DPP v Linde [2025] ACTSC 116

1. The offender Andrew Linde is to be sentenced for three offences as follows: (a) Aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code) carrying a maximum penalty of 20 years imprisonment, 2000 penalty units, or both (CAN 2024/7205); (b) Theft contrary to s 308 of the Criminal Code carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both (CAN 2024/7207); and (c) Attempted aggravated robbery contrary to s 310 of the Criminal Code carrying a maximum penalty of 25 years imprisonment, 2500 penalty units or both (CAN 2024/1870).

2. The offending occurred in September 2023. In March 2024, Mr Linde was sentenced by the Magistrates Court to terms of imprisonment for a series of offences committed at the same time as the offences the subject of the current sentencing exercise. He is currently eligible to apply for release on parole. Accordingly, the application of the totality principle has significant relevance in this matter and implications for the appropriate orders to be made.

7 September 2023 offending

3. On Thursday 7 September 2023 at about 1:12am, the offender and a co-offender approached the letterboxes for an apartment complex in Kingston. They removed items stored inside, which included a lockbox containing a key and access fob for an apartment in the complex. The owners of this apartment, who are the victims of the offending, were away interstate at the time.

4. At about 7:39am, the offender and co-offender were captured on closed-circuit television (CCTV) footage entering the apartment complex using the victims’ access fob. They checked a pile of mail left by the door, before then gaining access to the victims’ apartment. A number of items were taken from the apartment, using bags belonging to the victims to carry the items. At about 10:08am, the offenders returned and again accessed the victim’s apartment, and they took further items.

5. When the victims returned to their apartment, they identified the items that were taken. This included a large number of luxury accessory items, jewellery, glasses, makeup, and perfume. A total of at least 70 items were taken, with the total value of property stolen being $52,797.00. In addition, a United Kingdom Government presentation coin and a commemorative coin of the Victoria Cross medal were taken.

6. Any entry to a residential property is serious. The form of entry here has features of aggravation given there were repeated entries and a high number of items of a high value taken. The offending was brazen and persistent, though there was not damage caused to effect entry. The involvement of two offender’s statutorily aggravates the offending with an increased maximum penalty.

7. The role of each offender appears to be of equal culpability. On behalf of Mr Linde, it was submitted that he instructs that he entered the premises with the co-offender on a misapprehension that she was assisting the occupants to move residence. I am not prepared to make this finding on the balance of probabilities. The time at which the access to the apartment was initially secured and the nature of the items taken is contrary to such a belief being reasonably held.

8. It is not clear on the facts the manner in which the property was taken in terms of whether the apartment was ransacked, but, regardless, the victims will have been left with a sense that their privacy and the safety of their home was violated. The offending involved a complete disregard and disrespect to the home and property of another community member. There were a number of sentimental items taken, although fortunately some were able to be returned (see below at [25]). Plainly, no penalty other than imprisonment is warranted, but with a level of concurrency to reflect the inextricable link between the offending conduct.

9. The co-offender is yet to be sentenced.

28 September 2023 offending

10. On Thursday 28 September 2023 at about 5:35pm, the offender and the co-offender attended at the IGA X-Press in Palmerston. The co-offender walked down the liquor section of the IGA and Mr Linde spoke to the cashier about alcoholic spirts which were kept in a locked cabinet.

11. The co-owners of the IGA, who both came to be victims of the offending, were in the manager’s office and were watching the live stream from the IGA’s CCTV. The co-offender was seen to place two four-packs of alcohol cans in her bag. One of the owners (the first victim) left the office and went to stand at the exit of the IGA.

12. As the victim approached the exit, the owner used his body to block her from exiting the store. The co-offender used her left arm to push the owner, being the first victim of the robbery. He was pushed into a nearby drink fridge, which caused him to lose balance and required him to take a few steps backwards to stop him from falling.

13. The first victim placed his right hand into the co-offender’s bag in attempt to remove the items that were taken. The co-offender raised her right hand above her head, and, using a mobile phone she was holding, struck the victim on the top of his head. The victim shrugged his shoulders up to protect his head.

14. During this time, the offender Mr Linde used both of his arms to grab the first victim’s right arm in an attempt to pull him away from the co-offender. The other owner, who is the second victim in the robbery, was watching what was occurring on the livestream and entered the shop floor and moved towards the co-offender.

15. The second victim grabbed the co-offender’s bag in an effort to separate her from the first victim. The co-offender pushed away from the first victim. The first victim was then able to move one of the four-packs of cans, and he threw them towards the cashier. The first victim then pushed the offender Mr Linde out of the store and blocked him from re-entering. Mr Linde remained at the entrance of the store.

16. The co-offender then engaged in a physical altercation with the second victim. Meanwhile, the offender was verbally abusive and stated words to the effect of “I’m going to go get the gun”. The co-offender said towards to the effect of “That’s it. Go get the gun. Go get the gun from the car”. The offender then said words to the effect of “Tell all the boys to come here. Tell them to bring their guns as well”.

17. The co-offender pushed past the second victim and walked out of the store. The victim followed and filmed them leaving in an identifiable vehicle. Police were contacted. It is not clear on the facts what happened to the second four-pack of cans, but I infer from the charge being one of attempt, and the particulars of the charge, that it was also recovered.

18. As a result of the altercation, the second victim noticed that he had blood in his mouth and a split lip. After the incident he had a headache and required Panadol.

19. Plainly, any robbery that results in physical harm caused to a victim is serious and warrants no penalty other than imprisonment. This is so even when such harm was caused without the use of a weapon or implement, as occurred to the second victim. The application of force to the first victim did though involve the use of an implement, albeit not an implement seemingly carried for the purposes of robbery. While the majority of physical force and harm to the victims was caused directly by the co-offender, overall, both offenders shared a similar role and culpability in the offending, albeit the co-offender has a more serious role given she was the one that primarily engaged in direct physical conduct.

20. The offenders clearly planned that they would commit the attempted theft aspect of the offence, and they worked together to affect their plan. They did so in an unsophisticated way. They did though both express what would have been frightening verbal threats. The conduct being in company accounts for the increased maximum penalty.

21. That the offence is one of being an attempt is of little consequence in this matter as the offence was only not fulfilled due to the victim’s intervention. The property attempted to be stolen was though of a low value. Nonetheless, the offender’s conduct was determined and forceful and will have inevitably caused significant emotional distress and concern for the victims. There were two victims involved, who were subjected to physical violence and verbal threats, with other users of the store at the time also exposed to the violence and threats. It was though overall, as the prosecution submitted and the representative on behalf of the offender embraced, “not an especially serious example of an offence of its type”.

22. On behalf of Mr Linde, the Court’s attention was drawn particularly to the authority of DPP v Hambilton [2024] ACTSC 70 (Hambilton) as relevant to current sentencing practice for this offence. It was acknowledged though that in Hambilton there were more compelling subjective features. A starting point of 16 months imprisonment was imposed for an offence of robbery.

23. The co-offender for this offence is yet to be sentenced.

Arrest and time in custody

24. On 29 September 2023, police responded to a disturbance between a male and a female at the Ibis Hotel in Narrabundah. Upon entry, police observed a male leap from the window. He was arrested by police officers waiting outside the window and was later identified as Mr Linde. The female identified herself to police and was subsequently identified as Mr Linde’s co-offender.

25. Police searched the room and located a number of the items belonging to the victims from the burglary. The items recovered were the coins, a jewellery box with a hair clip and ring, four pairs of shoes, and five bottles of perfume. Police also located items of clothing that matched items being worn by the offender during the attempted aggravated robbery.

26. The offender was remanded in custody, with the period in custody since that time attributable to sentences subsequently imposed by the Magistrates Court. Subjective circumstances

27. The offender is now aged 34 years and was aged 32 and 33 years at the time of the offending. He is a First Nations man, although has limited knowledge of his background. He has not had contact with his father since his parents separated when he was three years of age. He was raised by his mother and stepfather and has two half siblings. He left the family home aged 11 years due to conflict with his stepfather, although reports they now have an amicable relationship.

28. The experiences of Mr Linde’s childhood and adolescence are such that the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) are enlivened. The prosecution did not dispute this, and it is unnecessary in the circumstances to set out in detail the experiences of Mr Linde’s formative years. Suffice to say, I am satisfied that the principles from Bugmy are enlivened, and that Mr Linde’s moral culpability for the offending is reduced.

29. It was further submitted that the offending behaviour reflects substance dependency. I accept this, with reference to the information available as to Mr Linde’s substance use history as outlined in the pre-sentence report. I am not persuaded though that this amounts to a mitigatory factor with the basis for a finding of early exposure to substances not clearly available.

30. Positively, Mr Linde has in the past experienced a period of stability. He has children, and a partner who continues to be supportive. He has previously had stable employment, and he intends to secure employment upon release from custody with a view to support his family. He also intends to obtain housing through the Justice Housing Program. He otherwise has support through the NDIS, reflective of physical and cognitive challenges he experiences following a motorcycle accident in 2022.

31. It is clear that Mr Linde is now determined to address his substance dependency, with his partner and children being motivating factors. He has completed alcohol and drug recovery programs while in custody, and reports that he has gained greater understanding of the impact of his behaviour on the victims. He is described as expressing an understanding of his wrongdoing.

32. He has intentions to continue his rehabilitation upon his release. He will be able to be assessed for the Canberra Recovery Service program. He also intends to engage with the Ngunnawal Bush Healing Farm with a view to connecting more to his culture, for his own and for his children’s benefit. He has been accepted into this program, which, along with a program to address substance dependency, would plainly be of benefit to him and reduce his risk of reoffending.

33. The offender has an extensive criminal history across multiple jurisdictions. This includes for similar offending to the type that occurred here, including robbery. Indeed, at the time of the first offending that occurred here, he was at the end of a parole order imposed by the Brisbane District Court for an offence of robbery. This is aggravating on the sentence, and no leniency is available with reference to Mr Linde’s criminal history.

34. Mr Linde’s criminal history in the Australian Capital Territory primarily relates to offending from the same period of time that the offending the subject of this sentence exercise occurred. That is, on 4 March 2024, Mr Linde was sentenced in the Magistrates Court for offences of aggravated burglary, theft, damage property, unauthorised possession of a firearm, unlawful possession of stolen property, and providing a false name, being offences that were committed between 23 September and 29 September 2023. In addition, he was sentenced at that time for offences of ride/drive a motor vehicle without consent, unlicensed driving, failing to appear, and providing a false name. These offences were committed in 2022 and 2023. The total effective sentence imposed was 1 year and 8 months imprisonment, with a nonparole period of 17 months. The term of imprisonment commenced on 3 September 2023, and the nonparole period concluded on 2 February 2025.

35. Mr Linde has applied to be released on parole, with a hearing scheduled before the Sentence Administration Board on 27 March 2025. This previous sentence hearing, and the pending parole consideration, is of consequence in the sentencing exercise and will be considered further below.

Pleas of guilty

36. Pleas of guilty were entered in the Magistrates Court. In respect to the 7 September offending, this was at a mention stage, following representations, and prior to any plea of not guilty or preparation of a brief of evidence. In respect to the 28 September 2023 offending, this was at a mention stage, following provision of a ‘mini’ brief of evidence, and prior to any plea of not guilty. In the circumstances, I am satisfied that there is a utilitarian value such that a reduction in the order of 25 per cent is appropriate for each offence.

Consideration

37. It is clear that the sentencing exercise requires an application of s 66 of the Crimes (Sentencing) Act 2005 (ACT) such that a nonparole period is appropriate, and that the current parole date will need to be reset given the existing sentence and parole eligibility. The totality principle is also clearly of application given the ‘crime spree’ nature of the offending the subject of this sentencing exercise, and the earlier sentencing exercise. The extent to which there can be concurrency between the orders is mitigated by the need to reflect the different offending and to recognise the harm to the distinct victims.

38. It was submitted on Mr Linde’s behalf that the Court consider ordering an eligibility for parole such that Mr Linde’s current application and potential release date is not disrupted. Mr Linde himself, to the author of the pre-sentence report, expressed frustration at the ongoing court proceedings, with the current offences having occurred during the same ‘crime spree’ that he is currently serving a sentence for. On his behalf, it was submitted that an order with immediate parole eligibility would reflect an appropriate application of the totality principle, and take into account that the initial sentence imposed involved a nonparole period of 85 per cent, being higher than what is typically imposed.

39. The prosecution was heard against such a course. It was accepted that the totality principle has significant application in this matter, but that there would be inappropriate leniency, given the seriousness of the offending, if Mr Linde became immediately eligible for parole.

40. I agree with the prosecution. While I am sympathetic to Mr Linde’s situation, and acknowledge that he has been working towards a release date from custody on or shortly after 27 March 2025, I am required to set a nonparole period that reflects the minimum period of time that justice requires the offender to serve. He is being sentenced for offences that are serious, and offences that warrant denunciation, deterrence, and accountability by an appropriate period in custody. An immediate eligibility for parole would not reflect this.

41. Nonetheless, in an application of the totality principle, I am not to impose an order that would be crushing to Mr Linde. This is particularly relevant at this time as he is motivated to rehabilitate and orders that will promote and support this are important. In the circumstances, I will set what might otherwise be regarded as a lenient nonparole period.

Orders

42. For those reasons the following orders are made: (1) On the charge of aggravated burglary (joint commission) (CAN 2024/7205) the offender is convicted and sentenced to 15 months imprisonment, reduced from 20 months on account of the plea of guilty, to commence on 26 March 2025 and end on 25 June 2026. (2) On the charge of theft (joint commission) (CAN 2024/7207) the offender is convicted and sentenced to 12 months imprisonment, reduced from 16 months on account of the plea of guilty, to commence on 26 March 2026 and end on 25 March 2027. (3) On the charge of attempt aggravated robbery (joint commission) (CAN 2024/1870) the offender is convicted and sentenced to 22 months imprisonment, reduced from 30 months on account of the plea of guilty, to commence on 26 May 2026 and end on 25 March 2028. (4) The total period of imprisonment of 3 years will commence on 26 March 2025 and end on 25 March 2028 (primary sentence). (5) It is noted pursuant to s 75 of the Crimes (Sentencing) Act 2005 (ACT) that the offender is subject to an existing sentence of 1 year and 8 months imprisonment, imposed on 4 March 2024 and backdated to commence on 3 September 2023 and end on 2 May 2025 (existing sentence). (6) It is further noted pursuant to s 66(3) of the Crimes (Sentencing) Act 2005 (ACT) that the nonparole period, set to conclude on 2 February 2025, in respect of the existing sentence is automatically cancelled. (7) Pursuant to s 65(3) of the Crimes (Sentencing) Act 2005 (ACT), a nonparole period, in relation to the existing and primary sentences, is imposed to commence on 3 September 2023 and end on 30 June 2025.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 31 March 2025