R v CA [2016] ACTSC 378

Crimes (Sentencing) Act 2005 (ACT) ss 11, 33

R v CA [2014] ACTSC 332

R v CA (No 2) [2016] ACTSC 371

SCC 93 of 2016; SCC 94 of 2016; SCC 139 of 2014; SCC 140 of 2014

1. The offender is to be sentenced for an offence of aggravated burglary (burglary in company) and a related offence of theft committed on 25 July 2015, which placed him in breach of good behaviour orders associated with suspended sentences imposed by the Supreme Court on 28 October 2014 and by the Magistrates Court on 6 November 2014.

2. The maximum penalty for an offence of aggravated burglary is 20 years' imprisonment and/or a fine. The maximum penalty for an offence of theft is 10 years' imprisonment and/or a fine.

3. In relation to the July 2015 offences, the offender was arrested on 30 November 2015. On 1 December 2015, he was granted bail. On 22 February 2016, he was arrested for failing to appear and refused bail. He has been in custody since that date.

4. The offender was committed for trial on 3 March 2016. He indicated a plea of guilty at a criminal trial call-over in August 2016, just before the matter received a trial date. The Crown case was strong. In these circumstances, the appropriate discount for the plea of guilty is about 15%. A discount of that level adequately recognises the utilitarian value of the pleas and the remorse that the pleas demonstrate, but in the context of a strong Crown case.

5. At 12.30 am on Saturday, 25 July 2015, the offender and co-offender smashed a rear window of a hair salon (the replacement cost was $2,510) and gained entry. They removed items including cash, scissors, razors, hairspray and make-up (the tools of trade of a hair salon) with a total value of about $7,118. The break-in activated an alarm. The incident was captured on CCTV. A bloodstain was found inside the premises and DNA matched to the offender.

6. The proprietor of the salon seeks reparation for out-of-pocket expenses, being the payment of an insurance excess. The insurance company seeks reparation for the amount paid in compensation for the break-in.

7. The objective seriousness of the offences is not insignificant, although it is towards the lower end. The aggravating feature (in company) has less significance in the circumstance that no-one was present at the premises, nor was anyone likely to be present given the timing of the burglary. Consequently, the presence of two people did not and was never likely to pose an additional danger or threat to anyone. The premises were commercial premises and the robbery was committed at night. The items that were taken were of some value, although not high; they were of a generic nature, rather than of a sentimental or other special value. Some seriousness attaches to the offences because of the damage to the premises and the fact that the theft would have occasioned some disruption to the operation of the hair salon business. Fortunately, no gratuitous damage occurred.

8. I accept the offender's submission that, while some premeditation was associated with the offence, it was a fairly unsophisticated offence, as evidenced by the deposit of blood at the scene of the crime. It was typical of burglaries committed by drug addicts.

10. On 28 October 2014, I sentenced the offender for three offences of aggravated burglary and three offences of burglary. The offences related to eight episodes of offending. Most occurred during a period of three days in June 2011. Although a different sentencing regime applied to the exercise that I undertook in October 2014, it is worth noting that the starting point for the sentences for aggravated burglary were eight and 12 months' imprisonment.

11. Regrettably, the 2015 offence is somewhat similar to the aggravated burglaries committed some years ago. One of the burglaries for which I sentenced the offender in 2014 involved a hair salon and was very similar to the more recent aggravated burglary.

12. I imposed a total sentence of two years and one month's imprisonment, suspended for a period of two years from 31 October 2014 after the offender had served approximately four-and-a-half months' imprisonment, leaving one year eight months and 16 days remaining. I ordered the offender to pay reparation at the rate of $250 per calendar month. I assume that there was at least substantial compliance with the reparation order.

13. The facts of those offences, my assessment of the objective seriousness and the relevant subjective circumstances are set out in my reasons for decision of 28 October 2014: R v CA [2014] ACTSC 332.

14. On 6 November 2014, the Magistrates Court sentenced the offender for reckless driving (committed on 19 June 2014) to six months' imprisonment and for two offences of failing to appear (in February 2013 and January 2014) to two months' imprisonment. The sentences were accumulated, making a total of eight months' imprisonment, and were suspended from 6 November 2014 on a two-year good behaviour order.

15. The facts relating to the reckless driving charge were tendered today. On the night of 19 June 2014, police observed the offender driving a vehicle. He was the subject of a warrant for failing to appear. A police pursuit was instituted. The offender drove at high-speed through residential areas, reaching speeds of 157 kilometres per hour in an 80 kilometre per hour speed zone and 90 kilometres per hour in a 40 kilometre per hour speed zone. There was a 12-year-old passenger in the vehicle. It was a very serious offence of its type.

16. The offender was 21 years old in July 2015. He is now 22 years old.

19. His adult criminal history comprises minor driving offences and the more serious ACT offences for which the Magistrates Court imposed suspended sentences in November 2014. It is significant that he has not been convicted of any serious offence of dishonesty that occurred between 2011 and the more recent offences committed in 2015.

20. However, the offender is the subject of a warrant issued in Queensland for alleged offences of burglary and attempted unlawful use of motor vehicle in that State.

21. An important sentencing consideration is that the new offences were committed while the offender was serving suspended sentences for a number of other offences, including similar offences.

22. In the past, the offender has responded poorly to supervision, but that appears to have changed.

23. The offender is one of seven children. He experienced a chaotic childhood. His mother abused substances and was neglectful of her children. His father spent time in prison. The family frequently moved to avoid intervention by child protection agencies.

24. The offender has been in a relationship for two years. His partner is not a drug user. She is seeking a commitment from the offender to a pro-social lifestyle and will support the offender through rehabilitation.

25. The offender has a three-year-old child from a previous relationship whom he hopes to see at weekends when he is released from custody.

26. The offender maintains a close relationship with a sister who lives a positive lifestyle, as does her husband. Prior to his arrest, the offender was working for his sister's husband in the concreting industry. A position remains open for the offender upon his release. The offender's sister is prepared to offer the offender accommodation upon his release.

27. The offender used cannabis regularly from 12 years of age and daily from 18 years of age. While in custody, he has tested positive for cannabis as recently as July this year. Since about 17 years of age, he has been an intermittent, but relatively frequent, user of methylamphetamine. He informed the author of the pre-sentence report that he made a poor decision at the time of the current offences due to the combined effect of alcohol, cannabis and methylamphetamine.

28. The offender began the Solaris Program on 22 August 2016, and was motivated to do so because it would create a positive impression in these proceedings. That said, he appears to have engaged well and he has been a very positive participant. The Program has given him insight and motivated him to remain drug-free upon his release.

29. In the past, the offender has reported to Mental Health ACT drug-induced psychosis and attempted suicide. Currently, he is exhibiting no symptoms of a major mental illness, although those close to him do have some concerns about possible depression and anxiety.

30. The author of the pre-sentence report assessed the offender as at medium risk of general re-offending, but in my view that is a fairly pessimistic view of his prospects. Having regard to the offender's relative youth and the recent genuine commitment to rehabilitation, I see rehabilitation as a dominant sentencing purpose.

31. The offender has demonstrated what appears to be genuine and a fairly well established commitment to drug rehabilitation, and he enjoys support from his family and partner. Upon his release, he has stable accommodation and employment prospects. He had no convictions for serious dishonesty matters between 2011 and 2015, suggesting a past capacity to avoid heavy drug use and associated dishonesty, at least to a significant degree over a significant period. Together, these matters make me optimistic about his prospects for rehabilitation.

32. In addition to rehabilitation, other sentencing purposes that are relevant include adequate punishment, personal deterrence and accountability. The Court is also required to take into account relevant matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I have referred to these matters.

33. Both prosecution and defence accept that some sort of sentence of imprisonment must be imposed. I have considered whether the sentence would most appropriately be served by an intensive correction order (s 11 of the Sentencing Act) and whether I should refer the offender for assessment. However, it is my view that the service of a significant period of full-time imprisonment, followed by the suspension of the remainder of the sentence, is the more appropriate course.

34. There are a number of reasons for that approach. First, s 11 contemplates that, prima facie, sentences of more than two years do not automatically qualify for an intensive correction order; the sentences that I impose will fall into that category. Second, the offender has most of the structures in place that will support him in rehabilitation following his release, and he is not someone who needs intensive support to locate those structures. Third, it is my view that the imposition of a good behaviour order and the associated suspended sentence will offer more sentencing flexibility should things go slightly wrong. The offender comes from a highly disadvantaged background and suffers from the chronic relapsing condition of drug addiction. It is my view that flexibility may be required should a breach occur and the Court is the appropriate body to exercise the discretion.

35. I convict the offender of the offences of aggravated burglary and theft. I find that the good behaviour orders have been breached and they are cancelled.

36. It is convenient to re-sentence the offender in a manner that approximates the outstanding portion of the original sentences. I therefore re-sentence the offender as follows:

(a) For the offence of aggravated burglary, committed on 28 December 2009, he is sentenced to two months' imprisonment from 22 February to 21 April 2016.

(b) For the offence of aggravated burglary at Patto's, committed on 20 June 2011, he is sentenced to eight months' imprisonment from 22 May 2016 to 21 January 2017.

(c) For the associated offence of theft, he is sentenced to three months' imprisonment from 22 May 2016 to 21 August 2016.

(d) For the associated offence of ride in a motor vehicle, he is sentenced to three months' imprisonment from 22 May to 21 August 2016.

(e) For the offence of aggravated burglary at a South-side pizza establishment, committed on 20 June 2011, he is sentenced to nine months' imprisonment from 22 September 2016 to 21 June 2017.

(f) For the associated offence of theft, he is sentenced to four months' imprisonment from 22 September 2016 to 21 January 2017.

(g) For the associated offence of ride in a motor vehicle, he is sentenced to four months' imprisonment from 22 September 2016 to 21 January 2017.

(h) For the offence of burglary at a hair salon, committed on 20 June 2011, he is sentenced to four months' imprisonment from 22 January to 21 May 2017.

(i) For the offence of burglary at Pizza Hut, committed on 20 June 2011, he is sentenced to seven months' imprisonment from 22 April to 21 November 2017.

(j) For the associated offence of theft, he is sentenced to four months' imprisonment from 22 April to 21 August 2017.

(k) For the offence of burglary at a Post Office, committed on 22 June 2011, he is sentenced to seven months' imprisonment from 22 August 2017 to 21 March 2018.

(l) For the associated offence of ride in a motor vehicle, he is sentenced to four months' imprisonment from 22 August to 21 December 2017.

(m) For each offence of failure to appear, he is sentenced to two months' imprisonment, concurrent from 22 February to 21 April 2016.

(n) For the offence of reckless driving, he is sentenced to six months' imprisonment from 22 April to 21 October 2016.

37. In relation to the offences committed on 25 July 2016, I sentence the offender as follows:

(a) For the offence of aggravated burglary, the starting point is two years' imprisonment, less about 15%. The offender is sentenced to 20 months' imprisonment from 22 June 2017 to 21 February 2019.

(b) For the associated offence of theft, he is sentenced to 10 months' imprisonment (reduced from 12 months' imprisonment for the plea) from 22 June 2017 to 21 April 2018.

38. The overall sentence will expire on 21 February 2019.

39. To the extent that the sentences remain outstanding on 22 February 2017, from that date, they will be suspended and I make a related good behaviour order for a period of two years from that date.

40. The good behaviour order is subject to the following additional conditions:

(a) the offender report to ACT Corrective Services at Eclipse House within two working days of release;

(b) the offender submit to the supervision of ACT Corrective Services for such period as it deems appropriate, but not less than 12 months, from 22 February 2017.

41. I make a reparation order requiring the offender to make reparation to the proprietor of the salon in the sum of $500. In relation to the application for a reparation order in favour of the insurance company, a legal issue arises, and that application has been determined on the papers: R v CA (No 2) [2016] ACTSC 371.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.