R v Catania [2017] ACTSC 264

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated burglary - burglary - common assault - theft - minor theft - damaging property - driving without a licence - possession of a prohibited substance namely cannabis - sentenced to a period of imprisonment

Crimes Act 1900 (ACT), s 116(3)

Drugs of Dependence Act 1989 (ACT), s 171(1)

Road Transport (Driver Licensing) Act 1999 (ACT), s 31(2)

R v Barton [2001] NSWCCA 63; 121 A Crim R 185

R v Campbell [2010] ACTCA 20

Legal Aid ACT (Defendant)

1. Anthony Catania has pleaded guilty to 12 offences:

20 years imprisonment or a fine of $300,000 or both

14 years imprisonment or a fine of $210,000 or both

s 116(3) of the Crimes Act 1900 (ACT)

s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT)

2. On the first charge of aggravated burglary (CC 2016/10429), the offender and the ACT Director of Public Prosecutions have asked that the Court take into account the following seven additional charges:

Possession of a prohibited substance contrary to s 171(1) of the Drugs of Dependence Act 1989 (ACT)

s 321(2) of the Road Transport (Driver Licensing) Act 1999 (ACT)

s 321(2) of the Road Transport (Driver Licensing) Act 1999 (ACT)

3. The offender first appeared before the ACT Magistrates Court on 30 November 2016. On that occasion he was charged with a number of offences. He appeared again on three further occasions: 24 December 2016, 8 February 2017, and 20 March 2017. On the latter date he entered pleas of guilty to all charges except for those which he has now asked to be taken into account. Because of the number of charges and the fact that they were charged on different occasions, I consider for the purposes of sentencing that the pleas were entered at an early stage.

4. The facts were agreed. The facts relevant to the offences and my assessment of their objective seriousness are as follows.

5. The first series of offences relate to events on 15 June 2016. They involve a burglary at a house in Dobbin Circuit Nicholls and the theft of items from the property.

6. At some stage between 7:00am and 2:30pm, a co-offender, Daniel Nicholas, broke a single wooden paling on the side gate in order to access the latch and gained entry to the backyard. He used a wooden tyre lever to break the latch of a sliding door. He then left the location. About 2:30pm he returned with the offender and the offender's fiancée Tennille Smith. Ms Smith drove the other two there in her black Jeep. All three entered the backyard and gained access to the house via the back door. The offender and

Mr Nicholas went into the residence while Ms Smith returned to her vehicle. A security alarm was activated. The offender and Mr Nicholas stole items worth $4520 which included watches, cameras, framed photographs, a purse, a handbag, and a credit card. The offender and Mr Nicholas left the residence with the stolen property and were driven away by Ms Smith.

7. The owners returned home and called police. Fingerprints of the offender were found at the scene. On 28 June 2016 police executed a search warrant at the home of the offender and Ms Smith and found the four framed photographs that were taken from the premises. They also found an amount of cannabis (less than 50g but otherwise the amount was not specified) inside a backpack in the master bedroom. The offender made admissions about entry into the premises and ownership of the cannabis.

8. On 2 July 2016 he participated in a recorded interview at Gungahlin Police Station and made admissions in relation to the burglary.

9. In relation to the offence of aggravated burglary (CC 2016/10429) the circumstance of aggravation is being in company. I assess that offence to be in the mid-range of objective seriousness because it was a burglary of residential premises. It was undertaken during the day and when nobody was present.

10. So far as the theft (CC 2016/10381) is concerned, that is in the mid-range of objective seriousness because of the value of the items stolen and the fact that they were stolen from residential premises.

11. The additional offence of possessing a prohibited substance (CC 2016/10054) is, having regard to the lack of specificity about the amount possessed and the limited range of circumstances covered by the section, in the mid-range of objective seriousness.

12. The second series of offences relate to a burglary at a house in Mount Vernon Drive in Kambah.

13. Between 12:00pm and 2:00pm on 27 June 2016, the offender attended the house in question and levered the lock on the front door to gain entry. He entered the house and stole items with a replacement value of approximately $1560. This included a laptop, jewellery, a watch, and some cash.

14. When the owner returned home she noticed a can of Coca-Cola on the kitchen table which had not been there when she left. Police attended the scene and identified the offender's DNA from a swab taken from the can.

15. On 9 November 2016 the offender participated in an interview with police during which he was asked about this burglary. He denied ever having attended the premises. However he also stated that he may have done so but could not remember.

16. The burglary (CC 2016/11837) is in the mid-range of objective seriousness having regard to the fact that it was undertaken at residential premises but during the day and at a time when nobody was home. The minor theft (CC 2016/13113) is at the mid- to upper-range of objective seriousness having regard to the relationship between the value of the items stolen and the maximum value that can be covered by this offence, as well as the personal nature of the items stolen.

17. The third series of offences occurred on 18 October 2016. They involved a burglary of a block of units on Athllon Drive in Greenway. Early in the morning of 18 October 2016 the offender drove into the underground car park for these units while the roller door for the garage was temporarily open. He was driving an ACT registered Jeep. The Jeep was registered in the name of the offender's fiancée Ms Smith. He was unlicensed.

18. He accessed two storage sheds and removed a number of items from each. In each case the items all had a value of approximately $500.

19. He placed the items in his vehicle and then spray-painted two domed shaped closed circuit television (CCTV) cameras within the car park. The repair cost for these was $1485. He then drove away.

20. During the execution of a search warrant at the offender's house on 23 December 2016 police located items belonging to the owners of the property within the two storage sheds.

21. The driving unlicensed charge (CC 2016/13254) is at the mid-range of objective seriousness.

22. The burglary (CC 2016/13249) is at the low- to mid-range of objective seriousness having regard to the fact that the burglary was of a garage area rather than the inside of a residence and conducted during the day. The two charges of minor theft

(CC 2016/13252 and CC 2016/13253) were in the low- to mid-range of objective seriousness having regard to the value and nature of the items stolen. The property damage charge is in the mid-range of objective seriousness having regard to the upper limit of $5000 on the damage to property the subject of this offence.

23. The fourth series of offences relates to three charges of minor theft which are amongst the additional offences which are to be taken into account.

24. The first two of these occurred at Bunnings Warehouse in Tuggeranong. The offender attempted to steal a CCTV set, valued at $648, and a Coolaroo shade sail, valued at $217, by placing them within the box that had previously contained a laundry sink, which was priced at $179. He proceeded to the checkout and paid only the $179. On the way to the checkout, he also stole a purse belonging to a staff member from behind the special orders desk. The purse and its contents were valued at approximately $400. After he had left the checkout he was stopped by the store manager who recovered the stolen items (except the purse) and refunded the offender the amount that he had paid. He was given a banning notice prohibiting future entry to the store and was then escorted to his vehicle, which was his partner's Jeep.

25. At about 8:00pm the same day, the offender entered the Lakeside Leisure Centre. He entered the male change rooms and an unlocked group fitness room. He took a large black bag containing approximately 10 sets of boxing gloves and boxing pads, as well as a "battle rope". The total value of the items was $650. He exited through an emergency exit.

26. Police attended Bunnings Warehouse the next day and then the offender's home. During a search of the premises that was undertaken with the offender's consent, the bag containing the boxing gloves and battle rope were located. As they had not been reported stolen at that time, they remained on the premises.

27. The offender was arrested and made admissions to police in relation to the events at Bunnings Warehouse. Later that day the theft from the Lakeside Leisure Centre was discovered and reported to police. Having reviewed the CCTV footage, police returned to the offender's home and the items were recovered.

28. Each of the charges of minor theft (CC 2016/11835 - purse, CC 2016/11836 - Bunnings, and CC 2016/12712 - Lakeside Leisure Centre) are in the mid-range of objective seriousness having regard to the value of the items stolen or attempted to be stolen.

29. These are two of the additional offences which the offender requested to be taken into account.

30. On 16 December 2016 the offender drove to Woolworths at the Calwell Shopping Centre. This gives rise to the charge of driving unlicensed (CC 2016/13256). He put items in his trolley and made off with them. The items had a total value of $592. The offender was identified on the CCTV footage. This gives rise to the charge of minor theft (CC 2016/13255)

31. These offences were committed at a time that the offender was on bail imposed by the Magistrates Court.

32. Each of these offences (CC2016/13255 - minor theft and CC2016/13256 - drive unlicensed) is in the mid-range of objective seriousness for the relevant offence.

33. On 20 December 2016, the offender was approached by security staff at the Canberra Outlet Centre. He had been observed on CCTV pushing a blue trolley containing items which had been part of the shopping centre's Christmas display. The offender and a female were walking towards the exit of the car park onto Iron Knob Street. The security supervisor approached the offender, who left the trolley and continued to walk away in the direction of the exit. The security supervisor walked after the offender whilst the security guard who was with him followed the unidentified female accompanying the offender. The female ran back to the trolley and the security supervisor followed her. When his back was turned, the offender punched him on his right cheek just below the ear. The security supervisor had his glasses knocked off his face and felt immediate pain. The female picked up a bag from the trolley, which contained a wallet, and left the area. The items in the trolley were a plastic white polar bear, three display penguins, a wooden children's table and three wooden stools, all of which had been part of the Christmas display, and had a replacement value of $2500. The security guard had localised pain to his right cheek and found it difficult to eat but did not require any medical attention.

34. The attempted theft (CC 2017/1524) is in the mid-range of objective seriousness having regard to the value of the property attempted to be stolen. The common assault (CC 2017/990) in the mid- to upper-range of objective seriousness by reason of the fact that it was unprovoked, involved a blow to the head but did not have any serious ramifications other than the short term consequences.

35. Not satisfied with his failed attempt to steal the centre's Christmas display, the offender returned to the Canberra Outlet Centre early on the morning of 23 December 2016. He took the same items that he had previously, placed them into a vehicle, and departed the location.

36. Later that day, police stopped the offender's vehicle and observed the display items in the vehicle which they recognised. They confirmed with the staff of the Canberra Outlet Centre that the items had been stolen earlier that day.

37. The offender was on bail at the time of the commission of this offence.

38. I assess the theft (CC 2017/1526) as being at the mid-range of objective seriousness having regard value of the items stolen.

39. The offender has been in custody since his arrest on 23 December 2016. That is a total of 216 days (seven months and four days) prior to today.

40. The offender is 36 years old. He was born and raised in Sydney and reported a good childhood. Although he enjoys good relationships with his family, there are some indications that he was the victim of "harsh discipline" that he described having been meted out by his father.

41. He has been in his current relationship for 16 years. There are three children of that relationship, aged four months, three years, and 11 years old. His son has previously been taken into care but was returned to his parent's custody after rehabilitation to address the offender's drug use and obtaining stable accommodation.

42. He relocated to Canberra about five years ago in order to assist with his recovery from drug use.

43. The offender completed schooling to Year 10 and has worked as a bricklayer for multiple companies. He has employment available to him when he is released from custody. A letter from a former employer has indicated that he was an extremely hard worker, punctual, and honest.

44. The offender acknowledges associating with antisocial peers prior to his period in custody. His partner reported that he had not formed many friendships in Canberra but that his known associations were antisocial.

45. He identified drug use, particularly methamphetamine, as being a significant factor in his offending. He commenced using at 24 years of age. His use escalated to $350 per day. This led to his son being taken into care and his family losing their house. He attended the Karralika Therapeutic Community program in about 2013 and was able to regain custody of his son, however returned to methamphetamine use three years ago and was again using $350 worth per day until remanded in custody. He also reported a history of cannabis use but said to the author of the pre-sentence report that he had not used for approximately 18 months. This appears to be inconsistent with his admitted possession of cannabis (CC 2016/10054) and inconsistent with what he told the author of the CADAS assessment report, which was that in the period prior to his incarceration he was smoking 1 gram of cannabis two days per week. I accept the latter statements as being accurate.

46. He admitted to the author of the CADAS report, that which would otherwise have been apparent, namely that he committed the present crimes to obtain money to purchase drugs.

47. He is assessed by the author of the pre-sentence report as being a medium risk of general re-offending. That is because of his antisocial associates and antisocial values and attitudes. It reports that addressing his substance abuse will reduce his criminogenic risk.

48. The CADAS report assessed him as seemingly very willing to avail himself of treatment options for his methamphetamine problems. He has been offered a place in Oolong House for a 16 week residential rehabilitation program with an intake date of 28 August 2017 (Exhibit 10).

49. There was evidence that his eldest son has been affected by the incarceration of his father and that has had consequences for his behaviour and his ability to participate properly in his schooling (Exhibit 7).

50. In a letter written to the Court, the offender indicates that he had reflected on the current charges, that he apologises for his crimes and that he has participated in the Restorative Justice process. He stated that he has completed various educational courses while in custody as well as being employed within the prison.

51. The offender has a criminal history in New South Wales (NSW) with convictions as follows:

(a) 2001: assault occasioning actual bodily harm, two convictions for larceny.

(b) 2002: a conviction for shoplifting.

(c) 2005: a conviction for destroying or damaging property.

(d) 2007: a conviction for possessing a prohibited plant.

(e) 2011: a conviction for common assault.

(f) 2012: a conviction for unlicensed driving, contravening an apprehended violence order, and shoplifting.

(g) 2013: convictions for three counts of dishonestly obtaining property by deception, failing to appear in accordance with a bail undertaking, and larceny.

52. Several points should be noted about this criminal history. First, the offences of which he has been convicted are relatively minor offences. Second, he has not previously received any period of imprisonment. Third, there are intervening periods of years during which he has not offended.

53. It appears that after the date of the final offence, he moved to Canberra and was treated in the Karralika Therapeutic Community program. He is not recorded as having offended in the ACT prior to this series of offences.

54. The offender participated in a Restorative Justice process in relation to the offences that occurred on 27 June 2016 and 18 October 2016. This involved participating in an indirect process with the victim of the burglary and theft on 27 June 2016 and a conference with the victims of the burglary and theft on 18 October 2016. I take into account his participation in that process as it is described in the Restorative Justice report, which become Exhibit 3. Consistent with the other evidence tendered in this case, I accept that his participation in this process involves an acceptance of responsibility for the offending conduct.

55. Counsel for the offender submitted that there were periods in NSW where he was not offending and that the last offending conduct in NSW occurred in August 2012 (apart from the offence of failing to appear in accordance with a bail undertaking). He submitted that having regard to the period already spent in custody, it would be appropriate to address the offending conduct by way of a suspended sentence or a deferred sentence order, or alternatively, direct an assessment of suitability for an intensive corrections order.

56. Counsel for the Crown submitted that only a sentence of full-time imprisonment would be appropriate, although having regard to the period is spent in custody, there was some flexibility in which the Court could address the matter.

57. It is clear that the principal driver of the offender's offending behaviour is his methamphetamine use. It is clearly in society's interests that he be rehabilitated so that he does not relapse into drug use and the offending behaviour necessary to finance that.

58. His early pleas of guilty clearly have utilitarian value and are also consistent with his expressed desire to rehabilitate himself so as to avoid further offending conduct. It is consistent with the fact that he made admissions to police in relation to the offences.

59. All of the additional charges are to be taken into account in relation to the aggravated burglary offence. I take into account in the manner described in R v Campbell [2010] ACTCA 20 at [46]-[50], namely by giving greater weight to the need for personal deterrence and the community's entitlement to exact retribution for serious offences when there are other offences for which no punishment has in fact been imposed: see also R v Barton [2001] NSWCCA 63; 121 A Crim R 185 at [64].

60. I take into account the fact that this has been the offender's first period in custody and hence, may have a more significant impact upon the offender than somebody for whom that is not a case.

61. I have taken into account the impact that any further period of incarceration will have upon the offender. It is an unfortunate consequence that his children will continue to suffer as a result of his absence. However the seriousness of the offending conduct is such that this consequence cannot be avoided. Responsibility for the impact upon his children lies with the offender's association with antisocial people, his relapse into drug use and his offending behaviour. It is only possible to hope that following this period in custody he prioritises the welfare of his children and takes steps not to perpetuate antisocial behaviour across generations.

62. Having considered the alternatives I consider that only a sentence of imprisonment will properly reflect the seriousness of the offending conduct considered as a whole. The offences involved the very serious charges of aggravated burglary and burglary as well as significant thefts. They are offences committed over a substantial period of time. As to how that must be served I consider that it is appropriate to require that it be served by full-time detention. I do not consider that is appropriate to direct an assessment for an intensive corrections order as I do not consider that service of the sentence in that way would adequately reflect the seriousness of the offending conduct. I do not consider it appropriate to wholly suspend the sentence from today, for similar reasons. Rather than suspend the sentence after a particular period from today I consider it more appropriate to set a shorter than usual non parole period that will permit the offender to be released on parole so long as he has taken all steps available to him within prison to address his drug problem.

63. I do not consider it appropriate to defer the sentence pending completion of the 16 week Oolong House program, because even if that program was successfully completed, he would be facing a further period of incarceration prior to being released into the community and I do not think that in those circumstances, deferring sentence is appropriate.

64. I have introduced an element of concurrency so as to reduce the totality of the sentence. I have done so because this is the first period of incarceration of the offender, because drug use is the principal driver of his offending conduct and I consider that there are at least reasonable prospects, having regard to his past efforts, that he may be able to rid himself of the use of methamphetamine in the future. If that is successful then both his and the community's interests will be properly served.

65. It is appropriate to backdate the sentences to take into account the period of seven months and four days prior to today that he has spent in custody attributable to these charges. That may be done by backdating the sentence to 23 December 2016.

66. Before formally make the orders of the Court, I will explain the sentence that I will impose in relation to each offence including the extent of cumulation or concurrency of the sentence that I impose.

(taking into account the offences listed at [2] above)

Imprisonment for 15 months reduced from 18 months on account of the plea of guilty.

Imprisonment for nine months reduced from 12 months on account of the plea of guilty. Sentence to be wholly concurrent with CC 2016/10429.

Imprisonment for nine months reduced from 12 months on account plea of guilty. Cumulative as to six months upon CC 2016/10429.

Imprisonment for two months and seven days (reduced from three months on account plea of guilty) concurrent with CC 2016/11837.

Imprisonment to nine months reduced from 12 months on account of the plea of guilty. Cumulative as to six months upon the charge CC 2016/11837.

Imprisonment for one month and 15 days concurrent with CC 2016/13249.

Imprisonment for one month and 15 days concurrent with CC 2016/13249.

Imprisonment for four months reduced from six months on account of the plea of guilty concurrent with

Imprisonment for three months reduced from four months on account of the plea of guilty. Cumulative upon CC 2016/13249.

Imprisonment for two months and seven days reduced from three months on account of the plea of guilty concurrent with the sentence on CC 2017/1524.

Imprisonment for four months and 15 days reduced from six months on account plea of guilty cumulative as to three months upon the sentence on CC 2017/1524.

67. This gives a total period of imprisonment of 33 months. I will set a short non parole period of 17 months or just over 50 per cent of the sentence. I do this recognising that drug use is the principal criminogenic factor and that if the offender has taken the full opportunity and benefit of programs to address that whilst in custody, then it may be considered appropriate to release him on parole so that he may have an extended period in a community subject to supervision to monitor his capacity to remain free of illicit drug use.

On charge CC 2016/10429 (Aggravated burglary), the offender is sentenced to imprisonment for 15 months commencing on 23 December 2016 and ending on 22 March 2018.

On charge CC 2016/10381 (theft), the offender is sentenced to imprisonment for nine months commencing on 23 December 2016 and ending on 22 September 2017.

On charge CC 2016/11837 (burglary), the offender is sentenced to imprisonment for nine months starting on 23 December 2017 and ending on 22 September 2018.

On charge CC 2016/13113 (minor theft), the offender is sentenced to imprisonment for two months and seven days starting on 23 December 2017 and ending on 1 March 2018.

On charge CC 2016/13254 (unlicensed driving), the offender is fined $500 and allowed seven days to pay.

On charge CC 2016/13249 (burglary), the offender is sentenced to imprisonment for nine months starting on 23 June 2018 and ending on 22 March 2019.

On charge CC 2016/13252 (minor theft), the offender is sentenced to imprisonment for one month and 15 days starting on 23 June 2018 ending on

On charge CC 2016/13253 (minor theft), the offender is sentenced to imprisonment for one month and 15 days starting on 23 June 2018 ending on

On charge CC 2016/13251 (property damage), the offender is sentenced to imprisonment for four months commencing on 23 June 2018 and ending on

On charge CC 2017/1524 (attempted theft), the offender is sentenced to imprisonment for three months starting on 23 March 2019 and ending on 22 June 2019.

On charge CC 2017/990 (common assault), the offender is sentenced to imprisonment for two months and seven days starting on 23 March 2019 and ending on 29 May 2019.

On charge CC 2017/1526 (theft), the offender is sentenced to imprisonment for four months and 15 days starting on 8 May 2019 and ending on 22 September 2019.

The non parole period commences on 23 December 2016 and ends on 22 May 2018.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.