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[2025] ACTSC 267
General information, not legal advice.
Supreme Court of the ACT
2025-06-26
Christensen AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Shuang Citation: [2025] ACTSC 267 Hearing Date: 11 June 2025 Decision Date: 26 June 2025 Before: Christensen AJ Decision: See [53] Catchwords: CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary of retail premises – theft by joint commission – damage property – youthful offender – offending more than one year apart – delay in charging moderates moral culpability – assistance to authorities – degree of premeditation and planning – aspects of sophistication – consideration of parity – remorse and insight – steps taken in and out of custody towards rehabilitation and self-development – offender did not press imposition of drug and alcohol treatment order in circumstances of progress with rehabilitation – period of imprisonment imposed – strong prospects of rehabilitation favour immediate release – partially suspended sentence with good behaviour order Legislation Cited: Criminal Code 2002 (ACT) ss 308, 312, 403 Crimes (Sentencing) Act 2005 (ACT) s 36, 63 Cases Cited: DPP v Malibe [2024] ACTSC 43 Parties: Director of Public Prosecutions (DPP) Louis Shuang (Offender) Representation: Counsel G Meikle (DPP) E Wallis (Offender) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Offender) File Number: SCC 30 of 2024 CHRISTENSEN AJ: Introduction
The offender Louis Shuang is to be sentenced with respect to seven offences committed between June 2022 and June 2023. The offending involves the entry to commercial premises with theft from electronic retail stores. The following offences were committed: (a) Three offences of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), carrying a maximum penalty of 20 years imprisonment, 2,000 penalty units, or both (CAN 2023/6761; CAN 2023/8394; CAN 2023/6332); (b) Two offences of theft by joint commission contrary to s 308 of the Criminal Code, carrying a maximum penalty of 10 years imprisonment, 1,000 penalty units, or both (CAN 2023/6759; CAN 2023/6756); and (c) Two offences of damage property by joint commission contrary to s 403 of the Criminal Code, carrying a maximum penalty of 10 years imprisonment, 1,000 penalty units, or both (CAN 2023/6758; CAN 2023/6760).
Mr Shuang has spent a considerable period of time on remand in presentence custody. This period is such that the primary issue for consideration is when Mr Shuang becomes eligible for release from custody and in what form that should be.
15 June 2022 offending
On 15 June 2022 at about 3:21am, the offender and an unidentified second male entered an electronics retailer, CeX Gungahlin, that operated out of a shop in the Gungahlin Marketplace. The offender committed offences of aggravated burglary, damage property, and theft.
The offender and the unidentified male entered the Marketplace by forcing entry through sliding doors in the underground carpark. They then went to the CeX store, and the offender utilised an angle grinder to shear a bolt connecting the security screen gate to the floor, causing damage to the security gate.
Once entry was gained, the offender and the second male loaded mobile phones from display cabinets into two separate pillowcases. They then left the Marketplace via a ground floor sliding door exit and left the area on foot. The security monitoring company detected the entry and police were contacted.
Closed circuit television (CCTV) footage shows that the offender’s clothing included a hooded jumper, a black face covering, and gloves.
A stock check identified that 30 mobile phones of various makes and models and six Apple iPads had been stolen. The total value of the property stolen was $17,175.00.
On 1 July 2022, the offender attended at the Gungahlin Police Station and stated that he wished to hand himself in for an offence. He participated in a record of interview during which he informed police that: - He came to hand himself in because someone was going to report him to police for trying to sell them a phone that he stole from the CeX store in Gungahlin; - He believed that police were going to come and get him anyway, which is why he handed himself in; - He organised the sale of the phone through Facebook Marketplace, and conducted the transaction outside the front of his house in Bonner; - He sold the phone, which was an iPhone 12 or 13, for about $700 in cash; - He did not know the purchaser realised the phone was stolen; - He obtained the phone “last week or recently”, during the early morning while it was still dark outside; - He stole a number of other phones however was not willing to say how many; - He wasn’t with any other person at the time; - When asked about a second person being depicted in CCTV footage of the incident, he declined to comment; - He was wearing all black at the time; - He used a grinder to cut the door from the underground carpark and the door to the store; - He put the phones into a pillow case; - He sold most of the phones for about $400 each in cash; - He initially got into the Gungahlin Marketplace carpark by sliding under the rolling gate; and - He refused to state where the remaining phones were located but knew where they were.
Following the interview, the offender was informed that he would be contacted by the police case officer, and he was allowed to leave. He was not ultimately summonsed or arrested in relation to this offending until after the commission of the 21 June 2023 offences.
The conduct in handing himself into the police, and the apparent inaction by the police in further investigating or charging Mr Shuang in an efficient manner, raises an interesting consideration. It was submitted on the offender’s behalf that his moral culpability is reduced for the subsequent offending, it having been done in circumstances of the offender being a youthful offender and someone who was not subject to any criminal justice system involvement for the offending for almost over a year. It was submitted that, in a youthful mind, there was an almost tacit endorsement of the offending behaviour. With some hesitation, I agree.
It might be thought that any person engaging in offending of the type that occurred here is plainly well aware of the seriousness of such conduct. However, this offender was aged 20 years at the time of the first offending, and then aged 21 years at the time of the second and third in time offending. He was a young man who informed police of his unlawful conduct. The police seemingly took no action with respect to his conduct despite his voluntary attendance to the police and his admissions. I accept that in those circumstances, where he was not made efficiently accountable, there is an impact on the extent to which he understood how serious such conduct was. I accept his moral culpability for the subsequent offending is moderated to a degree as a result.
1 March 2023 offending
On 1 March 2023 at about 3:55am, the offender and a co-offender, Alan Malibe, drove into an open air carpark in Belconnen. They parked a grey Mazda 6 there. CCTV footage showed that at about 3:58am, they ran across the street into the Belconnen Westfield multi-storey carpark. They emerged on level 3 of the carpark and entered an unsecured external door near the ANZ bank. A short time later, they re-emerged into the carpark area and loitered outside the secure sliding doors that open into the shopping centre, peering inside.
The offender was wearing a black hooded jumper with the hood pulled over his head and a dark face covering and he was carrying a black backpack on the front of his body. The co-offender was wearing similar clothing and a face covering and also carrying a backpack.
At about 4:09am, they departed level 3 of the carpark and emerged on level 2 of the carpark. Using bare hands, they pried open the sliding glass doors. CCTV footage shows that they gripped one of the doors immediately above a horizontal frosted strip on the middle of the doors, and on the frosted strip itself.
They forced a narrow gap in the doors which they both squeezed between to enter the shopping centre, committing an offence of aggravated burglary. They moved up an escalator and emerged on level 3 near the CeX store. At about 4:10am they crouched behind a pillar and a coffee kiosk in the middle of the walkway area in front of the CeX store. A cleaner riding a sweeping machine approached the area where they were hiding. While still crouched, they moved around the perimeter of the kiosk to avoid detection by the cleaner as he approached. They both remained crouched behind the kiosk.
About this time, a security officer for the shopping centre observed them on CCTV and contacted police. Multiple police units were dispatched.
At about 4:12am, a second cleaner approached the area on foot. A moment later, the offender and co-offender ran towards the level three sliding glass doors and exited through them into the carpark. They ran back across to the open air carpark.
At about 4:15am, a police patrol located the grey Mazda 6 in the carpark. The offender and the co-offender were seated in the front seats, and the offender was breathing heavily and visibly sweating. They identified themselves to police and were searched. At this stage, police had not viewed CCTV footage from the Westfield Belconnen, and they allowed the offenders to leave.
Subsequent police investigations involved forensic examinations of the glass sliding doors which were matched to the co-offender. Mr Shuang’s clothing was observed to match that shown in the CCTV footage.
21 June 2023 offending
On 21 June 2023 at about 12:35am, the offender, co-offender Alan Malibe, and a third unidentified male forced entry into the Belconnen Westfield by pulling apart glass sliding doors to the complex. They went together into the complex and up an escalator to the CeX store. At the store, they committed offences of aggravated burglary, damage property, and theft.
At about 12:38am, a security officer of the Westfield observed on CCTV the males commence breaking into the store and police were contacted. The CCTV footage showed the offender to be wearing a face mask, gloves, and a hooded jumper. The co-offender and unidentified male were also wearing face coverings, gloves, and hooded jumpers.
The offender initially attempted to access the store by utilising an angle grinder to shear the bolts that connect the security screen gate to the floor. The third male assumed a lookout position at a nearby counter. Intermittently, all three males kicked at the security screen gate. The co-offender then moved to the lookout position while the offender continued cutting. This method was unsuccessful.
The co-offender passed a small axe to the offender. He utilised the axe to hack at the glass on the right hand side of the security screen gate. The offender passed the axe to the third male who continued to hit the glass. The offender and the third male also intermittently kicked the glass while the co-offender returned to the lookout position. Eventually, the co-offender returned and kicked at the glass. The co-offender kicked a hole in the glass, which the males were together able to make larger until it was big enough to climb through.
The co-offender and the offender entered the store through the hole in the glass. The third male pushed a large black duffel bag through the hole in the glass and remained outside of the store. The offender and the co-offender loaded at least two bags, being a backpack and a large duffel bag, with about 46 mobile phones of various makes and models.
At about 12:41am, the offender and the co-offender exited the store by the same hole in the glass. They exited the Belconnen Westfield by a nearby sliding door exit. The third male fled downwards on an escalator. They were carrying the bags. Westfield Security relayed their movements to police until they were unable to be tracked any further.
At about 12:44am, police arrived in the area and observed the offender. The offender sighted police and ran. Following a short foot pursuit the offender was apprehended and arrested.
The offender identified himself to police. He was still wearing the gloves and face mask. Police located a duffel bag in the bushes near to where the offender was initially sighted. This bag was found to contain 30 mobile phones of various makes and models.
At about 1am, police located the co-offender hiding behind a hedge in the area. He began to walk away, but police instructed him to stop and he did so. He identified himself to police, and police located a backpack containing 16 mobile phones near to where he had been hiding.
Assessment of the offending
On each occasion the burglary is aggravated by the offender being in company with other persons. This accounts for the increased maximum penalty. The final occasion of offending is the most serious example of this given it involved three offenders, not only two. None of the offending involved though the legislated aggravation of an offensive weapon which might typically be a more serious example of aggravation.
Nonethless, this offender was carrying and utilised tools to effect entry. There were aspects of sophistication in terms of the manner of entry in this regard. This offender had a primary responsibility for effecting entry and he plainly acted with premeditation and planning in this regard given the tools used. There were also aspects of premeditation and planning in terms of the clothing worn to provide a level of disguise.
It was not though significantly sophisticated offending. While any offending involving the brazen conduct of entering a commercial premises inherently involves offending behaviour with a level of sophistication, the offending is, overall, conduct involving typical entry to a commercial premises.
This does not however detract from it being offending that has substantial impacts. The quantity and value of the property stolen from the CeX stores was considerable, and there will have been financial impacts for the retailers, as well as inconvenience caused, even with property recovered after the last offences. The photographs show the extent of damage to the shop front which will have also caused inconvenience in repairing and securing the store, as well as having financial implications. In addition, staff of the premises were exposed to the offending conduct.
Parity and totality
On 26 February 2024, the co-offender for the second and third occasions of offending was sentenced: DPP v Malibe [2024] ACTSC 43 (DPP v Malibe). Both parties described the co-offender’s role as similar to this offender, with their subjective circumstances also of a similar nature, including that they were both youthful offenders. The co-offender was sentenced, before a reduction for the plea of guilty, as follows: (a) 1 March 2023 aggravated burglary – 16 months imprisonment; (b) 21 June 2023 aggravated burglary – 24 months imprisonment; (c) 21 June 2023 theft – 16 months imprisonment; and (d) 21 June 2023 damage property – 8 months imprisonment.
The sentences of imprisonment were fully suspended with a good behaviour order for a period of two years. The co-offender was subject to a probation condition and a requirement to perform 120 hours of community service. Mr Malibe had not spent any time in custody, and the prosecution did not press for a custodial term of imprisonment. Mr Shuang’s sentence will involve a period of fulltime custody, however, the role of parity in the sentencing exercise is informative as to when he should become eligible for release from custody.
Mr Shuang is also to be sentenced for additional offences to those imposed on Mr Malibe. In DPP v Malibe, Berman AJ reflected in the sentence the aggravating feature that the second burglary occurred on the same premises as the first offences by imposing a greater sentence for that offence. The same consideration of aggravation applies here. Further, in DPP v Malibe, his Honour imposed wholly concurrent sentences. I do not consider such a course is appropriate here, where the sentencing exercise is one that also involves sentencing for a further occasion of burglary and related offences. Nonetheless, I will craft a sentence that avoids it being ‘crushing’ and reflects the related offending that occurred on 15 June 2022 and 21 June 2023.
Pleas of guilty
The offender pleaded guilty in the Magistrates Court. This was after an initial plea of not guilty but prior to the matters being listed for a substantive hearing. The matters were committed for sentence to the Supreme Court. Whilst not the earliest occasion on which a plea of guilty could have been entered, significant utilitarian value remains. I assess the appropriate reduction to be in the order 25 per cent.
In addition, on behalf of Mr Shuang it was submitted that with respect to the first offences, a reduction be afforded for assistance to authorities: s 36 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The prosecution acknowledged that some assistance was provided, but submitted that the admissions were not complete in terms of disclosing the location of the stolen phones. While I accept this, it remains that significant assistance was provided. It does not appear that other than his admissions there was evidence to identify Mr Shuang’s role in the offending. With respect to the first offending, and having considered the matters in s 36(3) and (4) of the Sentencing Act, I consider a total reduction in the order of 30 per cent to be appropriate. Time in custody
The offender was initially arrested on 21 June 2023 and granted bail on 28 August 2023. His bail came to be refused from 13 December 2023 until 6 September 2024. He was again granted an opportunity for bail, but failed to attend court and a warrant was issued for his arrest. He was arrested from 14 February 2025 and has remained in custody since that date other than one day during which he was granted day bail. A total of 470 days in pre-sentence custody applies: 63 Sentencing Act.
Subjective circumstances
The offender is now aged 23 years and was aged 20 and 21 years at the time of the offending. As such, he is to be regarded as a youthful offender, consistent with what was observed by his Honour in DPP v Malibe that there is “no bright line of maturity” (at [1]).
Mr Shuang has a minor criminal history involving two previous traffic matters committed in 2021, and I was informed at the sentence hearing, sentences previously imposed in the Magistrates Court for an offence of ride/drive motor vehicle and a failure to appear. He has supportive and positive relationships with family members who he is able to reside with in Canberra. He came to be living in Canberra from when he was one year of age as a refugee from South Sudan. Mr Shuang describes no mental health concerns and has completed his grade 12 certificate.
The support of his family members is borne out in correspondence provided on his behalf. His father expresses that he has work available for his son, and his sister explains her brother’s previous involvement in community events and that she knows her brother to be kind, responsible, and compassionate.
His escalation into such serious offending is somewhat inexplicable in the circumstances, but is explained to an extent by his misuse of substances. This commenced with cannabis from 15 years of age, and then continued with the use of alcohol and cocaine. Mr Shuang reported that he committed the offences while under the influence of drugs and to support his substance use. After he finished school, he moved out of home, and he reports that this was when he began “getting into trouble”.
During periods in the community during the proceedings, Mr Shuang has taken steps towards rehabilitation in relation to his substance use and has achieved periods of abstinence. His most recent testing for substances while in custody has returned negative results for illicit substances.
Further, while in custody, Mr Shuang has engaged in self-development opportunities. He has completed the Young Offender Reintegration Pilot program, and obtained employment certificates and qualifications. He has previously completed one year of a carpentry apprenticeship and has intentions to gain work in the construction industry while completing a CIT course to become a personal trainer.
During the lengthy period in pre-sentence custody it is apparent that Mr Shuang has grown in maturity and developed a commitment to achieve rehabilitation. He has goals to “live and work a normal life”, to “build a family” and to “buy a new car and get a mortgage”. Mr Shuang is also reported to have accepted responsibility for his behaviour and regretted his offending. He has remorse and insight. In a letter to the Court, he expresses his guilt and shame for his offending, describing that he was “young and stupid”. He says that he is “dedicated to changing [his] life for the better and closing this chapter of coming in and out of jail for good”.
Consideration
It is plain that only terms of imprisonment are appropriate having regard to the seriousness of the offending behaviour. However, the prosecution submitted that, given the sentencing considerations that apply, an order that would see the offender imminently released would be within range. Significant in this determination is Mr Shuang’s prospects of rehabilitation. I regard these prospects as strong.
Mr Shuang has been previously found suitable for a drug and alcohol treatment order, but he no longer pressed the imposition of such an order given his progress with rehabilitation. He has nonetheless been found suitable by Corrective Services for a medium level of intervention, with supervision considered to be of benefit. Mr Shuang has also been found suitable for a community service work condition. While this is likely to be an appropriate order for a youthful offender who is not otherwise employed, I consider such an order would be inappropriate given the role of parity and totality in the sentencing exercise.
The appropriate sentence order is one that gives Mr Shuang certainty as to his release date and that enables ongoing supervision in the community to deter a return to offending and encouragement to continue his progress with rehabilitation.
Orders
I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 7 July 2025
DPP
Shuang [2025] ACTSC 267
During the police investigations, an axe head and angle grinder were located at the CeX store. Forensic examinations also located shoe marks at the scene which were a possible match to the shoes worn by the co-offender.
Police also located a Grey Mazda 6 in the open air carpark near to the Westfield. The last registered owner of the vehicle told police that he loaned the car to a person named “Louis” but refused to provide any further details. The vehicle was later searched and documents linked to the offender were found within the vehicle, as well as forensic evidence that linked the offender to the vehicle.
The total value of the property stolen was $15,377.00.
The extent to which Mr Shuang demonstrates rehabilitation was borne out with his conduct during the sentence proceeding. Mr Shuang sought, and was granted day bail in circumstances of no opposition by the prosecution, for the purposes of attending the funeral of his cousin. He complied with the conditions of this bail, including returning himself to the Alexander Maconochie Centre for a further period on remand before the sentence decision. In doing so, he has demonstrated his intention and ability to comply with court orders, and to remain on a pathway to rehabilitation.