DPP v Figura (No 4)

One of the co-accused is now deceased. I have decided to refer to this co-accused as Mr S as a matter of respect. Should his family contact the Court and seek that his name not be anonymised, a revised version of this decision will be published. What are the issues?

The offender is subject to an existing sentence of imprisonment imposed by a magistrate of the ACT Magistrates Court on 26 May 2026. Because the offender is subject to that sentence, it is accepted by the parties that an additional sentence of imprisonment imposed by way of a new head sentence and accompanying non-parole period is the only sentencing option for this Court.

The issues posed by this sentencing process are: (d) Recognition of the extreme social deprivation experienced by the offender during his childhood and the effect that it should have on this sentence; (e) Recognition of the diagnosed mental illness that affected the offender at the time of the offending and what impact, if any, that should have on the sentence; and (f) The imposition of an appropriate sentence of imprisonment that encompasses the present head sentence and non-parole period that the offender is serving. What are the nature and circumstances of the offending? (s 33(1)(a) CS Act)

Throughout the course of the offending, the offender was acting in joint commission with two adult co-accused – Mr S and Mr B – and one co-young person, TQ (all pseudonyms).

Agreed facts were tendered in the sentencing proceedings.

At about 12.30pm on 3 March 2025, a blue Volkswagen Polo (the Volkswagen) was reported stolen from Canberra Olympic Pool.

At about 12.55am on 4 March 2025, a white Toyota Rav 4 (the Toyota) was reported stolen from Jerrabomberra in New South Wales (NSW).

At about 1.05am that same morning, the Volkswagen and the Toyota were spotted travelling at about 113km/h in a 80km/h speed zone. Closed Circuit Television Footage (CCTV) obtained by police showed that the offender and Mr B were the occupants of the Volkswagen. The Toyota was occupied by Mr S and TQ.

At about 5.48am, both vehicles entered the car park of the Village Creek Health Centre and parked next to each other. The Toyota departed at about 5.53am and drove to a residential apartment complex located at 92 Summerland Circuit in Kambah in the Australian Capital Territory (ACT).

The offender and Mr B got out of the parked Volkswagen and walked towards 92 Summerland Circuit (‘the apartment complex’).

The offender and Mr B returned to the carpark at about 5.55am. The Toyota pulled in to join them.

At about 6.08am, the four co-accused walked together from the parked cars towards the apartment complex. They were all wearing dark hooded jumpers, caps, and face coverings, and they were all armed with weapons.

The offender and Mr B were both carrying baseball bats. Mr S was carrying a machete as well as a metal tool that looked like a small crowbar. TQ was carrying a hatchet.

At about 6.11am, they approached unit 14 at the apartment complex. They attempted to force their way inside the residence. Mr S attempted to force the front door open while TQ struck and broke the doorbell camera with his hatchet. The offender hit the CCTV camera with his baseball bat and that caused the camera to fall out of place.

Five people were inside the unit. When three of them heard the co-accused outside, they ran to the garage, locked the door and called triple zero. A fourth person ran out of the unit via the back door, jumped over a fence and ran away. The last resident, Ms Anderson, remained asleep in her bedroom.

The four co-accused gained entry into the property by smashing a front window near the unit’s lounge room. Two of the co-accused unsuccessfully tried to force their way into one of the locked bedrooms by striking the door multiple times with some type of object. This caused significant damage to that door.

At the same time the other two co-accused entered Ms Anderson’s bedroom. One of them held a silver-bladed large knife and yelled at Ms Anderson, “Where’s the money?”. He walked around Ms Anderson’s bed and picked up a black handbag and a red make-up bag that both belonged to her.

The male then stood over Ms Anderson as she lay in bed, raised the knife in her direction and threatened to stab her if she did not tell him the whereabouts of “the money”.

Ms Anderson told the male that there was money in her cabinet drawer. The male took the money from the drawer and both co-offenders left the room.

One of the residents hiding in the garage yelled out that he had called the police. The four co-offenders left the unit.

The proceeds of the offending amounted to about $250 in Australian currency, a black “Collette Hayman” brand handbag containing club identification cards and house keys, a red makeup bag and a mobile phone.

All four co-offenders returned to the Village Creek Health Centre carpark at 6.14am and left in the Volkswagen and the Toyota.

The offender had contact with police on 5 March 2026 at Westfield Belconnen. The keys to the Volkswagen were located in his possession. He was wearing a cap and shoes that matched those worn by one of offenders in CCTV footage from the previous day at the home of the victims and the Village Creek Health Centre. The Volkswagen was located parked at Westfield Belconnen. The Toyota was later found abandoned in the suburb of Cook. It had sustained significant rear damage. What is the objective seriousness of the charges?

At the time of the offending, the offender was subject to a Drug and Alcohol Treatment Order (DATO). That order was cancelled on 5 June 2025.

McWilliam J summarized the following factors as being relevant to the assessment of objective seriousness of the offence of aggravated burglary in DPP v Elliott [2026] ACTSC 144 at [38]: (a) The nature of the premises that were burgled (with commercial premises being generally less serious); (b) whether (uncharged) damage was caused to the premises; (c) whether occupants were present at the time of the offending; (d) the motivation for the offending; and (e) whether the offending was pre-meditated, planned or organised and the level of sophistication that was involved.

In this matter the premises were residential premises and the offending occurred a little after 6.00 am – a time when most residential occupiers would be expected to be in their home. The were five people in the home on this occasion – one of whom was still in bed and quite vulnerable. A small amount of damage was caused effecting entry and to the inside of the home. The motivation for the offending was the theft of money and valuable goods. The offending was not sophisticated but it was relatively well-planned. It involved the use of two separate vehicles, a group of four offenders, pre-planned attire and weapons that were taken for the sole purpose of effecting the offending.

The offending is well above the median level of objective seriousness and somewhere just short of the most serious category for this type of offending.

The theft was of relatively low value, and the objective seriousness lies at the lowest end of the scale for the 10-year offence.

In R v Massey (No 3) [2021] ACTSC 156 at [29], Taylor J identified the following factors as informing the objective seriousness of ride/drive motor vehicle without consent offences: (a) The period of driving and the length of distance driven; (b) whether the vehicle was used in the commission of another offence; (c) whether the offender was the driver and not only a passenger; (d) the manner of the driving – though allowance must be made depending on whether the manner of driving is subject to a separate charge, which may be dealt with by the concurrency or partial concurrency of any sentences; (e) whether the vehicle was damaged; and (f) whether the vehicle was returned to the owner, which may be related to the issue of whether the offender is likely to have continued to drive the vehicle for some further time had he or she not been intercepted by police.

CAN 6152/2025 particularises the offender as being a rider in the Volkswagen. That car was a primary tool in the offending. It was used for 5 hours from about 1.00 am on the day of the offending. The driving was not erratic but speeding was detected.

The offender was not the driver. The offending lies towards the lower end of the scale of objective seriousness. What other offending is to be taken into account? (s 33(1)(b) CS Act)

There are two additional offences to be taken into account. I have considered Attorney General’s Application Under s 37 of the Crimes (Sentencing procedure) ACT 1999 No 1 of 2002 [2002] NSWCCA 518, R v Campbell [2010] ACTCA 20, and DPP v Vincent (No 2) [2023] ACTSC 379.

The additional offence of ride/drive motor vehicle without consent called for a modest adjustment to reflect greater personal deterrence and punishment.

The theft charge was of such a low objective seriousness and was such an integral part of the aggravated burglary charge that it had little effect on the sentence other than for assisting in assessing the character of the offender and his prospects of rehabilitation. Was there any resultant injury, loss and damage and what was the effect of this upon the victims? (ss 33(1)(e) and 33(1)(f) CS Act)

The financial loss amounted to $250 in cash and some personal items. There were no victim impact statements tendered. The Court can take judicial notice of the effect on the female victim who was stranded in her bedroom and threatened at knifepoint by two of the offenders. She endured a terrifying experience in her home - a place where she was entitled to feel safe and secure. The other victims would also be expected to have experienced fear and trauma. Was there any action taken by the offender to make reparation? (s 33(1)(h) CS Act)

There is no evidence of reparation. What degree of responsibility has the offender taken for the commission of the offences and has he demonstrated remorse? (ss 33(1)(i) and 33 (1)w) CS Act)

Ms Edwige, psychologist, provided a detailed culture-focussed report to the Court. The report sets out the offender’s understanding of the impact of his offending upon the victims. At page 10 of the report, the offender expressed sorrow to the victims. He acknowledged that they did not deserve the offending that they endured and the traumatizing effect of his behaviour upon them. I accepted those words as a solid measure of remorse.

By his plea of guilty the offender has taken full responsibility for his criminal conduct. Were there pleas of guilty and should there be a reduction in sentence applied for those pleas? (ss 33(1)(j) and 35 CS Act)

A plea of guilty was entered at the case conference stage. The prosecution submitted in their written submissions that the appropriate reduction in the circumstances falls into the 15-20% range. This was not disputed. What are the cultural background, character, criminal antecedents, age, and physical or mental condition of the offender? (s 33(1)(m) CS Act)

The offender is a proud 32-year-old Aboriginal man who traces his ancestral Wiradjuri heritage from his father. He is learning about his culture but is presently incarcerated away from his ancestral lands.

The offender has a fit and strong physical appearance. He lives with asthma and Chrones disease and is undertaking medical investigations on his cardio-vascular and digestive health.

The offender has an unenviable criminal history across the ACT and NSW. He has been sentenced to significant sentences of imprisonment in the ACT for family violence, driving (including ride/drive motor vehicle without consent) and dishonesty offences. Those convictions do not increase the objective seriousness of this offending, but because of this history, he is not entitled to the same mercy or approach that might be afforded to a first offender.

The comprehensive report of Ms Edwige speaks to the particularly severe childhood deprivation that the offender endured and the mental health issues that he lives with.

There are multiple factors of the offender’s childhood that must be recognised in this sentencing process: R v Fernando (1992) 76 ACrimR 58; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37: (a) Exposure to parental substance abuse; (b) exposure to his mother experiencing family violence; (c) exposure to actual violence by his mother’s domestic partners; (d) early use of illicit drugs; (e) [Redacted]; (f) separation from his parents in his teen years; (g) multiple moves to different homes and regions; and (h) grossly interrupted schooling.

Ms Edwige’s report is impressive and helpful. She has diagnosed the offender as living with grief from his brother’s death that is consistent with an emerging prolonged grief disorder. His brother passed away after this offending whilst the offender was in custody.

The offender suffers from complex post traumatic stress disorder (CPTSD) as a result of his negative childhood experiences. He has also been diagnosed with substance use disorder as Ms Edwige has assessed him as having a significant dependency on crystal methylamphetamine. Both of those diagnoses were operational at the time of the offending.

The CPTSD is a factor that must be considered as part of the offender’s subjective circumstances but it does not give rise to a reduction in sentence or sentence type pursuant to the first four considerations in the case of R v Verdins [2007] VSCA 102.

The final two considerations in Verdins are enlivened. Ms Edwige’s report is cogent evidence that a custodial sentence will weigh more heavily and have a greater likelihood of significant adverse effect on the offender than it would on a different person not labouring under the offender’s diagnosed mental health conditions. What are the financial circumstances of the offender? (s 33 (1)(n) CS Act)

The offender has been in custody for over a year now. He has little or no positive income flow. Given that it is conceded that imprisonment is the only possible outcome, the imposition of a fine is not within contemplation. What probable effect would any sentence have on the offender’s family or dependants? (s 33 (1)(o) CS Act)

There is no material before the Court that would provide any finding on this topic. However, it is accepted by the Court that continued custodial sentences will have an obvious negative impact on the defendant’s relationships. Was the offender affected by alcohol or a controlled drug at the time of the offending and what were the circumstances in which he became affected? (s 33(1)(p) CS Act and also s 12A(2) CS Act)

The offender admitted to illicit drug use at the time of the offending to Ms Edwige. The offending involved method and planning and was relatively well executed by a group of four offenders. Gross intoxication did not appear to be a factor, neither was offending to feed an illicit drug habit.

No submission was made pursuant to R v Henry (1999) NSWLR 346; [1999] NSWCCA 111 and I concluded that there was no separate requirement to consider illicit substance use above and beyond the significant weight given to the aforementioned Bugmy considerations. Would the imposition of a conviction or a particular penalty be likely to cause particular hardship to the offender? (s 33(1)(r) CS Act)

Ms Edwige is of the view that prolonged custody will have a significant negative effect on the offender’s mental health. What is or are the reason or reasons why the offender committed the offences? (s 33(1)(v) CS Act)

The prosecution submitted that the offending was committed out of greed. The defence did not make a submission on the topic and the offender did not offer a reason for his offending in the intensive corrections order assessment report (ICOAR).

The offender told Ms Edwige that he had broken up with his partner, was kicked out, started using drugs again and was in a toxic frame of mind prior to the offending. His assertion in her report that he did not want to hurt anyone was inconsistent with the behaviour displayed by the offender and his co-offenders during the offending and the fact that each of them carried a weapon into the victims’ home.

The statement of facts sets out that the offender’s stated purpose during the offending was to obtain money. I find that this was the primary purpose of the offending.