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[2018] ACTSC 153
Supreme Court of the ACT
2018-05-22
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated robbery with axe - theft - attempted aggravated robbery with knife - attempted aggravated robbery in company - dishonestly driving a motor vehicle without consent - serious criminal history - guilty plea - totality of sentences - consideration of s 66 of the Crimes (Sentencing) Act (ACT) - general deterrence - specific deterrence - punishment - denunciation - custodial sentence
R v Twerd (unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 20 June 2013)
1. Taras Twerd has pleaded guilty to four charges:
(1) aggravated robbery (CC2017/3865);
(2) an associated theft (CC2017/3866);
(3) attempted aggravated robbery (CC2017/3870); and
(4) dishonestly driving a motor vehicle without consent (CC2017/3871).
2. The maximum penalty for aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) is 25 years imprisonment, a fine of $375,000 or both. The maximum penalty for theft contrary to s 308 of the Criminal Code is 10 years imprisonment, a fine of $150,000 or both. The maximum penalty for the offence of dishonestly driving a motor vehicle without consent contrary to s 318(2) of the Criminal Code is five years imprisonment, a fine of $75,000 or both.
3. On 21 February 2017, a burglary occurred at an address in Hackett. During the burglary a number of items were stolen including a spare key to a Toyota RAV 4 vehicle. That vehicle was stolen the next night. The motor vehicle was driven by the offender on a number of occasions when further offences were committed. It is that driving which constitutes the offence of dishonestly driving a motor vehicle without consent.
4. On 30 March 2017, the offender entered a liquor store in Holt. He was wearing a black hooded top, dark glasses and a black and white mask with a skull pattern which covered his mouth and lower face. He was carrying a small axe. He approached the counter, brandishing the axe and demanded that the employee working there open the cash register. He shouted at him. The employee opened the cash register and the offender lifted the till from the cash register and left the store. The till contained $1260. He left driving the RAV 4.
5. On 1 April 2017, the offender and an unknown co-offender entered the Lyneham IGA from the front entrance. The offender was wearing a black hooded top, a black and white mask or bandanna which covered his mouth and lower face. He was holding a Bowie knife in his left hand. His co-offender was carrying the small axe used in the previous robbery. He and his co-offender threatened two employees working at the front counter. Another employee who was working at a fruit stand threw an orange at the offender, hitting him on the back. The employee then threw a bottle of Napisan at the offender and co-offender, followed by two more bottles of Napisan. As a result, the offender and cooffender fled from the shop empty-handed. They left in the RAV 4.
6. Police subsequently located the RAV 4. They executed a search warrant upon a premises nearby. The residence was the home address of another person. Evidence provided by that other person and evidence gathered from that residence provided a strong circumstantial case against the offender.
7. All of the offending is aggravated by the fact that it occurred when the offender was on parole. There was a degree of planning in relation to each offence. The dishonestly drive a motor vehicle without consent charge is in the mid range of objective seriousness. The aggravated robbery is an aggravated robbery because of the use of the axe. It is in the mid range of objective seriousness as is the associated theft. The attempted aggravated robbery is statutorily aggravated because the offender possessed a knife. It is also aggravated by the fact that it was in company. It is in the mid range of objective seriousness.
8. The subjective circumstances of the offender are outlined in a pre-sentence report which was tendered. The offender is 44 years old. He was born in Canberra and has two halfsisters and a half-brother.
9. He had a difficult relationship with his father and resided mostly with his mother in Perth until he returned to the ACT to reside with his father, sometime during his teenage years. Both parents are now dead. He reported to the author of the pre-sentence report that he was severely affected by his father's illness with cancer and subsequent death.
10. He has three children, two of whom are still alive. They are aged 18 years and five years. He has no contact with these children currently. He reported that he had a strong work ethic and consistent employment when in the community, predominantly as a painter.
11. He has a significant history of illicit substance use, predominantly heroin. He correctly identified this as a major influence on his offending behaviour. He commenced using cannabis as a child. He began using amphetamines on weekends and commenced using heroin in 2007. By the age of 29 years, he was injecting heroin daily. The increase in his drug use corresponds to the more serious offending in his criminal history.
12. He indicated to the author of the presentence report that upon release he wishes to travel to Western Australia to obtain a Naltrexone implant in order to address his heroin use. He is currently on a significant dosage of methadone whilst in custody.
13. He had previously applied to be able to enter residential rehabilitation programs but had been rejected due to his criminal history. There is no evidence that he has undertaken programs within the Alexander Maconochie Centre in order to improve his capacity to avoid illicit drug use in the future.
14. The offender was on parole at the time of the offences. He has a poor criminal history. Between 1999 and 2004, he was given the benefit of suspended sentences of imprisonment. In 2008, he was given sentences of imprisonment for aggravated burglary and theft. In 2009, he was sentenced to imprisonment for 20 months for forcible confinement. On 20 June 2013, he was given an aggregate sentence of five years and six months for three counts of aggravated robbery and riding or driving a motor vehicle without consent. During a period when he was released upon parole, he committed further offences. During the second half of 2015 and in January 2016, he was given an aggregate sentence of two years and three months for offences of attempting to escape arrest or lawful custody, five counts of minor theft, three counts of theft, one count of burglary, possession of a prohibited substance as well as other charges dealt with by fine.
15. The offender's criminal history indicates that there is little room for leniency.
16. Since being sentenced by Higgins CJ in 2013 for offences committed in 2011: see R v Twerd (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 20 June 2013, the offender has spent most of his time in prison. He was released upon parole in late 2014 but committed further offences whilst on parole in the second half of 2015. He was then released on parole again in January 2017 and committed the present offences, in addition to a further offence for which he was sentenced to an additional four months imprisonment by Magistrate Morrison. Soon after his release on parole in 2017, he was reporting that he was using heroin to his probation officer. He had made some attempts during that period to gain entry into rehabilitation programs but committed the current offences and was arrested before any real progress could be made.
17. The plea of guilty was entered shortly before the trial was listed to commence. It involved pleas of guilty to some but not all of the charges on the indictment being accepted in satisfaction of the indictment. I will allow a reduction of approximately 10 per cent on the sentences that I would have otherwise imposed on account of the plea. The precise reduction will be identified later in these reasons.
18. The offender has been in custody since his arrest on 2 April 2017. His parole was cancelled on 4 April 2017 and hence there are two days which he has spent in custody solely attributable to this offending. I will take that period into account when sentencing the offender.
19. The offences are serious offences. Aggravated robbery is one of the most serious offences in the criminal law. It is a basic requirement of a civilised society that lawabiding members of the community remain free of armed robbers. Punishment, deterrence and denunciation are all important sentencing considerations.
20. The offender's serious criminality appears to be largely driven by illicit drug use. It appears that on both occasions upon which he has been released on parole, he has committed further offences. This is consistent with an inability to remain free of illicit drug use whilst out of custody. The breach of parole report relating to his parole in early 2017 indicates that while he was frank with the parole officer in relation to his drug use, the availability of supports in the form of alcohol and other drug programs was not sufficient to divert him from returning to drug use or from criminal behaviour. While some submissions were made to the effect that his return to drug use was a result of learning of his father's illness, there was no evidence led at the sentencing as to the circumstances that existed upon his release on parole and that issue is not mentioned in the contemporaneous breach of parole report dated 24 February 2017.
21. The effect of the evidence is that there is a mixed picture. It is clear that there is a link between his illicit drug use and his offending conduct. He appears to recognise that link. He appears to have been open to addressing his drug use upon release on parole but that recognition was not sufficient to deter him from engaging in very serious criminal conduct. There is no evidence that he has taken any significant steps to rehabilitate himself in relation to illicit drug use whilst in custody. While having regard to his age, the period spent in custody and his apparent willingness to address his drug use, there must still be some hope of rehabilitation so that he can conduct himself lawfully upon release. However, it is not a case where there is a significant track record of efforts which indicate that he is both motivated and capable of remaining drug-free and hence, free of offending when in the community.
22. The offender has been in custody or on parole for the whole of the period since he committed the offences for which he was sentenced by Higgins CJ in 2013. Those offences were committed on 15 November 2011. The calculation of the period remaining to be served on his outstanding sentences is made more difficult by the fact that he spent time on parole in 2014 and 2015 as well as in 2017.
23. The balance of the outstanding sentence to be served under the prior sentences is disclosed by two documents:
(1) a recommittal order of the Sentence Administration Board which shows that as at 5 April 2017 the offender had two years, five months and 24 days imprisonment outstanding from 4 April 2017 until 27 September 2019; and
(2) the criminal history which discloses a subsequent sentence imposed by Magistrate Morrison on 9 November 2017 of four months imprisonment commencing on 28 August 2019 (one month prior to the expiry of his other sentences) and ending on 27 December 2019. The non-parole period that his Honour set ended on 9 November 2017.
24. Having regard to the gravity of the offences and the offender's criminal history, no sentence other than a sentence of imprisonment is appropriate. For the same reasons, the sentence must be served by full time imprisonment.
25. On the charge of aggravated robbery (CC2017/3865), the starting point is a sentence of three and a half years imprisonment, reduced to three years and two months on account of the plea of guilty. On the associated theft charge (CC2017/3866), the starting point is a sentence of two years imprisonment, reduced to 22 months on account of the plea of guilty.
26. On the attempted aggravated robbery charge (CC2017/3870), the starting point is a sentence of three and half years, reduced to three years and two months on account of the plea of guilty.
27. On the charge of dishonestly driving a motor vehicle without consent (CC2017/3871), the starting point is two years imprisonment, reduced to 22 months on account of the plea of guilty.
28. The theft charge will be entirely concurrent with the associated aggravated robbery. I will introduce an element of concurrency with the sentence imposed by Magistrate Morrison in 2017 as well as with the attempted aggravated robbery and dishonest driving to take account of the fact that all were committed in a relatively short period of time and, more importantly, having regard to questions of totality. The total effective head sentence that I will impose will be a period of six years and two months, six years of which will extend beyond the existing sentence.
29. Under s 66 of the Crimes (Sentencing) Act 2005 (ACT), the non-parole period is required to be calculated having regard to his existing and imposed sentences. The non-parole period will be extended beyond that imposed by Magistrate Morrison which ended on 9 November 2017 by a period of three years. The Sentence Administration Board will need to consider at the time of considering any grant of parole whether, having regard to any efforts to address his drug dependency in detention, there are suitable supports in place upon his release to avoid the pattern of returning to drug use and offending upon his release that is demonstrated by his history.
30. The sentences that I will impose are as follows:
I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Twerd [2018] ACTSC 153