R v Clarkson [2017] ACTSC 9

Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33(1)(za)

Fusimalohi v The Queen [2012] ACTCA 49

R v Fusimalohi [2015] ACTSC 220

R v Hawkins [2015] ACTSC 333

R v Booth [2016] ACTSC 325

1. At the commencement of the sentencing hearing an application was made for an adjournment. I refused it because this is the second time that the matter has come on for sentence. The first time it was adjourned because the offender had not complied with the requirements for the preparation of a pre-sentence report. The adjournment has been fairly lengthy. The purpose of the adjournment application today was to enable further, essentially medical material, to be gathered. That material could have been gathered prior to today.

2. In addition, on both the last occasion and on this occasion the primary and secondary victims of the offences have both come to court with the intent of reading out their victim impact statements and also participating in the sentencing process. In particular, in relation to Mr Walters, it has been of significant inconvenience to him to have not been able to do other things which he wished to do on the two dates for sentencing.

3. On 30 September 2016 the accused was convicted on two counts of an amended indictment. The first was that he committed burglary of a unit in Belconnen, contrary to s 311(1)(a) of the Criminal Code 2002 (ACT). The second was that he stole items of property belonging to a Mr Bruce Walters, from the same address, contrary to s 308 of the same legislation.

4. The burglary offence carries a maximum sentence of 10 years imprisonment and/or a fine.

5. The theft offence carries a maximum sentence of 10 years imprisonment and/or a fine.

6. I am satisfied, on the basis of the jury's conviction of the offender, that the jury was satisfied beyond reasonable doubt that the accused broke into the unit by bending back a security panel and then breaking a glass window. I am further satisfied that the findings included a conclusion that the offender, having earlier ascertained Mr Wilson's movements for the day, broke into the apartment with the intention of taking a number of items.

7. In relation to the theft, the jury verdict establishes that the jury was satisfied beyond reasonable doubt that the list of items in Exhibit B were taken, although only a small number of them were handed over to a Mr Dugdale for conversion into cash. The facts that emerged during the trial did not permit any possibility that more than one person was involved in the theft or that the taken goods were not kept or disposed of by the offender. For sentencing purposes he must be treated as having stolen all of the listed goods. Although no value was placed on the goods, they did include about $3,300 in cash and a new computer.

8. Having regard to the advantage taken of Mr Walters, who was a friend of the offender, and the extent of the items taken, including the cash, the offences must be regarded as of medium objective seriousness.

9. The offender is 29 years of age. Although he does have a criminal record it is not one which should impact negatively on the sentencing process.

10. He lives in a stable relationship and there is one child of that relationship. Exhibit 1 is a letter from his partner setting out some of the problems that he has including reference to his Asperger's diagnosis. More importantly, Exhibit 1 indicates his devotion to his family and raises the positive prospects of rehabilitation and the unlikelihood of there being further offences.

11. There is no medical evidence concerning the Asperger's condition. It is a condition that ironically is also suffered by Mr Walters and, as was pointed out by Mr Walters in his victim impact statement, the fact that one suffers from such a condition is no excuse for carrying out criminal activity. It is, however, a matter that I can take into account when coming to sentence.

12. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also very mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

13. It is also necessary to have regard to s 33(1)(za) of the Sentencing Act. Some of the cases I have considered include Fusimalohi v The Queen [2012] ACTCA 49 and R v Hawkins [2015] ACTSC 333. The Chief Justice made these relevant observations in the former case, but at first instance (R v Fusimalohi [2015] ACTSC 220) at [23]:

I am required to address the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). It is important to ensure that the offender is adequately punished in a way that is just and appropriate. General and personal deterrence are of some significance in this case, as is protection of the community. Accountability and denunciation are important considerations, as well as recognition of the harm done to the victims, particularly in relation to the two burglaries that involved the theft of property of substantial value. It is also important to promote the rehabilitation of the offender. He demonstrates reasonably good prospects of rehabilitation. If he is rehabilitated, that will provide the best protection for the community in the future.

14. I intend to apply those principles in this matter.

15. A difficulty that arises in this case concerns the need to achieve consistency in sentencing. As stated above, the offender asked Mr Dugdale to sell some of the stolen goods to Cash Converters. The amount of money received by Mr Dugdale was $195. Mr Dugdale was charged with one count of receiving stolen property and one count of obtaining property by deception. He pleaded guilty to both charges and was sentenced in the Magistrates Court on 22 September 2014.

16. On the obtain property by deception charge he received a sentence of full-time imprisonment of four months and on the receiving stolen property charge he received a sentence of six months. There were non-parole periods set but there is some confusion about exactly what happened. Suffice to say, he seems to have served about six months in prison for the two offences.

17. Mr Dugdale gave evidence for the Crown in the trial. The sentences imposed on Mr Dugdale, at first sight, appear harsh. However, as far as I can ascertain, he did not lodge any appeal against the sentences. He did however make this observation during his evidence:

And in return for that, you got charged with minor matters?---And done 15 months for it, done my parole plus another eight months. Where's he been? On the street on bail for 18 months for burglary and theft. If that was me, I would've been sentenced and sent to gaol for three to four years. (Trial transcript at page 222.23)

18. Mr Dugdale's memory of the sentences that he received is a little exaggerated. Nevertheless, the point that he is trying to make, I think, is that he received a prison sentence for comparatively minor charges. Accordingly the significantly more serious offences committed by this offender demand longer sentences.

19. This point is logical and if ignored would raise a justifiable complaint concerning the consistency of treatment of two persons involved in the same course of criminal conduct.

20. However, that is not to say that there must necessarily be a sentence imposed on this offender calculated according to a scale of seriousness, which has, as its starting point, the sentences imposed on Mr Dugdale.

21. Firstly Mr Dugdale appeared before the Magistrate carrying with him a very significant criminal record, as can be seen in Exhibit A. Secondly, notwithstanding the absence of an appeal by Mr Dugdale, this court is entitled to take into account its own view of the appropriateness of the sentences imposed upon Mr Dugdale.

22. I would like at this stage to repeat what I said R v Booth [2016] ACTSC 325 at [21] concerning offences of this type:

It is too easy to say that when a house is broken into and property is taken that it is simply a matter of claiming on an insurance policy. That disregards the fact that people become attached to some of their property and to deprive them of it is much more than just an insurance claim and some inconvenience.

23. In this case there was not even the possibility of an insurance claim and the statements I heard from Mr Walters and his mother have emphasised the extent to which he was attached to his property and the extent to which he had worked honestly in order to save up the money that was taken. I do intend to make a reparation or restitution order but having regard to the offender's assets I do not envisage that repayment will take place with any reasonable speed.

24. Mr Thomas, on behalf of the offender, has said that the sentences should be concurrent. I agree, because the two offences are part of the same criminal enterprise.

25. I also take into account that there has been no expression of remorse in this matter. The offender pleaded not guilty and put the Crown to the associated time and expense of a trial. He put the witnesses through the inconvenience of having to give evidence. Every person who is charged with any offence is entitled to plead not guilty and to have the Crown prove that that person is guilty, however, once the trial is over and the jury verdict has been given, the offender has the opportunity to try and make some amends. This offender has chosen not to do that. He is not to be punished for pleading 'not guilty' but he does deprive himself of any discount derived from remorse.

26. As I said, the difficulty that arises concerning Mr Dugdale is one that would normally raise the expectation that the offender should go to prison without the benefit of a suspended sentence. However, as can be seen from the words I quoted from Mr Dugdale, he was wrong in what he said and he is also wrong in his suggestion that the offender should receive a sentence in the order of three or four years.

27. Taking all of the above matters into account I think the appropriate orders are as follows:

ii. No further action is to be taken in respect of the breaches of the Good Behaviour Orders issued on CC2014/290, CC2014/291, CC2014/292.

iii. In respect of the offence of burglary CC2015/4595, the offender is sentenced to a period of imprisonment of 6 months to commence from today, Thursday 19 January 2017 and end on 18 July 2017.

iv. In respect of the offence of theft CC2015/4596, the offender is sentenced to a period of imprisonment of 9 months to commence from today, Thursday 19 January 2017 and end on 18 October 2017.

v. Both sentences are suspended with immediate effect. The offender is subject to Good Behaviour Orders for a period of 24 months, and during that period he is subject to the core conditions the Crimes Sentencing Act including submitting to the supervision of the Department of Corrective Services for the whole 24 months or such lesser period as is determined by the Department.

vi. A reparation order is made in the sum of $10,000.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.