R v BC [2019] ACTSC 233

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - aggravated burglary - theft - possession of a drug of dependence - where extensive criminal history - where offences committed on parole - where burglary of non-residential part of premises - where history of childhood sexual abuse - principles of parity

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 33, 35, 65

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22

Drugs of Dependence Act 1989 (ACT) s 169

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462

Hili v the Queen [2010] HCA 45; 242 CLR 520

Kelly v Ashby [2015] ACTSC 346; 73 MVR 360

Jackson v Giltrap [2009] ACTSC 36

Markarian v The Queen [2005] HCA 25; 228 CLR 357

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

Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80

R v Bright [2017] ACTSC 328

R v Fleet [2018] ACTSC 50

R v Forrest (No 2) [2017] ACTSC 83

R v Hawkins [2015] ACTSC 333

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Horne [2017] ACTSC 36

R v John [2017] ACTSC 144

R v John (No 2) [2017] ACTSC 186

R v Lockwood [2018] ACTSC 288

R v Kristiansen [2017] ACTSC 292

R v Martin [2007] VSCA 291; 20 VR 14

R v McMahon [2014] ACTSC 280

R v McMahon (No 2) [2017] ACTSC 299

R v Meyboom [2012] ACTCA 48

R v Muell [2019] ACTSC 77

R v Osenkowski (1982) 30 SASR 212

R v Pahl (No 2) [2017] ACTSC 155

R v Pham [2015] HCA 39; 256 CLR 550

R v Sampson [2018] ACTSC 59

R v Schwalm [2019] ACTSC 35

R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103

R v Tran [1999] NSWCCA 109

Saga v Reid [2010] ACTSC 59

Schwalm v The Queen [2019] ACTCA 20

Simonds v The Queen [2013] ACTCA 13

Zdravkovic v The Queen [2016] ACTCA 53

SCC 71 of 2019; SCC 72 of 2019

1. On 29 March 2019, BC (the offender) pleaded guilty to the following offences:

(a) one charge of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code) (CC18/14638) (Count 1). The maximum penalty for Count 1 is 2000 penalty units, imprisonment for 20 years, or both;

(b) one charge of theft contrary to s 308 of the Criminal Code, by virtue of s 45A of the Criminal Code (CC18/14639) (Count 2). The maximum penalty for Count 2 is 1000 penalty units, imprisonment for 10 years, or both; and

(c) one transferred charge of possession of a drug of dependence (methylamphetamine) contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT) (CC18/14640) (Count 3). The maximum penalty for Count 3 is 50 penalty units, imprisonment for 2 years, or both.

2. The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. What follows is a summary.

3. At about 7am on 9 December 2018, the victim entered his secure garage in the underground carpark of his unit complex, where he observed the roller door of the garage to be up and both doors to his Volkswagen, and one door of his Holden, to be ajar.

4. The victim reported the matter to police, and while waiting accessed dash cam footage from the Volkswagen. The footage showed the offender and two co-offenders open the door to the garage at approximately 4am on 9 December 2018, enter and search the garage, and load a number of items into the boot and rear of a black hatchback before leaving. These acts constitute Counts 1 and 2.

5. The offender was located in the premises of the offender's partner later that day and arrested. He was transported into custody and searched, where police located a clip seal bag containing a white crystalline substance later identified as 0.241g of methylamphetamine. This offending constituted Count 3.

6. Police later executed a search warrant on the premises, where they located the items that had been taken from the victim. These were: two motorcycle helmets with branded carry bags, a car tyre, a drone, a GoPro camera, a cordless drill with carry bag and attachments, a military body armour carrier and steel plates, a bag of microfiber cloths, and four magnetic registration plate covers. The items were returned to the victim.

7. The prosecution submitted that in respect of the offence of aggravated burglary, various factors were relevant including: the nature of the premises, whether victims were present at the time, the offender's motivation, damage to property and the level of premeditation (citing Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83 (Forrest); R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299).

8. The prosecution submitted that there is "nothing particularly aggravating" about Count 1 other than that the offence occurred on a residential, rather than commercial premises, although the prosecution cited Refshauge J in R v Horne [2017] ACTSC 36 (Horne) at [22]:

[A]lthough the premises were residential premises, the fact that it was a separate, basement garage in to which [those offenders] trespassed may somewhat reduce the seriousness of the trespass when compared to, for example, a trespass into the living areas of residential premises. Nevertheless, tenants are likely to visit the garage from time-to-time, including at late hours.

9. Nevertheless, it was submitted that the offending is still associated with a "violation of the privacy and security of the occupants" (citing R v Hawkins [2015] ACTSC 333). In addition, it was submitted that the circumstances of the offending indicate it was not a spontaneous offence.

10. In respect of the loss or damage resulting from the offending, the prosecution accepted that the items taken were returned to the victim quickly. In respect of the effect on the victim, the prosecution noted that the Court can take judicial notice of the inconvenience and sense of violation associated with an offence of this type.

11. In respect of the aggravated burglary offence, counsel for the offender submitted the offending was a "relatively unremarkable version of the offence", noting that it occurred in an underground carpark, which reduces the seriousness of the offence when compared to a trespass of a living area. However, it was accepted that tenants are nevertheless likely to visit an underground carpark, although here "no persons where disturbed or confronted" (referring to Horne; Forrest; R v Bright [2017] ACTSC 328; R v Muell [2019] ACTSC 77 (Muell)).

12. In respect of the theft offence, noting that no monetary amount was provided, it was accepted by counsel for the offender that the items appear to be valuable. It was noted however that all the items were recovered by the victim.

13. The submissions of both the prosecution and the defence relating to objective seriousness were broadly equivalent and I accept the submissions as they accord with my view of the objective seriousness.

14. In evidence before me is the pre-sentence report (PSR) prepared for the offender.

15. The offender is 29 years old and is one of nine children to his parents' union. The offender reported a disruptive childhood exposed to illicit substance use, family violence, neglect and alcoholism. He reported strained relationships with various family members, some of whom he described as antisocial influences, but reported positive relationships with his partner's parents.

16. The offender ceased high school in year 9 to attend a pre-apprenticeship course and has since completed signwriting and carpentry courses. Prior to entering custody the offender worked for his father-in-law on a casual basis for approximately 14 months.

17. The offender engaged in binge drinking behaviour between the ages of 15 and 17, which was later replaced with cannabis and ecstasy. The offender reported that at age 18, he used methylamphetamine on a daily basis and reported a dependency for the majority of his adult life.

18. The offender attended the Canberra Recovery Service (CRS) rehabilitation program in July 2016 but was exited from the program following a positive drug screen and leaving the centre without permission. He later declined a further opportunity with this centre. In June 2017 he attended a detoxification program after which he claimed abstinence from all drugs for almost two years. The offender reported using methylamphetamine 30 minutes prior to the present offending.

19. The PSR indicates that the offender is accessing Directions ACT in custody having attended three sessions of Alcohol and Drug Abuse Prevention and Treatment Program. The offender has also applied for Arcadia House detoxification and rehabilitation program. A screening tool assessed the offender as "low risk" with respect to alcohol related harm.

[The offender] has been assessed as medium risk of re-offending. It appears he may be minimising his alcohol and drug use, and it not clear whether he engaged in this activity in order to commit the offences or the decision to offend occurred while under the influence. Either way [the offender] will continue to put the community at risk of further offending of this nature until he commits to addressing his alcohol and poly substance use.

Although [the offender] has been recently assessed as having no mental health issues, it is recommended that he address past trauma issues and sever his antisocial associations if he is to live a pro social lifestyle and desist from offending.

21. Counsel for the offender noted that the offender's bail conditions in a previous matter required his attendance at CRS which he attended in July 2016, but from which he exited. However, counsel drew the Court's attention to the fact that the offender's attendance at CRS was his first attempt at rehabilitation. The offender later completed the Arcadia House program which he indicated in his letter to the Court revisited issues of childhood trauma, namely, sexual assault when the offender was nine years of age. It was submitted that the trauma was a contributing factor to the offender's substance abuse and criminal history. The offender has been accessing the services of Service Assisting Male Survivors of Sexual Assault (SAMSSA) since September 2018.

22. It was submitted that the offender wishes to "break that cycle" in which he currently finds himself in order to be dependable for his family and for the sake of his children.

23. At the time of the offence, the offender was on parole for multiple offences, including driving while disqualified, common assault, dangerous driving and failing to appear.

24. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence, though care is required to avoid double punishment (Kelly v Ashby [2015] ACTSC 346; 73 MVR 360).

25. Relevantly, counsel for the prosecution cited the following principle from R v Tran [1999] NSWCCA 109 at [15]:

Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.

1. I take the conditional liberty into account as an aggravating factor on sentence.

1. It was accepted by counsel for the offender that the offender has a significant criminal history, comprised mainly of dishonesty and property offences and also including a number of common assaults and driving offences. The offender's history includes a conviction in NSW for breaking, entering and stealing in 2010. It was accepted that the offender's criminal history may limit leniency, which has been afforded to the offender in the past. However, counsel for the offender referred to the following passage by Refshauge J in Saga v Reid [2010] ACTSC 59 at [89] (Saga):

In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix.

1. The prosecution submitted the offender is not entitled to any leniency as a result of his antecedent history (Submissions at [9]).
2. I take the criminal record into account on sentence. While his criminal record does not afford him any leniency, the Court notes that drug rehabilitation is often not a linear process, as underlined in Saga.

30. With respect to the offender's attitude to the offending, the PSR notes:

[The offender] claimed he could not recall most of the offence due to being heavily under the influence of drugs and alcohol. He rationalised his behaviour and stated he had relapsed [into] active addiction as a means of coping with his emotions.

31. Counsel for the offender submitted the pleas of guilty were evidence of remorse.

32. In evidence before me was a letter from the offender, undated, which included the following:

In June 2017 I entered the Arcadia House drug and alcohol rehabilitation centre and graduated in August that year. It was identified whilst I was at Arcadia House that the [underlying] issue that [led] me to using was that I was sexually assaulted when I was 9 years old. This is a significant event I had never spoken about. Upon graduating from Arcadia life was great for the next year or so and I went to work with my father in law, my partner and I had our third child in May 2018.

In August 2018 I sought advice from my parole officer...about counselling for what had happened when I was 9 years old. [The officer] referred me to SAMSSA (service assisting male survivors of sexual assault) in September I made contact with [SAMSSA] and had a counselling session it was in that first session we spoke about what had happened when I was 9. [T]his brought back all the feeling I felt that day when I was assaulted this and also [m]y partner and mother to my three children having an abortion in October left me feeling inadequate and helpless and I once again turned to the only thing I knew would help me feel better, drugs (methamphetamine) from here I spiralled downwards and felt like I was so alone and didn't think there was anyone or anything that could help me. I was at rock bottom again. I now realise that this is only a temporary fix and only leads me back to trouble.

...

Going to the garage and stealing from it was wrong of me and the person [whose] garage it was did not deserve me stealing from it and taking my troubles out on them for this I am truly sorry. I am [grateful] that everything that was taken has since been returned [to] the owner.

You honour I am [a 29 year] old father of three young boys that deserve a positive role model I am confident that with the continuing counselling sessions with [SAMSSA] and the support network I have that I will be able to be that positive role model for my children that I never had. My road to recovery has been full of ups and downs and I have only focused on my drug use and not the underlying reasons that lead me to use. I am able to stay drug free and with the right supervision and support that I now have I am confident that I can be the positive role model for my children and of that also, in the community.

33. On 8 July 2019, the offender participated in a Restorative Justice conference with the victim. A Restorative Justice Report was subsequently produced which included the following:

[The offender] listened as [the victim] described how he and his partner were impacted at the time and afterwards. [The offender] then apologised for these impacts and showed genuine remorse for his actions.

[The victim] appreciated the sincerity displayed by [the offender] and urged him to focus on his family upon his release. [The victim] was satisfied with meeting and speaking with [the offender] and was pleased with [the offender's] plans to move forward with his life post release.

34. The outcome of the Restorative Justice process is to the offender's credit and I accept the offender is remorseful.

35. In evidence before me were a number of references and letters in support of the offender, including:

(a) Two letters from a counsellor at the SAMSSA, dated 5 April 2019 and 21 June 2019 respectively, the latter of which includes the following:

[The offender] has been in touch with our service since September [2018] and I am proud of his firm resolve to seek support and counselling for the trauma he endured as a child and continues to suffer impacts of. [The offender] has been an active participant in counselling and has always showed up for his sessions in the Alexander Maconochie Centre and comes across as keen to continue doing so once he is released.

I look forward to continuing to work with him and supporting his goal to live a healed and whole life with his beautiful family.

(b) A Detainee Statement of Employment Form, including comments from a Work Supervisor and Detainee Employment Supervisor, including the following:

Since being employed in the kitchen [the offender] has displayed good work ethics at all times, his attendance has been good, he works well independently [and] also in the team environment, he has a polite disposition [and] when directed to complete a work task, does so willingly, he happily assists other catering staff [and] works well with the other team members.

(c) A certificate of completion for the Alcohol Drug Awareness (Harm) Prevention Training (ADAPT); and

(d) A letter from the offender's partner's grandmother, which includes the following:

The children are my main concern and their future with [the offender] is utmost in my thoughts. The boys aged 4, 3 and 1...can create some very trying times as you can well imagine and at the moment this falls solely on [the offender's partner], and with the extended [family's] assistance.

[The offender] is a very loving, caring father and is very good with the boys, his assistance caring and helping raise the boys has been limited due to his own actions, however I know he has great regrets about not being there for his boy[s], and as they get older has now made him realise his bad decisions can have an impact on his boys upbringing. This is something [the offender] has spoken to me about and desperately wants a better life for his boys then what he has given a child.

I believe with my [family's] assistance, [the offender] can turn his life around and become someone the boys could be proud of in the future.

1. On 27 August 2019, counsel for the offender also informed the Court that the offender has since completed the equivalent of Year 12 level studies whilst in the AMC and has been promoted to a Level 3 kitchenhand within the AMC, the highest level for such a position.

1. The offender entered pleas of guilty on the fourth occasion in Magistrates' Court and, with respect to Counts 1 and 2, following an initial plea of not guilty.
2. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo'ua at [41]-[48].
3. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [50].
4. Counsel for the prosecution accepted that the pleas were entered at a "relatively early stage" and had utilitarian value. However, it was submitted that, given that the offender was clearly identifiable in dash-cam footage and that the victim's possessions retrieved by police, therefore the prosecution case was "strong to the point of overwhelming" (Sentencing Act, s 35(4)).
5. Counsel for the offender submitted that the pleas evidence remorse and are of significant benefit to the administration of justice.
6. I therefore allow a 25% discount for the pleas of guilty.

1. The offender has spent days 262 days in custody from 9 December 2018 until 27 August 2019 solely referable to these offences.

1. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
2. I was referred to the following cases by the prosecution.
3. In R v Schwalm [2019] ACTSC 35, the 35 year old offender pleaded guilty to one count of aggravated burglary (in company) and two counts of theft. The offender had an extensive criminal history and history of polysubstance abuse and the sentencing judge considered the offender's prospects of rehabilitation as guarded. However, the offender was found to have a positive and reflective attitude to the offending. Following a discount of 25%, the offender received a aggregate sentence of 2 years and 8 months' imprisonment with a non-parole period of 21 months. An appeal on the ground of manifest excess was dismissed (Schwalm v The Queen [2019] ACTCA 20).
4. In R v Fleet [2018] ACTSC 50, the 44 year old offender pleaded guilty to one count of aggravated robbery (in company) and asked the court to take into account a transferred charge of minor theft. The offending was considered to be 'low range' [6]-[7]. However, the offender had a significant criminal history and a history of substance abuse. Following a discount of approximately 10%, the offender received a sentence of 10 months which, as a result of unsuitability for an intensive corrections order (ICO), was to be served full-time for three months and suspended thereafter.
5. In R v Sampson [2018] ACTSC 59, the 36 year old offender pleaded guilty to 8 offences including one count of aggravated robbery and one count of theft. The robbery, of a commercial premises, was considered to be in the low to mid range of seriousness. The offender suffered a violent and abusive childhood, had an extensive criminal history and a history of substance abuse. The sentencing judge noted some positive indications with respect to rehabilitation. Following a discount of 25%, the offender received an aggregate sentence of 36 months and 15 days with a non-parole period of 22 months. The individual sentence for the aggravated burglary was 22 months and 15 days and 12 months for the theft. A sentence appeal was subsequently dismissed (Sampson v The Queen [2018] ACTCA 67).
6. In R v Kristiansen [2017] ACTSC 292, the offender pleaded guilty to one count of aggravated burglary, one of attempting to take a motor vehicle and one of damage to property. At the time of the offences, the offender was subject to an ICO. The offender suffered a violent and neglectful childhood and had a lengthy criminal history but was found to have made progress before the sentence proceeding and had expressed remorse. Following a discount of approximately 25%, the offender received an aggregate sentence of 4 years and 10 months (incorporating the ICO term), 22 months of which was attributable to the aggravated burglary. A non-parole period of 2 years was set.
7. I was referred to the following cases by counsel for the offender.
8. In Horne, the 32 year old offender pleaded guilty to one count of aggravated burglary and one count of theft. The burglary took place in an underground carpark of an apartment complex. The offending occurred in the context of the offender having recently used methylamphetamine and needing to repay a drug debt. The offender suffered a violent and disadvantaged upbringing and presented with a significant criminal history. However, the sentencing judge found that progress in rehabilitation had been made and that the offender was remorseful. Following a discount of 25%, the offender received a total aggregate sentence of 2 years and 3 months, fully suspended upon the entry into a good behaviour order with additional conditions.
9. In Muell, the 23 year old offender pleaded guilty to five property offences including two aggravated robberies, an attempted aggravated robbery and a theft. One of the aggravated robberies was of an underground carpark at a residential building. The offender suffered sexual abuse as a child, had a poor criminal history and suffered from a drug addiction. Following a 15% discount, the offender received a total aggregate sentence of 6 years and 4 months with a non-parole period of 3 years and 6 months, 26 months of which was attributable to the aggravated burglary in the carpark.
10. In Bright, the 37 year old offender pleaded guilty to seven offences, including two aggravated burglaries. One of the burglaries was of an underground carpark to an apartment complex, which was found to be at the low to mid range of seriousness. The offender had a criminal history and was on conditional at the time of the offending, but was found to have expressed empathy to the victims. Following a discount of 25%, the offender received an aggregate sentence of approximately 4 years (which included the imposition of suspended sentences), with a non-parole period of 2 years and 1 month. For the carpark burglary, the offender received a sentence of 14 months. A sentence appeal was dismissed (Bright v The Queen [2018] ACTCA 39).
11. In R v John [2017] ACTSC 144 (John), the 26 year old offender pleaded guilty to six offences including offences of aggravated burglary, burglary, damaging property and theft. The offences included rolled up offences. The aggravated burglary related to the entry into an underground carpark. The offender suffered an abusive childhood, suffered from depression and had a history of substance abuse. The offender was found to be remorseful but her recommitment to rehabilitation was consider "incipient" (at [99]). Following a discount of 20%, the offender received a total aggregate sentence of 3 years and 5 months' imprisonment, 2 years of which was attributable to the aggravated burglary. The sentence was partially suspended upon the entry into a good behaviour order for 3 years with additional conditions (R v John (No 2) [2017] ACTSC 186).
12. It was accepted by the prosecution that those cases in which an underground carpark was involved may be of more use, but noted that John and Bright involved less serious criminal histories and, with respect to Horne, that the offender in that case had a period of 10 years where no offending had been committed.
13. The prosecution referred to Horne to suggest a general range of 6 months to 4 years across aggravated burglary offences, a statistical average likely to be somewhere in the range of 2 years, noting the limits of statistics.

1. The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32].
2. The co-offender in this matter was sentenced to 18 month good behaviour orders for offences of aggravated burglary and theft, with supervision conditions. The prosecution submitted that the co-offender's subjective circumstances were markedly different from the offender's, with particular regard to her lack of antecedent criminal history and "as a result, she was entitled to a degree leniency that the offender is not".
3. I take the principles of parity into account on sentence.

1. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
2. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. It was accepted by both parties that general and specific deterrence were of particular relevance.
3. Rehabilitation is also an important consideration.
4. Counsel for the prosecution submitted the following regarding rehabilitation:

The offender is still of a relatively young age. While it is not suggested that he is beyond rehabilitation, the Court is entitled to treat any claim that he is now ready to rehabilitate with some scepticism, noting the previous opportunities that have been afforded to him.

64. The prosecution submitted that the desire to engage in rehabilitation should be viewed against a background of previously having such opportunities, and his prospects should be viewed as guarded.

1. Counsel for the offender submitted his work as a kitchen hand "shows that he has some prospects of rehabilitation" and noted he maintains the support of his family.
2. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. The prosecution submitted that only full-time imprisonment would meet the purposes and principles of sentencing in this case. In this case, an alternative to full-time custody is not appropriate in my view.
3. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
4. As is well recognised in the authorities, drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]- [203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]- [30].]
5. It is also relevant to note in this context that childhood disadvantage does not "diminish with the passage of time and repeat offending" but does not have the same "(mitigatory) relevance for all purposes of punishment": Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].]
6. In R v Lockwood [2018] ACTSC 288 at [51]- [52], I noted the following with regard to the offence of burglary:

There is a "significant range of available sentences" for burglary, though they are "generally within the range of imprisonment for from one year to two years and six months": Fusimalohi v The Queen [2012] ACTCA 49 at [51]; Heard v The Queen [2015] ACTCA 6 at [27]- [32]; Millard v The Queen [2016] ACTCA 14 at [44]- [45].

Similarly, there is a "significant range of available sentences for [aggravated burglary], depending on the objective seriousness of the offending and the subjective circumstances of the offender": Rubinho v The Queen [2015] ACTCA 22 at [41].

1. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). Counsel for the prosecution submitted that ordinarily, sentences for the theft committed as a result of burglary is likely to be largely, if not wholly, concurrent with the sentence for burglary (R v McMahon [2014] ACTSC 280 at [94]). The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].

1. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, and subjective matters relevant to the offender, including the Restorative Justice Report and my view that the offender is at a crossroads in his life (R v Osenkowski (1982) 30 SASR 212).
2. The appropriate sentence for the offence of aggravated burglary is 18 months reduced to 13 months and 15 days on account of the discount for the plea of guilty.
3. The appropriate sentence for the offence of theft is 10 months and 21 days reduced to 8 months on account of the discount for the plea of guilty.
4. The appropriate sentence for the offence of possession of a drug of dependence (methylamphetamine) is 1 month and 10 days reduced to 1 month on account of the discount for the plea of guilty.
5. Taking into account the appropriate period of concurrency and accumulation, overall there will be a sentence of 20 months. The period from 9 December 2018 to 8 September 2019 will be served by way of full-time custody, being a period of 9 months. The balance will be suspended upon the entry into a good behaviour order for a period of 18 months.
6. I note the observations of Penfold J in Jackson v Giltrap [2009] ACTSC 36 at [18] regarding the application of s 65(6) of the Sentencing Act which indicates that the imposition of a non-parole period is not required in this case.

1. I make the following orders:
   • (a) I record convictions in relation to the offences.
   • (b) In respect of the offence of aggravated burglary (CC18/14638), the offender is sentenced to a term of 13 months and 15 days of imprisonment, commencing on 9 December 2018 and ending on 23 January 2020.
   • (c) In respect of the offence of theft (CC18/14639), the offender is sentenced to a term of 8 months of imprisonment, commencing on 9 December 2019 and ending on 8 August 2020.
   • (d) In respect of the offence of possession of a drug of dependence (CC18/14640), the offender is sentenced to a term of 1 month of imprisonment, commencing on 9 December 2018 and ending on 8 January 2019.
   • (e) Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentence will be suspended from 8 September 2019 upon the entry into a good behaviour order for a period of 18 months, with the additional conditions that:
     • (i) the offender be subject to a probation condition in that he be subject to the supervision of ACT Corrective Services for that period of 18 months or such lesser period as may be deemed appropriate by his supervising officer; and
     • (ii) the offender participate in such programs, courses or treatment as directed by the Director-General, particularly in relation to drug addiction and the avoidance of relapse and psychological counselling.

I certify that the preceding [78] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson.