SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Scott; R v DM
Citation: / [2017] ACTSC 286
Hearing Date: / 26 September 2017
DecisionDate: / 26 September 2017
Before: / Elkaim J
Decision: / See paragraphs[20] and [21]
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtain property by deception – young offenders – no prior criminal history.
Legislation Cited: / Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33 and 133C
Cases Cited: / Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; 219 A Crim R 369
Parties: / The Queen (Crown)
Darren Hubert Scott (TheOffender)
DM (The YoungOffender)
Representation: / Counsel
Mr B Ngugi (Crown)
Mr A Doig (TheOffender)
Mr R Davies (The YoungOffender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Darryl Perkins Solicitors (TheOffender)
Legal Aid ACT (The YoungOffender)
File Numbers: / SCC 51 of 2017; SCC 90 of 2017 and SCC 91 of 2017

ELKAIM J:

1.In November 2016, the offenders were charged with a number of offences relating to a series of robberies they had carried out in the previous month. One of the offenders was a young person when the offences were committed. He is now 18 years of age. The other offender was 19 when the offences were committed.

2.The offenders were, therefore, roughly the same age at the time of the commission of the offences. Although they are to be sentenced under different regimes, I consider their culpability to be equal. I will refer to the offenders as the young offender and the offender respectively.

3.On 19 July 2017, the young offender pleaded guilty to the charges. On 1 August 2017, the offender pleaded guilty.

4.The maximum penalty for the offence of aggravated robbery is 25 years imprisonment and/or a fine of $375,000. The maximum penalty for the offence of obtaining property by deception is 10 years imprisonment and/or a fine of $150,000. The maximum penalty for the offence of unlawful possession of stolen property is six months imprisonment and/or a fine of $7,500. The respective maximum penalties are a reflection of the seriousness of the offences.

5.The details of the offences are set out in the Statement of Facts (Exhibit A). Essentially, the offenders engaged in a series of robberies in which victims were assaulted and relieved of their possessions. Each of the robberies was, in its own way, cowardly and without any form of justification.

6.There was some confusion, arising from the pre-sentence report, as to whether it was appropriate for pleas of guilty to have been entered by the offender. The issue was cleared up by the offender’s counsel today, and I am satisfied that the pleas are appropriate.

7.Both offenders have no criminal record. They have both presented with references suggesting that the offences were out of character. I accept that to be the case. Both offenders also have the support of family members. I understand that this support will continue into the future.

8.I have previously observed that the most difficult sentences are those involving young men with no prior involvement with the criminal law. These are people who the courts must take particular notice of and must elevate their rehabilitation to the highest possible degree. These are people who must not be allowed to join the criminal fraternity because, if they were to do so, the road to drug addiction and professional criminality is a short one. This is particularly the case if they were to become involved in the same type of offences for which I am currently dealing with them.

9.The manner in which young offenders should be dealt with was discussed by the Victorian Court of Appeal in Azzopardi v R; Baltatzis v R; Gabriel v R [2011] VSCA 372; 219 A Crim R 369.

10.There is, of course, another side to the sentencing process. Each victim of these crimes is entitled to feel that the offenders have been punished for what they did to them. There may only be one victim impact statement but I have no doubt that each victim felt the terror of their respective attacks and that they continue to live, even if subconsciously, with a fear of further attack.

11.The attack in respect of Count 9 was, I think, more serious than the others. The sentence in respect of Count 9 will be slightly longer than the other sentences. As a general statement, I think that all of the offences should be regarded as being of medium objective seriousness.

12.Aggravated robbery is an offence which must always attract the condemnation of society. Those who are going about their business in a lawful manner, whatever time of day or night, are entitled to feel safe. They should not be subjected to attacks by young men trying to obtain their property and using force to achieve that objective.

13.A substantial degree of leniency was appropriately shown by Mossop J when he sentenced a co-offender in April of this year. The co-offender was not charged with the same number of offences.

14.When sentencing, I must take into account the purposes and objects of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Different sections apply to these two offenders because one of them is a young offender. The distinction is highlighted by sections 33 and 133C.

15.I intend to impose sentences of imprisonment to reflect the seriousness of offences of this type. This does not mean that a degree of leniency cannot be applied. Leniency will be shown in this matter due to the offenders’ lack of a prior criminal record, their conduct since being charged (including their expressions of remorse), their participation in restorative justice and the family support that they have, which will hopefully guide them in the future.

16.There is also a discount arising from the offenders’ pleas of guilty. In general terms, the pleas of guilty will attract a discount of approximately 20%.

17.Sentences of imprisonment are inevitable. However, these offenders have been in custody now for 328 days. In my view, they have tasted custody and I hope the taste has been bitter for them, and will deter them from future criminal conduct. The respective pre-sentence reports recognise that there is a low risk of re-offending.

18.There needs to be a degree of accumulation in the sentences to reflect the fact that the offences are separate and involve separate victims.

19.The young offender has also requested that I take into account an offence of unlawful possession of stolen property. This has been taken into account in respect of the sentence for Count 1.

Sentences

Darren Scott

20.I make the following orders:

(a)In respect of count 1, aggravated robbery (CC 2016/11575), the offender is sentenced to 9 months imprisonment commencing on 2 November 2016 and ending on 1 August 2017.

(b)In respect of count 2, obtain property by deception (CC 2016/11579), the offender is sentenced to 3 months imprisonment commencing on 2 November 2016 and ending on 1 February 2017.

(c)In respect of count 3, aggravated robbery (CC 2016/11576), the offender is sentenced to 9 months imprisonment commencing on 2 February 2017 and ending on 1 November 2017.

(d)In respect of count 4, obtain property by deception (XO 2017/31117), the offender is sentenced to 3 months imprisonment commencing on 2 February 2017 and ending on 1 May 2017.

(e)In respect of count 5, aggravated robbery (CC 2017/2622), the offender is sentenced to 9 months imprisonment commencing on 2 May 2017 and ending on 1 February 2018.

(f)In respect of count 6, aggravated robbery (CC 2016/11577), the offender is sentenced to 9 months imprisonment commencing on 2 August 2017 and ending on 1 May 2018.

(g)In respect of count 7, aggravated robbery (CC 2016/11578), the offender is sentenced to 9 months imprisonment commencing on 2 November 2017 and ending on 1 August 2018.

(h)In respect of count 8, obtain property by deception (CC 2017/2626), the offender is sentenced to 3 months imprisonment commencing on 2 November 2017 and ending on 1 February 2018.

(i)In respect of count 9, aggravated robbery (CC 2017/2629), the offender is sentenced to 12 months imprisonment commencing on 2 May 2018 and ending on 1 May 2019.

(j)In respect of count 10, obtain property by deception (CC 2017/2630), the offender is sentenced to 3 months imprisonment commencing on 2 May 2018 and ending on 1 August 2018.

(k)Each of the above sentences of imprisonment is suspended with immediate effect.

(l)The offender is required to enter into a Good Behaviour Order for a period of 2 years to commence today and end on 25 September 2019 with the following condition:

(i)Accept the supervision of ACT Corrective Services until 25 September 2019 or such lesser period as deemed appropriate by the offender’s supervisor and to obey all reasonable directions of ACT Corrective Services.

(m)Reparation order in accordance with Exhibit B.

DM – The Young Offender

21.I make the following orders:

(a)In respect of count 1, aggravated robbery (CH 2016/673), the offender is sentenced to 9 months imprisonment commencing on 2 November 2016 and ending on 1 August 2017.

(b)In respect of count 2, obtain property by deception (CH 2016/677), the offender is sentenced to 3 months imprisonment commencing on 2 November 2016 and ending on 1 February 2017.

(c)In respect of count 3, aggravated robbery (CH 2016/674), the offender is sentenced to 9 months imprisonment commencing on 2 February 2017 and ending on 1 November 2017.

(d)In respect of count 4, obtain property by deception (XO 2017/31116), the offender is sentenced to 3 months imprisonment commencing on 2 February 2017 and ending on 1 May 2017.

(e)In respect of count 5, aggravated robbery (CH 2017/144), the offender is sentenced to 9 months imprisonment commencing on 2 May 2017 and ending on 1 February 2018.

(f)In respect of count 6, aggravated robbery (CH 2017/675), the offender is sentenced to 9 months imprisonment commencing on 2 August 2017 and ending on 1 May 2018.

(g)In respect of count 7, aggravated robbery (CH 2016/676), the offender is sentenced to 9 months imprisonment commencing on 2 November 2017 and ending on 1 August 2018.

(h)In respect of count 8, obtain property by deception (CH 2017/148), the offender is sentenced to 3 months imprisonment commencing on 2 November 2017 and ending on 1 February 2018.

(i)In respect of count 9, aggravated robbery (CH 2017/151), the offender is sentenced to 12 months imprisonment commencing on 2 May 2018 and ending on 1 May 2019.

(j)In respect of count 10, obtain property by deception (CH 2017/153), the offender is sentenced to 3 months imprisonment commencing on 2 May 2018 and ending on 1 August 2018.

(k)Each of the above sentences of imprisonment is suspended with immediate effect.

(l)The offender is required to enter into a Good Behaviour Order for a period of 2 years to commence today and end on 25 September 2019 with the following condition:

(i)Accept the supervision of ACT Corrective Services until 25 September 2019 or such lesser period as deemed appropriate by the offender’s supervisor and to obey all reasonable directions of ACT Corrective Services.

(m)Reparation order in accordance with Exhibit B.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.
Associate:
Date: 29 September 2017

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