R v CK [2014] ACTSC 188

[2014] ACTSC 188

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - sentencing for one burglary, 16 obtain property by deception offences, and one attempted ride in motor vehicle dishonestly and without consent - young offender - disadvantaged background - shocking criminal history - offences committed while subject to good behaviour order - alcohol and drug abuse since adolescence - residential rehabilitation in Karralika Therapeutic Community - three months completed so far - sentence deferred for 12 months to allow offender to address matters contributing to his criminal behaviours before being sentenced.

Crimes Act 1900 (ACT), s 211

Crimes (Sentencing) Act 2005 (ACT), ss 118, 27, 27(1)(c)

Legal Aid ACT (Offender)

SCC 404 of 2011; SCC 169 of 2013; SCC 210 of 2013; SCC 91 of 2014; SCC 211 of 2013

1. CK has pleaded guilty to a large number of dishonesty offences for which I am to deal with him today. There are:

(a) one burglary;

(b) 15 offences of obtaining property by deception;,

(c) one offence of being knowingly concerned in obtaining property by deception; and

(d) one offence of attempting to ride in a motor vehicle dishonestly and without consent.

2. There is also an offence of giving a false name to police, which is to be taken into account in sentencing CK for one of the offences of obtaining property by deception.

3. All the offences so far mentioned were committed in breach of a 12-month good behaviour order that I imposed in December 2012 when I sentenced CK for six counts of burglary and five of theft committed as a juvenile. However, that good behaviour order applied to only one of the burglary sentences, of which the final one month was suspended, CK having already served the remainder of the sentences.

4. Today's offences arise under the Criminal Code 2002 (ACT) and the Crimes Act 1900 (ACT) as follows:

(a) burglary arises under section 311 of the Criminal Code and carries a maximum penalty including 14 years imprisonment;

(b) obtaining property by deception arises under s 326 of the Criminal Code with a maximum penalty of 10 years imprisonment;

(c) riding in a motor vehicle dishonestly and without consent arises under s 318 of the Criminal Code and carries a maximum penalty of five years imprisonment;

(d) the scheduled offence of giving a false name to police is created by s 211 of the Crimes Act and carries a maximum penalty of a fine of $500.

5. The burglary was committed on 8 May 2013 in Lyons. CK opened a window and removed a flyscreen to gain entry to a domestic residence. The property was not damaged, and nothing was stolen, except that some lemonade had been drunk from a bottle that had been in the pantry when the owners left the residence that morning. The DNA left on the lemonade bottle identified CK as the offender.

6. The deception offences were committed on 22 May 2013. A Commonwealth Bank debit card was stolen during a burglary at a house in Holder. CK has not been charged with the burglary, but he came into possession of the debit card (he says he found it in the street) and in the course of the day used the card, or was involved in the use of the card, to make purchases to a total value of $1,181.12, consisting of 36 packets of cigarettes, several gift cards, a mobile phone, some alcohol and assorted minor items.

7. The offence of attempting to ride in a motor vehicle without consent was committed on 28 May 2013. During the previous day a house in Holder was burgled, and spare car keys were stolen. The residents reported the burglary to police, but also took the precaution of removing fuses from the vehicle to which the stolen car keys belonged. Early the following morning, CK and another man, Mr Simms, tried to remove the vehicle using the stolen keys, but it failed to start. Police were called and shortly afterwards they stopped a vehicle in a nearby suburb containing CK and Mr Simms. In due course, fingerprints were found on the vehicle which linked CK to the attempt.

8. In sentencing CK for the earlier burglary, for which I must now re-sentence him, I described it as a depressingly routine example of a domestic burglary. On that occasion, I sentenced him to 12 months imprisonment for that burglary.

9. CK was arrested on 28 May 2013 and remanded in custody, where he stayed until 2 February this year, when he was bailed to attend Karralika residential rehabilitation. He spent 252 days in custody in that period.

10. Some of CK's pleas of guilty came later than others. He pleaded guilty to the burglary on the first occasion he appeared in court in relation to that charge, being 6 December 2013. The pleas to the deception offences were entered on 3 October 2013 after a series of appearances in the Magistrates Court for the preparation of the Magistrates Court brief of evidence and some case management. A plea of guilty to the attempted car theft offence has only been entered today, but I note that this matter was committed to the Supreme Court for trial without going through any Magistrates Court case management processes at the same time as CK was committed to this court for sentence on the burglary matter.

11. There will be sentence discounts for the pleas of guilty, recognising that all of them have utilitarian value, but some discounts will be more generous than others.

12. All these offences seem to me to be relatively low-range examples of what are in the abstract fairly serious offences. Neither the burglary nor the attempt to take the car provided any gain to CK, although in one case that was because of the foresight and mechanical competence of the car's owner. The deception offences did not involve a substantial gain to CK nor, presumably, a substantial loss to the owner of the debit card, but CK should not delude himself by thinking that only the banks suffer from such offences - quite apart from the inconvenience for a person who loses a debit card, there is no doubt that the whole community bears the cost of card fraud through increased bank fees, lower interest on deposits and so on.

13. All the offences were aggravated by being committed within about three months after CK had been released from custody for earlier offending, and particularly by being committed only three months into a 12-month good behaviour order.

14. CK, who is still only 21, has a shocking criminal history dating back to when he was 14. As well as the current offences and the 11 offences for which I sentenced him in 2012, his record shows six burglaries, one of which was aggravated, one attempted burglary, 10 car theft offences, an aggravated robbery, two receiving stolen property offences, an assault occasioning actual bodily harm and various other more minor offences.

15. CK's pleas of guilty no doubt recognise what were conceded to be strong Crown cases in relation to each of the offences, but I accept them also as some evidence of remorse. I note that the PreSentence Report comment that CK's description of the deception offences differed markedly from the statement of facts appears to have arisen from an assumption that CK was involved with the burglary in which the debit card was stolen, although he has not been charged with that offence, and accordingly his claim to have found the debit card in the street is not inconsistent with that statement of facts.

16. When I sentenced CK in December 2012, I described his background as follows:

CK comes from a significantly dysfunctional family, with a mother who used heroin and an alcoholic father. His father has now been sober for many years. His parents separated when he was quite young. He lived with his mother until he was ten years old, then with his father and brother until at age 15 he was first incarcerated.

CK has very limited education, but completed his Year 10 certificate in Bimberi. He has had unskilled work from time to time since he was 12, in between periods of incarceration.

CK says that his mental health is fine. He appears to have little or no connection with or support from parents or siblings these days.

17. That was in 2012. The current PreSentence Reports provide some further and some different information:

... CK advised that his elder siblings were removed from his mother's care when he was eight years of age, and at ten years of age he was also removed from the family home by police and subsequently placed into the care of his father. Mr Connelly reported that whilst in the care of his father, he suffered a sporting injury resulting in a cessation of his participation in sporting activities, leading to involvement with an anti-social peer group. According to CK, he commenced drinking alcohol to excess on a daily basis, and his behaviour at school deteriorated significantly, until at 13 years of age his father returned him to the care of his mother.

Since that time CK has spent significant periods of time incarcerated in ACT juvenile justice facilities. When in the community, he has spent varying periods of time residing with his mother and paternal grandmother, whom he acknowledges has provided him with ongoing stability and support until recently. CK advised that he is currently estranged from his grandmother and most of his family supports, as his grandmother in particular is angry and disappointed by his offending behaviour.

...

CK described a very limited employment history consisting of a two month period of labouring work in 2010. CK's grandmother has previously confirmed this information, noting her grandson had enjoyed the work and showed initiative. CK reported a strong interest in pursuing employment within the construction industry in the future.

18. Substance abuse appears to be at the heart of CK's problems, accepting that aspects of his personal history have led him to that substance abuse, and particularly have led him to engage in substance abuse from a very early age. In 2012 it was put to me that alcohol abuse was CK's main problem, as indicated among other things by the fact that when he went into custody in October 2011 at the age of 19 his liver was apparently in very poor condition. He claims, however, to have stopped using alcohol in 2011 and to have concentrated on cannabis and, most problematically, amphetamines (being ice) since then. CK claims that he was under the influence of amphetamines at the time of the burglary, and that the cigarettes he bought with the stolen debit card were to be exchanged for illicit drugs. No particular connection is suggested between his drug use and his involvement in the attempted removal of the vehicle. I accept counsel's submission that there is authority for the proposition that relevant drug addiction may, to some extent, mitigate the culpability of an offender, if that addiction has been acquired at a point when the offender is too immature to exercise good judgment about the risks of substance abuse.

19. Until being remanded in custody in relation to the current offences, CK had shown no particular enthusiasm for pursuing rehabilitation, and had done little or nothing apart from completing the First Steps Alcohol and Other Drugs program while in the AMC in 2011. However, as mentioned, in February of this year he was released on bail to attend Karralika Therapeutic Community, and he has now been there for over three months. His senior case manager, Tim Green, provided a glowing report on his progress to date, describing his progress as "nothing short of phenomenal". Mr Green said:

... CK is motivated, eager to learn, freely and willingly participates in all facets of the program with enthusiasm and sincerity, takes on and does the suggested things (in terms of recovery), is clearly developing a personal value system which is pro-social and demonstrates a passionate attitude congruent with obtaining and sustaining a lasting recovery from his drug addiction.

...

During his tenure within the program CK has made significant and demonstrable progress in identifying and addressing the issues that underlie his addiction; such treatment issues include low self-esteem, guilt, shame, distrust of authority, and the need to communicate assertively.

CK is now in the senior treatment phase of our program (the senior phase in which he is responsible for overseeing and taking responsibility not only for himself but his peer group as well) and has recently been promoted by merit of action to the position of Assistant Manager of the Kitchen. Based on the observations of his peers, staff and myself, he has most certainly developed into a fine role model for his junior peers.

Without hesitation, I am happy to report that CK commitment to this program (in terms of practising "Right Living") as well as his commitment to his ongoing recovery from drug dependence issues is as strong and resolute as I have witnessed in any client previously.

20. The offences I am dealing with today are offences that always require general deterrence, and it is clear that CK requires significant personal deterrence as well, to ensure that he maintains his current commitment to an effective and lasting rehabilitation. I note also the prosecutor's submissions to the effect that the sentencing purposes of punishment, holding CK to account, and protecting the community are also relevant in this sentencing. Protecting the community in this case renders the purpose of rehabilitation also important, since it is inevitable, given the nature of his offending, that CK will be released into the community in the not too distant future, rehabilitated or not. Given CK's good progress in residential rehabilitation so far, and the significance of him overcoming his substance abuse problems to his chances of leading a pro-social life in the future, I accept submissions that have been made to the effect that this would be an appropriate case for a deferred sentence order.

21. Before I may make a deferred sentence order, I must be satisfied of a number of matters as set out in s 27 of the Crimes (Sentencing) Act 2005 (ACT). I record, therefore:

(a) that CK is about to be convicted of a number of offences punishable by imprisonment;

(b) that he has not yet been sentenced for those offences;

(c) that I am satisfied that he should be given an opportunity to address his criminal behaviour and its contributing factors before he is sentenced for these offences; and

(d) that I am satisfied that I may continue the bail that was granted to him in February this year in order that he may continue to attend residential rehabilitation.

22. The only difficulty in this case is that once I convict CK of the current offences, he will be in breach of the good behaviour order in connection with the suspension of the remaining one month of his previous sentence of imprisonment, and this may mean that he is "liable to serve a term of imprisonment for another offence" as mentioned in s 27(1)(c) of the Crimes (Sentencing) Act. I propose to address this problem by imposing that outstanding sentence, backdated to take account of the time he has recently spent in custody, and therefore finally served. At that point, I will be in a position to make a deferred sentence order.

23. For the purposes of that deferred sentence order, I will need to indicate to CK a likely sentence if he complies with the terms of the deferred sentence order and a likely sentence if he does not.

(a) one charge of burglary;

(b) 15 charges of obtaining property by deception;

(c) one charge of being knowingly concerned in obtaining property by deception; and

(d) one charge of attempting to ride in a motor vehicle without consent.

25. I also note the scheduled offence of giving a false name to police, and I shall take it into account when I come to sentence you for these offences.

26. Next, I note that the offences of which I have just convicted you constitute breaches of the good behaviour order I made in December 2012 in relation to the suspension of the outstanding one month of a 12-month sentence for burglary, and I impose that 12-month sentence, which will be backdated to 8 October 2012 to take account of time already served and time spent in custody since you were remanded in custody in May last year. That sentence, therefore, expired on 7 October 2013, and I note for future reference that that leaves 223 days of time served to be accounted for when I come to sentence you finally.

27. That also seems to mean that I am now in a position to defer sentence on the new matters. Accordingly, I require you to appear before this court at 9.30 am on Thursday, 14 May 2015, to be sentenced for all the new offences.

28. When I set the new bail conditions, they will also include a requirement that you come back to court two or three times during this year, just for a check-up, to make sure that your rehabilitation is progressing as intended. What that means is that at each point you will need to focus on making it through to the next check-up point, rather than through the whole year.

29. Section 118 of the Crimes (Sentencing) Act requires me to give you an indication of possible sentencing if you comply with the orders and the bail conditions, and possible sentencing if you do not. So I indicate to you first that if you do not comply with this deferred sentence order and with the bail conditions that I will set shortly, and especially if you re-offend in the next year, then when you come back for sentencing on these matters you are likely to receive a total sentence of imprisonment of three years, including a reduction for your pleas of guilty, with a non-parole period of at least 20 months.

30. That sentence would be backdated to take account of the rest of the time in custody (so that is just over seven months) and possibly for some of the period that you have already spent in residential rehabilitation. But it would mean at least another 10 months in prison, and possibly more, depending on how you fail to comply with the deferred sentence order. For instance, re-offending might see you in prison for quite a bit more of the nearly 30 months that would be outstanding on that sentence.

31. If, on the other hand, you can comply with the bail conditions that I have mentioned, and that I will set, if you can keep away from drugs and alcohol and avoid offending in the next 12 months, you are likely to receive a sentence of 33 months imprisonment, also backdated to take account of time served, but also to take account of time in residential rehabilitation up to a total maximum of 22 months. So that would be up to 15 months of residential rehabilitation could be credited, and the remainder of the sentence (so that would be a minimum of 11 months) suspended subject to a three-year good behaviour order.

32. What that means, in summary, is if you can do the right thing for the next year, CK, you will have roughly 12 months left of your prison sentence, but you will be able to deal with that by complying with a good behaviour order for three years. If you don't do the right thing, you're looking at somewhere between 12 and 14 months in prison, and then another 16 months or so on parole.

33. From here on, it's up to you, CK. It's up to you and the people at Karralika, who have got a lot of help to offer you.

(a) you are to return to Karralika with a staff member today, and to remain in the residential program at Karralika, except for any absences to attend court;

(b) you are to obey all reasonable directions in respect of that program;

(c) you are not to terminate or absent yourself from the program without the prior permission of the Supreme Court;

(d) if you are discharged from the Karralika Program for any reason, you are to report as soon as possible and, in any case, within 24 hours, in person, to a police station in the ACT; and

(e) finally, you are to attend this court for a check-up at 9.30am on Tuesday, 14 October 2014.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.