Bailey, J
File No. SCC 20019139
Sentence - aggravated assault with intent to steal
Darwin, 6 November 2001 (sentence)
#DATE 06:11:2001
HIS HONOUR: On Friday 19 October, William Ernest Hewitt pleaded guilty
to one count of aggravated assault with intent to steal. The circumstance of
aggravation was that the victim, a service station employee, was threatened
with an offensive weapon, namely a pruning saw.
The circumstances of the offence have been summarised by the Crown and I will
quote from the Crown summary of facts which is in the following form:
At about 12.45 am on Monday 20 November 2000, the accused was at his
residence, 7/22 Kilfoyle Crescent, Nakara, when the two juvenile co-offenders
in this matter - who I will refer to by initials - M and E visited his place.
E and M discussed how they needed to get money. The accused, who had been
drinking rum, heard these discussions but thought they were just talking.
After the discussion, the juvenile E left the premises saying he was going for
a ride. He in fact organised a car and a driver. He returned when it was
dark, with Muhammad Rivai. Rivai was driving his vehicle.
The accused was continuing to drink when E came in and said he had a car
ready, that he needed a shirt, and that he was going to do a job. E and M went
to the bedroom of the unit, and the accused went in as well. The accused stood
in the room while E took a pruning saw, a flannelette shirt, and two beanies
that they cut eye-holes in to use as Balaclavas.
M, at this time, picked up a tomahawk from the verandah and a T-shirt. E
then showed Hewitt a set of gold handcuffs and told the accused he was `gunna
use them or something to lock `em up'. The accused permitted the co-accused to
have the beanies, the shirts and the pruning saw. On leaving, M said he was
going to use the tomahawk.
At about 1 am the three co-offenders decided to leave the unit with the
shirts, the pruning saw, the tomahawk, the Balaclavas and the handcuffs. The
accused said he would go for the ride.
The plea is on the basis that, despite his intoxication, he foresaw there
may be a stealing of money. All persons got into a white 1988 Toyota Corona
Hatchback, which was driven by Rivai. The accused sat in the front passenger
seat and M and E sat in the rear seats. They drove around Casuarina and then
went to the Mobil Service Station, Vanderlin Drive, Wanguri.
Rivai parked the vehicle in Cubillo Street where E and M donned the
Balaclavas and some gloves. E armed himself with the pruning saw and M with
the tomahawk. As E got out, he said: `Just wait here. We're going to get a
big mob of money and shit. Wait, we'll be back'. E and M walked about 200
metres to the Mobil Service Station, Wanguri, and entered the store.
E approached the console, raising the pruning saw in front of him and over
his right shoulder, and yelled: `Give me the fucking money, motherfucker. I
want the money'. The victim, in extreme fear for his life and believing by the
co-offenders' actions that they intended to harm him, ran out of the store and
out the back door. E ran behind the counter and attempted to force open the
computerised cash drawer. Failing to open the cash drawer, he started to
remove packets of cigarettes from the display cabinet behind the console.
The victim stopped a passing police van and told them that the service
station was being robbed. Police attended and E and M were still inside the
service station as the police were pulling into the driveway. On seeing the
police approach, E dropped out of view behind the console and removed his
Balaclava and gloves, hiding them beneath a display stand alongside the
console.
M ran out the front door of the service station and escaped on foot into
Wanguri. E walked through the store and hid the handcuffs in a chip display in
front of the store fridges. He then casually exited the store through the
front door. He was arrested immediately. Nothing was taken from the service
station.
Rivai, after waiting for over 20 minutes, saw a car approach in his location
on Cubillo Street. The car stopped and parked behind him. The accused told
Rivai: `Let's go, gallop out of here'. Rivai then drove his vehicle a short
distance down Cubillo Street, did a U-turn, and drove towards the rear of the
Mobil Service Station. On driving past, Rivai and the accused saw the
police.
They then drove to units located at 33 Moil Crescent, Moil, and the accused
borrowed his uncle's car and drove it back to the scene to see what was
happening. They drove past on two occasions and, believing that both
co-offenders had been caught, drove home. After evading police, M went back to
the accused's residence at about 3 am, and told the accused that E had been
arrested. At 10.45 am on 30 November the accused participated in a video and audio
recorded record of interview, during which he made full and frank admissions to
the allegations. When asked what he thought when the co-offenders said that
they were going to rob the service station, the accused said: `Just mad'.
When asked why he went, the accused said: `Just for the ride'. When asked
what he would have done if the co-offenders gave him some of the money, the
accused said: `Give it back to them'. When asked whether the co-offenders
offered him anything, the accused said: `Nah, they just said they would just
shout whatever'. The accused said he had drunk a couple of bottles of
rum.
At no time did any person have permission to enter the shop and steal any
items.
That concludes my quote from the summary of Crown facts.
Ms Cox, counsel for William Hewitt, has agreed the truth and the accuracy of
the Crown's summary of facts. I find such facts proved and I convict William
Hewitt of the offence of aggravated assault with intent to steal, contrary to
section 212 of the Criminal Code.
In agreeing the Crown summary of facts, Ms Cox emphasised the basis of the
prisoner's plea of guilty, which is expressly acknowledged in that summary of
facts. That is, that the prisoner permitted the juvenile offenders, M and E,
to have the beanies, the shirts, the tomahawk and pruning saw from his flat,
and he went along with the co-offenders in the car with the foresight that
there might be a stealing of money.
The prisoner is guilty of the offence in law as what is termed an `accessory
before the fact'. The prisoner's guilt arises from the assistance that he
provided to the juveniles, M and E, by allowing them to take items from his
flat for use in the offence, coupled with his knowledge and foresight that
those items might be used in connection with the stealing of money.
In assessing the prisoner's criminality, it is important to recognise that it
is not part of the Crown's case that the prisoner's presence in the car near
the scene of the offence was for the purpose of assisting the co-offenders to
carry out the offence, or to assist them in getting away from the scene after
the offence. The Crown accepts that the prisoner simply went along for the
ride, albeit with the foresight as to what might occur, but his practical
assistance to the co-offenders was limited to allowing items to be taken from
his flat for use in connection with the stealing of money.
It is not suggested that the prisoner would receive any direct financial
benefit from the offence. At most, the prisoner might have expected his
co-offenders to shout him a drink.
While in terms of the law the prisoner is guilty of the substantive offence of
aggravated assault with intent to steal, the level of his criminality is very
much at the lower end of the scale of seriousness, and, in particular, much
lower than that of the juvenile co-offenders E and M.
The prisoner is a young man of 22; 21 at the time of this offence. He has
been before a criminal court only once before. In May of 1999 he was convicted
of shop-lifting and fined $125. At the same time he was dealt with for a
receiving offence which dated back to 1994 when he was a juvenile. The offence
related to a stolen bicycle located at his home. He was convicted and fined
$200.
The prisoner was born and brought up in Darwin, spending some time
occasionally in Broome. He has a younger brother and three younger sisters.
He has the benefit of a large and supportive extended family. He lives with
his de facto and their very young child.
The prisoner attended high school, leaving during year 10. He has worked at
various occupations since leaving school and he has undertaken studies in
mechanics, fabric design, and Aboriginal studies. Presently he is working as a
trainee in jewellery design and he is eager to take up a 4-year apprenticeship
in that field.
Ms Cox tendered a bundle of references, exhibit D1, which paint a picture of
the prisoner as an honest, well-respected and well-liked member of the
community, whose faults appear to be naivety and a tendency to put the needs of
others before himself. The authors of the references express their surprise
that the prisoner could be involved in an offence of the present nature.
Ms Cox has sought to explain how a person such as the prisoner could have
arrived at his present predicament. On the day of the offence, a Sunday, the
prisoner's de facto went out for the day. The prisoner stayed in their flat in
the hope of catching someone who had tried to break in there on the two
previous Sundays. The prisoner was with the juvenile co-offenders M, who is
his cousin, and E, who lived in the same building, and was a person the
prisoner did not know well.
The prisoner was drinking rum. He became very drunk. The co-offender E left
and, on his return, asked for a shirt and then helped himself to other items.
The prisoner allowed him to take away the items. Those are the items referred
to in the admitted facts.
E was talking about stealing money. According to Ms Cox, the intoxicated
prisoner did not take the talk seriously. He went along in the car for the
ride. He did not previously know the co-offender Rivai, who had accompanied E
on his return to the prisoner's flat.
The prisoner gave evidence on his own behalf. His evidence confirmed the
version of events given by Ms Cox. The prisoner expressed his shame and his
remorse. He explained that he had not been thinking straight due to the level
of his intoxication. He maintained that he did not believe the juveniles, M
and E, were serious in their intentions to commit a robbery until they left the
car with the items from his flat. The prisoner cannot provide any rational
explanation for his behaviour. He puts this down to his drunken state.
What occurred at the service station was very serious indeed. The Crown
tendered a victim impact statement, exhibit P3, from the unfortunate employee
confronted by M and E. The employee states that he was terrified and that the
incident made him nervous, depressed, angry, lacking a sense of security, and
he has become socially withdrawn. He has lost interest in keeping fit and now
uses alcohol as an escape.
He has found it necessary to receive counselling. Clearly the incident had a
severe effect upon him. The victim impact statement was signed more than eight
months after the offence. It is to be hoped the victim will improve with the
passage of time and regain his former healthy and, as he described himself,
`happy-go-lucky' disposition.
The co-offenders have all been dealt with by the courts. M and E were dealt
with by the Juvenile Court. The 14-year old M was sentenced to detention for
six months, fully suspended for a period of 18 months with a condition that he
submit to probation for 12 months. E, who was 17, received a sentence of 12
months' detention, suspended after a month and released to supervision. Rivai,
who had just turned 18, and who was accordingly an adult in terms of the law,
was dealt with in the Supreme Court. He received a similar sentence to the
juvenile E.
In sentencing Rivai, Riley J stressed the very limited role Rivai had
undertaken in the offence. As with the present prisoner, Rivai played no part
in the planning of the offence. Rivai did, however, play an essential role by
providing the transport to the service station and he intended to drive M and E
from the scene.
Riley J, in sentencing Rivai, observed that the juvenile offenders,
particularly the 17-year old E, had been treated very leniently, even taking
into account their status as juveniles. I can only agree with that
observation. It is not clear to me, nor has any explanation been offered, why
M and E were dealt with in the Juvenile Court where they faced a maximum
sentence of 12 months' detention. The circumstances of the offence, in my
view, clearly called for their cases to be transferred to this court where the
maximum 12 months' detention for juveniles does not apply.
Riley J, in the case of Rivai, adopted a compassionate approach in holding
that the 18-year old Rivai was entitled to some parity in sentencing with the
17-year old E. No doubt His Honour was mindful of the very small difference in
ages between the two offenders, together with the very much lesser role
undertaken by Rivai in the offence, when compared to that of E.
The approach adopted by His Honour is entirely understandable in the
circumstances. Undoubtedly Rivai would have felt a great sense of grievance if
he had received a sentence substantially greater than his similarly aged
co-offender. Normally a comparison between sentences in the Juvenile Court and
those imposed on an adult in the Supreme Court is not relevant. However, in
the case of Andrews, an unreported case of 10 December 1979, the Court of
Criminal Appeal of Victoria observed: In a case where joint offenders form a group, all of about the same age,
where some are under 17 and some over, it must be accepted that a feeling of
injustice will arise if those under 17 are dealt with on one basis by the
Childrens' Court and those over 17 on an entirely different basis by the County
Court or by this court.
Andrews was a case in which the Victorian Childrens' Court should have
considered committing the younger boys to trial in the Victorian County Court
so as to avoid the likelihood of the disparity that in fact ultimately
occurred.
In my view, Riley J was faced with much the same situation in sentencing Rivai
after the juvenile offenders M and E had been dealt with by the Juvenile Court
and received very lenient treatment.
In the present case, the prisoner's situation is different from his
co-offenders, Rivai, E and M. The present prisoner has left his juvenile
status behind several years ago and his sentence should be assessed in
accordance with the principles applicable to adults, not juveniles. In such
circumstances, parity of sentencing between this prisoner and his juvenile
co-offenders is not relevant.
The point was made by the South Australian Court of Criminal Appeal in the
case of Homer (1976) 13 SASR 377 at 382: In the case of a juvenile dealt with under the provisions of the Juvenile
Courts Act, the court is trying to find out what is the best means of turning
this delinquent juvenile into a responsible, law-abiding adult, and that has
really got nothing to do with the seriousness of the crime or the degree of his
complicity qua some other companion in crime, and no useful comparison can be
made between an order made under a non-punitive system and a sentence imposed
upon an adult.
Bray CJ in Harris (No 2) (1971) 2 SASR 255 at 257 made the same point, with
even more force, when he said: The argument advanced amounts to this: that if a man commits a crime in
conjunction with a juvenile, he ought to be more leniently treated than if he
had committed the crime alone or in the company of an adult, as the juvenile
will necessarily receive special treatment. We think that proposition bears
its own reputation on the face of it.
With respect, I agree with the point made by the South Australian courts in
both Homer and Harris (No 2) in the context of the irrelevance of parity
between juvenile and adult offenders. Albeit I would not accept, in its
entirety, the proposition in Homer that the seriousness of the crime and the
juvenile offender's role in its commission are not relevant considerations in
the sentencing of a juvenile.
Section 78A of the Sentencing Act requires me to ensure that community
disapproval of persons committing an aggravated property offence, such as the
present one, is adequately reflected in the sentence imposed upon an offender.
Rather than questions of parity in the present case, I emphasise section 78A of
the Sentencing Act against the background of the minimal role of the present
offender. He played no part in planning the offence and was to receive no
direct financial benefit.
There is no suggestion that the juvenile offenders, or Rivai, were acting
under the prisoner's influence or that he encouraged them to carry out an armed
robbery. His misconduct was limited to allowing the juvenile offenders to take
items from his flat, coupled with the drunken foresight that the items might be
used for criminal purposes.
On any reasonable view of the facts, the prisoner's degree of complicity in
the offence was very much less than that of the juvenile offenders E and M. I
am also satisfied his role was less than that of Rivai. Undoubtedly the
general community would be appalled by events at the service station, but a
reasonable member of the community would appreciate the very substantial
difference between what the prisoner did and what was done by the juvenile
offenders.
In addition to that minimal role, the prisoner deserves credit for his plea of
guilty and his full co-operation with the police. In this regard, he was
prepared to give evidence against his co-offenders if necessary. This is an
indication of his genuine remorse and shame. I do believe his rehabilitation
prospects are excellent. I accept this was a drunken act of stupidity, an out
of character aberration which is not likely to be ever repeated.
He will pay a high price for the stupidity of his actions, simply from the
fact of having been convicted of aggravated assault with intent to steal. His
prospective employers, amongst others, are likely to view the fact of his
conviction with disfavour and distrust, regardless of any attempt to explain
the circumstances.
I have received a favourable home detention report, exhibit P4. In my view,
in an offence of the present seriousness, this is one of those very rare
situations where
the court can properly exercise leniency, having regard to the prisoner's role
in the offence and the subjective mitigating factors in his favour.
The sentence I would impose is in no sense to be viewed as the benchmark for
aggravated offences contrary to section 212 of the Criminal Code. On the
contrary, it is an exceptional sentence for an exceptional case as it relates
to this prisoner.
In all the circumstances, I sentence the prisoner to imprisonment for 15
months, fully suspended on terms that the prisoner submit to a home detention
order for a period of three months. The effect of this order will be to impose
very real restrictions on the prisoner's personal freedom and liberty. He will
require approval to leave his home for any purpose, including work or study.
He will be subject to random checks to ensure his compliance. He will not be
permitted to drink alcohol during that three month period.
If he breaches the order, even in the final days that it is to run, then he
may be brought back to this court and, in such circumstances, the court would
have the discretion to order him to serve all or part of the 15 month sentence
in prison, without any credit for successful weeks or months of compliance with
the home detention order.
Before imposition of sentence many offenders are keen to secure a home
detention order rather than to be sent to prison. Once the order is in place,
some offenders discover that the restrictions imposed, together with limited
freedom and total responsibility, are more than they can bear. The result is
that a substantial number of offenders fail under a home detention order and
end up in prison.
I trust that will not happen in Mr Hewitt's case. But he should leave this
court with my warning ringing his ears. In short, if he fails by breaching the
home detention order, he can be confident of spending time behind bars. If he
does fail, it will be no-one's fault but his own. Claims of drunkenness,
naivety or stupidity will not help him. Having seen Mr Hewitt give evidence, I
am sure in my mind that prison would be a very uncomfortable environment for
him.
So be warned, Mr Hewitt. Think about what you are doing in future. When you
are allowed to drink alcohol again, think very carefully about what you might
do if you drink too much. For some people - and you may be one of them - one
drink is too many and 100 drinks not enough. Do not expect any second chance
because you are very, very unlikely to receive the same leniency that you have
received today.
The formal order of the court is that William Hewitt is sentenced to
imprisonment for a period of 15 months. The sentence of imprisonment is
suspended immediately upon William Hewitt entering into a home detention order
for a period of three months. The following conditions are attached to these
orders:
Firstly, upon discharge from court today, William Hewitt is to report
immediately to the Community Corrections Court's officer;
Secondly, William Hewitt is to reside at 16 Sedge Court, Karama, or such
other place as may be approved by the Director of Correctional Services, and
shall not leave 16 Sedge Court or that other approved place without prior
approval of the Director of Correctional Services or an authorised surveillance
officer.
Those are my reasons.