R v Booth [2016] ACTSC 365

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - theft - burglary - pleas of guilty - significant criminal record - drug use - remorse.

Crimes (Sentencing) Act 2005 (ACT), ss 6,7,10,33(1)(za)

R v Hawkins [2015] ACTSC 333

1. On 14 September 2016 the offender pleaded guilty in the ACT Magistrates Court to the following offences:

CC 3454/16 - That between 27 July 2015 and 5 August 2015, he entered a building as a trespasser with intent to commit theft of any property in the building.

CC 3452/16 - That between 27 July 2015 and 5 August 2015, he dishonestly appropriated property to the total value of $60,620 belonging to Philip Clarke and Sonya Kelly with the intention of permanently depriving them of the property.

2. Following the pleas of guilty the offender was committed for sentence to the ACT Supreme Court.

3. The maximum penalty for the offence of burglary contrary to s 311 of the Criminal Code 2002 (ACT) 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 2002 (ACT) is 10 years imprisonment, a fine of $150,000, or both.

5. The offender was originally charged on 8 June 2016. He was refused bail and has been in custody since that date. He has therefore been in custody for 184 days.

6. Between 27 July and 5 August 2015, the offender broke into premises in Dickson by smashing a window and screen at the front of the house. He stole the property that is listed in paragraph 12 of the Statement of Facts dated 6 December 2016.

7. The stolen property is varied, ranging from a safe, food and wine, jewellery, a medal and three atlases each of significant value. The total value of all of the property was $60,620.

8. Having regard to the significant value of the property, the offences must be regarded as at least of medium objective severity.

9. The offender was born in 1976. He is of Aboriginal heritage.

10. The offender had a very disturbed and unfortunate upbringing. It was dominated by domestic abuse, frequent moving and alcohol. As a result he left home when he was 14 to live with his extended family. He has now re-established a supportive relationship with his mother. He is apparently anxious to re-connect with his Aboriginal background.

11. The offender's education ended at the end of year 9. He has been in receipt of a disability support pension for the last 10 years as a result of mental health issues and their effect on his capacity to hold down employment. He has a diagnosis of a psychotic illness.

12. The offender began using cannabis when he was 14 years of age. He moved onto heroin when he was 21 for about five years. He also, at 21, started to use methylamphetamines and this usage has continued.

13. He has also drunk a lot of alcohol when he was young but has told the authorities that he has not consumed alcohol since he was 21.

14. The offender has five children from a relationship which lasted about 20 years. The relationship broke down in 2012 as a result of his drug use. He does however have regular contact with his children.

15. The offender has a significant criminal record. Although there seems to have been a considerable period after 2004 when the offender did not come before the courts, it seems that since about 2013, he has returned to criminal conduct. He has often been in prison, a punishment which does not seem to have deterred him from further criminal conduct.

16. The offender pleaded guilty to the offences and he is entitled to a discount for that reason. He has acknowledged that his actions were wrong but he carried them out to support his drug addiction.

17. He says he was not aware of the value of the atlases that he stole and disposed of and he says he understands that they would have been of considerable emotional value to their owners.

18. The offender has previously been involved in the SMART recovery program but did not comply with the requirements. He is currently undertaking a pharmacotherapy program and is on a methadone program.

19. His continued drug use will no doubt render him as a person more likely to reoffend unless his addictions are brought to an end.

20. There is of course another side to these crimes. By breaking into and taking the property of the victims, he deprived them of the things that were no doubt very dear to them. This is evident from the description of the stolen property. Some of the property is of very significant value. The fact that the offender did not know this is of little significance. More important is the fact that he really did not care what he was taking as long as he could take property which he could sell. In doing so, he paid absolutely no regard for the rights of the victims and the affection they may have had for some of their property.

21. It is too easy to say that when a house is broken into and property is taken that it is simply a matter of claiming on an insurance policy. That disregards the fact that people become attached to some of their property and to deprive them of it is much more than just an insurance claim and some inconvenience. The personal effects on the victims of these crimes are highlighted in the victim impact statement dated 8 December 2016.

22. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

23. It is also necessary to have regard to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). Some of the cases I have considered include Fusimalohi v The Queen [2012] ACTCA 49 and R v Hawkins [2015] ACTSC 333.

24. The offender's criminal record, the nature of the offences and the need for this offender to appreciate, through deterrence, that he must mend his ways all combine to require a sentence of imprisonment.

25. I am also however influenced by the offender's willingness to assist in the return of the atlases and to attempt to achieve as normal a life as possible. The offender gave evidence and I was impressed with his apparent sincerity. It may be that his words were simply words to achieve the best possible result. If that is so, and he returns to crime, he must know that the degree of leniency that is being extended to him today will not be repeated.

26. I also note that the offender has a matter before the sentencing circle which has been adjourned to March 2017. It is part of those proceedings that the offender takes part in drug rehabilitation. I do not see any necessity for me to add to this sentence any similar conditions. The offender has said that he is now off drugs, besides the methadone program, and he is feeling better for it. He is aware that a return to drugs will be harmful to himself, his family and the community.

27. As mentioned above, he is entitled to a discount for his plea of guilty. I think this should be 25% of the sentence he would otherwise have received.

28. The Crown has submitted that the two offences, although part of the same conduct, are distinct and therefore, there should be a degree of accumulation of the sentences. In this particular case, I disagree. This was a criminal enterprise consisting of a break-in and stealing of property. In my view, but without suggesting that my decision in this case is any statement of principle, I think it is appropriate for the sentences to be concurrent.

29. I think the appropriate sentence for the theft is 16 months imprisonment which after the 25% reduction becomes 12 months. I will also make a further reduction of one day to avoid the necessity of setting a non-parole period.

30. The appropriate sentence for the burglary is 12 months which is reduced to 9 months after the 25% reduction.

(i) For the offence of burglary, the offender is sentenced to a term of imprisonment of 9 months to commence on 8 June 2016 and end on 7 March 2017.

(ii) For the offence of theft, the offender is sentenced to a term of imprisonment of 11 months and 30 days to commence on 8 June 2016 and end on 6 June 2017.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim