R v Aleksovski [2017] ACTSC 163

Crimes Act 1900 (ACT), s 160

Crimes (Sentence Administration) Act 2005 (ACT), ss 116A, 116ZQ

Crimes (Sentencing) Act 2005 (ACT), Pt 4.4

Criminal Code 2002 (ACT), ss 308, 311, 312, 321, 403

Drugs of Dependence Act 1989 (ACT), s 169(1)

Magistrates Court Act 1930 (ACT), s 90B

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Campbell [2010] ACTCA 20

Legal Aid ACT (Defendant)

1. The offender, Trajce Alekovski, has pleaded guilty to 17 offences.

Theft of cash drawer and $150 belonging to Lanyon Hair Centre

Theft of 24 "Red Bull" cans to the value of $70 belonging to George Karapangos

Theft of a "Semcon" nail gun and a "Hitachi" angle grinder valued at $1946 belonging to Woolworths Ltd

Damage property to office door and coin deposit box belonging to Bayden Pty Ltd

Drive Disqualified (first offender) - transferred charge

Theft of medicinal products and $1044 belonging to Katanle Pty Ltd

Minor theft of various alcohol valued at $1547 - transferred charge

Minor theft of cash register valued at $339.57 belonging to 3L.D & X Pty Ltd - transferred charge

Charges CC2016/12780, CC2016/13164, and CC2017/1008 are transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT).

2. The maximum penalty for the offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) is 20 years imprisonment, a fine of $300,000, or both.

3. The maximum penalty for the offence of burglary contrary to s 311 of the Criminal Code is 14 years imprisonment, a fine of $210,000, or both.

4. The maximum penalty for the offence of theft contrary to s 308 of the Criminal Code is 10 years imprisonment, a fine of $150,000, or both.

5. The maximum penalty for the offence of minor theft contrary to s 321 of the Criminal Code is six months imprisonment, a fine of $7500, or both.

6. The maximum penalty for the offence of damaging property contrary to s 403 of the Criminal Code is imprisonment of 10 years, a fine of $150,000, or both.

7. The maximum penalty for the offence of driving whilst licence disqualified as a first offender, contrary to s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) is six months imprisonment, a fine of $7500, or both. I also note that it carries an automatic period of disqualification of licence for a period of 12 months.

8. The offender pleaded guilty to each offence in the ACT Magistrates Court at an early stage. The only plea that he entered at any stage was a plea of guilty.

9. Lanyon Pharmacy is located at 17/4 Nolan Drive, Conder, ACT.

10. Between 6:00pm and 3:15am on 6 March 2016, the offender approached the front glass panel door of the pharmacy and repeatedly struck the door with a claw hammer. The force of the blows caused the glass door to shatter. The offender entered the store.

11. The offender searched the premises. No items were identified as being taken from the store.

12. Closed circuit television ("CCTV") footage showed the offender approaching the front glass panel door and repeatedly striking the door with a claw hammer and then entering. The footage also depicts the offender wearing a black item across the lower part of his face. Blood was also obtained from the floor inside the broken front glass door frame which was identified as that of the offender.

Series 2 - Break into Lanyon Hair Centre and subsequent theft

13. Lanyon Hair Centre and Beauty Bar is located at 19B/4 Sidney Nolan Drive, Conder, ACT.

14. About 3:26am on 6 March 2016, the offender shattered the front glass panel door and gained entry into the store. Whilst in the store, the offender opened a number of cupboards. He stole a black coloured till drawer and $150 in Australian currency. A sample of blood located on a drawer behind the service counter was found to contain the offender's DNA.

Series 3 - Break into 'Precinct Pasta' shop and subsequent theft

15. Precinct Pasta is located at 24/88 Kelleway Avenue, Nicholls, ACT. The store is owned and operated by Mr Mitchell Jones.

16. At approximately 11:00pm on 9 March 2016, the offender attended the store. The offender hit one side of the double glass door approximately six or seven times. The offender then smashed the other glass door and entered the store.

17. Whilst in the store, the offender searched the premises including bench fridges. The offender searched through the main fridge and stole approximately $450 worth of alcohol, mainly spirits and beers, as well as soft drink cans. The offender exited the store with the items in tow.

18. Police obtained a finger print which was located on a "Coca Cola" can left on the service counter and which was identified as that of the offender.

Series 4 - Aggravated Break into Nicholls Takeaway shop and subsequent theft

19. Nicholls Takeaway shop is located on Kelleway Avenue, Nicholls, ACT. The store is owned and operated by Mr Kosta Karapangos.

20. Between 11:00pm and 11:30pm on 9 March 2016, the offender and another male approached the front glass panel door of the shop and repeatedly hit the glass door with a long handled object, causing one panel to smash. The offender and the male then entered the store through the front smashed glass. The offender and male stole a case of 24 "Red Bull" cans and left the store through the same point of entry. The value of the items appropriated amounted to $70.

21. CCTV footage captured the actions of the offender and his co-offender, including the offender smashing the front glass panel door.

Series 5 - Break into Subway Conder and subsequent theft

22. "Subway Conder" is located at Shop 13/4 Sidney Nolan Drive, Conder, ACT.

23. About 3:20am on 9 March 2016, the offender, in the company of another male, approached the glass panel window of the store and struck the window with an implement causing it to break. The offender then proceeded to kick at the window causing it to break inwards.

24. The offender and male entered and searched the store. They located a small safe containing approximately $2500 in Australian currency. The offender and the male exited through the point of entry.

25. At about this time, the alarm within the store has sounded. Mr Andrew Wynants, an employee at the Baker's Delight bakery exited his store and observed the offender and other male lifting an item out of the window of Subway Conder. The offender and male were seen to exit the premises. Mr Wynants followed the offenders and observed them place the item in the rear of a dark-coloured Ford parked at the front of the shopping centre.

26. The offender and the male entered the front seats of the vehicle. Mr Wynants approached the vehicle and opened the rear door and observed a safe on the rear seat. Mr Wynants retrieved the safe and returned it to the store.

27. The offender's DNA was found in blood obtained from the safe.

Series 6 - Theft of nail gun and angle grinder

28. Woolworths Limited, trading as "Masters Home Improvement", was located at 971 Majura Road, Majura Park, ACT ("Masters").

29. About 11:20am on 11 March 2016, the offender entered Masters wearing a

white-coloured jumper with a logo "UNIT" across the chest, and black shorts. The offender proceeded to the power tool section of the store and placed into a trolley one "Semcon" branded nail gun, serial number 100589203, and one "Hitachi" branded angle grinder, serial number 101139984. The offender then proceeded to the front of the store.

30. The offender picked the items out of the trolley and ran past the sales counter without paying for them. The offender entered a green-coloured vehicle bearing ACT registration YFG70M. The vehicle left the location.

31. I assess this offence as being in the mid range of objective seriousness for this offence having regard to the value of the items, which was $1946, and the fact that it involved a degree of planning rather than being merely opportunistic. I reached that conclusion having regard to the use of the angle grinder in the next series of offences.

32. Bayden Pty Ltd, trading as "Classic Car Wash Tuggeranong", is located at 270 Scollay Street, Greenway, ACT ("Classic Carwash"). At about 5:00pm on 11 March 2016, Mr Tony Datillo closed and secured the office of the Classic Carwash. The remaining facilities are open 24 hours a day.

33. At about 12:10am on 12 March 2016, the offender drove to Classic Carwash in a green-coloured Ford Vehicle bearing ACT registration YFG70M. The offender was accompanied by another male. The offender and male both exited the vehicle, with the offender holding an angle grinder.

34. The offender walked towards the office and commenced using the angle grinder on the handle to the office door. Damage was occasioned to the door, however, no entry was gained.

35. The offender and the male then proceeded to walk over to a coin deposit box attached to a self-service vacuum, and again, used the angle grinder to cut the padlock and steel bracket. The offender's attempts were unsuccessful. The offender attempted to use a screw driver to further force entry to the box. Again, his attempts were unsuccessful. Damage was occasioned to the coin deposit box. The offender and male re-entered the vehicle.

36. The offender entered the driver's seat of the vehicle and left the location.

37. As of 6 May 2013, the offender's right to drive was disqualified until 2027. The car park of the Classic Carwash is a road related area in the ACT.

38. The activities of the offender were captured on CCTV footage obtained by the police.

Series 8 - Break into Capital Chemist and subsequent theft

39. Katanle Pty Ltd, trading as "Capital Chemist Hughes", is located at 22 Hughes Place, Hughes, ACT ("Capital Chemist").

40. About 3:50am on 13 March 2016, the offender attended Capital Chemist. The offender approached the front glass door and managed to shatter it in order to gain access. The offender proceeded to search through the chemist, opening numerous drawers and cupboards. The offender continued his search through the premises and across shelves, resulting in various stock strewn all over the floor. The offender stole a total of $829.00 in Australian currency and $215.00 worth of medicinal products. The offender then left the Capital Chemist.

41. The offender's DNA was found on shattered glass keys and a kitchen cabinet door within the premises.

Series 9 - Aggravated break into Aubergine Restaurant and subsequent theft

42. Aubergine Restaurant is located at 18 Barker Street, Griffith, ACT.

43. On 13 March 2016, the offender and another unidentified male approached the glass panelled side door of the restaurant. The offender and the male damaged the glass panel causing it to fall inwards into the premises. The duo then entered the restaurant. The pair searched behind the service counter and removed 11 bottles of alcohol worth $1547. They then exit the premises, taking with them the bottles of alcohol removed.

44. The offender's fingerprints were found on broken glass of a cash register.

45. On 14 March 2016, NSW Police contacted the Australian Federal Police ("AFP") advising they had lawfully seized a vehicle that was involved in a collision where the driver and passengers departed the scene before police arrival. The AFP were notified that the vehicle contained numerous items suspected of being stolen. The

green- coloured vehicle bore NSW registration WAA886.

(a) 1 x "Hitachi" branded grinder and 18 volt battery, suspected of being stolen from Masters;

(b) 2 x ACT registration plates bearing YFG70M (the number plates linked to the theft from Masters and depicted in the CCTV footage from the property damage at Classic Carwash);

(c) 1 x screwdriver with yellow handle 22cm, and 10cm handle matching the appearance of that depicted in the CCTV footage from the property damage at Classic Carwash;

(d) 1 x black beanie altered to appear similar to a balaclava; and

(e) 1 x white hooded jumper with a "Unit" logo on the chest matching the appearance of the jumper worn by the offender in the theft from Masters.

Series 10 - Break into Subway Jamison and subsequent theft

47. At about 12:53am on 2 December 2016, the offender attended "Subway Jamison", Shop B07, Jamison Centre, Bowman Street, Macquarie ACT. Using a hammer, the offender broke through a glass entry door, pushing the pane of glass into the premises. The offender climbed through the broken glass door and proceeded to the cash register which was located behind the counter.

48. The offender removed the cash drawer and connected keyboard from behind the counter, placed them on a nearby table and proceeded again behind the counter.

49. The offender entered the kitchen and opened one of the large fridges. An alarm of the premises began to sound. The offender retreated from the fridge, back towards the counter, picked up the cash drawer from the table and proceeded through the broken glass entry point.

50. The events were captured on CCTV footage and police obtained the offender's fingerprint and DNA from the scene.

51. I assess each of the robbery charges as being in the low to mid range of objective seriousness having regard to, on the one hand, the fact that they occurred on business premises when nobody was present, but on the other, they did involve significant damage to the premises in order to gain entry. I assess each of the thefts as being in the low to mid range of objective seriousness having regard to the value of the items stolen and that in no case was the theft opportunistic but rather part of a planned enterprise. I similarly assess the damage property charge. Clearly while there was a degree of planning and some damage done, it was limited and targeted damage. I assess the drive while disqualified charge as being in the mid range of objective seriousness.

52. Relevant to the subjective circumstances of the offender was his criminal history, the

pre-sentence report, a CADAS report, and a letter from Karralika.

53. Mr Aleksovski is currently 38 years old. He was born in Canberra to parents who had immigrated from Macedonia. His family relocated back to Macedonia when he was five years old, but he returned to Australia when aged 18 after serving in the Macedonian army.

54. Mr Aleksovski is in a relationship and has been so for 12 years. He has one child aged 11 years old as a result of this relationship. He was not however living with his partner at the time of his arrest. The information available in the pre-sentence report appears to indicate that his partner will not live with him until he has addressed his drug use and criminal lifestyle and obtains gainful employment.

55. He completed Year 12 and obtained some electrical engineering qualifications. Since returning to Australia has worked as a cleaner and as a painter, being self-employed as a painter since 2006. His last paid job was in November 2016 although the author of the pre-sentence report could not be satisfied that this was reliable. He was also in receipt of unemployment benefits when he was remanded in custody. He has substantial fines outstanding in New South Wales.

56. He stated that he commenced using methylamphetamine in 2014 while serving a sentence of imprisonment in New South Wales. At the time of the offences he was using half a gram daily. He was assessed for entry into the Karralika Therapeutic Community program and the Ooolong House rehabilitation program. He also applied for entry to the Arcadia House program and the Canberra Recovery Services program.

57. Mr Aleksovski expressed regret and anger that he had offended and appropriate empathy for the victims.

58. He was assessed as being a medium risk of general offending and his primary criminogenic risk was his substance abuse.

59. There were some concerns about the reliability of the information that he had provided to his community corrections officer whilst on the New South Wales parole last year. It is notable that he was on parole at the time that he committed the offences involved in Series 10.

60. Since being in custody, he has been disciplined for possession of contraband, namely a smoking implement, and a refusal to provide a urinalysis.

61. The CADAS report provided similar information. It noted that he had attempted to gain admission to the Solaris program while on remand but was ineligible because he had not been sentenced. The report supported his treatment plans for residential rehabilitation.

62. Mr Aleksovski has a criminal history; that involved an offence of making a false statement to obtain money in 2007 and an offence in 2012 of dishonestly obtaining property by deception for which he was sentenced to two months imprisonment. He also has a number of offences for driving whilst disqualified and was sentenced to two months imprisonment in 2014 for offences in February 2013 and April 2013. In 2016 he was sentenced to 15 months imprisonment with a non parole period of seven months commencing on 18 March 2016 and concluding on 17 October 2016. This related to offences committed on 4 September 2015 and on 14 and 18 March 2016. This period of imprisonment indicates why the offending conduct in March came to an end.

63. It is notable that while he has some offences of dishonesty on his record, these offences are his first offences involving a burglary and theft.

64. I also take into account in sentencing, pursuant to Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT), the following charges:

(a) Charge CC2016/13276, a charge of escaping police custody contrary to s 160 of the Crimes Act 1900 (ACT) on the 24 December 2016; and

(b) Charge CC2016/13277, a charge of possessing a drug of dependence, namely methylamphetamine, contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) on 24 December 2016.

65. A warrant was issued for the arrest of the offender on 20 December 2016. On

24 December 2016 he was approached by police. He said that his name was "Tony" and that Trajce Aleksovski was his cousin. He was told he was under arrest. He was allowed to get a drink from his vehicle and having done so, he ran away from police. He was recaptured and searched. The police found a crystalline substance in his wallet which was later tested and confirmed the presence of methylamphetamine.

66. I have regard to what the Court of Appeal said in R v Campbell [2010] ACTCA 20 at [46]- [50] and will follow the principle set out there as to how the offences should be taken into account. I note that the offences are of modest objective seriousness when compared with the other offences to which he has pleaded guilty.

67. The nature of the offending conduct and the number of offences compel the conclusion that no sentence other than a sentence of imprisonment would be appropriate. Further, having determined that a sentence of imprisonment should be imposed I am not satisfied that it would be appropriate for any part of it to be suspended. Having regard to the length of the period of imprisonment which I consider to be appropriate, an intensive corrections order is not available and, in any event, I would not consider it to be appropriate.

68. Notwithstanding that the Crown case involved several charges where either DNA or fingerprint evidence presented a strong case, I have allowed a 25 per cent discount on each sentence of imprisonment on account of the early plea of guilty.

69. I have backdated the sentences to take account of the fact that the offender has been in custody since 24 December 2016.

70. I have taken into account the fact that the offender is also subject to a sentence of imprisonment imposed in New South Wales shortly after the date of the March offending conduct. I have taken into account the fact that had that interstate sentence been imposed at the same time as these sentences, then the issue of totality would have reduced the overall effect of the sentences: see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. For that reason I have maintained a greater degree of concurrency, particularly in relation to the short sentences (CC2016/13168, CC2016/13165, and CC2016/12780), than I would have otherwise.

71. I have taken into account in relation to the offences in Series 1 to 9 that these involved a crime spree in a relatively limited period. The conduct is consistent with the behaviour of a drug addict undertaking high risk behaviour designed to finance the continuation of that habit. I have taken into account the course of conduct when considering the question of totality and allowing a degree of concurrency between each separate day of offending during this period. I have also allowed a greater degree of concurrency for offences committed within each day. Finally I have allowed complete concurrency between the sentences for burglary or aggravated burglary and related charges of theft. All of these adjustments have been directed to the overall issue of the totality of the sentence imposed.

72. So far as the non parole period is concerned, I have set this at 50 per cent of the overall sentence. This is because, as stated above, the principal criminogenic factor appears to be drug use. Although there has not been a great degree of disclosure of the circumstances or the nature of that drug use, it does appear that the offender only commenced drug use at the age of 35 when he was incarcerated in Goulburn gaol. Prior to that he had been able to have a productive life and maintain employment as a painter. In those circumstances there is at least the possibility that with appropriate treatment in prison he will be able to, with the benefit of appropriate supervision, avoid continued drug use upon release, and as a consequence, will not be a danger to the community. The parole authorities will be in the best position to assess whether or not that is the case but I consider that, given that this is his first lengthy period of imprisonment, he should be given the opportunity of demonstrating a commitment and capacity to abstain from illicit drug use. Of course, so far as the evidence discloses, his record in prison whilst on remand has not been good. There is also a prospect that even with the benefit of such courses as are available to sentenced prisoners, he does not demonstrate a commitment to rehabilitation, and as a consequence, it is not appropriate to release Mr Aleksovski. Only time will tell.

73. Counsel for the offender, Ms H Hayunga, submitted that it would be appropriate to adjourn the sentencing hearing in order to undertake an assessment of suitability for restorative justice. I do not consider that this is an appropriate case in which to adopt that course. That is because of the seriousness of the offences and the fact that businesses were involved makes it less likely that a process of restorative justice would achieve any significant outcome.

74. Counsel for the offender also submitted that it would be appropriate to defer sentencing, either formally by a deferred sentence order, or otherwise. That was because some steps had been taken towards arranging a place in residential rehabilitation. While it is clear that one, if not the principal criminogenic factor, is the use of methylamphetamine, the evidence does not disclose any concrete opportunity for residential rehabilitation. Further, the evidence does not demonstrate the offender's clear commitment to rehabilitation, there being some evidence of ongoing drug use within the prison.

75. A reparation order in the sum of $1089.57 was sought payable to Mr Chenglian Xie in relation to the damage at the Subway Jamison which was involved in the Series 10 offences. This was the repair to the glass entry door pane and the replacement of the cash register drawer. Invoices were provided to the Court.

76. The parties were unable to identify how a reparation order would be enforceable against an offender sentenced to prison unless an agreement was entered into pursuant to s 116ZQ of the Crimes (Sentence Administration) Act 2005 (ACT): see the definition of "fine" in s 116A. Having regard to the offender's circumstances, the likelihood is that the making of the order will not ultimately benefit the injured party. However, it is in my view appropriate not to determine that issue by refusing to make the order but instead allow the law to take its course.

1. For charge CC2017/2699, burglary, I impose a sentence with an applied discount of 25 per cent, of nine months commencing from 24 December 2016 and expiring on 23 September 2017.

2. For charge CC2016/12774, burglary, I impose a sentence with an applied discount of 25 per cent, of nine months commencing from 24 February 2017 and expiring on 23 November 2017.

3. For charge CC2016/12775, theft, I impose a sentence with an applied discount of 25 per cent, of four months and 15 days commencing from 24 February 2017 and expiring on 8 July 2017.

4. For charge CC2017/3646, burglary, I impose a sentence with an applied discount of 25 per cent, of nine months commencing from 24 August 2017 and expiring on 23 May 2018.

5. For charge CC2017/2760, aggravated burglary, I impose a sentence, with an applied discount of 25 per cent, of 11 months and seven days commencing from 24 December 2017 and expiring on 30 November 2018.

6. For charge CC2017/2761, theft, I impose a sentence with an applied discount of 25 per cent, of four months and 15 days commencing from 24 December 2017 and expiring on 8 May 2018.

7. For charge CC2016/13169, aggravated burglary, I impose a sentence with an applied discount of 25 per cent, of 11 months and seven days commencing from 1 July 2018 and expiring on 7 June 2019.

8. For charge CC2016/13170, theft, I impose a sentence with an applied discount of 25 per cent, of six months and 23 days commencing from 1 July 2018 and expiring on 23 January 2019.

9. For charge CC2016/13168, theft, I impose a sentence with an applied discount of 25 per cent, of four months and 15 days commencing from 8 March 2019 and expiring on 22 July 2019.

10. For charge CC2016/13165, damage property, I impose a sentence with an applied discount of 25 per cent, of four months and 15 days commencing from 23 April 2019 and expiring on 6 September 2019.

11. For charge CC2016/12780, driving whilst licence disqualified as a first offender, I impose a sentence with an applied discount of 25 per cent, of two months and seven days commencing from 23 April 2019 and expiring on 29 June 2019, and note the automatic drivers license disqualification period of 12 months.

12. For charge CC2016/13166, burglary, I impose a sentence with an applied discount of 25 per cent, of nine months commencing from 7 June 2019 and expiring on 6 March 2020.

13. For charge CC2016/13167, theft, I impose a sentence with an applied discount of 25 per cent, of six months and 23 days commencing from 7 June 2019 and expiring on 29 December 2019.

14. For charge CC2016/13163, aggravated burglary, I impose a sentence with an applied discount of 25 per cent, of 11 months and seven days commencing from 7 November 2019 and expiring on 13 October 2020.

15. For charge CC2016/13164, theft, I impose a sentence with an applied discount of 25 per cent, of two months and seven days commencing from 7 November 2019 and expiring on 13 January 2020.

16. For charge CC2017/1007, burglary, I impose a sentence with an applied discount of 25 per cent, of nine months commencing from 14 July 2020 and expiring on 13 April 2021.

78. The overall sentence I impose commences from 24 December 2016 and is a term of imprisonment for 4 years, 3 months and 21 days. I impose a non parole period of two years, one month and 25 days. The non parole period is from 24 December 2016 until 17 February 2019.

79. I make a reparation order in the sum of $1089.57 in favour of Mr Chenglian Xie of Subway Jamison, Shop B07, Jamison Centre, Bowman Street, Macquarie ACT 2617.

I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop.