R v Carpenter [2022] ACTSC 6

Texts Cited: Judicial Commission of New South Wales, Sentencing Bench Book (Judicial Commission of New South Wales, 2001)

Parties: The Queen (Crown) Kylie Ann Carpenter (Offender)

Representation: Counsel M Lucero (2 September 2021) D Swan (3 November 2021 and 31 January 2022) (Crown) T Jackson (Offender)

Solicitors ACT Director of Public Prosecutions (Crown) Tu’ulakitau McGuire (Offender) File Number: SCC 53 of 2021

LOUKAS-KARLSSON J:

Introduction

1. On 3 June 2021, Kylie Ann Carpenter (the offender) pleaded guilty to one count of burglary, contrary to s 311(1) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is imprisonment for 14 years, a fine of $224,000, or both.

Agreed Facts

2. The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Crown Tender Bundle. The agreed facts may be summarised as follows.

3. At about 7:30AM on Wednesday 26 June 2019, Ms Caroline Pietersen left her residence in Franklin (the residence) to travel overseas. Ms Pietersen had asked a friend to look after the residence while she was away and gave the friend her housekeys. On 3 July 2019, Ms Pietersen’s friend attended the residence to water the plants. The residence was secure with the garage door closed and undamaged.

4. At about 4:54AM on 9 July 2019, MSS Security personnel arrived at the residence to check an alarm that had been activated inside the residence. MSS Security personnel did not see any sign or entry or disturbance to the residence but observed that the garage door had been damaged, the front door to the residence was open and an internal light was on. MSS Security personnel did not enter the residence and contacted police. On the evidence, the burglary occurred in the early hours of 9 June 2019 given the state of the garage and front door.

5. At about 5:20AM, police attended the residence. Drawers and cupboards were open in the kitchen, study, living room, and bedrooms. An internal door to the garage was open and the internal light to the garage was switched on. Ms Pietersen’s Mitsubishi ASX sports utility vehicle was missing from the garage. A large number of items including women’s jewellery and accessories were also missing.

6. The garage door had sustained significant damage consistent with a vehicle driving through the closed garage door from inside. Blue marks were on the metal bars on the inside of the roller door. Outside the garage, small pieces of blue plastic were on the driveway, their colour matching the blue marks on the inside of the roller door. Importantly, is noted that the damage to the garage door and the missing items are not said to be attributable to the offender.

7. A black ‘Hunter Lab’ box was on the dining table. The box belonged to Ms Pietersen, following an online purchase. Opposite the kitchen, a glass sliding door to the backyard was open. The lock on the residence’s metal mailbox was broken and the mailbox was open.

8. A fingerprint examination was later conducted on suitable surfaces in the areas of the residence that appeared to have been searched. Fingerprints were located and developed on the Hunter Lab box. The offender’s fingerprints were located on the Hunter Lab box itself and the lid to the box.

Victim Impact Statement

9. A Victim Impact Statement was tendered and includes the following:

Imagine you are all by yourself at the other side of the planet, your family and friends are far away and you have no one to rely on. You are on your own which is fine, until someone, one day decides to enter your home and ravage it completely. There are several emotional and mental impacts that are enduring and likely will stay with me for a lifetime.

In the months before the burglary, I struggled with adjusting my life back to living on my own after a relationship break up. I still enjoyed living at [address] and felt safe and comfortable at home. I relocated to Australia from overseas in 2017 and was still adjusting to living here. I never would have thought that my life would be turned upside down in July 2019.

I was having breakfast with my mother in my hometown overseas when I got notified the police were looking for me and needed to speak to me. Since that moment the only thing I was thinking about was how am I going to protect my home and the belongings that are still in there? How quickly can I get a flight back to Canberra? I have an elderly father […] in an aged care facility, and it was the last time I saw him before the Covid pandemic hit and borders closed. The last moments I had with my parents were taken away from me and I couldn’t enjoy these last moments with them. I didn’t see my family since that moment, and it breaks my heart. It is time that I ill never get back. You might think it’s just a burglary, but for me it is a whole lot more.

After I got back home in Canberra, jetlagged, alone, and tired. I was just speechless when walking through my home which instantly didn’t feel like my home anymore. My safe space was gone. I didn’t sleep for a long time, always on watch, always scared that something would happen. Shortly after I decided to move to a new home. I was most happy about the fact that my bedroom in the new home was upstairs which gave me a safer feeling. I still check all my doors and windows several times before I go to sleep. I got my sleep back since the dog arrived. When my dog is not by my side, I don’t feel safe and don’t sleep well. I am always on watch when it gets dark.

There are also financial impacts which I had to deal with after the burglary. I did not save for a quick move to another home, and this had a big financial impact on me. Considering moving costs and taking several days off work, together with high levels of stress managing everything by myself. It was unsustainable for me to stay at [address] as I couldn’t switch off at night to have a good night sleep which was also affecting my work performance and overall health.

Thanks to you I am always on watch, always anxious. Thanks to you I could not give my family the quality time they deserve. What happened to you that you do this? Do you realise the impact this has on people’s lives? I really hope that you will take some time to figure out what you need to live a more normal life where you can stay out of people’s business and homes, and work for your own. I hope you get the help you need to start to turn your life around. I’m sure life would not be so hard on you once you commit to be a better person. It doesn’t have to be like this, only you choose to do so.

10. The Court recognises the serious and long-lasting effects of this crime on the victim and acknowledges the significant impact that the offence has had on the victim. The Court further acknowledges the importance of what the victim has expressed in her statement.

11. In reviewing the Victim Impact Statement for sentence, I note that the agreed facts state that “the damage to the garage door and the missing items are not said to be attributable to the offender”. In accordance with the law, I therefore cannot and must not sentence the offender beyond what is contained in the agreed facts.

Restorative Justice

12. In the Victim Impact Statement, the victim expressly stated that “I hope you get the help you need to start to turn your life around”. In light of that balanced statement and the nature of the case, on 2 September 2021 I determined that this was an appropriate matter to refer for restorative justice. This is a matter where restorative justice is available as the requirements of s 8 of the Crimes (Restorative Justice) Act 2004 (ACT) (Restorative Justice Act) are satisfied. Although restorative justice can occur after a proceeding finalises in the “post-sentence stage” pursuant to s 28A of the Restorative Justice Act, I determined it was appropriate for the outcome of the restorative justice process to be known prior to sentencing the offender.

13. When the matter returned on 3 November 2021, a restorative justice progress report dated 2 November 2021 was discussed. The progress report confirmed that a referral was received and that the matter was deemed suitable for a restorative justice conference. The matter was adjourned for the conference to take place.

14. A restorative justice conference took place on 25 November 2021 with the victim and the offender. The restorative justice report confirmed that an agreement was reached at the conference in the following terms:

(a) Offender to undertake counselling, fortnightly as per current schedule with a minimum of 11 sessions. Due date: 25 May 2022.

(b) Offender to complete parenting course and support worker from Belconnen Community Service. Due date: 25 May 2022.

(c) Offender to obtain employment by 25 May 2022.

(d) Offender agrees to pay $1,250 ($52 per week) to the restorative justice unit. Thereafter, the monies are released to the victim. Due date: 25 May 2022.

15. Pursuant to s 33(1)(y) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), it is a relevant matter on sentence that the offender is eligible for restorative justice as she accepts responsibility for the commission of the offence as set out in s 19(A) of the Restorative Justice Act. I take this matter into account on sentence. I also note that if the offender had chosen not to take part in restorative justice or had withdrawn her participation, I could not increase the severity of her sentence pursuant to that fact: s 34(1)(h) Sentencing Act.

16. I note at this juncture the victim’s concerns for the offender’s children and the offender’s motivation to be a better role model for her children by turning her life around. I further note that the amount agreed to be paid by the offender is a very significant sum taking into account the offender’s subjective circumstances and parental responsibilities.

Objective Seriousness

Prosecution Submissions

17. Counsel for the prosecution submitted that the considerations relevant to the assessment of the objective seriousness in respect of an offence of burglary include:

(a) The nature of the premises;

(b) Whether victims were present at the time;

(c) The offender’s motivation;

(d) Damage to the property (where not otherwise charged); and

(e) The level of premeditation or planning involved: Simonds v The Queen [2013] ACTCA 13; R v Forrest (No 2) [2017] ACTSC 83; R v Pahl (No 2) [2017] ACTSC 155; R v McMahon (No 2) [2017] ACTSC 299.

18. It was noted that the offending had occurred at a private residence belonging to Ms Pietersen who was overseas at the time. Although she had a friend attending to the affairs of the residence while she was away, no one was present at the time of the offending.

19. Counsel for the prosecution submitted that as the victim’s mailbox lock and garage door had been damaged during the course of the burglary, this could be taken into account in the assessment of the objective seriousness. It was also submitted that the theft of the car and the property damage were ‘enmeshed in the circumstances’ of the burglary.

20. It was submitted that this particular offence of burglary fell below the mid-range of objective seriousness of offences of this kind.

Defence Submissions

21. Counsel for the offender highlighted the following factors in submitting that this offending was lower in objective seriousness:

(a) There was no one home at the time of the offence;

(b) The prosecution had not asserted or established that any items were stolen by the offender or that the offender committed any of the damage;

(c) The offending was opportunistic, rather than planned or commercialised; and

(d) The matter is not in company or attended with any internal or external aggravation of the offence.

22. It was asserted that the prosecution’s submission that the property damage and theft could inform the assessment of objective seriousness must be rejected. Counsel submitted that it could not be considered as the prosecution had accepted, by virtue of the Agreed Statement of Facts, that the offender did not commit the acts of theft and the property damage.

23. It was submitted that if the Court were to take these matters into account, it would breach the principle from R v De Simoni (1981) 147 CLR 383 (De Simoni). Gibbs CJ stated the following at 389 in De Simoni:

… the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted… The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.

24. The Court of Appeal considered the De Simoni principle in Tracey v The Queen [2020] ACTCA 51 at [9] and observed:

These grounds allege a breach of the principle in R v De Simoni (1981) 147 CLR 383 at 389 (De Simoni), which requires that an offender be sentenced only for the offence(s) charged, and not for conduct that could have been separately charged: see also Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [31] (Pearce); Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]. Although there has been some suggestion that the principle only applies to more serious crimes, the principle is not so confined: R v Olbrich [1999] HCA 54; 199 CLR 270 at [18].

25. It must be stated that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. I accept the features identified by the defence as set out above. It is appropriate that I do so in light of the relevant legal authority. I note that the prosecution correctly conceded matters concerning the objective seriousness and agreed facts in submissions on 31 January 2022.

Subjective Circumstances

Pre-Sentence Report

26. In evidence before me is a pre-sentence report dated 10 August 2021 (PSR) prepared for the offender in relation to the current offence which includes the following in relation to the offender’s subjective circumstances.

Compliance with Community Based Orders

27. The offender first became known to ACT Corrective Services in February 2007 when she was remanded in custody. Since that time, the offender has been subject to numerous periods of incarceration, bail, good behaviour orders, and parole orders. The PSR notes that the offender has been the subject of breach action in relation to many of her previous community-based orders. However, importantly, the offender has complied with her bail conditions since September 2019 with no breaches.

Personal/ Family/ Marital Status

28. The offender is a First Nations/ Aboriginal woman who was born and raised in the ACT. She is one of four children and reported a dysfunctional childhood, largely attributable to her father’s family violence against herself, her mother, and her siblings. The offender’s father was diagnosed with a mental health condition and passed away in 2006. The offender reported that she has a strained relationship with her mother, who continues to reside in the ACT. The offender and her mother are not presently communicating with each other. The offender also does not spend much time with her siblings on account of having a young family.

29. The offender is currently living with her partner of three years. The offender advised that her partner is not a drug user and works full time. She feels protected by him as her previous relationships have been marred by family violence. The couple have resided in the same accommodation since October 2020 and live there with their three young children ranging in age from seven months to three years. The offender also has three older children who are in care at different locations. The offender report she is struggling with her 16 year old daughter who does not live with her who was recently arrested.

30. The offender’s sons are aged 14 and 12 years and live with other family members. There is some resentment from her older children on account of the younger children residing with the offender and the offender struggles with knowing how her older children feel. While she still has contact with her older children, her daughter is the only one who will stay at the house. On 27 October 2020, Child and Youth Protection Services (CYPS) closed their file advising they were content with the offender’s attendance at alcohol and other drugs (AOD) and trauma counselling. The offender reported that she wished she could have all her children reside with her but thought this may be too much for her and her partner at this time.

31. The offender reported that she had been contacting childcare centres with the help of OzChild. This had been unsuccessful due to the lack of availability in the ACT and the financial restrictions of the offender. Education/ Employment

32. The offender completed year 8 of her schooling. She reported one period of employment as a cleaner in 2018, which lasted for five to six months. The offender is not considered to be in the labour market due to caring for her children. The offender claimed to be keen to seek employment and has been considering courses available to support her in commencing employment possibilities in the future. The offender currently receives a parenting payment through Centrelink.

Alcohol and Drug Use

33. The PSR notes that the offender has had an extensive history of drug and alcohol abuse but has since provided negative urine tests during her bail period and previously while on remand. The Court Alcohol and Drug Assessment Service (CADAS) have regular contact with the offender and confirmed that they had no issues to report. The offender’s last positive recorded urinalysis was in June 2019.

34. The offender advised that she suffers from an ulcer attributable to her heavy drug use. She is prescribed Nexium to assist with the pain. The offender advised that if she drank alcohol, she would be physically sick.

Attitude to Offence

35. In respect of the offence, the offender reported that she had been released from prison and was homeless at the time. The offender advised she had felt alone, desperate, and decided to make things worse by consuming alcohol and committing this offence. The PSR author opined that the offender appeared to have insight into her behaviour by advising that she is no longer consuming alcohol or illicit substances and does not associate with anti-social persons.

Good Behaviour Order and Intensive Correction Order

36. The PSR states that the offender is suitable for a medium level of intervention by ACT Corrective Services. The PSR noted that if the court was minded to impose a good behaviour order, supervision would include strategies to address the identified areas of dynamic risk. It was recommended that an additional condition be included that supervision be only for the period deemed necessary by ACT Corrective Services.

37. The PSR also noted that the offender had been assessed as suitable for an Intensive Correction Order (ICO) and recommended that an ICO contain additional conditions of requiring the offender not to consume alcohol or illicit substances.

Previous PSR

38. Counsel for the offender also provided the court with a PSR that had been prepared for matters the offender was sentenced for in the Magistrates Court in August 2020. It was noted that the previous PSR was prepared almost a year after the commission of the current offence and the Magistrates Court offence. The previous PSR sets out the subjective circumstances of the offender, which need not be repeated. Counsel for the offender however emphasised that the previous PSR records that the offender has now evinced a history of compliance with ACT Corrective Services and had no positive urinalysis or alcohol testing. Intensive Correction Order Assessment Report

39. When this matter first came before me on 4 June 2021, I determined that I should give serious consideration to the sentence being served by way of ICO. As I noted in R v Black [2022] ACTSC 4, while the PSR assessed the offender’s eligibility for an ICO, s 46C(4) of the Sentencing Act requires a Court to order the Director-General of ACT Corrective Services to prepare an intensive correction order assessment before sentencing the offender to a sentence of imprisonment by intensive correction. To that end, I referred the offender for assessment. The ICO includes the following in relation to the offender’s subjective circumstances

Psychiatric or Psychological Condition

40. The ICO report notes that the offender has longstanding untreated mental health conditions that present as severe anxiety and behaviour disorders. These conditions have been recognised as an underlying bipolar disorder complicated by a traumatic childhood, substance dependence from an early age, a history of volatile and violent relationships, and interactions with the justice system following that background.

41. The report notes that the offender is currently engaged with a psychiatrist and addictions specialist at the Alcohol & Drug Service, and is on prescribed medication.

Medical Conditions

42. The offender reported that she is currently experiencing numbness that affects her legs from the hips down, and her arms and hands. This has resulted in a number of recent falls and affected the offender’s vision.

43. The offender’s general practitioner reported that some tests have been completed, but no diagnosis has yet been made.

Intensive Correction Order: Conclusion

44. The offender was assessed as not suitable for an ICO. The report writer noted that the offender was punctual, respectful, and co-operative with the assessor at all times of the assessment process, but declined to consent to serving her sentence by way of an ICO, citing her physical and mental health issues, as well as her responsibilities in providing full-time care to her four children.

Prosecution Submissions

45. The prosecution noted that the offender did not provide consent to serving any term of imprisonment by way of ICO and was found unsuitable for an ICO by virtue of her current personal circumstances as primary carer for her four children. It was conceded by the prosecution that the offender’s circumstances would make it more difficult for her to serve an ICO.

46. The prosecution submitted that the ICOAR and the PSR noted that historically, the offender has demonstrated a poor history of compliance with court orders. The prosecution also noted that the author of the ICOCAR stated that to the offender’s “credit, improvement has been noted since the time of her parole being cancelled in 2017” and that her current response to supervision under active orders remains satisfactory.

47. The prosecution further noted that the Court was precluded from imposing an ICO as at 31 January 2022 by operation of s 80 of the Sentencing Act and the orders imposed by Burns J on 3 February 2021: R v Carpenter (No 2) [2021] ACTSC 22 (R v Carpenter (No 2)).

48. It was ultimately submitted by the prosecution that no other sentence than one of imprisonment is appropriate: s 10(2) Sentencing Act. Nevertheless, the prosecution conceded that in the particular facts and unusual circumstances of this case, it was open to the Court to impose a wholly suspended sentence in light of the offender’s demonstrated rehabilitation and engagement in the restorative justice process.

Defence Submissions

49. Counsel for the offender submitted that the offender’s childhood was chaotic and dysfunctional in that the offender was witness to:

(a) Family violence;

(b) Substance abuse, including alcohol and illicit substances; and

(c) Involvement with government agencies regarding issues of child protection.

50. The offender has had several intimate and domestic relationships in the past, several of which were violent and resulted in the offender being subjected to family violence. The offender began using and subsequently abusing illicit drugs and alcohol and it was submitted that this had led the offender to her involvement with the criminal justice system.

51. The offender’s interactions with CYPS involved the removal of her children into out of home care arrangements. It was submitted that the offender has engaged with CYPS in a meaningful way to enable her children being returned to her care. When the offender’s sixth child was born, CYPS did not remove the child. The offender’s sixth child has remained in her care since birth.

52. At the time of the offence, the offender was homeless, not in receipt of government assistance and was using illicit substances heavily. It was submitted that the offender had committed the offence to support her illicit drug habit.

53. It was noted that the offender has remained abstinent from illicit substances for the past two years and information from previous sentencing proceedings had indicated that the offender had undertaken numerous drug analyses, which returned negative results.

54. Counsel submitted that the offender ceased all associations with friends and peers who were anti-social and engaged in criminal behaviour in 2019. It was noted that the offender now has stable accommodation, is receiving support from government agencies and her mother, and overall, living a pro-social and constructive life. It was noted that the offender has been diagnosed with Mild Depressive order which is being addressed with appropriate clinical support and intervention.

55. It was correctly submitted that the subjective factors and deprivation experienced by the offender activate the principles outlined in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (R v Bugmy). Counsel also correctly emphasised that the offender also has demonstrated considerable rehabilitation which is not often seen in such matters. Conditional Liberty

56. The offender was serving a suspended sentence at the time the offence was committed. The offender was subject to a suspended term of imprisonment of 16 months with a 2 year good behaviour order for an offence of aggravated robbery: see R v Carpenter [2018] ACTSC 356. I note that breach proceedings have already finalised for the offender and the current offence does amount to a breach: R v Carpenter (No 2).

57. In R v Tran [1999] NSWCCA 109 at [15], Wood CJ at CL stated:

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.

58. Both counsel for the prosecution and counsel for the offender submitted that being on conditional liberty should be considered as an aggravating aspect of the offending.

59. Conditional liberty is relevant to the determination of the appropriate punishment as it is an aggravating factor on sentence; it is not, however, relevant to assessing the objective seriousness of an offence: R v Bandy [2018] ACTSC 261. The assessment of objective seriousness of an offence is a fundamental step in determining the range of proportionate sentences available for the offence. In Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 (Veen v The Queen (No 2)), Mason CJ, Brennan, Dawson and Toohey JJ stated,

The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.

60. In R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15], Spigelman CJ stated:

It is authoritatively established that the common law principle of proportionality, propounded in Veen v The Queen (No 2), requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances.

61. In Muldrock v The Queen [2011] HCA 39; 244 CLR 120 (Muldrock v The Queen) at [27], the Court stated the following:

The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

62. As a consequence, the NSW Court of Criminal Appeal has consistently made it “clear that while the fact an offender was on conditional liberty was relevant to the determination of the appropriate punishment”, it does not “bear on the objective seriousness of an offence”: Smith v The Queen [2011] NSWCCA 163 at [26].

63. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence. Delay

64. Counsel for the prosecution noted that the staleness of the charge from 2019 is in part indicative of the wait times for forensic analysis at the Australian Federal Police (AFP).

65. Counsel for the offender asserted that the prosecution’s submission in relation to wait time for forensic analysis at the AFP cannot be accepted without evidence being put before the Court establishing it as a fact. It was submitted that such a delay was not a matter that the Court could take judicial notice of. Counsel submitted that even if the Court were to accept the prosecution’s submission, it would not demur from the other considerations as to how the issue of delay is to be taken into account.

66. The delay between the commission of the offence and when the offender was charged was correctly emphasised as an important factor in this sentencing exercise. The delay in the present matter was of 14 months between commission of the offence and the offender being charged.

67. In NC v The Queen [2017] ACTCA 31 at [77] the Court of Appeal observed:

Nevertheless, and despite those differences, the principles enunciated in Todd, Mill and Blanco remain applicable to this matter. As Wood CJ at CL said in Blanco (at [16]), the fact that the appellant was being sentenced for a “stale crime” called for “a measure of understanding and flexibility of approach”. Nothing in the sentencing judge’s remarks on sentence, and nothing in the sentences that were imposed, demonstrates that the sentencing judge approached the difficult sentencing exercise which he faced with the required understanding and flexibility of approach. While delay, and the considerations referred to in Todd, Mill and Blanco, are not expressly referred to in the list of relevant considerations in s 33(1) of the Sentencing Act, s 33(3) makes it clear that the list in s 33(1) is not exhaustive and that the court may take other considerations into account.

68. In R v SP [2004] ACTCA 16; 149 A Crim R 48, Gray J observed at [34]-[35]

The consequence was that over time, the respondent took positive rehabilitative steps for which he can now claim, and is entitled to, credit. The rehabilitation has not arisen consequent upon some action by the offender to avoid the consequences of the offence (cf R v Thompson (1988) 37 A Crim R 97). In R v Todd [1982] 2 NSWLR 517 at 519-520, Street CJ said –

Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

This approach was approved by the High Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen (1988) 166 CLR 59). Both those cases were concerned with sentencing an offender who comes to be sentenced many years after the commission of an offence, because during the intervening period he has been serving a sentence in another State for offences of the same nature and committed at about the same time. However, the comments of Street CJ in Todd (supra) appear to have more general application and I consider them appropriate to the present case. In the present case, I consider that it was open to the sentencing judge to give the effect that he did to the respondent’s rehabilitative efforts and the responsibilities that he had undertaken in the intervening years since the commission of these offences. He was not in error in doing so.

(emphasis added)

69. The issue of delay falls to be considered in light of the offender’s rehabilitation. Progress in rehabilitation has been demonstrated since the commission of the offence.

70. Delay by itself is not mitigatory but it may be in combination with other relevant sentencing factors favourable to the offender: R v Donald [2013] NSWCCA 238 at [49] citing Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 (Scook v The Queen). Each case depends on its own circumstances: R v V (1998) 99 A Crim R 297. Street CJ’s statement in R v Todd [1982] 2 NSWLR 517 at 519 is the starting point.

71. Rehabilitation undertaken by an offender during a period of delay may effect the sentencing exercise by lessening the significance of general deterrence: PH v R [2009] NSWCCA 161 at [32] (Howie J).

72. An additional consideration is the desirability for prosecuting authorities to act promptly where there is evidence of serious criminality. It is in the public interest that those who are suspected of serious crime be brought to justice quickly, particularly where there is a strong case against them: R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 at [17]. However, it is not permissible to reduce a sentence merely as aa means of expressing disapproval at neglectful or dilatory conduct by the State. The focus is overwhelmingly on the consequences of the delay on the offender, no matter what the explanation for it: R v Donald [2013] NSWCCA 238 at [49] (R v Donald). See: New South Wales Sentencing Bench Book. See also: R v Spiers [2008] NSWCCA 107 at [37]-[38], applying R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]; R v Kay [2004] NSWCCA 130.

73. Delay will not usually be a mitigatory factor where it is caused by the problems associated with detecting, investigating or proving the offences and the period of delay is reasonable in the circumstances: Scook v The Queen per Buss JA quoted with approval in R v Donald at [49]. Without commenting on the reasonableness of the delay, nevertheless the demonstrated rehabilitation in the interim is of significance to the sentencing exercise and was properly conceded to be so by the prosecution, along with totality concerning offences that occurred at a similar time to the present offence that were earlier dealt with in the Magistrates Court.

Criminal History

74. The offender’s criminal history is relevant to show whether the offending is an uncharacteristic aberration, or whether the offender has manifested a continuing attitude of disobedience to the law, illuminating moral culpability Kelly v Ashby [2015] ACTSC 346 at [38]. Repetition of like offending is likely to be regarded as more serious: Millard v The Queen [2016] ACTCA 14 at [38].

75. Further, it demonstrates how much leniency can be afforded the offender: Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 (Cotter v Corvisy) at [65].

76. The offender’s criminal history assists in determining whether there is a need for personal deterrence (Cotter v Corvisy at 312 [64]), and as evidence with respect to likely prospects of rehabilitation and an offender’s expressed desires for rehabilitation: Saga v Reid [2010] ACTSC 59 at [79].

77. The offender’s antecedents should not be used to double punish or impose a sentence that is otherwise disproportionate to the gravity of the instant offence: Cotter v Corvisy at [63]. However, as stated in Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32] and cited in Lawrence v The Queen [2007] ACTCA 10 at [4]:

A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life….taking all aspects, both positive and negative, of an offender’s known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.

78. The offender has a lengthy criminal history dating back to her adolescence, which consists primarily of minor thefts, obtaining property by deception and other dishonesty offences, in addition to traffic convictions.

79. I take into account the offender’s criminal history alongside her more recent considerable and ongoing progress in rehabilitation.

Plea of Guilty

80. The offender entered a plea of guilty in the Supreme Court following negotiations between the parties at a Criminal Case Conference.

81. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (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.

82. Pursuant to section 35(2)(c) of the Crimes (Sentencing) Act 2005 (ACT), I note that the pleas were the subject of negotiations between the parties. In Blundell v The Queen [2019] ACTCA 34 (Blundell v The Queen) at [12], the ACT Court of Appeal stated that the utilitarian value of pleas indicated at criminal case conferencing is such that “a discount in excess of 10%, and almost always within the range of 15 to 20%, is required”.

83. Counsel for the prosecution submitted that a discount should be afforded to the offer for the plea. Counsel for the offender submitted that the offender’s plea of guilty should attract a discount of 15 to 20 per cent: Blundell v The Queen at [12]-[13].

84. Taking into account the relevant matters, in my view, a discount of approximately 20% is appropriate.

Time in Custody

85. The offender has spent no time in custody referable to this offence. Comparable Cases

86. 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. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:

[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

87. 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].

88. Counsel for the prosecution referred to R v Carberry [2020] ACTSC 96 where at [26] Mossop J noted the Court of Appeal decision of Love v The Queen [2012] ACTCA 8 (Love v The Queen). Penfold J observed at [26] in Love v The Queen that the table of cases that had been put before the Court of Appeal “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”.

Statutory and Other Relevant Considerations

Prosecution Submissions

89. Counsel for the prosecution referenced the following matters pursuant to s 33 of the Crimes (Sentencing) Act:

(a) Nature and circumstances of the offence: s 33(1)(a)

The victim was overseas at the time of the offending. The offending occurred in the early hours of the morning one week after the victim had been away. It was submitted that the Court could be satisfied that the offending was opportunistic in nature given the homeowner’s extended absence. In relation of the offender’s degree of responsibility for the offending, the prosecution conceded it was unknown whether the offender was acting alone or in concert.

(b) Personal circumstances of victim as known to offender: s 33(1)(d)

The victim was unknown to the offender. It is unclear whether the offender was aware of the victim’s absence from the residence and the house being unoccupied.

(c) Resultant injury, loss and damage: s 33(1)(e); Impact on victim and those able to make a VIS: s 33(1)(f)

Counsel for the prosecution submitted that the Court could be satisfied that the offender’s actions in entering the victim’s house were to some extent enmeshed in the circumstances of the resultant property damage and theft. It was noted that the VIS of the victim detailed the harrowing psychological effects of no longer feeling safe in one’s house, particularly as a woman living on her own. Reference was made to the ongoing anxiety and paranoia that the victim now experiences on an ongoing basis as a result of the offending.

(d) Plea of guilty: s 33(1)(j)

Defence Submissions

90. Counsel for the offender emphasised the following considerations pursuant to s 33 of the Crimes (Sentencing) Act:

(a) Nature and circumstances of the offence: s 33(1)(a); Resultant injury, loss and damage: s 33(1)(e)

Counsel referenced the factors relevant to the assessment to the objective seriousness of the offence, being that no one was home at the time and the offending was opportunistic. It was emphasised that the prosecution had not asserted or established that the items were stolen by the offender or that the offender committed any of the damage.

(b) The degree of responsibility of the offender for the commission of the offence: s 33(1)(i)

Counsel emphasised that the offender had acknowledged responsibility for the offending. It was submitted that this concession ought to be viewed in the context of the offender’s personal circumstances at the time of the offending.

(c) Plea of guilty: s 33(1)(f)

(d) The financial circumstances of the offender: s 33(1)(n)

Counsel noted that the offender was in receipt of government assistance and is not working.

(e) The probable effect of the sentence on the offender’s dependents: s 33(1)(o)

Counsel submitted that if a term of fulltime imprisonment was imposed, it would have a clear and demonstrable deleterious effect on the offender’s children who are in her care and may lead to intervention by CYPS.

(f) Whether the offender was affected by alcohol or a controlled drug when the offence was committed and the circumstances in which the offender became affected: s 33(1)(p)

It was submitted that the offender was using illicit substances at the time of the offending and interacting with persons who were drug users.

(g) Whether the offender has demonstrated remorse: s 33(1)(w)

Counsel submitted that the offender’s plea of guilty demonstrated remorse.

Consideration

91. 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.

92. 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, recognition of harm to the victim, and rehabilitation are important sentencing considerations.

93. 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; Muldrock v The Queen at [31]; R v Ware [2016] ACTSC 264 at [14].

94. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Both counsel for the prosecution and counsel for the offender agreed that the s 10 threshold had been crossed. In this case, it was submitted by counsel for the offender that a suspended sentence was appropriate and the prosecution conceded such a course was open to the Court on the facts of this case on 31 January 2022.

Rehabilitation

Prosecution Submissions

95. Counsel for the prosecution noted that while rehabilitation remains a relevant sentencing principle, it should not overwhelm the other considerations. It was submitted that the Court ought to fashion a sentence in the process of instinctive synthesis that appropriately considers adequate punishment, effecting general deterrence, making the offender accountable for her actions, denouncing the conduct, and recognising the harm done to the victim and the community.

96. On the second date of the hearing, counsel for the prosecution agreed that the offender’s prospects of rehabilitation were no longer guarded and had significantly improved.

Defence Submissions

97. Counsel for the offender submitted that the offender has made significant progress in her rehabilitation. It was asserted that the interests of the offender and the community would not be served by requiring the offender to undertake a term of fulltime imprisonment. It was submitted that the offender had demonstrated that she is firmly entrenched on the path of rehabilitation.

98. Counsel for the offender submitted that the offender has moved beyond the “crossroads” in her life, having regard to R v Osenkowski (1982) 30 SASR 212 (R v Osenkowski). Counsel submitted that the offender was at the crossroads in 2020 in her first year of compliance and she was now living a prosocial life. It was submitted that the offender met the crossroads and had taken the right than rather than the wrong turn.

99. In final submissions it was noted that in the intervening two years between the offence being committed and the offender being sentenced:

(a) The offender has remained drug free;

(b) The offender has remained offence free; (c) The offender has engaged with government services and had the majority of her children placed back in her care;

(d) The offender has engaged in a positive intimate relationship for the first time in her adult life; and

(e) The offender has successfully completed restorative justice.

Consideration

100. Rehabilitation is an important consideration having regard to the circumstances of the offender. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

101. It is undoubtedly correct that where a person has good prospects of rehabilitation, such as in the offender’s case, that by supporting those prospects in the sentence the Court also addresses protection of the community: R v Hill [2016] ACTSC 310 at [48].

102. On the evidence, the offender’s prospects for rehabilitation have developed from guarded to well progressed.

103. Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case: Stanford v The Queen [2007] NSWCCA 73 at [19].

Sentence

104. Initially, counsel for the prosecution noted that the prosecution held some concern for the offender’s ability to comply with community-based orders in light of the fact that the offence was committed while the offender was subject to a suspended sentence order. Nevertheless, on 31 January 2022. the prosecution noted the importance of the recent rehabilitation in the last two years.

105. Counsel for the offender submitted that in light of the concession that the s 10 threshold had been crossed, a wholly suspended sentence of imprisonment with appropriate conditions was the appropriate sentencing disposition. It was accepted that upon viewing the offender’s criminal history, the prosecution had held concern for the offender’s ability to comply with community-based orders. However, counsel submitted that the Court could be informed by the PSR and the previous PSR to be confident of the offender’s ability to comply, as she now has over two years of compliance with Court orders. It was correctly submitted that the Court could reject the prosecution’s concern surrounding compliance in view of the progress of the last two years.

106. The Court cannot ignore and underlines the progress that had been made by the offender since 2019. That progress is important and encouraging and should be given considerable weight in the sentencing exercise. This is, in my view on the evidence, a “crossroads” case: see R v Osenkowski.

107. The Court again emphasises that it must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon her. Both the short and long-term consequences of being a victim of this offence must be acknowledged.

108. 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 offence (I note, in particular, the agreed facts) and subjective matters concerning the offender (in particular, the R v Bugmy considerations, rehabilitation, remorse, and the children of the offender).

109. I note that the offender has now participated in restorative justice and signed an agreement. As properly conceded by the prosecution, it is open to the Court at sentence to find that the offender’s engagement in the restorative justice process as evidence of remorse and of acceptance of responsibility for the offending: see R v Forrest (No 2) [2017] ACTSC 83 at [147]-[160] where Refshauge J noted the relevance of successful engagement in restorative justice in the sentencing exercise. See also: R v BC [2019] ACTSC 233; R v Catania [2017] ACTSC 264; R v Gordon [2018] ACTSC 94; R v Forrest [2016] ACTSC 321; 11 ACTLR 311.

110. The offender experienced significant childhood disadvantage in light of her dysfunctional childhood and her father’s violence. It is appropriate to take this into account on sentence: R v Bugmy; R v Irwin [2019] NSWCCA 133 (R v Irwin); Hoskins v The Queen [2021] NSWCCA 169; R v BS-X [2021] ACTSC 160; 16 ACTLR 238 at [87].

111. The principles derived from R v Bugmy do not diminish in relevance where an offender has an existing criminal record: R v Bugmy at [44] and R v Irwin at [3].

112. In Veen v The Queen (No 2), the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions. The following paragraph is often quoted because it usefully summarises the nature of the sentencing discretion:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

113. The following observation by the NSW Court of Criminal Appeal in R v Hopkins [2004] NSWCCA 105 at [22] is relevant:

Where two highly relevant considerations are so totally incompatible as are the two considerations involved here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative.

114. On the basis of all the evidence and the sentencing law discussed above, a wholly suspended sentence is therefore, in my view, appropriate in this case.

115. This is for the reason that as Mahoney ACJ stated in R v Lattouf (unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J, and Adams AJ, 12 December 1996), “if justice is not individual, it is nothing”. In this case, justice compels a wholly suspended sentence in light of the offender’s rehabilitation, despite her previous record.

Addendum

116. Engaging in restorative justice has assisted the offender to understand the victim’s perspective: the process has been important for both the victim and the offender. Credit is due to both the offender and the victim for undertaking this process together. Both expressed their satisfaction with the process before the Court.

117. The objects of the act are set out in s 6 of the Restorative Justice Act: 6 Objects of Act The objects of this Act are as follows: (a) to enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences; (b) to set up a system of restorative justice that brings together victims, offenders and their personal supporters in a carefully managed, safe environment; (c) to ensure that the interests of victims of offences are given high priority in the administration of restorative justice under this Act; (d) to enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice; (e) to enable agencies that have a role in the criminal justice system to refer offences for restorative justice. Note Offence includes an offence that is alleged to have been committed, but has not yet been tried in court, or proven (see s 12).

118. Where it is appropriate to do so, offenders, victims, the Courts and the ACT community may be assisted by greater use of the restorative justice process.

Orders

119. I make the following orders:

(a) I record a conviction in relation to the offence.

(b) In respect of the offence of burglary CC2020/9010, the offender is sentenced to 16 months’ imprisonment, reduced from 20 months, to commence on 31 January 2022 and expiring on 30 May 2023.

(c) The sentence of imprisonment is wholly suspended pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) on condition that the offender enter a Good Behaviour Order for a period of 2 years commencing on 31 January 2022 and concluding on 30 January 2024, with the core conditions: s 86 Crimes (Sentence Administration) Act 2005 (ACT).

(d) The Good Behaviour Order is to include an additional condition that the offender is required to be under the supervision of the Director-General of ACT Corrective Services, only for the period deemed necessary by the Director-General.

I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas- Karlsson

Associate: Rhiannon McGlinn

Date: 3 February 2022