R v Thompson [2017] ACTSC 141

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Particular Offences - aggravated robbery - offensive weapon - possessing an unregistered prohibited firearm - dishonestly driving motor vehicle without consent - pleas of guilty - lower prospects of rehabilitation than co-offender - punishment, deterrence and protection of the community - totality - terms of imprisonment imposed.

Firearms Act 1996 (ACT) s 177(2)(a)

R v Lock [2016] ACTSC 319

1. Jason Thompson, you appear before me today for sentence after having pleaded guilty to:

• one offence of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT)(Criminal Code)(CC2016/8990);

• one offence of possessing an unregistered prohibited firearm contrary to s 177(2)(a) of the Firearms Act 1996 (ACT)(CC2016/8991); and

• one offence of dishonestly driving without consent a motor vehicle contrary to s 318 of the Criminal Code (CC2016/8992).

2. I will not go through the facts in detail. It is sufficient to say that on 27 April 2016 you robbed a liquor store in Nicholls in company with your cooffender, Kaine Lock. You were armed with a rifle. You arrived with your cooffender and left the scene in a stolen motor vehicle, taking $2,527.45 in cash and $1,596.40 worth of stock. The total value of the property which was stolen was therefore $4,123.85. The vehicle which you arrived in and left in was stolen on 20 April 2016.

3. On 17 October 2016, your cooffender, Kaine Lock, was sentenced by myself for his involvement in these matters (R v Lock [2016] ACTSC 319).

4. The maximum penalty for the offence of aggravated robbery is 25 years imprisonment, a fine of $375,000, or both. The maximum penalty for the offence of possessing an unregistered prohibited firearm is 10 years imprisonment, a fine of $150,000, or both, and the maximum penalty for the offence of dishonestly driving a motor vehicle without consent is five years imprisonment, a fine of $75,000, or both.

5. Mr Lock was arrested on 28 April 2016. However, you were unable to be located at that time. On 11 May 2016, you were arrested in New South Wales (NSW) in relation to an earlier burglary at a Captains Flat property, during which the firearm the subject of the aggravated robbery charge currently before me was stolen. You remained in custody in NSW until you were extradited to the Australian Capital Territory (ACT) on 10 January 2017. On 11 January 2017, you were first charged in the Magistrates Court with these offences and you pleaded guilty to all three charges. On 18 January 2017 you were committed to this Court for sentence.

6. I note that the offence of aggravated robbery occurred in company and also you were armed with a firearm. I note that there is no evidence that the firearm was loaded, although, of course, the shop assistant at whom you pointed the firearm was not to know that. You pointed the firearm at the shop attendant and later poked him twice in the back with the barrel of the gun while telling him to hurry up. Both you and Mr Lock were wearing balaclavas.

7. The robbery was clearly planned. You and Mr Lock obtained a firearm, balaclavas and the getaway vehicle. The firearm had been stolen in a burglary at Captains Flat on 19 April 2016. I note that you declined to participate in a taped record of interview with respect to these matters.

8. In August 2016 at Queanbeyan Local Court, you were convicted of an offence of break, enter and steal at Captains Flat on 19 April 2016 and sentenced to 14 months imprisonment, commencing on 11 May 2016 and expiring on 10 July 2017. A non-parole period of eight months commencing on 11 May 2016 and expiring on 10 January 2017 was imposed. When you were released on parole you were extradited to the ACT.

9. You have a substantial criminal history extending from [redacted for legal reasons] until these offences in 2016. You have about 69 prior criminal convictions, as well as convictions for traffic offences. [Redacted for legal reasons] you were convicted of two offences of robbery and other offences of violence and you were sentenced to 12 months detention. In 2006, you were sentenced to an aggregate sentence of three years and six months imprisonment for an offence of aggravated robbery and a further attempted aggravated robbery. In February 2016 you were sentenced to five months imprisonment for an offence of robbery. You have also been convicted of offences of arson, burglary and various offences of violence.

10. I was provided with a PreSentence Report prepared in February 2016. You declined to participate in the preparation of the Report I ordered with regard to the present proceedings. The earlier Report notes that you have served a significant amount of time in gaol in a number of states in the past. Your prior engagement with Corrective Services has usually been deemed unsatisfactory.

11. You reported a difficult childhood, with both of your parents abusing substances. Your father died when you were about 11. Your mother evicted you soon thereafter due to behavioural issues, leaving you homeless. As at February of 2016 you reported having no contact with your family. You reported completing up to Year 6 at school. You subsequently attempted to complete Years 7 and 9, but you received a number of expulsions due to violent behaviour. You have been employed for short periods in between bouts of incarceration.

12. You were introduced to the use of alcohol and drugs as a child under the supervision and encouragement of your parents. You commenced amphetamine use at age 18. You reported a number of attempts at residential rehabilitation, but these have apparently been unsuccessful. Corrections' records reveal that you have been known to ACT Mental Health Services since 1997. You advised that you were diagnosed with a depressive condition in 2010, some form of adult personality and behaviour disorder in 2013 and with Obsessive Compulsive Disorder in 2014. You told the author of the Report that you had no mental health issues as at February 2016.

13. On 17 October 2016, I sentenced Mr Lock for his part in the aggravated robbery on 27 April 2016 as well as an offence of dishonestly riding in a motor vehicle on the same date. For the offence of aggravated robbery I imposed a sentence of two years and three months imprisonment, reduced from three years to reflect his pleas of guilty. For the offence of dishonestly riding in a motor vehicle I imposed a sentence of four months imprisonment, of which one month was cumulative upon the sentence for aggravated robbery.

14. I am cognisant of the need to consider parity with the sentences imposed on Mr Lock when sentencing you for the present offences. In my opinion, however, I am justified in imposing significantly more substantial penalties in your case than I imposed on Mr Lock. Mr Lock had only just turned 20 years of age at the time of these offences. You were 30 years of age. Mr Lock had a limited criminal history [redacted for legal reasons] in South Australia. You, as I have already noted, have a very substantial criminal history extending over many years. Mr Lock had not previously served a term of imprisonment. You have served multiple terms, including for similar offences. You were the person who obtained and used the firearm in the present offence of aggravated robbery.

15. I note that each of you had unstable childhoods and that each of you commenced substance abuse at an early age. Mr Lock's age and consequent prospects for rehabilitation were significant factors in sentencing. There was evidence before me that while in custody awaiting sentence he had commenced drug rehabilitation and was employed. You do not have the same prospects for rehabilitation which I found in sentencing Mr Lock.

16. You appear to have settled into a criminal lifestyle and you show no real motivation or commitment to change. In sentencing you, rehabilitation should be given less weight and other sentencing considerations, such as punishment, deterrence and protection of the public should be given prominence. I must also bear in mind the issue of totality, particularly as you served a term of imprisonment in NSW for offences committed at about the same time as the present offences before you were extradited to the ACT. I will endeavour to impose sentences that will make the aggregate of the NSW and ACT sentences the equivalent of what would have been imposed if you had been sentenced for all matters at the same time.

17. I accept that your pleas of guilty were entered at the earliest opportunity. I will reduce by 25 per cent the sentences that I would otherwise have imposed in order to reflect your pleas. I have doubts about whether your pleas reflect real remorse, even taking into account the letter which has been tendered this morning, but I accept that your pleas had real utilitarian value.

18. The maximum penalty prescribed for the offence of aggravated robbery is 25 years imprisonment. Your moral culpability for that offence is high. I would assess that offence as in the midrange of such offences. I would assess the offence of dishonestly driving a motor vehicle without consent as in the lower range of such offences. I note that your offence in which you drove the motor vehicle and as such exercised control over it is a more serious example of this kind of offending than that committed by Mr Lock.

19. The offence of possession of an unregistered prohibited weapon carries a maximum penalty of 10 years imprisonment, which indicates that it is considered by the legislature to be a serious offence. The weapon in question was a shortened .22 Magnum bolt action rifle. As I have said, there is no evidence that it was loaded at the time that it was used. Clearly, you intended that the victim, however, would believe that it was loaded.

20. A degree of concurrency is called for with regard to the sentences for aggravated robbery and the weapons offence. There is limited material before me concerning any connection between drug abuse and the present offences. I note, however, that in the letter which has been tendered today, you have indicated that you committed the offence of aggravated robbery in order to pay for accommodation and for drugs. In any event, I accept the submission which was made by your counsel on the last occasion that it may be inferred that one of the reasons at least why you committed this offence was in order to obtain money and goods that could be used to obtain drugs. In that regard I take into account and give weight to the fact that you were exposed to and commenced drug abuse at a very early age.

21. I record a conviction for the offence of aggravated robbery (CC2016/8990), and you are sentenced to four years and six months imprisonment commencing on 11 November 2016 and expiring on 10 May 2021. But for your plea of guilty I would have imposed a sentence of six years imprisonment.

22. I record a conviction for the offence of possession of an unregistered prohibited weapon (CC2016/8991) and I sentence you to 1 year and 10 months imprisonment commencing on 11 July 2020 and expiring on 10 May 2022. But for your plea of guilty I would have imposed a sentence of two years and six months imprisonment.

23. I record a conviction for the offence of dishonestly driving a motor vehicle without consent (CC2016/8992) and you are sentenced to nine months imprisonment, commencing on 11 January 2022 and expiring on 10 October 2022. But for your plea of guilty I would have imposed a sentence of 12 months imprisonment.

24. The aggregate sentence I have imposed is therefore one of 5 years and 11 months, commencing on 11 November 2016 and expiring on 10 October 2022.

25. I set a non-parole period of four years, commencing on 11 November 2016 and expiring on 10 November 2020.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.