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1. Benjamin Green is before the court for sentence having pleaded guilty to four counts of theft contrary to s 308 of the Criminal Code 2002 (ACT) (Code) and one offence of failing to appear contrary to s 49(1) of the Bail Act 1992 (ACT).

2. The maximum sentence for theft is a term of imprisonment of 10 years, a fine of $160,000 or both. The maximum sentence for a failure to appear is a term of imprisonment for 2 years, a fine of $32,000 or both.

Facts

3. The sentence proceeded on an agreed statement of facts. The four counts of theft together constituted 24 separate instances of taking clothing items and alcohol from Rebel Sport, Liquorland and Dan Murphy’s over a period of approximately 10 weeks. The approximate total value of the goods stolen was nearly $20,000.

The Court’s task

4. The offender is to be sentenced in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), and the mandatory relevant considerations set out in s 33 of the Sentencing Act. They are considered below insofar as they relate to the offender’s circumstances. The principle of individualised justice guides the exercise of the discretion: MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 at [56].

5. Section 10(2) of the Sentencing Act provides that all possible alternatives must be considered before a term of imprisonment may be imposed. In the reasoning that follows here, it has been accepted that a sentence of imprisonment is the only appropriate sentence.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

6. The nature and circumstances of the offences include consideration of the objective seriousness of the offence. Any sentence imposed must be proportionate to the seriousness of the offence. The court takes an objective approach to that assessment, with the maximum penalty for the offence as a yardstick.

7. Applying R v Miller [2019] ACTCA 25; 279 A Crim R 232 at [22] and Laipato v The Queen [2020] ACTCA 35 at [156] the factors that have informed the character of the objective seriousness of the offences here are: (a) The motive for the thefts; (b) The extent and value of the property taken; (c) The nature of the premises where the thefts occurred; (d) The degree of planning or pre-meditation; and (e) Whether the stolen items were of sentimental value or utilitarian value (that is, whether they would be difficult or inconvenient to replace).

8. The above features are commonly taken into account, as seen in R v Ruwhiu [2022] ACTSC 290 at [39]-[43], affirmed on appeal ([2023] ACTCA 18); R v Elphick [2021] ACTSC 9 at [115]; R v Slattery [2021] ACTSC 154 at [38]; DPP v Monaghan [2024] ACTSC 183 at [18].

9. Here, the motive was profit. The offender disclosed that sometimes he profited up to $600 per day. Although each of the items stolen was of modest value, three of the four offences is of a rolled-up nature and the objective criminality is therefore greater than that of an individual count: R v Forrest (no 2) [2017] ACTSC 83 at [163]-[164]. The premises where the thefts occurred were commercial and there was no feature of sentimental or rare value that aggravates the conduct here. I accept the prosecution’s submission that the offending was pre-meditated but unsophisticated. I consider that the four counts were each typical examples of offending. While the conduct was not minor, it remains towards the lower end of the range.

10. The failure to appear was an unremarkable example of the offence, with the court date at which the offender failed to appear being the first mention following the offender’s arrest.

Victim impact statements (s 33(1)(f) of the Sentencing Act)

11. There were no victim impact statements. However, the victims have requested reparation orders to be made, and the prosecution sought such an order, in an amount of over $15,000. That is not to ignore the employees of the businesses affected who have to deal with these offences, and the obvious financial impact to each of the businesses and the indirect impact to the community remains. However, beyond that, the court does not speculate.

Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

12. I have determined that it is appropriate to apply a 25% discount in respect of each of the offences. That is because: (a) I have the power to do so pursuant to s 35(3) of the Sentencing Act. (b) The discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. (c) Utilitarian value is the primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47]; R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49]. Here, the offender pleaded guilty to each of the offences at an early opportunity. The stage at which the pleas were entered was before the preparation of any prosecution briefs. Given the number of rolled-up charges, the utilitarian value was high. (d) I gave consideration to the statutory matters set out in s 35(2) of the Sentencing Act. There was no evidence of any significant benefit having been obtained following negotiations. The nature of the offending and its objective seriousness was not of a kind where a percentage discount approach may have been inappropriate.

13. The court must state the penalty that it would otherwise have imposed (s 37(2) of the Sentencing Act) and this will be included in the final orders. As a consequence, any non-parole period will be indirectly affected but there is no express reduction in that regard.

Criminal antecedents of the offender (s 33(1)(m) of the Sentencing Act)

14. The offender’s criminal history is significant and relevant and disentitles him from leniency. The offence of failing to appear was committed while the offender was on conditional liberty and is therefore aggravated by that feature.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

15. The offender’s subjective circumstances are detailed in a number of reports before the Court. He is 40 years old. He has a social history of childhood deprivation, with a lack of any stability or moral compass in his adult role models, and involvement of child protection services in New South Wales. I have given full weight to the offender’s profoundly disadvantaged childhood: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43]-[44].

16. The offender has had limited secondary education and had difficulty in securing stable employment, although he has been able to work and does appear motivated to gain skills, most recently in road services.

17. The offender has a history of drug addiction, and the offending was addiction-related. However he was found unsuitable for a drug and alcohol treatment order due to other subjective features outlined above and below, which resulted in concerns about compliance, risk to staff and participation in suitable programs or intervention, as well as a lack of stable accommodation (which was a material consideration in the event that the offender was released into the community with access to a rehabilitation program that was not in the form of a full-time residential program).

18. There is also a significant mental health diagnosis and complex mental health history that influences the court and the approach to be taken to the sentences here. In my view, the offender’s persistent engagement with the criminal justice system is no small coincidence, given the detailed information before the court and the fact that he is currently the subject of a Psychiatric Treatment Order.

19. Having regard to the content of the mental health report prepared for the court by a qualified professional, and the nature of the mental illness, I consider the application of Verdins principles is appropriate (as to which see R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 at [32]) in terms of the full application of principles of general deterrence, although not by any additional reduction (over and above that arising from the application of the Bugmy principles) in moral culpability, but more in terms of the appropriate sentence now.

20. In that regard, I have applied Higgins v The Queen [2022] ACTCA 26 at [40]-[45], where the Court of Appeal noted that the principles recognise the potential effect of a mental disability in any given case (citing Aslan v R [2014] NSWCCA 114 at [34]) and call for a discretionary evaluation as to the significance of the operation of those principles in the broader sentencing process. I accept that the offender’s complex psychological background means that a sentence of full-time custody would weigh more heavily upon him (s 33(1)(r) of the Sentencing Act).

Financial circumstances of the offender (s 33(1)(n) of the Sentencing Act)

21. As a result of his disabilities, the offender has limited financial resources and no realistic ability to pay a reparation order or fine.

Reason for the offending (s 33(1)(v) of the Sentencing Act) and Remorse (s 33(1)(w) of the Sentencing Act)

22. The offender expressed a degree of remorse or insight into his own conduct. He appreciated the consequence of his conduct and regretted his actions. He attributed his offending to supporting a drug habit and a need to purchase medical supplies to treat an infection he was experiencing at the time. Current sentencing practice (s 33(1)(za) of the Sentencing Act)

23. Current sentencing practice has been considered, in accordance with the principles set out in NC v The Queen [2017] ACTCA 31, where the Court of Appeal stated at [54]: ...Comparable cases may be useful in two ways: first, if it is possible to discern from them any unifying sentencing principles that should be applied; and second, if an analysis of the cases discloses discernible sentencing patterns or a range of sentences. However, the cases may not establish any relevant range, or the range may not necessarily be the correct range or otherwise determinative of the upper and lower limits of sentencing discretion: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]–[55] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59] (per Gaudron, Gummow and Hayne JJ); R v Pham [2015] HCA 39; 256 CLR 550 at [26]–[27] (per French CJ, Keane and Nettle JJ). Much will depend on the number of cases referred to and whether they are truly comparable. ...

24. The objective in seeking consistency in sentencing practice is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction, but rather consistency in application of the sentencing principles: see Hili at [48].

25. While neither party relied on any specific cases, I have considered Dawson v The Queen [2019] ACTCA 9 at [47] and R v Williams-Savage [2021] ACTSC 271. It is to be borne in mind that here, the charges were rolled-up, and were of theft, not minor theft.

Pre-sentence custody

26. The offender has spent 363 days in custody. However, due to other sentences imposed only 149 of those are truly referable to the offending and warrant backdating the sentence by that period of time.

Totality

27. That does mean the remaining period spent in custody is irrelevant. The totality of the sentence should not be crushing for the offender. In adjusting for concurrency, I have taken the previous time spent into account in deference to statements in the authorities that the severity of sentences increases at a greater rate than the linear increase in their length: Thomas v R [2019] NSWCCA 265 at [37] and the cases there-cited. Balanced against that is the notion that there ought not be any perception of a discount for multiple offending: Forster-Jones v The Queen [2020] ACTCA 31 at [79]. That carries greater force when the sentence to be imposed is for offending that has been rolled-up.

28. Otherwise, the approach to principles of concurrency and accumulation has been set out in Dawson at [37] (and the cases there-cited). Here, these offences really form part of a series that was pattern. Although not strictly operating as a single course of conduct (s 33(1)(c) of the Sentencing Act), partial concurrency is appropriate.

29. Finally, the structure of the sentence reflects the more serious conduct (in terms of value and number of occasions) being placed first, rather than a structure that is chronological.

Disposition

30. As discussed with the parties during the hearing, the threshold of imprisonment was crossed, as no other sentence would have given proper effect to specific deterrence, denunciation and punishment. General deterrence had less operation in the circumstances of this offender for reasons explained above. The main question is the length and manner in which the sentence is to be served. The lack of suitability of other options such as a treatment order or an intensive corrections order reduces the options available to promote the offender’s rehabilitation while protecting the community in the short and longer-term.

31. I decided that it was appropriate to adopt a sentence of full-time custody with a non-parole period because this offender has complex needs. He will require stable housing before being released into the community. He will require satisfaction that he has access to, and is taking, prescribed medication. He would potentially benefit from assistance with interventions directed to emotional regulation, which may be available through Everyman or while in custody. He will also need a lengthy period of supervision to ensure that he is able to remain in the community without drug addiction consuming his world again. All of those matters are best managed by the Sentence Administration Board, rather than a partially suspended sentence which would guarantee release on a certain date, regardless of whether the offender had stable accommodation or was medically stable.

32. I have decided against a reparation order primarily because of the offender’s financial circumstances and ability to pay one. The periods of imprisonment to be served take into account that a reparation order was not made.

33. For the failure to appear, while that offence by itself may not have warranted a sentence of full-time custody, in light of the other offending and the sentence structure to be adopted, it became the only appropriate sentence. I was concerned that imposing a good behaviour order in addition to a lengthy period of supervision with any conditions of parole attached was potentially setting the offender up to fail.

34. Giving effect to my reasons with regard to the Verdins principles and the desired significant period to reintegrate into the community under supervision, the non-parole period will be shorter (as a percentage of the overall sentence). I will set it at 10 months.

Orders

35. The orders of the Court are: (1) For the offence of theft (CAN 2359/2025) contrary to s 308 of the Code, the offender is convicted and sentenced to a term of imprisonment for 12 months, reduced to 9 months on account of his guilty plea, backdated to commence on 8 October 2025 and conclude on 7 July 2026. (2) For the offence of theft (CAN 3780/2025) contrary to s 308 of the Code, the offender is convicted and sentenced to a term of imprisonment of 12 months, reduced to 9 months on account of his guilty plea, to commence on 1 January 2026 and conclude on 30 September 2026. (3) For the offence of theft (CAN 2358/2025) contrary to s 308 of the Code, the offender is convicted and sentenced to a term of imprisonment for 8 months, reduced to 6 months on account of his guilty plea, backdated to commence on 1 September 2026 and conclude on 28 February 2027. (4) For the offence of theft (CAN 2477/2025) contrary to s 308 of the Code, the offender is convicted and sentenced to a term of imprisonment of 6 months reduced to 4 months and 15 days on account of his guilty plea, to commence on 6 January 2027 and conclude on 20 May 2027. (5) For the offence of failure to appear, the offender is convicted and sentenced to a term of imprisonment for one month and 11 days, reduced to 1 month on account of his guilty plea, to commence on 30 April 2027 and conclude on 29 May 2027. (6) The total effective sentence is 1 year 7 months and 22 days, commencing on 8 October 2025 and concluding on 29 May 2027. (7) A non-parole order of 10 months is set, to commence on 8 October 2025 and conclude on 7 August 2026.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: