DPP v Kinder [2025] ACTSC 431

1. Alec Robert Kinder is before the court for sentence, having pleaded guilty to the following offences:

(a) CAN 10476/2024: Aggravated Burglary, contrary to s 312(a) of the Criminal Code 2002 (ACT) (Criminal Code);

(b) CAN 11094/2024: Minor theft, contrary to s 321 of the Criminal Code;

(c) CAN 11095/2024: Minor theft, contrary to s 321 of the Criminal Code; and

(d) CAN 11096/2024: Unlawful Possession of Stolen Property, contrary to s 324 of the Criminal Code.

2. The maximum penalty for an offence of aggravated burglary is a term of imprisonment for 20 years, a fine of $320,000 or both. The maximum penalty for the offences of minor theft and unlawful possession of stolen property is a term of imprisonment for 6 months, a fine of $8,000 or both.

Facts

3. The burglary and theft offences for which the offender is being sentenced occurred on 17 October 2024. The offender and another male entered a house in Taylor shortly after midday. There were three occupants of the house, one of which appears to have been known to the offender prior to the offending. None of the residents were at home at the time the offender and the co-offender entered the premises. The offender and his co-offender ransacked the house and stole property worth between approximately $11,000 and $18,000, including jewellery, a computer, clothing, shoes, watches, an Xbox and alcohol. Some of the property taken was recovered following the offender’s arrest but many items were not.

4. The offender left his phone at the property and the evidence obtained confirmed that this was a pre-meditated offence relating to a drug debt.

5. The conduct was charged as two minor theft offences by reference to the property taken from each of the two victims.

6. The possession of stolen property offence occurred on 19 October 2024. At the time that he was arrested on suspicion of the burglary and theft offences, the offender was also in possession of a stolen ACT registration number plate located during the execution of a search warrant of the vehicle in which he was sitting as a driver. The Court’s task

7. The court’s task is well-established. It is to sentence the offender in accordance with the sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which include (in summary form) making the offender accountable and denouncing and adequately punishing his conduct, deterring the offender and other people from committing the same or similar offences, recognising the harm done to the victims of the crimes and the community and promoting an offender’s rehabilitation.

8. The mandatory relevant considerations set out in s 33 of the Sentencing Act have also been considered below insofar as they relate to the offender’s circumstances, and in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

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

9. As I have stated in other cases but repeat here for the benefit of the particular offender involved, the requirement to consider the nature and circumstances of the offences includes consideration of the objective seriousness of the offence. A number of general principles guide that assessment. They are as follows: (a) There is a theoretical spectrum from the least serious instance of the offence to the most serious. That spectrum takes into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. (b) In assessing the nature of the crime, the court takes an objective approach, in the sense that the court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. (c) The maximum penalty for an offence also provides a yardstick against which to assess the objective seriousness of the offences before the court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The 20-year maximum penalty here indicates that the offence of aggravated burglary itself is a serious offence and of significantly greater gravity than the offences of minor theft and possess stolen property. (d) The sentence which the court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

10. It is also preferable to articulate the factors that inform the character of an offence’s objective seriousness: Miller at [22]; and Laipato v The Queen [2020] ACTCA 35 at [156]. Here, I have followed DPP v Clissold [2023] ACTSC 250 at [33] and the cases there-cited, in taking into account: (a) The nature of the premises that was burgled (here, residential); (b) The damage caused to the premises (which has not been separately charged), being to the CCTV wiring, as well as the extent of the disarray caused to the premises in terms of the scattering of property in the premises; (c) The occupants of the premises were not present at the time the burglary was committed, although I accept the offender was in the premises for a considerable period of time; (d) The burglary was motivated by revenge for non-payment of a drug debt; (e) The burglary was pre-meditated; (f) The conduct was an isolated occurrence; (g) The statutory circumstance of aggravation was that the burglary was committed in company with another person.

11. A shiv-style knife was also left behind. However, I have exercised caution in relation to the knife as it is unclear who possessed it or what knowledge the offender had about it and the offence of aggravated burglary was not charged by joint commission.

12. The actual trauma suffered by the occupants has been addressed as part of considering the impact to the victims below.

13. Although the offence itself is a serious offence, the above features indicate that it falls at the lower end of the range of conduct constituting aggravated burglary.

14. In relation to the each of the theft offences, following R v Elphick [2021] ACTSC 9 at [115] and R v Slattery [2021] ACTSC 154 at [38] (both of which were cited by Taylor J in DPP v Monaghan [2024] ACTSC 183 at [18]), I have taken into account as being relevant: (a) The motive for the thefts; (b) The extent and value of the property taken; and (c) Whether the stolen item was of sentimental value or utilitarian value, such that it would be difficult or inconvenient to replace.

15. The motive has been discussed above. The value of the property was considerable for an offence of minor theft, although the offence itself is significantly less serious than other theft offences available, as indicated by the lower penalty here. For each of the victims, there were items taken (for example, gifts from friends from overseas countries, pairs of shoes, an international passport, photo cards in the cameras that were taken) which had either sentimental value or were difficult and in some cases, impossible to replace.

16. The unlawful possession of stolen property offence is of the least serious objective gravity. It was one item and the length of the time of possession was charged as a single day.

Loss or damage from offending (s 33(1)(e) of the Sentencing Act)

17. The loss and damage has been taken into account as part of assessing the nature and circumstances of the offending.

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

18. The offender pleaded guilty to each of the offences at an early opportunity. The court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offences: s 35(3) of the Sentencing Act. The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]- [38]. If the court does exercise the discretion, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.

19. I have taken into account the circumstances in which the plea was entered, being before a brief of evidence was prepared, as well as the statutory matters set out in s 35(2) of the Sentencing Act. Some of those matters are addressed separately elsewhere in these reasons, such as the seriousness of the offence and the impact of the offence on two of the three victims.

20. Utilitarian value is the primary consideration: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49]. There was high utilitarian value here and it was accepted by the prosecution that it was appropriate to apply a 25% discount in respect of each of the offences.

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

21. The offender is 27 years old. He was 26 at the age of the offences. He has Aboriginal heritage. He is not currently in a relationship but does have two children, one of whom is his step-child. The offender does not appear to have custody of either of those children and that lessens the weight to be given to the probable effect of any sentence or order on the offender’s dependants (s 33(1)(o) of the Sentencing Act), although he is still hopeful of maintaining his paternal connections with the children.

22. He appears to have had an uneventful childhood, with good relationships with his siblings and parents and no diagnosed mental health conditions, although there is some medical history of concern, the details of which are unnecessary to set out here. He has retained the support of his parents who were in court for the sentencing hearing.

23. The offender has previously been in employment in the construction industry and has reportedly still retained an ability to earn should he be released into the community, but currently he would not be in a financial position to pay any fine (s 33(1)(n) of the Sentencing Act).

24. It is unclear what led him to the point where he ceased formal education from year 8 and had contact with the juvenile justice system from the age of 13, but he was then in frequent contact with juvenile justice until he was 18 years old. He has an extensive relevant criminal history as a minor and an adult (s 33(1)(m) of the Sentencing Act) which prevents the court from treating him with leniency.

25. He has a history of drug use from the age of 15 years old. It is his drug use that appears to have contributed to the breakdown of the relationship with the mother of his biological child. The offender was affected by drugs at the time of offending (s 33(1)(p) of the Sentencing Act). He has at times used methamphetamine daily and has had a problematic use with alcohol since the age of 12, although he says this has now settled. He is currently taking monthly Buvidal injections and has a strong desire to manage his drug addiction for himself and his children.

26. I accept that the offending was drug-related (s 33(1)(v) of the Sentencing Act) and that this is a criminogenic risk factor that warrants targeting to mitigate, and ideally prevent, ongoing recidivism.

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

27. There were two victim impact statements before the Court. They were from the two occupants who lived with the person targeted by the offender. They each speak of no longer feeling safe in their own home, of the psychological impact that the offending had on each of them and their distress at the loss of items which had particular sentimental value and will be impossible to replace. One of the victims explained the financial consequences of having to move house because of that lack of feeling of safety.

28. It is clear that this offender’s actions have harmed these members of the community. As one of the victims expressed, it is not just about the belongings taken. It is about the memories that attach to them. It is about the feeling of inner safety that is lost when personal private space is violated. Burglary is treated as a serious crime because it has serious consequences for the victims of these types of offences.

Remorse (s 33(1)(w) of the Sentencing Act)

29. The evidence did not disclose any remorse. That is not an aggravating feature. It simply means that the court does not take that factor into account. It may be that on reflection and with maturity, the offender does in time come to appreciate the harm he has caused. However, the court sentences on the evidence as it stands at the time of the hearing.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

30. The Court was referred to a number of cases by way of assistance to ensure consistency in sentencing practice in accordance with the principles discussed in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]. They include R v Horan [2020] ACTSC 189; R v Catanzariti [2020] ACTSC 326; R v Tracey [2020] ACTSC 28; R v BC [2019] ACTSC 233; R v Booth [2016] ACTSC 365. I have taken them into account, although with the same caveat expressed in R v Bessant [2020] ACTSC 365 at [37]-[41] by Refshauge AJ, who observed that the range of circumstances for offences that include aggravated burglary is “so wide that it is difficult to identify, with any reasonable utility, a singular sentencing practice. I have discussed the sentencing practice more generally with regard to aggravated burglary in DPP v Stasinos [2023] ACTSC 179 at [46]-[55]. In the present case, none of the victims were at home at the time of the offence. That does appear to be a feature of significance in the cases discussed where the sentences of imprisonment extended beyond 2 years.

Pre-sentence custody

31. The offender has been in custody since 19 October 2024. As at the date of sentencing, he will have been in custody for 339 days. This will be taken into account by way of backdating, pursuant to s 63 of the Sentencing Act.

Totality

32. The approach to principles of concurrency and accumulation has been set out in Dawson v The Queen [2019] ACTCA 9 at [37] (and the cases there-cited). I accept that there should be a considerable degree of concurrency here, given that the majority of the offending occurred as part of the one course of conduct (s 33(1)(c) of the Sentencing Act). However, each sentence imposed will also be structured so that a component is served consecutively, to recognise the separate victims and the different conduct involved in burglary and theft. Disposition – Full time custody or targeted intervention?

33. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. Here, it was accepted that such a course was the only appropriate sentence. No other sentence would properly denounce the offender’s conduct or recognise the harm to the victims. I also consider the objective of general deterrence should feature heavily here.

34. The real issue for the disposition of this matter is the length of the term of imprisonment and the manner in which any remaining term should be served. A sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30]. Specific deterrence has already been addressed by the lengthy time the offender has spent in full time custody.

35. I have considered whether a Drug and Alcohol Treatment Order (Treatment Order) should be made for this offender. Dealing first with the formal requirements for such an order: (a) The offender has consented to the Treatment Order and will live in the ACT for the duration of the sentence except as directed by the court: ss 12A(2)(c) and 12A(2)(a)(iii) of the Sentencing Act. (b) On the reports provided to the court, the offender is both eligible and suitable for a Treatment Order: ss 80S and 80T of the Sentencing Act. (c) There are no concerns relating to the safety or welfare of any victim: s 12A(2)(b)(ii) of the Sentencing Act.

36. At this point, it is appropriate to view this offender’s circumstances and his rehabilitation from the perspective of what will best achieve the longer-term protection of the community. One option is to continue to have him held in a full-time custodial setting, surrounded by more seasoned offenders and with significantly curtailed prospects of maintaining any connection with his children or developing the skills and social networks that might sustain him in the community in the longer term. Alternatively, the court can intervene and give him an opportunity to attempt to manage his drug addiction and build a future that makes drug use, drug-related debts, home invasion and stealing as abhorrent to him as it is to the rest of the community. Having taken into account the relevant sentencing considerations as set out above and the objects of a Treatment Order, it is the sentence most likely to succeed in removing the criminogenic factor that was a significant contributing factor to the offences under consideration here. I consider it is the appropriate sentence for this offender: ss 12A(2)(b) and 80O of the Sentencing Act. Orders

37. The orders of the Court are as follows: (1) For the offence of aggravated burglary (CAN 10476/2024), contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), the offender is convicted and sentenced to a term of imprisonment of 18 months (reduced from two years on account of his guilty plea) backdated to commence on 19 October 2024 and conclude on 18 April 2026. (2) For the offence of minor theft (CAN 11094/2024), contrary to s 321 of the Criminal Code, the offender is convicted and sentenced to a term of imprisonment of three months (reduced from four months on account of his guilty plea) to commence on 1 April 2026 and conclude on 30 June 2026. (3) For the second offence of minor theft (CAN 11095/2024), contrary to s 321 of the Criminal Code, the offender is convicted and sentenced to a term of imprisonment of three months (reduced from four months on account of his guilty plea) to commence on 1 June 2026 and conclude on 31 August 2026. (4) For the offence of unlawful possession of stolen property (CAN 11096/2024), contrary to s 324 of the Criminal Code, the offender is convicted and sentenced to a term of imprisonment of one month and 15 days (reduced from two months on account of his guilty plea) to commence on 7 August 2026 and conclude on 21 September 2026.

Drug and Alcohol Treatment Order (5) Pursuant to s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), a Treatment Order is made for Alec Kinder for one year, from today, 22 September 2025 to conclude on 21 September 2026, in respect of the following offences: (a) the aggravated burglary (CAN 10476/2024), for which a conviction and a term of imprisonment for 18 months has been imposed, is the eligible offence. (b) The Treatment Order is then extended to the eligible offences of theft (CAN 11094/2024, CAN 11095/2024) and possession of stolen property (CAN 11096/2024), for which convictions and a total term of imprisonment of 12 months has been imposed. (6) The Treatment Order comprises: (a) A custodial component, incorporating the sentences for the eligible offences from the period 22 September 2025 until 21 September 2026; and (b) A treatment and supervision component for 12 months from today, 22 September 2025 to 21 September 2026. (7) From today (22 September 2025) until the conclusion of the sentence on 21 September 2026, the custodial component of the Treatment Order will be suspended under s 80W of the Sentencing Act, upon the offender complying with the conditions set out in Order 8.

Treatment and Supervision component conditions (8) For the Treatment and Supervision component of the Treatment Order: (a) The core conditions of the Order set out in s 80Y of the Crimes (Sentence Administration) Act 2005 (ACT) are hereby imposed. (b) Mr Kinder is to travel to Canberra Recovery Services on 22 September 2025 and admit himself to the drug rehabilitation program at that facility by 1:00pm. (c) Mr Kinder is directed to complete the said drug rehabilitation program at or any other program of intervention, treatment or counselling he is directed to complete, including urinalysis or case management that may be required by any member of the Treatment and Supervision Team. (d) Mr Kinder is to obey all reasonable directions of any person in charge of the program and all the rules of the program and the facility, which may include directions about where he resides, with whom he associates and his attendance from time to time. (e) Mr Kinder is not to leave his approved place of residence between any curfew hours directed by the Treatment and Supervision team, other than for a medical emergency, and he is to present himself to the front door of the residence if required by an officer of ACT Policing. (f) Should Mr Kinder leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4pm on the next business day with a view to having his Treatment Order reviewed. (g) Mr Kinder is not to consume or use alcohol, cannabis, illicit drugs or prescription drugs not prescribed to him. (h) Mr Kinder is to comply with any directions of the court from time to time about attendance at court in person or by electronic means.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: