STATE OF TASMANIA v BAH 29 SEPTEMBER 2023
COMMENTS ON PASSING SENTENCE WOOD J
BAH has pleaded guilty to two crimes: one count of armed robbery committed on 15 February 2023, and one count of aggravated armed robbery committed on 17 June 2023.
On 15 February 2023, at approximately 8.00 pm, Master H entered the Brent Street Store in Glenorchy. The complainant and owner of the business, Guiyang Qu, was alone working in the shop behind the counter. Master H approached the counter wearing a black hooded jumper with a black t-shirt partially covering the lower part of his face. Master H pointed a gold flick knife approximately 20 cm in length at the complainant stating, “Give me your money”.
Mr Qu refused and Master H reached over and removed the cash register and a Microsoft Surface Pro iPad valued at approximately $800 off the front counter. The cash register contained approximately $600 in cash.
Master H ran from the store and joined a group of four youths who removed the contents of the cash register, all of which was captured by a CCTV camera on the Glenorchy City Council building.
The cash register was found in Vieste Street by a member of the public and the police seized the drawer, from which a latent fingerprint was lifted matching Master H’s fingerprint. When he was arrested on 16 February 2023, he was in possession of a gold coloured flick knife. He was interviewed and admitted to robbing the store and having the knife to scare the shop owner. He said he used the stolen money to purchase cannabis. He said he was sorry for what he had done.
I accept that Master H did not have the knife with the purpose of committing an armed robbery. He decided to steal and made a spontaneous decision to produce the knife. When interviewed by Community Corrections in July, he said he was sorry and he will never do it again.
I have been provided with a victim impact statement from Mr Qu. He experienced anxiety following the incident and was nervous with customers in the weeks that followed. His employees were also affected, and one of the female employees was so fearful that she resigned from her job there. His business has suffered financially in the loss of the money that was stolen and because the store closes earlier now due to concerns that such a crime might happen again.
Master H was given bail, but while he was on bail, he committed another serious crime, aggravated armed robbery.
On the night of 17 June 2023, Mr Satyan Shrestha and Bhim Paudel were working at Woolworths in Claremont at the rear of the store, which can be entered via the loading dock.
Master H entered the loading dock carrying a small axe. He was wearing a hooded jumper secured tightly around his face. Mr Shrestha saw the defendant enter and alerted another staff member that someone was there. Master H approached Mr Shrestha and said, “Come on, come on,” and then swung the axe at Mr Shrestha, striking him to the left-hand side of his chest near his shoulder. He held the axe up as if he was going to strike Mr Shrestha again, and Mr Shrestha retreated and ran back inside the store.
Mr Paudel was on the shop floor when he heard screaming voices and ran to the loading dock. As he entered, he saw Master H standing near the roller door holding an axe. Master H ran towards him with the axe raised above his head threatening to hit him. Mr Paudel ran back inside the store.
Master H pulled a trolley loaded with various drink cartons out to the carpark and removed several boxes of soft drink and energy drink, valued at approximately $1,000, and carried them to his residence at Cadbury Road.
Mr Shrestha was taken to the Royal Hobart Hospital by ambulance. He had a five-centimetre laceration to the left side of his chest, medial to his left shoulder joint. Fortunately, the laceration was shallow and there was no muscle or nerve damage.
Master H was arrested at his home and was interviewed by police, during which he admitted to the offending. All of the property apart from one can was recovered.
I note that at the time Master H committed this crime with the axe, he was very intoxicated. He had drunk a lot of alcohol and had also taken MDMA and methamphetamine. Master H, that is no excuse, and does not reduce the seriousness of what you did, especially because you knew that when you drink alcohol and take drugs you behave irresponsibly. You know there is that link between your behaviour, and alcohol and drugs.
Master H was 14 at the time he committed the first crime, and 15 when he committed the second, having turned 15 in May this year. He pleaded guilty within 6 weeks after his first appearance on one matter, and at the first opportunity on the other.
He has prior offences for offences of dishonesty such as motor vehicle stealing and burglary. On 27 January this year, he was sentenced and given a second chance with a release on conditions order requiring him to be of good behaviour for 8 months. That order was made just two weeks before he committed the first robbery. Then, after the second robbery, he was sentenced on 25 July this year for seven offences of assault, two offences of possessing a knife, one of stealing, and one of burglary, and was sentenced to 60 hours of community service and a probation order for 12 months. Those offences were committed in January to June this year. What we see is an intense period of offending during those six months. I note that Master H has not yet commenced probation and community service orders because he has been in custody.
Master H was living with his mother at the time of offending. She is very supportive of him. He experienced significant trauma in his childhood years, and his mother is concerned about the ongoing impact of that. Master H was a victim of his father’s violence and he witnessed family violence perpetrated within his home. He has been diagnosed with attention deficit hyperactivity disorder, oppositional defiance disorder, complex trauma, and a learning disability. Master H is in year nine, enrolled at Hobart High School and attending an individualised curriculum known as Tier 4. He has support at school from a school psychologist. His mother is working with a support co-ordinator from BAPTcare to apply for an NDIS assessment. He has been referred to 54 Reasons and, on his release from Ashley, that organisation will provide him with positive recreational activities.
I have a report from psychiatrist Dr Teresa Flower of 13 August 2023. She suggests the need for an updated intellectual assessment and she considers it possible that Master H may meet the criteria for an intellectual disability. This assessment would enable supports to target any obvious deficits. A speech and language assessment is also recommended and would assess whether he has a specific language disorder. These assessments may determine any eligibility for NDIS funding and supports, and this may assist him in re-engaging with education and structured leisure activities and, as Dr Flower says, give him a sense of purpose which he is lacking. She also notes that further supports are vital to help him desist from offending and substance abuse, and because he is vulnerable to peer pressure. Dr Flower considers he meets the criteria for attention deficit hyperactivity disorder.
During the period of his offending, Master H was associating with young people who were a very poor influence on him. His offences started with shop-lifting and escalated to the serious crimes before the Court today. His drug and alcohol use has been a very serious problem. Master H was using a significant quantity of cannabis daily and was a regular user of MDMA. A positive development is that he can now see the clear connection between his drug use and his offending.
On his release from detention, he will live with his grandmother at Dodges Ferry. It is hoped he will be away from negative influences, and his grandmother has said she will ensure he does not have access to drugs or alcohol. She has told Youth Justice that Master H has behaved well when he has lived with her in the past. When released, he will be subject to a probation order until June next year, and an obligation to do community service during this time as a result of the sentence imposed in July.
Master H, these are serious crimes. The victims were just doing their jobs when they were confronted by someone with a weapon that could cause them serious or fatal injury. This happened to them in their workplace, where they are entitled to be safe and to not be traumatised. They did not have back up or any way to protect themselves from someone with a dangerous weapon of a knife or an axe. The victim of the second robbery was injured and suffered bodily harm. That could have been serious and, as you acknowledge, Mr Shrestha could have been killed.
I must take those matters into account when sentencing you. I must also take into account the positive factors such as your improved attitude and understanding about the bad effect that drugs and alcohol have on your behaviour and your life.
Master H, the Youth Justice report of 21 July 2023 report has positive things to say about your attitude and tells me you have engaged very well with Youth Justice. You are showing a level of understanding that they have not seen from you before and you seem to appreciate the severity of what you did.
I am also told that you are doing your best to engage in programs and education when they are available to you. You have commenced a manual handling course and hope to achieve a white card. Your behaviour has improved and you are now on level green, and have been consistently now for a number of weeks. You are proud to have achieved that, and so you should be.
Master H, I must impose a sentence which shows that your crimes were very serious but which also acknowledges you are demonstrating a greater level of maturity and understanding. It is important that you learn from this and make a commitment to yourself that you will keep learning and keep improving and not do something like this again.
For the armed robbery with a knife at Brent Street Store, I impose a suspended detention order of six months. That period is suspended for a period of 12 months on the conditions set out in s 90(3) of the Youth Justice Act, which include:
- You must not commit an offence which, if committed by an adult, could be punishable by imprisonment.
- You must obey the reasonable and lawful instructions of your youth justice worker.
- You must attend educational, personal, health, and other programs as directed by your youth justice worker.
- You must submit to testing for drugs and alcohol as directed by the Secretary.
- You must undergo medical, psychiatric, psychological, and drug counselling and treatment as directed by your youth justice worker.
A conviction is not recorded.
On the second offence, the aggravated armed robbery with an axe at Woolworths, the most serious of the two robberies, I record a conviction and impose a detention order of eight months. It is backdated to 17 June 2023.
You will be eligible for a supervised release order, under the Youth Justice Act, once you have served 50% of your detention order period, so four months. Your earliest release date is 17 October 2023.
That the knife used by the defendant in the armed robbery at Brent Street Store, valued at $5.00, be forfeited to the State of Tasmania, pursuant to ss 11(1)(a) and 16 of the Crime (Confiscation of Profits) Act 1993.
The application for a compensation order in relation to the Brent Street Store is adjourned sine die for assessment.