AustLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of the ACT

You are here: 
AustLII >> Databases >> Supreme Court of the ACT >> 2021 >> [2021] ACTSC 94

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Context | No Context | Help

R v Murphy [2021] ACTSC 94 (21 May 2021)

Last Updated: 21 May 2021


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:
R v Murphy
Citation:
Hearing Date(s):
28 April 2021
Decision Date:
21 May 2021
Before:
Loukas-Karlsson J
Decision:
See [78]
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – extensive criminal history – Where subjective history of substance abuse issues and homelessness relevant – Where offender on conditional liberty at time of offence
Legislation Cited:
Criminal Code Act 2002 (ACT) s 310
Cases Cited:
Ashdown v The Queen  [2011] VSCA 408 ; [2011] 37 VR 341
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428
Dyer v R [2011] NSWCCA 185
Hawkins v Hawkins [2009] ACTSC 148
Hili v the Queen [2010] HCA 45; 242 CLR 520
Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565
Jackson v R [2010] NSWCCA 162
Jinnette v R [2012] NSWCCA 217
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Bandy [2018] ACTSC 261
R v Hart (Unreported, Supreme Court of the ACT, Refshauge J, 7 December 2012)
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Hill [2016] ACTSC 310
R v Johnson [2018] ACTSC 137
R v Kilic [2016] HCA 48; 259 CLR 256
R v LM [2021] ACTSC 71
R v Martin [2007] VSCA 291; 20 VR 14
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Ogilvie [2015] ACTSC 296
R v Pham [2015] HCA 39; 256 CLR 550
R v Rahman [2020] ACTSC 319
R v Ridgeway [2018] ACTSC 8
R v Rootsey [2018] ACTSC 63
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
R v Van Rysewyk [2008] NSWCCA 130 at [25].
R v Vance [2008] VSC 468
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Williams [2019] ACTSC 298
R v Zocchi (Unreported – Supreme Court of the ACT, Burns J, 24 February 2012)
Smith v The Queen [2011] NSWCCA 163
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Wronski v Raue [2012] ACTSC 87
Parties:
The Queen (Crown)
Carl Andrew Murphy (Offender)
Representation:
Counsel
V Conliffe (Crown)
K Archer (Offender)

Solicitors
ACT Director of Public Prosecutions
Tim Sharman Solicitors
File Number(s):
SCC 242 of 2020


LOUKAS-KARLSSON J

Introduction

1. On 23 October 2020 Carl Murphy (the offender) pleaded guilty to a single charge of aggravated robbery, contrary to s 310 of the Criminal Code Act 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 25 years’ imprisonment, a fine, or both.

Agreed Facts

2. The offending is set out in an Agreed Statement of Facts. What follows is a summary.
3. On a Thursday evening in August 2020, the offender entered the convenience store ‘Daily Market’, located on Childers Street, in Canberra.
4. The offender walked directly to the checkout, while holding a small black handled steak knife in his right hand.
5. The offender displayed the knife and ordered Ms Li, who was situated behind the front counter, to hand over money from the till. The offender then leaned over the counter and gestured for Ms Li to hurry up. Ms Li was fearful of the offender and tried to maintain her distance. Ms Yang was also standing behind the counter next to Ms Li at this time.
6. Ms Li handed the offender approximately $230 in $50 and $20 notes. The offender then left the store and walked to the Novotel at Northbourne Avenue, where he entered the front passenger seat of a taxi occupied by the driver. The driver saw that the offender was in possession of a knife and told him that he would not allow him inside the taxi with the knife. The offender then dropped the knife in the gutter, and the driver drove the offender to the Ainslie shops, where the offender exited the vehicle.
7. Later the same evening police attended the Daily Market and viewed CCTV footage captured in the store. Police discovered the knife in the gutter outside the Novotel soon afterwards, and subsequently located the offender at the Ainslie shops. The offender stated to police that he had been drinking with a friend at the rear of the shops. The friend stated to police that he had not seen the offender for a matter of hours. The offender was subsequently arrested and searched. The police located $80 in the offender’s possession.

Objective Seriousness

8. The prosecution referred to the NSW Court of Criminal Appeal guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 as a persuasive authority regarding the typical features relevant to the assessment of the objective seriousness of an aggravated robbery.
9. The prosecution identified a number of features of the aggravated robbery, submitting that they were relevant to the assessment of the objective seriousness of the offending. Counsel for the prosecution noted that the offending was relatively unsophisticated and did not appear to involve a great deal of planning, the offender did not cover his face or wear gloves. However, it was submitted that the offending was brazen, given that the offending was committed in early evening in a relatively busy area, and no attempt was made by the offender to conceal his identity.
10. The prosecution submitted that there was a very real threat of violence during the course of the offending, which was reinforced when he leant into the counter and gestured for the victim to hurry up (T9.45-46-10.1-3). It was submitted that the victim was in her place of work and was entitled to feel safe. It was submitted that the resultant theft was a relatively small amount of money.
11. Submissions were not made by the parties as to whether the objective seriousness was low, middle, or high: see R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. It must be stated that references to low, mid and high range are unlikely to be necessarily helpful in this jurisdiction. As has previously been expressed, “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]). The relevant identifying features are set out in the broadly agreed submissions of the prosecution referred to above.

Victim Impact Statement

12. No Victim Impact Statements were tendered in this matter. Notwithstanding the absence of a Victim Impact Statement, the nature of the offending conduct is such to have caused emotional and psychological harm. The Court of course does not require a Victim Impact Statement. Courts understand the effects of an offence such as this.
13. In R v Ridgeway [2018] ACTSC 8 at [11] Elkaim J stated the following with regard to the harm experienced by the victims of crime:

It is important to remember that harm is not restricted to physical harm and that the damage that can be caused to a victim can be extensive and long lasting, even though no physical injuries are caused.

Conditional Liberty

14. At the time of the offending the offender was subject to a good behaviour order imposed by the Magistrates Court for an offence of an act of indecency, and an Intensive Corrections Order imposed by the NSW Local Court in Queanbeyan for an offence of failing to comply with his reporting conditions.
15. The offender was also subject to bail in relation to a charge of failing to report annually contrary to s 37(2) of the Crimes (Child Sex Offenders) Act 2005 (ACT).
16. Counsel for the prosecution submitted that the offence was seriously aggravated by the offender being on conditional liberty at the time of the offence.
17. Breach of conditional liberty is relevant to the determination of the appropriate punishment as it is an aggravating factor on sentence; it is not, however, correct to submit that it is relevant to assessing the objective seriousness of an offence: see R v Bandy [2018] ACTSC 261 at [27]- [30].
18. The assessment of objective seriousness of an offence is a fundamental step in determining the range of proportionate sentences available for the offence. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, Mason CJ, Brennan, Dawson and Toohey JJ stated:

The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.

19. In R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15], Spigelman CJ stated:

It is authoritatively established that the common law principle of proportionality, propounded in Veen v The Queen (No 2), requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances.

20. In Muldrock v The Queen [2011] HCA 39; 244 CLR 120 the Court stated the following at [27]:

The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

21. As a consequence, the NSW Court of Criminal Appeal has consistently made it “clear that while the fact an offender was on conditional liberty was relevant to the determination of the appropriate punishment”, it does not “bear on the objective seriousness of an offence”: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [90]- [92]; Hillier v DPP [2009] NSWCCA 312; 198 A Crim R 565 at [30]; R v Van Rysewyk [2008] NSWCCA 130 at [25].

Breach of Good Behaviour Order

22. Upon conviction, the offender will be in breach of a good behaviour order imposed by the Magistrates Court. Thus, the Court’s discretion is enlivened to deal with the matter pursuant to s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), which relevantly provides:

108 Court powers — breach of good behaviour obligations

(1) This section applies if —

(a) a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and

(b) section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order.

(2) The court may do 1 or more of the following:

(a) take no further action;

(b) give the offender a warning about the need to comply with the offender’s good behaviour obligations;

(c) give the director-general directions about the offender’s supervision;

(d) amend the good behaviour order;

(e) if the offender has given security under the order —

(f) cancel the order.

(3) If the court cancels the good behaviour order, the court must —
(a) if section 109 applies to the offender’s good behaviour order—deal with the offender under that section; or

(b) in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence.

(5) The court’s powers under this section are subject to section113 (Good behaviour orders—limitations on amendment or discharge).

(6) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the relevant offence

23. The prosecution submitted that, given that the good behaviour order was breached a matter of weeks prior to its expiry, that it would be appropriate for the Court to take no further action, and treat the existence of the bond as an aggravating factor of the present aggravated robbery charge. I propose to take no further action and deal with the matter as an aggravating factor on sentence, as discussed above at [17].

Time in Custody

24. On 27 August 2020 the offender was arrested in relation to this charge. On 28 August 2020 the offender was granted bail on this charge.
25. On 16 September 2020 the offender was arrested for a breach of bail and refused bail on this charge, and the fail to report annually charge. The offender has remained in custody since this date.
26. On 24 September 2020, the offender was sentenced in the Magistrates Court in relation to the failure to report charge. The offender was sentenced to a head sentence of 12 months’ imprisonment, backdated to commence on 12 September 2020, with a non-parole period of 6 months.
27. The non-parole period for this sentence came to an end on 11 March 2021, however the Sentence Administration Board refused to grant the offender’s application for parole. The offender’s next application for parole will be heard on 3 June 2021.
28. Accordingly, as of 28 April 2021, the offender has spent two days in custody solely in relation to this charge.
29. Section 63 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) allows for a relatively broad discretion whereby periods of presentence custody to be taken into account:

63 Start of sentences—backdated sentences

(1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.

(2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.

(3) However, subsection (2) does not apply to—

(a) a period of custody of less than 1 day; or

(b) a sentence of imprisonment of less than 1 day; or

(c) a sentence of imprisonment that is fully suspended; or

(d) the suspended part of a partly suspended sentence of imprisonment.

(4) If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender’s arrest.

(5) Subsection (4) applies even if the offender is not convicted or found guilty of—

(a) the offence for which the offender was first arrested; or

(b) any particular offence or offences in the series.

30. In Hawkins v Hawkins [2009] ACTSC 148 at [82], Refshauge J stated: “In my view, the presentence custody which is referred to in s 63(2) does not have to be referable only or even primarily to the offence for which the sentence is imposed.”
31. In Wronski v Raue [2012] ACTSC 87 at [17], Penfold J stated: s 63(2) “confers adequate scope for a sentencing court to backdate to an extent that is in all the circumstances fair, without requiring backdating that is inappropriately generous or permitting backdating that is inappropriately unfair”.
32. Therefore, under s 63(2) of the Sentencing Act, the offender’s period of custody in 2020 may be taken into account for the purpose of this sentence and the question of totality.
33. I also note the offender is serving an existing sentence of imprisonment. As the Court will be imposing imprisonment there is a requirement to reset the non-parole period: see ss 64-66 Sentencing Act.

Subjective circumstances

Pre-Sentence Report

34. In evidence before me is the Pre-sentence Report (PSR) prepared for the offender.
35. The offender is a 40 year old man. He has three siblings, and four half-siblings. The offender’s parents separated when he was 10 years of age. His sister reported to the PSR author that the offender began to get into trouble not long afterwards, becoming a ward of the state at the age of 13. The offender completed schooling up to Year 8, when he was asked to leave due to poor behaviour and truancy. He reported a limited employment history, which he attributed to his frequent incarceration and substance abuse issues. The offender has been employed in the AMC kitchen since December 2020 and has received good reports from his supervisors.
36. The offender indicated to the PSR author that he had the support of his father and sister, however the offender’s sister expressed significant frustration with the offender and his behaviour, stating to the PSR author that he had little contact with any of their family members, especially when he was in the community. The offender’s sister also reported that, due to his own conduct, the offender no longer has any contact with his brother.
37. The offender has experienced unstable accommodation from his early teenage years onwards. He reported that his longest stable accommodation was from December 2019 to March 2020, however records indicate that the offender was in custody for most of this period. The offender has been advised that he has been assessed as unsuitable for Justice Housing accommodation due to his offence history. The offender does have accommodation available in community housing upon his release from custody.
38. The offender has a history of poly drug and alcohol use that has contributed to his offending behaviour for many years. He reported commencing alcohol use at the age of 15 years, which became problematic soon afterwards. The offender is a regular cannabis user, reporting spending up to $400 per week on cannabis whilst in the community. The offender also stated that he had begun using amphetamines in 2020, however the PSR notes that in 2016 the offender reported approximately 10 years of amphetamine use to Corrective Services.
39. The offender has been referred to multiple substance use intervention programs, and has been accepted into residential drug and alcohol rehabilitation on at least two prior occasions. The offender reported that he had experienced barriers to entry into residential rehabilitation due to his history of sexual offending. The offender may be eligible for intensive substance use intervention while in custody if he is sentenced to a period of imprisonment greater than 12 months.
40. The PSR author provided the following concluding opinion:

[The offender] is a 40 year old man who began getting into trouble in childhood and became ward of the state when he was 13 years of age. He appears to have had a transient life for the majority of his adult years and experienced ongoing homelessness and substance use issues. The offender has had little to no contact with his family members, and instead appeared to spend much of his time engaging in drug use and with his drug using associates in the community.
[The offender] has been assessed as 'Medium High' risk of general reoffending and 'Above Average' risk of sexual reoffending. The offender's criminogenic needs are related to his lack of stable accommodation, substance dependency issues, lack of prosocial support and anti-social attitudes. The apparent "impulsive" nature of Mr Murphy's latest offence is of concern as it indicates a lack of control at the time and point of his offending.
[The offender] continued to refer to his homelessness and substance use as primary reasons for his ongoing offending behaviours; however, it is noted that the offender appears to have made some recent effort to arrange for interventions and supports upon his release from prison (individual counselling). At least one of his applications into a residential rehabilitation program has been denied due to his history of violent offending and it appears this will continue to be an issue for a number of the long-term residential services in the community.
If [the offender] were to be sentenced to a term of imprisonment for longer than 12 months, he is encouraged to apply for the Solaris residential rehabilitation program in order to complete an intensive substance use intervention whilst in custody. The offender may also benefit from participating in the Cognitive Self Change program (or equivalent), which is a program based on cognitive behavioural therapy principles that addresses antisocial attitudes and is available both in the community and in custody.

Restorative Justice Report

41. The offender indicated a willingness to participate in restorative justice. To that end, enquiries were made as to whether this was a realistic proposal. The matter was determined to be unsuitable for restorative justice at this time.

Defence Submissions

42. Counsel for the offender submitted that the offender’s background circumstances were such that the principles articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) were enlivened, and as such consideration could be taken with respect to the moderation of sentence in respect of specific and general deterrence considerations (T7.8-15). Counsel referred in particular to the offender’s early separation from his family, his placement into care at a young age, his early exposure to alcohol, and extensive periods of homelessness as matters which could be taken into account (T6.1-5). It was submitted that the offender has experienced significant periods of homelessness, and significant periods of time in custody over the last 20 years (T4.10.15). Counsel submitted that the sentence should not be ‘crushing’ (T9.1-2). Counsel referred to the fact that he did not have instructions to seek a mental health report (T5.7-10).
43. Nevertheless, it was accepted that a just and equitable sentence must also reflect the offender’s prior criminal history (T7.15-24).
44. It was submitted that the community may benefit from a significant parole period, to enable some flexibility in the offender’s transition back into the community. There is some force in this submission.
45. Counsel submitted that the offender had insisted that he has a greater level of contact with his sister than the PSR had indicated. It was submitted that this indicates some level of support and human contact awaiting the offender upon his release (T8.37-40). I note that there is a letter from the offender’s sister referred to later at [53] of these sentencing remarks in that regard.

Prosecution submissions

46. Counsel for the prosecution submitted that the offender had minimised his responsibility for the offence to the PSR author, and “did his best to paint his key criminogenic risk factors in a more favourable light”. It was submitted that the offender attempted to downplay the depth and longevity of his dependency upon methylamphetamine, and that the offender overstated the support available to him from his immediate family members, and exaggerated his attempts to secure a placement at residential rehabilitation.
47. It was submitted that the PSR sets out a poor history of compliance with prior community-based orders. Counsel noted that the offender has failed to comply with the supervision and community service components of his prior sentences, and has reoffended while on conditional liberty. It was submitted that there was no question as to the offender’s need for rehabilitation (T10.23-24).
48. I note the previous failures to comply, and I note the prosecution’s concession as to the need for rehabilitation.

Remorse

49. The offender wrote a letter which was provided to the Court in which he sets out his support network, his short, mid, and long-term goals, the courses which he has completed whilst in custody, and the rehabilitation services he has applied for. The letter also includes the following passage:

I know I have made really bad choices in my life I need to make better choices and choose better friends and keep my self busy doing something constructive not negative as this was not the way I was brought up I am a better person than my record show[s] I am willing to abide by any orders placed upon me and fullfill all requirements placed upon [me] in regards to any sentence.

50. Counsel for the prosecution accepted that this document articulates the offender’s willingness to change, however submitted that statements such as these should be approached with caution. Counsel referred to R v Ogilvie [2015] ACTSC 296 at [45] in which Refshauge J stated the following:

[T]he courts are rightly sceptical of claims that an offender has “turned the corner”, reached “a crossroads” or the like. As noted by Dunford J, with whom Greg James J and Smart AJ agreed, in Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35], courts must be careful not to “accept uncritically at face value” such submissions.

51. It was submitted that such scepticism was warranted in the present matter given the lack of support for the offender’s assertions in the PSR, particularly in terms of the support with which the offender would be provided upon his release into the community (T11.22-29).
52. It must be stated that prospects for rehabilitation in the offender’s case remain at best guarded. Much support will be required for rehabilitation.

Reference

53. In evidence before me was a reference letter from the offender’s sister, undated, in support of the offender, which included the following:

I believe Carl is at that stage in his life where he want[s] to wake up to himself and if he is given a chance I strongly believe he will commit to and complete any orders or sentences [im]posed upon him. I have full support for my brother and I am willing to help him as much as I can to help him thru all the sentences and orders placed upon him...

Criminal History

54. The offender has a significant criminal history, including prior convictions for theft and robbery, violence including recent convictions for indecent behaviour and an act of indecency in company (sexual intercourse in public). The offender has numerous failures to comply with his reporting obligations.

Plea of Guilty

55. The offender entered a plea of guilty after a number of mentions in the Magistrates Court, following an initial plea of not guilty and the provision of the brief of evidence. Nevertheless, the plea was entered in the Magistrates Court.
56. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48].
57. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
58. The parties made no submissions as to the extent of the discount. Considering all matters discussed above, I will allow a 25 per cent discount for the plea of guilty.

Comparable Cases

59. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]; [49]:

[C]onsiderations to which a sentencing judge is obliged ... to have regard cannot be applied mechanically ... given that the factors that must be taken into account are incommensurable, and ... in many respects, inconsistent.
...
The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case. ... The consistency that is sought is consistency in the application of the relevant legal principles.

60. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. I was referred to the following comparable cases by the prosecution.
61. In R v LM [2021] ACTSC 71 the offender pleaded guilty to three charges of aggravated robbery. The pleas were entered following criminal case conference and the sentence was reduced by 25 per cent accordingly. Each of the aggravated offences related to the robbery, attempted robbery, and aiding and abetting of a robbery of a small business, with the use of a knife and the theft of relatively small amounts of money. One of the offences was committed while in company. The offender was raised by foster carer, however he left this home at 14 years of age. The offender had a long history of drug and alcohol abuse, mental health issues, and an extensive criminal history. The offender was sentenced to 18 months’ imprisonment for the attempted aggravated robbery, 3 years’ imprisonment for the aggravated robbery, and 2 years and three months’ imprisonment for the aiding and abetting offence. The total period of imprisonment was 4 years, 8 months, and 29 days. The offender became eligible for parole after 2 years and 10 months’ imprisonment.
62. In R v Rahman [2020] ACTSC 319 the offender pleaded guilty to an offence of attempted aggravated robbery. The plea of guilty was advised one week before the commencement of trial, accordingly the discount for his plea was assessed at 10 to 15 per cent. The offending related to the robbery of a café while carrying a knife, however fled the scene after noticing that the complainant had also armed himself with a large knife. The offender had a criminal history, a history of mental illness including a diagnosis of paranoid schizophrenia, which was exacerbated by alcohol and drug abuse. Having regard to the offender’s deeply entrenched mental illness, Murrell CJ determined that he was an inappropriate vehicle for a message of general deterrence. Greater regard was had to structuring the sentence in a manner suited to the protection of the community, and ensuring ongoing supervision of the offender with a view to minimising prospects of relapse and reoffending. The offender was sentenced to a period of 2 years’ imprisonment, suspended at 15 months’ imprisonment upon entering a 9 month good behaviour order.
63. In R v Williams [2019] ACTSC 298 the offender was sentenced for three offences, being attempted robbery, and aggravated robbery, and taking a motor vehicle without consent. The pleas were entered following negotiations at Criminal Case Conference, attracting a discount of approximately 20 per cent. The attempt offence involved the offender entering a fast food restaurant and demanding money while implying that he was carrying a weapon. The store manager did not believe the offender was armed, and chased him from the premises. Shortly afterwards, the offender entered a supermarket an approached the cigarette counter. He revealed a knife, threatened to stab the counter attendant, and demanded money. The offender left the premises with approximately $6,000. The offender had a lengthy criminal history, some of which related to drug use, reflecting a long-standing problem with substance abuse. The offender was diagnosed with drug-induced psychosis. He experienced a chaotic childhood marred by alcohol abuse, parental conflict and physical abuse perpetrated by his father. The offender was assessed as at a high risk of reoffending, but had also engaged positively with treatment interventions. The offender received sentences of 19 months’ imprisonment, and 2 years’ imprisonment, for the robbery offences partially suspended from the date of sentence. Taking into account a period of imprisonment in NSW, and an offence of taking a motor vehicle without consent, the offender was sentenced to a period of incarceration of three years, four months, and twelve days.
64. I have also summarised a number of aggravated robbery cases in R v Miller [2018] ACTSC 244 at [40]- [44], including R v Rootsey [2018] ACTSC 63, R v Zocchi (Unreported – Supreme Court of the ACT, Burns J, 24 February 2012), R v Hill [2016] ACTSC 310, R v Hart (Unreported, Supreme Court of the ACT, Refshauge J, 7 December 2012), and R v Johnson [2018] ACTSC 137.

Statutory and Other Relevant Considerations

65. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
66. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim and rehabilitation are important sentencing considerations.
67. As stated earlier, on the evidence it must be said that the prospects for rehabilitation remain guarded.
68. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view, taking into account the seriousness of the offence and the criminal record. Counsel for the offender appropriately conceded that a gaol term was inevitable in this case (T10.25-30).
69. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
70. Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy at [44]. I take into account the Bugmy factors referred to by counsel for the offender.
71. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]- [203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]- [30].
72. In light of the submission by counsel that the offender has spent a significant proportion of the last 20 years of his life in gaol, the question of institutionalisation is relevant. Institutionalisation has been discussed in a number of decisions in NSW in the context of the necessity for a longer parole period and a finding of special circumstances: see Jackson v R [2010] NSWCCA 162 at [24]; Jinnette v R [2012] NSWCCA 217 (Jinnette v R) at [98]; [103]; Dyer v R [2011] NSWCCA 185 at [50]. In Jinnette v R at [99], the NSW Court of Criminal Appeal discussed the concept of institutionalisation, stating:

The concept of “institutionalisation” is well recognised in the area of sentencing, where a class of offenders who have long custodial histories are at risk of this phenomenon. According to the Macquarie Dictionary, to “institutionalise” someone is “to make (someone) dependent upon an institution, as a prison, mental hospital, etc, to the point where they cannot live successfully outside it.”

73. The Courts have made it clear that if institutionalisation has already occurred, the focus may be on ensuring that there is a sufficient period of conditional and supervised liberty to ensure protection of the community and to minimise the chance of recidivism: Jinnette v R at [103]. I take the factor of institutionalisation into account in determining the parole period and the need for support in that regard.
74. I take these principles into account on sentence.

Sentence

75. In coming to a sentence by way of instinctive synthesis, I have taken into account the matters discussed above, including the objective seriousness of the offence, and subjective matters.
76. The appropriate sentence for the offence of aggravated robbery is four years, reduced to three years on account of the discount for the plea of guilty. It will be backdated to commence on 11 February 2021. The non-parole period will be reset to commence on 12 September 2020 and end on 11 August 2022.
77. In relation to the breach of the offender’s good behaviour order, I will take no further action.

Orders

78. I make the following orders:
(a) I record a conviction for the offence.
(b) In respect of the offence of aggravated robbery, (CC20/10230) the offender is sentenced to a term of 3 years’ imprisonment, commencing on 11 February 2021, and ending on 10 February 2024.
(c) The non-parole period commences on 12 September 2020 and ends on 11 August 2022.
(d) In respect of the breach of the offender’s good behaviour order, I take no action.


I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.
Associate:
Date:


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2021/94.html