R v Ayling [2019] ACTSC 229

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Burglary - Aggravated burglary in company - Theft - Where planning was rudimentary - Where the offender has reasonable prospects of rehabilitation - Where the offender is in breach of good behaviour orders - Where intensive corrections order is inappropriate.

Crimes (Sentencing) Act 2005 (ACT) ss 19, 33, 35

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

Dawson v The Queen [2019] ACTCA 9

R v UG [2018] ACTCA 64

Sampson v The Queen [2018] ACTCA 67

Schwalm v The Queen [2019] ACTCA 20

1. The offender is before the Court to be sentenced for the following offences:

(a) On 16 January 2018, burglary of the United Service Station at Fyshwick (contrary to s 311 of the Criminal Code 2002 (ACT) (Criminal Code)). The maximum penalty is 14 years' imprisonment and/or a fine.

(b) On 16 January 2018, theft of tobacco products to the value of $5,486.60 (contrary to s 308 of the Criminal Code). The maximum penalty is 10 years' imprisonment and/or a fine.

(c) On 8 December 2018, aggravated burglary of the BWS Liquor Store in Calwell (the aggravating feature being in company, contrary to s 312(a) of the Criminal Code). The maximum penalty is 20 years' imprisonment and/or a fine.

2. In relation to the third offence, I am asked to take into account the additional offence of minor theft committed on 18 October 2018 (contrary to s 321 of the Criminal Code). The maximum penalty is six months' imprisonment and/or a fine.

3. I am also asked to deal with the offender for the breach of good behaviour orders that are associated with suspended sentences that I imposed in 2016.

4. In relation to the three principal offences, the offender pleaded guilty on 8 April 2019 at the sixth mention in the Magistrates Court. In relation to the minor theft charge, he also pleaded guilty on that day, which was the fifth mention date for that matter. I accept that the evidence supporting the three offences was strong. Nevertheless, having regard to the utilitarian value of the pleas, I consider that the appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is 25 per cent.

5. The offender has been in custody since his arrest on 8 December 2018 and the sentences that I impose shall start from that date.

6. At about 10:00 PM on Monday, 15 January 2018, the managing director of the United Service Station at Fyshwick secured the premises after the day's trading and left the location.

7. At 4:43 AM on 16 January, the offender approached the front door of the premises carrying a steel pole. He was wearing a black hooded jumper, shorts, and socks over his hands. He used the pole to punch six holes in the glass front door. He then kicked at the door until the glass panel shattered and fell inwards. In the process, the offender injured himself and began to bleed.

8. The offender entered the store, piled numerous packets of cigarettes into a tub that he found inside the store, and then ran from the store carrying the tub. A minute later, he returned and loaded further packets of cigarettes into a plastic bag. As he was leaving, he picked up a milk crate containing further items belonging to the store. In total, 214 packets of cigarettes were stolen. The combined value was $5,486.60.

9. At the scene, police located blood that was DNA matched to the offender.

10. Pursuant to s 19 of the Sentencing Act, the victim is seeking a reparation order for $5,486.60.

11. At about 7:30 PM on 18 October 2018, the offender filled a car with fuel to the value of $50 at the Coles Express Service Station in Curtin. He drove away without paying.

12. CCTV footage showed that the person who drove away had a distinctive tattoo and revealed other more generic features of the person's appearance. By means of the tattoo and other features, the offender was identified as the culprit.

13. On Saturday, 8 December 2018, the Calwell Shopping Centre was closed to the public from 10:00 PM.

14. At about 10:30 PM, the offender and another man approached the loading dock at the rear of the Centre. They went to a door that led into the Centre but found that it was locked. They walked away.

15. At about 11:15 PM, they approached the locked glass sliding doors at the main entrance to the Centre. They used their body weight to force the doors to open sufficiently for them to gain entry. At 11:17 PM, they repeatedly slammed their bodies against the roller doors of the BWS Liquor Store within the Centre, causing large dents to the doors. The offender then used a hammer to smash two of the store's glass windows. He entered the store through one of the windows and forced two till sets out of their settings. He seized both tills and left the store.

16. The driver of a delivery vehicle located in the loading dock area and another witness (who worked at the Centre and was still present after the close of business) approached the offender. The offender threatened the delivery driver that he would "smash (his) head in" and threatened the other witness that he would "come after you, too".

17. The police had been alerted by the witnesses and arrived at about 11:26 PM to see the offender running from the Centre. They told the offender to stop but he continued to run. The police chased and caught him. Eventually, the offender was subdued.

18. Shortly thereafter, the police located the two tills and hammer by the roadside. The tills were locked. They were returned to BWS Calwell in an undamaged condition.

20. On 19 October 2016, I sentenced the offender for two offences that had been committed in July 2015 (aggravated burglary and theft), and re-sentenced him for 15 offences that had been committed in 2009 and 2011. In relation to eight offences of dishonesty, he received a term of imprisonment that was wholly or partly suspended from 22 February 2017. The suspended sentences were accumulated so that an effective period of two years' imprisonment was suspended upon the offender entering two-year good behaviour orders.

21. The good behaviour orders were due to expire on 21 February 2019. Therefore, the offender was subject to the good behaviour orders when each of the three offences in question were committed, i.e. he was in the community on conditional liberty.

22. The outstanding suspended terms of imprisonment are set out in the schedule to the Crown's written submissions filed in these proceedings. The outstanding part, depending upon the offence in question, ranges from three months (for burglary) to 20 months (for aggravated burglary). As to those breach offences, the relevant facts are set out in the sentencing remarks that are included in Exhibit 1.

23. The offender utilised a steel pole to cause damage in the course of a break in. He stole items of significant value. On the other hand, the offences occurred at commercial premises and were committed after hours when no one was present, and, because of the nature of the premises, it would have been apparent to the offender that no one was present. Planning was rudimentary (e.g. the offender was injured) and the stolen property was of no sentimental or personal value.

24. The offender showed some persistence in relation to gaining entry to the Centre and the BWS store and caused damage in doing so. He possessed an implement (a hammer) as a tool (as opposed to a weapon) to aid the break-in. Significantly, he threatened two witnesses: the delivery driver and the other witness. I accept the Crown submission that the aggravating feature of being in company was a matter of some practical significance in that there were, in fact, persons who were present at the premises and who were confronted by the offender. The fact that he was in company meant that the threats that he delivered may have been perceived to be of more serious gravamen.

25. On the other hand, the aggravating feature was that the offender was in the company of one person, not multiple persons, and the offence concerned commercial premises which were not open to the public at the time. Additionally, the break-in method was unsophisticated and the offender made no particular attempt to disguise himself; there was very limited planning.

26. The additional offence is a very minor matter. However, it does demonstrate dishonesty on a completely separate occasion.

27. The offender was 24 or 25 years old at the time of the new offences.

28. This is the third time that the offender has come before me to be sentenced for offences of this type. Indeed, I have sentenced the offender for all of the significant matters on his adult criminal history: in October 2014, in October 2016, and now.

29. In October 2014, the offender received sentences that saw him serve four months in fulltime imprisonment, following which his sentences were suspended. In July 2015, he committed offences that brought him back before the Court in October 2016. At that stage, he was sentenced to an overall period of three years' imprisonment, of which he was required to serve 12 months from February 2016 to February 2017. The sentences were then suspended.

30. It would appear that the offender did not reoffend for the ensuing almost 12 months, until he committed the new offences in January 2018.

31. Thereafter, as pointed out by defence counsel, the offender did not go on a spree of offending, but, apart from the minor matter committed in October 2018, did not commit a further significant offence until December 2018.

32. The January 2018 offences were committed within a matter of months after the offender was released into the community, but the December 2018 offences were committed towards the conclusion of the two-year good behaviour orders associated with the suspended sentences.

33. The offender is Aboriginal. He is one of seven children. His parents separated before he was born, and he was raised by his mother. He met his father when he was about nine years old. The offender's upbringing was chaotic, characterised by frequent relocations of the family (partly in an attempt to avoid domestic violence), the witnessing of domestic violence perpetrated by two of his mother's partners, rampant substance abuse, and lack of parental supervision and guidance.

34. Due to frequent family relocations, the offender attended many schools. He reported that he was expelled from secondary school because of his behaviour and absenteeism. The offender left school in Year 9 and later completed Year 10 through an alternative education program. He reportedly completed his Year 12 equivalent while in custody. He has undertaken numerous courses while in custody, including the Solaris rehabilitation program at the AMC in 2016. During his recent period in custody, he completed alcohol and drug awareness and harm prevention training (ADAHPT) programs and an anger management course. Further, he says that he is attempting to pursue a Bachelor's Degree in business while in custody.

35. The offender does have a significant employment history. He is a qualified mechanic, although he has preferred to work in other employment, particularly in the concrete cutting and core drilling sector of the construction industry. Between January and December 2018, the offender worked for a concrete company. He has also been employed in his father's plumbing business. Upon release, he hopes to return to work in his father's business.

36. The offender has a long-term relationship with a partner who is very supportive. She has no criminal history and is a strong positive influence with the offender, attempting to keep him crime-free. The offender also enjoys the support of his sister, who has offered him stable accommodation following his release from custody. The offender has a six-year-old son with whom he hopes to re-establish a good connection.

37. The offender has a long history of polysubstance abuse. Since 12 or 13 years of age, he has consumed alcohol at risky to hazardous levels. Prior to the current period of incarceration, he reportedly consumed significant quantities of alcohol.

38. At 13 years of age, the offender commenced using cannabis. He progressed to using cocaine and ecstasy. He stated that he was under the influence of substances and/or alcohol at the time of the offences.

39. The offender's partner informed the authors of the pre-sentence report that the offender abstained from substances for a significant period following his release from custody in February 2017.

40. The offences occurred at times when the offender's life was unstable for various reasons. In late 2017, the offender's supervision was reduced and he also lost accommodation, which injected instability into his life in the period leading up to commission of the January 2018 offences. In late 2018, prior to the commission of the December 2018 offence, one of the offender's sisters died. In addition, he met up with old acquaintances, which led to him abusing alcohol.

41. The offender has expressed regret for his actions and demonstrated some insight regarding the link between his substance abuse and offending behaviour. The authors of the pre-sentence reports opined that, until the offender addresses substance abuse, he will continue to pose a risk of further offending. He has been assessed as at medium risk of reoffending.

42. I have considered the ACT sentencing statistics relating to custodial sentences imposed for burglary and aggravated burglary offences on offenders aged between 21 and 25 years who have prior offences of the same type.

43. I have also read recent decisions of the Court of Appeal: Schwalm v The Queen [2019] ACTCA 20, Dawson v The Queen [2019] ACTCA 9, R v UG [2018] ACTCA 64, and Sampson v The Queen [2018] ACTCA 67. The sentencing statistics appear to be consistent with the approach to sentencing in those decisions.

44. In sentencing the offender, I am required to have regard to sentencing considerations in s 33 of the Sentencing Act insofar as they are known and relevant. I believe that I have referred to the relevant matters above. A critical consideration is, of course, the maximum penalty for an offence.

45. Counsel for the offender submitted that there are good prospects of rehabilitation, having regard to the offender's relative youth and the positive steps that he has taken towards rehabilitation, both within the community and in custody. He enjoys good family support and has future employment prospects: all factors which are inclined to support rehabilitation. In addition, he has shown significant insight into the causes of his offending behaviour. On the other hand, the Crown has submitted that, although rehabilitation was identified on previous occasions as a key sentencing purpose, the offender has not maintained rehabilitation while in the community.

46. In my view, rehabilitation remains an important sentencing consideration. Given the offender's highly disadvantaged background and very longstanding substance abuse issues, it was inevitable that he would relapse from time to time and, to his credit, he has managed to pull himself back to some extent when he has relapsed.

47. However, considering the repeated commission of offences of this type, other sentencing purposes also assume some prominence, including purposes such as personal deterrence, accountability, denunciation, and recognition of harm to the community.

48. Given the offender's criminal history, the objective seriousness of these matters, and the other considerations referred to above, I consider that the only appropriate sentences for the new matters are sentences of fulltime imprisonment. I also consider that the existing suspended sentences should be served.

49. I find the breach of the good behaviour orders associated with the suspended sentences to be established. I will acknowledge the offender's efforts in the community by making the sentences imposed for the breach matters wholly concurrent.

50. In relation to the breach matters, I impose the remaining suspended sentences:

(a) Aggravated burglary - 20 months' imprisonment from 8 December 2018 to 7 August 2020.

(b) Theft - ten months' imprisonment from 8 December 2018 to 7 October 2019.

(c) Ride in motor vehicle without consent - four months' imprisonment from 8 December 2018 to 7 April 2019.

(d) Burglary - seven months' imprisonment from 8 December 2018 to 7 July 2019.

(e) Theft - four months' imprisonment from 8 December 2018 to 7 April 2019.

(f) Burglary - seven months' imprisonment from 8 December 2018 to 7 July 2019.

(g) Burglary - three months' imprisonment from 8 December 2018 to 7 March 2019.

(h) Aggravated burglary - four months' imprisonment from 8 December 2018 to 7 April 2019.

51. In relation to the current offences, I sentence the offender as follows:

(a) For the offence of burglary committed in January 2018, two years' imprisonment, reduced by 25 per cent to 18 months' imprisonment, from 8 September 2019 to 7 March 2021.

(b) For the associated offence of theft committed in January 2018, 16 months' imprisonment, reduced by 25 per cent to 12 months' imprisonment. This sentence will be wholly concurrent with the above sentence, and will run from 8 September 2019 to 7 September 2020.

(c) For the offence of aggravated burglary committed in December 2018 and taking into account the October 2018 matter, two years and six months' imprisonment, reduced by approximately 25 per cent to 22 months' imprisonment from 8 March 2020 to 7 January 2022.

52. The total period of imprisonment is 37 months, from 8 December 2018 to 7 January 2022.

53. In recognition of the offender's attempts at rehabilitation and reasonable prospects for future rehabilitation, and having regard to the fact that the offender has not previously spent such a long period in custody, I fix a 50 per cent nonparole period, being 18 months and 14 days. The nonparole period will run from 8 December 2018 to 21 June 2020.

54. Counsel for the offender submitted that I should consider imposing an intensive corrections order given that the offender has spent eight months in custody to date. However, given the length of the sentences that I have imposed, the offender's criminal history, and the fact that he breached the good behaviour orders associated with the earlier sentences that I had imposed, it is my view that the only appropriate penalty is one of fulltime imprisonment.

55. In relation to the reparation order, pursuant to s 19 of the Sentencing Act, I make a reparation order requiring the offender to make reparation to Vena and Venkata Pty Ltd trading as United Fyshwick by payment of the amount of $5,486.60.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.