arisen since, and to not treat the offender as a person who has ignored the warnings he previously received.

13. The offender also appeared before me sometime after being sentenced and he seemed to have learned from his misguided conduct. He looked well, he had put on weight, he had stopped using drugs and he seemed on his way to a rehabilitated life. Unfortunately he relapsed into crime and drugs and the future for him now bares the simple choice of continuing down this path, and having the AMC as his alternative address, or finally doing something about his wayward conduct.

14. The letter from Mission Australia, dated 8 August 2019, gives me some hope that he has commenced, perhaps again, on the right path.

15. The offender was born in 1994. He left school in Year 9. He has had one serious relationship but this ended unfortunately when his partner died as a result of a heroin overdose. There is a suggestion that his offences were influenced by his reaction to this tragedy. That may well be so, and I do take into account his mental state at the time, but nevertheless he must take responsibility for his actions. Dr Furst, a psychiatrist said:

Mr Stacker's actions at the time of the alleged burglary offence on 31/01/18 and the alleged robbery offence on 28/01/18 were purposeful and goal-directed, suggesting he was aware of the nature and quality of his alleged conduct.

16. Notwithstanding the above expressed opinion, Dr Furst also said:

In my opinion, his relapse into drug use was likely triggered and/or maintained by the sudden death of his partner Kelly Crowe from a drug overdose and his increased use of methylamphetamine and Xanax (Alprazolam) after her death. In my opinion, the shock and trauma of his partner's death resulted in a maladaptive means of coping through avoidance and heavy drug use, mitigating to some degree against the seriousness of his actions.

17. The doctor said that the offender had a moderate to high risk of reoffending because of "his criminal history, drug addiction, low cognitive function, serious mental illness and limited insight". He recommended ongoing psychiatric treatment and drug and alcohol treatment.

18. The offender has a long criminal record probably dictated by his addiction to drugs, but exacerbated by the effect of the drugs on his mental impediments. I do however accept that the death of his partner played a part in his return to crime and that his future, in terms of rehabilitation, is not as bleak as suggested by the Crown.

19. In relation to objective seriousness I think the robbery at the IGA, having regard to the offender's possession of a knife and the threats to young people, is of about medium objective seriousness. I think the other robbery, involving the use of a gun, is more serious, so I place it above medium objective seriousness.

20. It is an aggravating feature of all of the offences that they were committed while the offender was on parole. One matter of credit to him is that on 28 January this year he voluntarily surrendered his parole.

21. Sentencing requires consideration of a number of matters. These include ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 says a person should not be sent to prison except as a last resort. Section 33 is also important.

22. The Crown referred me to authorities by way of guidelines and sentencing practice. These included R v Campbell (Unreported, Supreme Court of Australian Capital Territory, Justice Refshauge, 24 April 2009) (Campbell), Hall v The Queen; Barker v The Queen [2017] ACTCA 16; R v Henry & Ors [1999] NSWCCA 111 (Henry). I have particularly noted the guidelines in Henry at [161] and the observation in Campbell concerning the use of knives.

23. Neither of the co-offenders in the respective robberies has yet been sentenced. Therefore, no question of parity arises.

24. I have a good deal of sympathy for this offender. I think he is capable, as he has shown previously, of getting away from drugs. It will no doubt take a good deal of commitment and will need the assistance of professional advisers and treaters.

25. The offences however must be punished, both because of general deterrence and specific deterrence so that this offender, if he doesn't already know, will realise the consequences of his actions.

26. Some of the offences can be dealt with concurrently, but there must be a degree of accumulation in respect of the two robberies. At the same time I recognise that principles of totality must be taken into account to avoid an overly long sentence.

27. The offender has been in custody for these offences for 423 days. Accordingly the sentences will be backdated to 18 June 2018. He is also entitled to a discount for his pleas of guilty, which I assess at about 25%. The discount has been factored in to the orders I will now make.

(a) For the offence of aggravated robbery by joint commission (CC 2018/6762), the offender is sentenced to 2 years and 6 months imprisonment commencing on 18 June 2018 and ending on 17 December 2020.

(b) For the offence of damaging property (CC 2018/2149), the offender is sentenced to 1 month imprisonment commencing on 18 June 2018 and ending on 17 July 2018.

(c) For the offence of burglary (CC 2018/2148), the offender is sentenced to 6 months imprisonment commencing on 18 June 2018 and ending on 17 December 2018.

(d) For the offence of aggravated robbery (CC2019/1103) the offender is sentenced to 3 years imprisonment commencing on 17 December 2019 and ending on 16 December 2022.

(e) For the offence of unauthorised possession of a prohibited firearm (CC2019/712) the offender is sentenced to 12 months imprisonment commencing on 17 June 2022 and ending on 17 June 2023.

(f) The total sentence is 5 years imprisonment commencing on 18 June 2018 and ending on 17 June 2023.

(g) I set a non-parole period of 2 years and 6 months commencing on 18 June 2018 and ending on 17 December 2020.

I certify that the preceding twenty eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.