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Supreme Court of the ACT |
Last Updated: 21 May 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL
TERRITORY
R v Murphy
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Citation:
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Hearing Date(s):
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28 April 2021
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Decision Date:
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21 May 2021
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Before:
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Loukas-Karlsson J
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Decision:
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See [78]
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Catchwords:
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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
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Legislation Cited:
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Crimes (Child Sex Offenders) Act 2005 (ACT) s 37
Crimes (Sentence Administration) Act 2005 (ACT) s 108 Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 63 Criminal Code Act 2002 (ACT) s 310
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Cases Cited:
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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
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Parties:
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The Queen (Crown)
Carl Andrew Murphy (Offender)
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Representation:
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Counsel
V Conliffe (Crown)
K Archer (Offender)
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Solicitors
ACT Director of Public Prosecutions
Tim Sharman Solicitors
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File Number(s):
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SCC 242 of 2020
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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.
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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:
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