R v Carberry [2020] ACTSC 96

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentence - burglary - possessing a knife in a public place - possessing a drug of dependence - burglary of a residential premises whilst residents were home - early plea of guilty - substantial criminal history - context of long-term illicit substance use - guarded prospects of rehabilitation - sentence of imprisonment

Crimes Act 1900 (ACT), s 382(1)

Crimes (Sentence Administration) Act 2005 (ACT)

Drugs of Dependence Act 1989 (ACT), s 169

Love v The Queen [2012] ACTCA 8

1. The offender, Renee Carberry, pleaded guilty in the Magistrates Court to the following offences:

a) one count of burglary contrary to s 311 of the Criminal Code 2002 (ACT), the maximum penalty being 14 years' imprisonment, 1400 penalty units or both (CC20/1171);

b) one count of possessing a knife in a public place without a reasonable excuse contrary to s 382(1) of the Crimes Act 1900 (ACT), the maximum penalty being six months' imprisonment, 10 penalty units or both (CC20/1173); and

c) one count of possessing a drug of dependence contrary to s 169 of the Drugs of Dependence Act 1989 (ACT), the maximum penalty being two years' imprisonment, 50 penalty units or both (CC20/1174).

2. At the time of these offences the offender was on bail for six separate series of offences. Those offences are currently being dealt with by the Magistrates Court.

3. The facts are agreed and are as follows. At around 10:45am on 18 January 2020 the offender entered the residence of the victim, who I will refer to as BD, and his wife ND, in Braddon, ACT. She entered through the study and took several items before exiting through the front door. BD and ND were in their bedroom at the time, and BD exited the bedroom at the time the offender was leaving. BD did not recognise the offender and called out to her to stop as she left the premises.

4. The offender walked towards Henty Street. BD exited his residence through a sliding door that backed onto Henty Street. He observed the offender walking along the nature strip on that street and approached her. As BD questioned why she had been in his house, the offender tried to push past him. BD recognised one of the bags she was carrying as his. Items also began falling from the bags being carried by the offender, and BD also recognised these items as belonging to him. BD attempted to pull the bags from the offender's shoulder and the offender pulled back, causing one of the bags to rip open. BD was successful at pulling the three bags off the offender and took them back to his residence. During the scuffle for the bags the offender kept saying "I haven't nicked your stuff". BD's wife called the police.

5. At approximately 11:00am police observed the offender one street over from Henty Street and she was placed under arrest. Police located a number of items on her belonging to BD and ND, as well as various residents of their apartment block. Inside a black carry bag police located a multi tool knife. Located in her pink handbag was a small clip seal bag containing methamphetamine.

6. So far as the burglary offence is concerned, the offending involved domestic premises. What is worse is that it was committed when the residents were at home. Although a confrontation with the residents was not sought out, it occurred. The burglary was committed at a time when it might be expected that persons were present at home. It is offending in the mid range of objective seriousness.

7. In relation to the charge of possessing a drug of dependence, there is no evidence as to the quantity of the drug. In those circumstances, although the offence is made out, it must be treated as at the bottom end of the range for this offending.

8. So far as the knife possession offence is concerned, the knife in question was a "multi tool knife" and no further specifications were provided. The offender told the author of the pre-sentence report that "when using illicit substances and when out alone at night she will often carry a knife to feel safe". The knife was found in her bag rather than on her person. Although the possession of the knife was associated with illicit substance use, it is an offence at the low end of objective seriousness for this offence.

9. Evidence of the subjective circumstances of the offender is provided by a pre-sentence report dated 13 February 2020 and an updated report dated 14 April 2020.

10. The offender is a 41-year-old Aboriginal woman. She was born in Griffith, NSW. She is one of six children of her parent's union. She reported that her parents separated when she was six months old and she moved to Canberra to be raised by her aunt. She described an unstable childhood marred with illicit drug use, alcohol and domestic violence. However, she reported that despite these issues she had a generally happy upbringing. Her siblings remained in NSW, however she described her relationship with them positively. She maintains a supportive relationship with her mother. Her father passed away in 2019.

11. She reported that she completed Year 9 at school. She has a limited work history due to her drug dependency. She undertook some drug and alcohol related voluntary work in the community for two months in 2006 and was employed in a recycling facility for four months in February 2019. She gained this employment through the Worldview Organisation which assists Aboriginal offenders after release from custody. She is a recipient of the Centrelink Newstart allowance. She currently has an outstanding housing debt although she reported she did have the capacity to pay a fine.

12. She advised that her partner of 15 years had recently been released from custody for driving offences. Although that relationship has often been strained, it was currently mutually supportive. She has a 6-year-old son who resides with her mother in a kinship placement. They have a positive relationship but limited contact due to him residing in NSW. Her son was removed from her custody due to her drug use.

13. She has limited prosocial networks and support.

14. She denied any past or current alcohol misuse although that was contrary to ACT Corrective Service records.

15. She has a significant history of dependency upon illicit drugs following her introduction to cannabis at the age of 13. She was using methamphetamine and heroin fortnightly, but claimed to have been abstinent since August 2019. If that claim of abstinence was meant to relate to the methamphetamine that does not fit with the offending, insofar as she was in possession of methamphetamine and admitted to the author of the pre‑sentence report that the drugs were for personal use. As at December 2019, she was on a methadone program. She admitted that her drug dependency had adversely affected her life. She had made attempts to address this problem by participating in the Karralika rehabilitation program in November 2015, but she exited that program in February 2016 due to behavioural issues. Her risks associated with illicit substance use were assessed as being at a severe level.

16. She has previously been diagnosed with depression, anxiety and post-traumatic stress disorder, although she is not currently medicated for those conditions.

17. The updated pre-sentence report indicated that she completed five sessions of the SMART Recovery program. A certificate indicates that she has completed that program now. She has also attended other courses in custody and has commenced employment in the bakery. She is now on buprenorphine and has telephone contact with her son.

18. The author's opinion in the updated pre-sentence report was that while the offender has commenced making changes to her life during her current period in custody, she will require a high level of support to maintain these changes in the community. She was assessed as suitable for a good behaviour order but not a community service work condition, due to her unaddressed illicit substance use.

19. She has a substantial criminal history in the ACT as well as some offending in NSW. She has a large number of convictions for minor theft and trespass. She has a previous conviction for burglary as well as a variety of other offences. The convictions are consistent with property offending undertaken to support illicit drug use. She has only received short custodial sentences in the past. Her criminal history provides no basis for leniency in relation to the current offending.

20. She pleaded guilty in the Magistrates Court on 12 February 2020. This was on the third mention, and before the provision of the brief of evidence. The utilitarian value of such an approach to the offending warrants a discount of 25% on the custodial sentence that I would otherwise impose. A plea of guilty also reflects the acceptance of responsibility by the offender.

21. She has spent a total of 94 days in custody prior to today, after being arrested on 18 January 2020.

22. The offending in the present case is a symptom of the offender's long-term use of illicit substances. These difficulties appear to be intergenerational, having regard to her description of an unstable childhood marred by illicit drug use, alcohol and domestic violence. It has, unfortunately, led the offender to no longer have custody of her child. Some attempts have been made at rehabilitation, but these have not been followed through upon. Having regard to the offender's history and the assessment of the author of the pre-sentence report that she would require a high level of support to maintain positive changes to her life once she returns to the community, the prospects of rehabilitation cannot be put higher than guarded.

23. The offender's criminal history means that for an offence such as burglary there is no room for leniency. Offending of this type strikes at a fundamental social value of the entitlement of persons to quietly enjoy their residence and property without interference.

24. Both general and specific deterrence are important sentencing considerations, as is the denunciation of the conduct, holding the offender accountable and protection of the community. Rehabilitation of the offender is obviously in the long-term best interests of the community, but that goal is dependent upon the motivation and capacity of the offender to achieve lasting change. The evidence discloses that the offender has undertaken some courses within the prison and that is a positive sign. However, as I have indicated, the prospects of longer-term rehabilitation are at best guarded and the goal of rehabilitation must not outweigh the other sentencing purposes.

25. I have taken into account the COVID-19 coronavirus pandemic. The circumstances in relation to that pandemic are still evolving. It has had the effect of constraining the types of visits that prisoners may have. In the case of the offender that may have an effect on the capacity to have visits involving her son, mother or partner. Such visits are likely to be significant for her mental health. More generally, the existence of the pandemic and the potential for there to be an outbreak of the disease within the prison, and the potential for significantly restrictive measures to be necessary in order to manage such an outbreak, are matters which create a state of increased uncertainty for a prisoner in the position of the offender.

26. The Crown referred to the decision of the Court of Appeal in Love v The Queen [2012] ACTCA 8. In that case the Court of Appeal was provided with a table of sentences in relation to burglaries. Penfold J (with whom Justices Burns and North agreed) said (at [13]):

That [table] indicated that sentences of around 18 months could be said to be within range for the ordinary course of domestic burglaries, but that higher sentences would be justified in particular circumstances.

27. In the present case, the fact that the burglary was of residential premises when the residents were present and involved a confrontation with them means, having regard to the offender's circumstances, a starting point somewhat higher than 18 months is appropriate. The starting point should, in my view, be 24 months reduced to 18 months on account of the plea of guilty.

28. I will set a non-parole period at the shorter end of the usual spectrum so as to permit a greater time subject to supervision, so that any steps towards rehabilitation may be consolidated in that period of supervision upon return to the community. The non-parole period will be 10 months.

29. The charge of possessing a drug of dependence, because of the absence of evidence in relation to quantity and the fact that the only evidence is that it was for personal use, may be dealt with by way of a good behaviour order for a period of 14 months.

30. On the charge of possessing a knife in a public place, having regard to the stated purpose for its possession, the fact that it was a "multi tool knife" rather than a knife of a more threatening nature, and the fact that it was found in a black carry bag rather than immediately accessible on her person, means that it is appropriate to deal with this matter by way of a good behaviour order of 14 months as well.

1. On the count of burglary (CC20/1171) the offender is convicted and sentenced to 18 months' imprisonment commencing on 18 January 2020 and ending on 17 July 2021.

2. The non-parole period is a period of 10 months commencing on 18 January 2020 and ending on 17 November 2020.

3. On the charge of possessing a knife in a public place (CC20/1173) the offender is required to enter into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 14 months.

4. On the count of possessing a drug of dependence (CC20/1174) the offender is convicted and required to enter into an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 14 months.

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