• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

The offender pleaded guilty to the following offences: 1. (a) Count 1: Aggravated burglary by joint commission, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code) (by virtue of s 45A of the Criminal Code).

The maximum penalty for this offence is 20 years' imprisonment, a fine of $320,000, or both.

(b) Count 2: Unlawful confinement by joint commission, contrary to s 34 of the Crimes Act 1900 (ACT) (by virtue of s 45A of the Criminal Code).

The maximum penalty for this offence is 10 years' imprisonment.

(c) Count 3: Theft by joint commission, contrary to s 308 of the Criminal Code (by virtue of s 45A of the Criminal Code).

The maximum penalty for this offence is 10 years' imprisonment, a fine of $160,000 or both.

2. The pleas were entered on the first day of the trial, i.e. they were entered late. They were entered in the context of a very strong Crown case. The appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) is no more than 10 per cent.

3. The offender was remanded in custody for six months and 10 days (from 30 December 2019 to 9 July 2020) in relation to these offences. He was granted bail on 9 July 2020.

Facts

4. In late 2019, the complainant and her teenage son, EN, resided in Giralang. The complainant was friends with the offender's mother.

5. In late 2019, the complainant invited the offender's sister to live at the Giralang house. The complainant stated that she did not want the offender at the house; she believed that he was a drug user.

6. On about 19 December 2019, the offender's mother finished work and went with the offender to the complainant's house. The offender bent down to greet the complainant with a kiss. The complainant pulled away as she did not approve of the offender’s presence. The offender reacted by standing over the complainant and saying, “You're fucked. I'm going to fuck you over. I'm going to come in with my mates. I'm going to fucking steal your shit”. The offender's mother dragged him from the house and apologised.

7. On 25 December 2019, the offender's sister moved out of the Giralang house after an argument with the complainant concerning the offender.

8. At about 6 PM on 27 December 2019, EN was at home alone. He heard a rattling noise at the front door. He picked up a small knife as he was conscious of the threat that had been made by the offender.

9. The offender and another man used a tool to force entry to the residence through the front door (Count 1—aggravated burglary). The offender made no attempt to conceal his identity, although the co-offender attempted to conceal his identity.

10. After the men entered, EN hid the knife.

11. The co-offender grabbed EN's shoulder and demanded his phone. EN obtained the phone and gave it to the man. The second man told EN to sit down in the dining room (Count 2—unlawful confinement).

12. The two men began searching through the rooms in the house.

13. EN went to the bathroom and attempted to contact police by using an iPad but was unsuccessful. The co-offender knocked on the door and told EN to get out. He placed a hand on EN's shoulder and guided him towards a chair in the dining room. He told EN that they were “doing a good thing” and that the complainant owed them $20,000.

14. The men continued to search the house. The co-offender frequently checked on EN.

15. At one stage, EN went to his bedroom and tried to contact his brother. The co-offender found him and walked him back out to the dining room.

16. EN moved to the laundry, opened the flyscreen door and ran from the house, past a black car that was parked on the kerb outside the house. He approached neighbours and told them that the house was being robbed and that the offenders were still inside. The neighbours assisted EN to call the police.

17. While EN was on the phone to police, the offenders drove by in the black car.

18. Soon afterwards, the vehicle was abandoned. The offenders also abandoned items that had been taken from the complainant's house, including an assortment of Australian mint coins, a bag containing a collectible coin set, a T-shirt, and a wallet. (Count 3—theft). Jewellery that was taken was later recovered.

Victim impact statement

19. The complainant provided a victim impact statement that was read by the prosecutor.

20. She said that she had met the offender when she worked as his life coach. Although she found such work to be very fulfilling, she has abandoned it because she fears that she may encounter another client like the offender.

21. The complainant feels disgusted and betrayed by the offender; his conduct was poor thanks after he had been her client and she had housed one of his family members.

22. She lives in “constant fear”. She is hypervigilant, often looking over her shoulder to see whether anyone is following her. She also fears for other people.

23. She has moved from her Giralang home and has not yet re-established herself in permanent accommodation. Her goods are in storage. EN has had to move in with another family member, and this has negatively affected the complainant's relationship with him.

24. Although the Court received no victim impact statement from EN, the only available inference is that the offence terrified him and has a significant ongoing psychological impact on him.

Objective seriousness

Aggravated burglary

25. The offence was relatively serious.

26. It involved residential premises and it occurred in the evening when the occupants were likely to be present. In fact, a child was present. He was home alone waiting for his mother. The incident would have been extremely frightening to him.

27. The motive for the burglary was retribution for a perceived slight by committing theft.

28. The burglary involved some planning. The offenders brought an implement with which to force the door. The co-offender attempted to disguise himself. However, the offender made no attempt at disguise and was well known to the occupants of the residence.

29. The purpose of the burglary was not a desire to cause harm or threaten to cause harm to the occupants of the residence. I draw that inference from the statement made to the complainant on about 19 December 2019, the fact that items were stolen from the premises, and the fact that the offenders entered when the complainant, who was the person against whom the offender bore a grudge, was not home.

Unlawful confinement

30. In R v Avery [2018] ACTCA 57, an objectively serious case of unlawful confinement involving violence, the Court referred to features relevant to the objective seriousness of such offences, including the role of the offender, the number of persons with whom they were in company, the purpose of the offence, the length of the confinement, the level of physical restraint, the degree of premeditation and planning, whether the offence was associated with humiliation of the victim and other considerations applicable in circumstances where violence was used (number and nature of physical assaults, use of weapons, whether actual harm was sustained).

31. Although the detainee was a child who was detained in his own home, the offence committed in this case was of relatively low objective seriousness, because:

(a) The offence was secondary to the offence of aggravated burglary; it was committed to facilitate the aggravated burglary, rather than for the direct purpose of threatening or causing violence to EN.

(b) The detention involved minimal physical interaction and no actual physical restraint. No physical force was used (although EN was touched on the shoulder) and no clear verbal threat was made. Rather, it was a case of intimidation; the co-offender made it clear to EN that he must stay where he was told to stay.

(c) Two offenders were present. The fact that the offence was committed in company was one aspect of the intimidation.

(d) The period of confinement was relatively brief—about 20 minutes.

Theft

32. The motive for the theft was retribution for a perceived slight.

33. The items that were taken included items of sentimental value, although all the items were recovered, including those of sentimental value. Nevertheless, the theft was an offence of moderate objective seriousness.

Subjective features

34. The offender is 22 years old.

35. His criminal history reveals no adult convictions. Since 9 July 2020, he has been on supervised bail. His response has been satisfactory.

36. During the period exceeding six months when bail was refused in relation to these matters, the offender experienced his first custodial period at the Alexander Maconochie Centre. He presented no difficulties as a prisoner.

37. During his childhood, the offender witnessed domestic violence by his father against his mother. This has had a long-term psychological impact on the offender, as corroborated by evidence from the offender's older sister.

38. The offender has good relationships with his mother and two siblings. Currently, he resides with his mother and his older sister. His mother supports him financially. His sister is trying to assist with his rehabilitation.

39. The offender was in a lengthy relationship that broke down in late 2019. The breakdown caused emotional difficulties for the offender.

40. After leaving school in Year 10, the offender held several casual positions in the retail and construction industries. Following his release on bail in July 2020, he worked full-time in the construction industry, but his employer's circumstances meant that his employment hours were reduced, and he is now working on a part-time basis.

41. Since he was 13 years of age, the offender has experienced symptoms of anxiety and depression. He has a longstanding difficulty with sleep disturbance. The pre-sentence report states that, in 2018, he was admitted to hospital after self-harming and was unable to work for 18 months due to an injury that he sustained.

42. The offender started drinking alcohol at 16 years of age and reported occasional binge drinking with friends until he was 18 years old. He commenced using cannabis at 15 years of age to cope with anxiety. He started abusing prescription medication when he was 17 years old. His substance abuse continued until he was remanded in custody in late December 2019. Since his release on bail in July 2020, he has returned negative urinalysis results for illicit substances on the two occasions when he has been tested.

43 . The medical records that are in evidence expand upon the offender’s psychological difficulties, most relevantly in the period since 2018. In about April 2018, he attended the Canberra Hospital, but between April 2018 and 30 October 2019, the offender's mental health difficulties were managed by his general practitioner.

44. On 30 October 2019, in relation to worsening depression, increased use of cannabis, feelings of anger, sleeping and eating problems, the offender’s general practitioner referred the offender to the Canberra Hospital and the following impression was noted:

Situational crisis in a young man who is known to ACT MHS. GP referral requesting assessment and management. Not psychotic, situational stressors, poor sleep and nutrition and marijuana use. Problematic including poor adherence to medication. Happy to explore psychological interventions and address above issues. Nil acute risks identified during this assessment. Aware and reports able to call AMHT [Adult Mental Health Team] as needed.

45. As at 7 December 2019, that the offender was taking his medication and engaging with mental health treatment.

46. However, in early December 2019 the offender was upset by the recent breakup of a longstanding relationship and the fact that his dog, to whom he was very close, had to be put down.

47. The medical records repeatedly refer to the offender's primary mental health difficulties as being an adjustment disorder, cluster B personality traits, anger management issues, self-harm by scratching and sleep difficulties. They also refer to the two long-standing traumas in the offender's life, being the fact that he had to witness domestic violence as a young person and the fact that his brother was incarcerated for a serious crime.

48. At the time of the offences, the offender was under the influence of various substances, particularly prescription medication and cocaine, to the extent that he has maintained that he cannot remember what occurred. However, he accepts that he committed the offences and he has expressed regret for the harm caused to the complainants.

49. Since his release from custody in July 2020, the offender has engaged with mental health treatment and it is reported that his mental health has improved considerably. Under the influence and with the support of his sister, he has made a concerted effort to improve his peer group and disassociate from less desirable former peers. Among other things, he has joined an Oztag team and is participating in a netball competition. He acknowledges that he needs to maintain a positive social network and undertake psychological counselling.

50. The author of the pre-sentence report assessed the offender at a medium to low risk of general reoffending. The criminogenic risk factors were mental health, drug use and financial status.

51 . A letter from the offender's sister states that the period that the offender spent in custody from December 2019 to July 2020 was a wake-up call to him.

52. The Crown accepts that the offender appears to be well motivated to achieve rehabilitation.

53. The offender is eligible for referral to restorative justice and it may be desirable to pursue restorative justice.

Comparable cases

54. In Singh v The Queen [2015] ACTCA 65, the Court discussed cases of unlawful confinement, but they were cases in which violence was an aggravating circumstance. The Court concluded that, generally, such offences attracted a head sentence of two to five years' imprisonment. In this case, no violence was associated with the unlawful confinement.

55. Counsel for the offender referred me to three cases that are reasonably comparable although somewhat more objectively serious in that they involved actual violence and a weapon and some involve the offence of aggravated robbery, not aggravated burglary.

56. In R v CN; R v SN; R v Rix [2019] ACTSC 293, three co-offenders were sentenced for an offence of aggravated burglary. The intent of the enterprise was to cause harm or threaten to cause harm to the occupants. CN was in possession of a knife. He was sentenced to three years’ imprisonment. SN was sentenced to two years’ imprisonment which was wholly suspended, and Rix was sentenced to 31 months’ imprisonment for the principal offence and a breach of a good behaviour order.

57. In R v XXL [2019] ACTSC 294, the offender was sentenced for aggravated robbery (not burglary). He forced entry into the complainant’s granny flat with a small wooden bat and small knife. After striking the complainant with the bat, the offender demanded that the complainant sign over ownership of his vehicle to the co-offender. The offenders knocked over several items before taking the complainant’s wallet, mobile phone, taser, money box and motor vehicle. The offender was sentenced to 28 months’ imprisonment, to be served by way of intensive correction order.

58. In the related matter of R v Goodge [2019] ACTSC 297 XXL’s co-offender entered into an agreement to loan the complainant money to purchase a vehicle. While the complainant continued to repay the debt, the offender heard the complainant was working and had purchased a new vehicle even though he still owed him money. The offender threatened the complainant via Facebook Messenger. He followed XXL into the victim’s flat and removed several items. The offender was sentenced to 18 months’ imprisonment for the offence of aggravated robbery, to be served by way of intensive correction order.

59. The limitations of sentencing statistics are well known. Those limitations are greater in the case of statistics that are out of date, as is the case in the ACT. However, the following provide some limited assistance as to a “yardstick”.

60. The ACT Sentencing Database shows that, from July 2012 to December 2018, for offences of aggravated burglary, 61 per cent of offenders received a sentence of full-time imprisonment and, for those who did, the sentence was often in the range of 18 months’ to three years and six months’ imprisonment.

61. During the same period, for offences of forcible confinement, 65 per cent of offenders received a sentence of full-time imprisonment and, in relation to those who did, the sentence was often in the range of 18 months to four years’ imprisonment.

62. During the same period, for offences of theft, 67 per cent of offenders received a sentence of full-time imprisonment and, for those who did, that sentence was generally six to 18 months’ imprisonment.

Other sentencing considerations

63. The Court is required to consider the matters in s 33 of the Sentencing Act, insofar as they are known and relevant. The relevant matters are referred to above.

64. In this case, sentencing purposes include the need for adequate punishment, general deterrence, accountability, denunciation, and recognition of the harm to the two victims of the offence. Having regard to the offender's youth, lack of prior adult criminal history, and apparent motivation to rehabilitate, rehabilitation is also an important sentencing objective.

65. I am satisfied that, given the objective seriousness of the offences, the only appropriate sentence is a sentence of imprisonment. Further, it is necessary for the offender to spend some time in full-time imprisonment. However, he has already spent a significant period in full-time imprisonment, from 30 December 2019 to 9 July 2020.

66. It is appropriate for the offender to be assessed in relation to a drug and alcohol treatment order. The Crown accepts that he may be an appropriate candidate for a drug and alcohol treatment order. Alternatively, the offender's legal representative has asked that I consider an intensive correction order.

67. I consider that, if the offender is found to be a suitable candidate, a drug and alcohol treatment order would be the more appropriate way to proceed because it would be more inclined to support rehabilitation, afford greater flexibility in relation to any breach of the order, and entail a long period of close supervision.

Proceedings on 14 October 2020

68. On 14 October 2020, I indicated the following sentences:

(e) Count 1: Aggravated burglary—22 months' imprisonment (reduced from two years’ imprisonment), from 3 October 2020 to 2 August 2022.

(a) Count 2: Unlawful confinement— 11 months’ imprisonment (reduced from 12 months’ imprisonment), from 3 April 2020 to 2 March 2021.

(b) Count 3: Theft—11 months’ imprisonment (reduced from 12 months’ imprisonment), from 3 April 2020 to 2 March 2021

69. The combined length of the indicated sentences is two years and four months' imprisonment, from 3 April 2020 to 2 August 2022.

70. I referred the offender for eligibility and suitability assessments for a drug and alcohol treatment order.

Proceedings on 4 December 2020

71. The offender underwent eligibility and suitability assessments for a drug and alcohol treatment order. The assessments were favourable.

72. There are difficulties with the drafting of the Sentencing Act in relation to drug and alcohol treatment orders. One of those difficulties means that the sentence must be fully suspended, which I take to mean that it cannot be backdated.

73. In this case, the offender has spent six months and 10 days in custody but has been on bail since July 2020. The period of six months and 10 days should be taken into account, but the sentence must be a fully suspended sentence.

74. I indicated the sentences on the last occasion and said that they would be accumulated to achieve a total sentence of two years and four months’ imprisonment.

75. Instead, I will make the sentences concurrent, to enable them to be fully suspended while ensuring that that period of six months and 10 days has been taken into account. By making them concurrent, I can impose a shorter effective sentence, while taking the custodial period into account.

Sentence

76. I impose the following sentences.

(a) Count 1: Aggravated burglary—21 months and 21 days’ imprisonment from 4 December 2020 to 24 September 2022. (b) Count 2: Unlawful confinement—11 months’ imprisonment from 4 December 2020 to 3 November 2021.

(c) Count 3: Theft—11 months’ imprisonment from 4 December 2020 to 3 November 2021.

77. I am satisfied of the matters set out in s 12A(2)(a) of the Sentencing Act and, having taken into account the matters set out in 12A(2)(b), I consider that it is appropriate to make a drug and alcohol treatment order.

78. I note that the offender has given informed consent as required by s 12A(2)(c) of the Sentencing Act.

79. The primary offence in relation to which the order is made is Count 1 and the order is extended to Counts 2 and 3 as associated offences.

80. Pursuant to s 12A of the Sentencing Act, I make a drug and alcohol treatment order, fully suspending the sentences on condition that the offender agrees to complete a treatment program.

81 . In addition to the core conditions, the offender is to comply with such treatment program conditions as are set by the Drug and Alcohol Sentencing List Judge from time to time.

82. The treatment and supervision part of the order is for a period of 18 months from today. The offender is directed to report to the Drug and Alcohol Sentencing List judge at 11:30 AM today.

83 . I impose a good behaviour order commencing on the day after the treatment and supervision part of the drug and alcohol treatment order ends and ending on 24 September 2022. The good behaviour order is subject to the condition that the offender accepts the supervision of Community Corrections for such period as they deem necessary.

I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

Associate:

Date: