DPP v White [2025] ACTSC 156

1. Jarrad James White is before the court having pleaded guilty to two charges of theft, being Counts 1 and 2 on the Indictment filed 25 October 2024 (Indictment), and one charge of theft by way of joint commission, Count 3 on the Indictment, contrary to s 308 of the Criminal Code 2002 (ACT) (Code).

2. The maximum penalty for the offence is a fine of $160,000, a term of imprisonment for 10 years, or both.

3. The offender has elected to have a further charge arising from the same incidents also taken into account under s 57 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). That charge is one of participating in a criminal group contrary to s 652 of the Code (CC2022/11360), the maximum penalty for which is a term of imprisonment of 5 years. The additional offence attaches to Count 1 on the Indictment as the primary offence.

Facts

4. The conduct constituting the offences has been taken from a statement of facts agreed between the parties. Essentially, the offending occurred over the period 12 September 2022 to 17 November 2022, with the offender entering Coles and Woolworths stores, and an Anaconda outdoors store in Gungahlin, placing food items in his backpack and then leaving the stores without paying for the items. Count 1 – theft from Woolworths Group Ltd ($3,115.50)

5. The offending occurred between the dates of 15 October 2022 and 17 November 2022. Tins of baby formula were taken from multiple stores over 13 separate occasions, with a total value amounting to $3,115.5. Count 2 – theft from Coles Group Limited ($697)

6. The offending occurred between the dates of 12 September 2022 and 24 October 2022. Again, tins of baby formula were taken from two different stores over four separate occasions, with a total value amounting to $697. Count 3 – theft from Anaconda Group by joint commission ($1,170)

7. The offending occurred on 15 September 2022. The offender entered the Anaconda store in Gungahlin. He was later joined by a co-offender. The two went to separate areas of the store where camping food was located. They removed 63 items of camping food from the shelves, the majority of which were Outdoor Gourmet Company and Campers Pantry brands, and placed them in a backpack. They left the store without paying for them. The total value of the items was $1,170. The court’s task

8. The task of the court is to sentence the offender by reference to the sentencing purposes set out in s 7(1) of the Sentencing Act. These include ensuring that the offender is “adequately punished” for the offence in a way that is “just and appropriate”.

9. Of equal importance among the purposes (s 7(2) of the Sentencing Act) are the objectives of general and specific deterrence, protection of the community, promotion of the offender’s rehabilitation, making the offender accountable for his actions, denouncing the conduct of the offender and recognising the harm done to the victims of the crime and the community.

10. The court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56]. The application of that principle means that the sentence of adequate punishment in a way that is just and appropriate is one that is uniquely crafted in respect of that individual offender.

11. The mandatory relevant considerations are set out in s 33(1) of the Sentencing Act. These have been considered below to the extent relevant in the circumstances of this offender.

12. The imposition of a term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act. However, 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].

13. These considerations have been applied in the reasoning that follows. The task when considering an additional offence

14. As to the court’s task with regard to the additional offence, in the reasoning that follows, I have taken the additional offence into account in accordance with the approach set out in R v Campbell [2010] ACTCA 20 at [46]-[50] in that:

(a) The offender is not to be sentenced for the additional offence. (b) Any penalty imposed for the offences cannot exceed the maximum penalty for those offences, notwithstanding that the additional offence is taken into account: s 57(3) of the Sentencing Act. (c) Following R v Barton [2001] NSWCCA 63; 121 A Crim R 185 at 195 [64], the additional offence is taken into account by giving greater weight (than may otherwise be given when sentencing for the primary offences) to: (i) the need for personal deterrence, which the commission of the other offence will frequently indicate; and (ii) the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. (d) The additional offence may also affect the assessment of the offender’s character and prospects of rehabilitation. (e) The consideration occurs in the same way as other matters are taken into account for the purpose of sentence. Generally, the result will be to increase the sentence about to be imposed, and may alter the nature of that sentence. (f) Other relevant principles constrain that consideration, such as totality. (g) It is not necessary for the court to indicate precisely what effect the taking of the additional offence into account has on the sentence that is imposed.

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

15. A consideration of the nature and circumstances of the offences requires the court to assess the objective seriousness of the conduct in question, as part of an overall assessment of where the facts of the particular offence and offender lie on a notional “spectrum” from the least serious instances of the offence to the most serious, taking into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [18]-[19].

General principles

16. In this part of the sentencing exercise, the evaluation is “objective”, in that the court disregards 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]. The subjective features (being the offender’s personal circumstances) and the after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].

17. The sentence ultimately imposed must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

18. The maximum penalty for an offence 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].

19. The court is obliged to consider the factors bearing upon the objective seriousness of each offence, although not to explicitly specify whether a particular offence falls into the low, mid or upper range of such offences: Miller at [22]. It has been said that when any offence is placed on a spectrum of seriousness that extends from low range through mid-range to high range, the placement (without more) invites a simplistic approach to sentencing that may be generally unhelpful, such that it is preferable to articulate the factors that inform the character of an offence’s objective seriousness: Laipato v The Queen [2020] ACTCA 35 at [156].

The court’s approach to rolled-up counts

20. As described in R v Jones [2004] VSCA 68 (Jones) at [13], a rolled-up count is a collection of counts bundled into a single count. It is different from a representative count. The approach to be taken in such circumstances was explained by Refshauge J in R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164], including the following: (a) The rolled-up charge comprehends a number of offences, but for sentencing purposes, it constitutes the one offence: R v Beary [2004] VSCA 229; 11 VR 151 at [14]. (b) That means only one sentence can be imposed, with a single maximum penalty applying for that offence. The sentence is not invariably the sum of the individual sentences that could have been imposed had the individual offences been separately charged, though that may be the case: R v Samia [2009] VSCA 5 at [12]. In that way, the process provides a considerable benefit to the offender: Jones at [13]. (c) The criminality encompassed in a rolled-up count is greater than that of an individual count: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73; 259 A Crim R 327 at [82]; Ly v The Queen [2014] FCAFC 175; 227 FCR 304 at [125]; R v Richard [2011] NSWSC 866 at [65(f)]. (d) The rolled-up nature may also have a bearing on other aspects of the sentencing process, such as accumulation and concurrency: R v De Leeuw [2015] NSWCCA 183 at [116]. Assessment of the features specific to the thefts

21. It may be helpful to list the factors that have been considered as being relevant to the court’s consideration. However, such lists are not to be treated as a checklist, with the absence of a factor reducing the objective seriousness of the offence. In DPP v Moala (No 3) [2023] ACTSC 306, McCallum CJ stated at [24] (emphasis added): ... Such lists can be useful provided their limits are understood. A list of factors drawn from decided cases can never serve as a proxy for the central judicial function of making an evaluative assessment of the overall objective seriousness of an offence having regard to the circumstances of the case at hand. ... It is trite that the absence of an aggravating factor does not mitigate an offence; it simply means the offence is not aggravated by that factor.

22. Features that may be relevant in assessing the objective seriousness for the offence of theft have been discussed in cases such as DPP v Monaghan [2024] ACTSC 183 at [18]; R v Elphick [2021] ACTSC 9 at [115] and R v Slattery [2021] ACTSC 154 at [38]. Drawing from those cases, I have considered: (a) The motive for the theft – here, the motive may be described as personal gain or profit, with an underlying motive of sustaining a drug habit. (b) The extent and value of the property taken – here, given the offence covers property of unlimited value, the extent and value of the property for each offence was at the lower end; and (c) Whether the stolen item was of sentimental value or utilitarian value, such that it would be difficult or inconvenient to replace – here, the stolen items were not of particular sentimental value as they were store goods taken from commercial premises.

23. Of course, the authorities do not confine features of an offence that may be relevant in any particular case. Here, I have also taken into account that the thefts were pre-meditated. There was discussion about which supermarket to ‘hit’ (to put it colloquially) and knowledge of prior thefts within the group that shaped the offender’s consideration of where to go on the days he offended. With regard to the offending on 23 October 2022, the offender went to five different Woolworths stores in locations across Canberra. That in itself shows the degree of premeditation.

24. The prosecution submitted there was a degree of inconvenience arising from the targeted and systematic theft of the particular item, being baby formula, a commodity notoriously in demand. I might have accepted a submission giving weight to the preciousness of baby formula if the theft was from a private home of a mother with a baby dependent on it. But I think it is difficult to take that type of submission into account as an aggravating matter without any evidence and I have therefore put that submission to one side.

25. An offender’s responsibility or degree of culpability for the conduct is also part of the circumstances of the offending. Of significance here, the third count was committed by virtue of s 45A of the Code, and in that regard, I have taken into account the considerations discussed in KR v The Queen [2012] NSWCCA 32 relevantly at [19]-[22] (emphasis added): 19. … the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct. 20. Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. 21. Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. "The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability.": R v O'Connor [1980] HCA 17 at [20]; 146 CLR 64 at 72, per Barwick CJ. 22. Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry & Ors. [1999] NSWCCA 111 at [254]; 46 NSWLR 346; 106 A Crim R 149.

26. At the objective stage, the offender has a significant degree of responsibility as he was the person who actually attended each store and took the items. However, it may fairly be said that he does not appear to have been the overall mastermind of the operation.

27. Primarily because of the relatively low value of the items stolen and my view that the items stolen lacked particular sentimentality or inconvenience, I consider the offending to be at the lower end of the objective seriousness. However, it is nevertheless a serious example due to the premeditation involved, the number of occasions included within the offences charged and the offender’s membership of the criminal group, which obviously increases the seriousness of the conduct.

Pre-sentence custody

28. As at the date of sentence, the offender has spent 176 days (almost six months) in custody solely referable to the offending. I consider it appropriate to take the full extent of that time into account in the manner provided for by s 63(1) of the Sentencing Act. Plea of guilty (ss 33(1)(j) and 35 of the Sentencing Act)

29. 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. If it does so, 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.

30. The principles guiding the exercise of the court’s discretion to apply a discount in respect of a guilty plea have recently been set out in Robertson v DPP [2024] ACTCA 26 at [23]- [26] and I will apply those principles without repeating them. I have considered the matters set out in s 35(2) of the Sentencing Act, some of which have been referred to above. The parties agreed that the offender indicated an intention to plead guilty at a relatively early stage of the proceeding but that the various other matters involving other participants in the offending, some of whom have maintained pleas of not guilty, meant that the offer to plead only crystallised at a criminal case conference. There nevertheless remains significant utilitarian value in the plead and I will discount the ultimate sentence to be imposed by 20% in respect of each offence.

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

31. The offender is 38 years old, single with no children and residing with his mother and stepfather in NSW. He has remained at that location since he was released from custody in 2023. He is considered at medium to high risk of reoffending due to ongoing risk factors stemming from unemployment, financial difficulties, drug use, mental health concerns and his attitudes towards supervision and offending.

32. There was a recent psychological report before the court, the contents of which I accept. There was no submission made that this offender was affected by either Bugmy factors deriving from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (as to which see R v Ruwhiu [2023] ACTCA 18 at [126]) or Verdins factors deriving from R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269. The emphasis was more on informing the court about the psychological history of the offender and assisting the court to understand the mental health considerations for this offender. I found it helpful in the overall objective of crafting individualised justice.

33. The biggest risk factor that was operating upon the offender’s conduct in 2022 was a drug addiction, which I accept was the main reason behind the offending (s 33(1)(v) of the Sentencing Act). That does not excuse the conduct, but I take it into account by working out whether that risk factor is still present in the offender’s life. It is relevant to assessing his rehabilitation and risk of recidivism.

34. In this regard, it is commendable that the offender has been able to manage his relationship with drugs since he was released from custody and has been abstinent for a considerable period. It is perhaps not such a coincidence that in abstaining from drugs, he has also managed to refrain from committing any further offences since the events of 2022. That success is in large part due to the offender being able to move home to live with his mother. I can see that his family is a very significant pro-social support for him. A further factor that is also to be taken into account is the prospect of meaningful employment, which, having heard from the offender in the witness box, is a real incentive to stay off the drugs and as he puts it, “to live a normal life”.

Remorse and victim impact statements (ss 33(1)(w) and (f) of the Sentencing Act)

35. The offender expressed a degree of remorse to the author of the pre-sentence report (PSR) and he has also written a letter to the court, which he adopted under oath in the witness box.

36. There was a concern raised that the offender appeared to minimise the offences themselves, by stating that he was stealing from big corporations, that no one in the stores ever stopped him from stealing, and that the impacts on their businesses were likely minimal.

37. That leads me to consider the victim impact. There were no victim impact statements before the court and the court does not speculate as to specific victim impact. However, that does not mean that the offences were victimless crimes. Plainly the stores involved are corporate victims, but it is not only corporate giants that are robbed by this type of conduct. The victims include members of the broader community who suffer the flow on effects of supermarket thefts every time they step into a supermarket and lawfully pay for their groceries.

38. In any event, I accept that the offender has taken full responsibility from his expressions of remorse in the witness box. I think that whatever he said to the PSR author, he has since reflected on that and no longer holds the same view about the impact of his conduct on corporate victims.

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

39. The offender’s lengthy criminal history spans three different jurisdictions and some of the offences have striking similarity to the conduct for which the offender is presently being sentenced. Theft and burglary fall among other offences including driving offences, drug use, damaging property, and breaches of court orders or failures to appear before the court. The extensive criminal history has been taken into account in accordance with the principle discussed in Veen v The Queen (No 2) (1988) 164 CLR 465 in that it moderates the degree of leniency that a court may afford to the offender. For example, it cannot be said that the offending was an isolated occurrence. The court is careful not to punish the offender for historic offending, but personal deterrence is a concern in light of the offender’s previous record.

40. The offender was also on conditional liberty at the time of the offending, in that he was on bail for other offences. This is a factor that aggravates the seriousness of the conduct. It is a very serious matter to be able to remain in the community on conditions and then to reoffend during that time.

41. However, the witness frankly admitted that being in custody for almost six months had the effect of bringing home to him the gravity of his offending and it was perhaps this that was the catalyst to take control of his life, get off the drugs and start being a contributing member of society, including by giving support to his mother.

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

42. The evidence before the court established that the offender has very few resources that could be used to pay a fine.

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

43. The parties submitted that the nature of the offending was of a kind so variable that there is little value in seeking out comparable sentences. What was of more significance was the fact that there are other co-offenders, two of which have been sentenced.

44. The applicable principle with regard to parity was restated recently in Fares v DPP (No 2) [2025] ACTCA 2 at [70]: It has long been acknowledged that it is desirable for offenders who are party to the commission of the same offence to have, if other things are equal, the same sentence imposed upon them: Lowe v the Queen [1984] HCA 46; 154 CLR 606 at [3]. However, “[o]ther things” are not always equal and where there are substantial differences in the subjective circumstances of co-offenders, or their role in the offending was markedly different, the sentences should reflect those differences: Pikula-Carroll v The Queen [2022] ACTCA 12 at [9].

45. The sentence that is most instructive is that imposed by Magistrate Campbell in respect of one co-offender, Mr McInnes. The thefts involved in that case were greater in terms of the number of offences but fewer in the conduct involved and of less value, but not significantly so. His role in the scheme was markedly similar to that of the offender. Sentences of imprisonment for terms of six months were imposed, wholly suspended upon the offender entering into a 12-month good behaviour order. Totality

46. In terms of totality considerations, outlined in O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26], the sentences will have some degree of concurrency. However, having regard to the fact that two out of the three offences were rolled-up and the offences occurred against different victims on different occasions, while on one view they were all part of an overall scheme or course of conduct, I consider there must nevertheless be some part of each sentence served consecutively. Otherwise, the sentence would not properly reflect the criminality of each offence. The lengths of the individual sentences reflect an endeavour to achieve close to parity in the total effective term for the comparable co-offender.

Disposition

47. Drawing together what I have said about specific deterrence, of the importance of general deterrence and the offender’s demonstrated commitment to rehabilitation in terms of offending, I have ultimately decided that the section 10 threshold is crossed with regard each of the offences. Further, the period of imprisonment that has already been served referable to this offending meets all the sentencing objectives. I do not consider any further period of supervision with a good behaviour order is required to protect the community given the steps the offender has taken in rehabilitating himself since the offending, which, it must be acknowledged, was now some time ago. In the sentence to be imposed, I have given further effect to parity considerations through the manner in which this offender’s sentence is to be served, in that the individual sentences were reduced (for totality reasons discussed above) but sentences of full-time custody will be imposed, as opposed to a suspended sentence. Orders

48. Accordingly, the orders of the Court are as follows: (1) In respect of the first offence of theft contrary to s 308 of the Criminal Code 2002 (ACT) (CAN 11360/2022, being Count 1 on the indictment filed 25 October 2024 (Indictment)), taking into account the scheduled offence, the offender is convicted and sentenced to a term of imprisonment of 4 months and 22 days, discounted from 6 months on account of his guilty plea and backdated to commence on 22 October 2024 and conclude on 15 March 2025. (2) In respect of the second offence of theft, contrary to s 308 of the Criminal Code 2002 (ACT) (CAN 11359/2022, being Count 2 on the Indictment), the offender is convicted and sentenced to a term of imprisonment of 4 months, discounted from 5 months on account of his guilty plea and backdated to commenced on 1 November 2024 and conclude on 28 February 2025. (3) In respect of the third offence of theft (CAN 12313/2022 being Count 3 on the Indictment) by joint commission, the offender is convicted and sentenced to a term of imprisonment of 3 months and 6 days, discounted from 4 months on account of his guilty plea and backdated to commence on 10 January 2025 and conclude on 15 April 2025. (4) The total effective sentence is 5 months and 25 days, commencing on 22 October 2024 and concluding on 15 April 2025.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: