R v Cook [2022] ACTSC 381

[2022] ACTSC 381

Supreme Court of the ACT|2022-03-17|Before: Refshauge AJ

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Source facts

Court

Supreme Court of the ACT

Decision date

2022-03-17

Before

Refshauge AJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and Punishment – Sentence – Aggravated Burglary –
Theft – Driving with a Prescribed Drug in Blood – Repeat Offender
– Unlicenced Driving – Subjective Circumstances

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment – Sentence – Aggravated Burglary –Theft – Driving with a Prescribed Drug in Blood – Repeat Offender– Unlicenced Driving – Subjective Circumstances– DrugDependence – Sentence of Imprisonment – Drug and Alcohol TreatmentOrder Application – ApplicationSuccessful

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Cook

Citation: [2022] ACTSC 381

Hearing Dates: 28 January 2022, 11 March 2022

Decision Date: 17 March 2022

Before: Refshauge AJ

Decision: 1. Shane John Allen Cook be convicted of aggravated burglary and sentenced to 12 months imprisonment, commencing from 17 May 2021 and expiring on 16 May 2022. 2. Shane John Allen Cook be convicted of theft and sentenced to 2 months imprisonment, commencing from 17 April 2022 and expiring on 16 June 2022. 3. Shane John Allen Cook be convicted of aggravated burglary and sentenced to 15 months imprisonment, commencing from 17 December 2021 and expiring on 16 March 2023. 4. Shane John Allen Cook be convicted of theft and sentenced to 3 months imprisonment, commencing from 17 January 2023 and expiring on 16 April 2023. 5. Shane John Allen Cook be convicted of theft and sentenced to 3 months imprisonment, commencing from 17 February 2023 and expiring on 16 May 2023. 6. Shane John Allen Cook be convicted of driving with a prescribed drug in his blood as a repeat offender and be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months and his driving licence be suspended for 12 months, concurrent with any current suspensions. 7. Shane John Allen Cook be convicted of unlicenced driving and be fined $350 with 12 months to pay. 8. The following charges are dismissed: unlawful possession of stolen property, numberplate registration improperly issued, failing to appear, possessing a drug of dependence and possessing a prohibited substance.

A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Shane John Allen Cook for 14 months from today, 17 March 2022, until 16 May 2023 in respect of the primary offence of aggravated burglary, of which he has been convicted and for which he has been sentenced to 12 months imprisonment. 10. That Order be extended to offences of aggravated burglary and theft of which Shane John Allen Cook has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 11. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 12. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) for 14 months from today, 17 March 2022, until 16 May 2023. 13. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Shane John Allen Cook undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; c. Shane John Allen Cook reside upon his release at [redacted for legal reasons]; and d. Shane John Allen Cook comply with any directions of the Court from time to time about attendance at Court in person or by electronic means. 14. Shane John Allen Cook be directed to appear in person in Court on Friday 18 March at 11:30 am. 15. Shane John Allen Cook be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.

For many years, there was tension between the treatment for alcohol and drug dependency and for mental health challenges, as there seemed to be something of a silo mentality about addressing each of them by treatment, including counselling, and especially in relation to residential rehabilitation. This occurred despite them being interrelated, both causally and for treatment. This has improved in more recent times, but it is now becoming clearer that there is a further issue that needs to be considered and that is childhood disadvantage, which can be seen so frequently in the sentencing courts and relates, often in various ways, not only to alcohol and drug dependency and mental health, but to the commission of crime.
Thus, programs such as Justice Reinvestment (see the Australian Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017)) have been promoted as a way to address the causes of criminality before they become entrenched.
These issues are often relevant to sentencing and were explored in R v Fernando [1992] 76 Crim R 58 in New South Wales, and then in the Director of Public Prosecutions (Vic) v Terrick [2009] VSCA 220; 24 VR 457 in Victoria, and generally accepted in this Territory in TM v Karapanos [2011] ACTSC 74; 250 FLR 366. In 2013, the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 accepted the applicability of those principles articulated in those cases and confirmed that such disadvantage did not diminish over time. It remains applicable to the sentencing of offenders, even those who have committed further offences.
Shane John Allen Cook must now be sentenced for seven offences committed on 16 October 2020, namely, two offences of aggravated burglary, three offences of theft, one offence of driving with a prescribed drug in his blood, and an offence of being an unlicensed driver. Mr Cook has requested that a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) be made.
On sentencing the Crown tendered, without objection, the Crown Tender Bundle, which included the required cover sheet, the Indictment to which Mr Cook had pleaded guilty, a List of Additional Offences under Part 4.4 of the Sentencing Act, an Agreed Statement of Facts and Mr Cook's Criminal History. It also included two reports that were Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act, being a Drug and Alcohol Sentencing List Suitability Assessment Report dated 20 December 2021 of Alcohol and Drug Services and a Drug and Alcohol Treatment Assessment dated 20 January 2022 of ACT Corrective Services, as well as a Case Plan prepared by Alcohol and Drug Services.
Also included in the Crown Tender Bundle was a Statement of Facts and Information for an offence for which Mr Cook had been sentenced to a suspended sentence with a mandatory Good Behaviour Order. It was originally considered that the conviction for these present offences would breach this Order. Further consideration led to the Crown withdrawing the submission that there had been such a breach and, accordingly, no further consideration was given to this material. The Crown Tender Bundle did not include the committal documents for the offences of driving with a prescribed drug in his blood nor of being an unlicensed driver. These documents were accessible, however, in the various Court files in this Court and they have been taken into account. There is no dispute that they were transferred and that Mr Cook pleaded guilty to them.
The Court raised an issue with the Agreed Statement of Facts which had stated that, for each of the aggravating burglaries, “[t]he Crown contends” that one of the two males who committed the burglaries was the accused. That would be appropriate if the identification was contentious or the Crown was to produce events, even circumstantial, to justify that contention.
As Mr Cook had pleaded guilty, that fact was admitted; Meissner v The Queen [1995] HCA 41; 184 CLR 132. The fact was no longer “in contention” and the Court was not required to make a finding on the material before it, other than to accept it or for any reason reject it, though no such reason was apparent. In any event, there was no evidence from which the Court could find that that contention was made out, other than perhaps some very limited circumstantial evidence of some clothing of the second male being found in the vehicle used in the burglaries when Mr Cook was later arrested in that vehicle. Some of the evidence of the stolen items may well have been problematic given, for example, the time difference between the commission of the burglaries and the arrest. Nevertheless, when drawn to the attention of both counsel, they agreed that the Statement should be amended by omitting those words.
Ms K Musgrove, counsel for Mr Cook, tendered without objection a psychological assessment report by Ms Vanessa Edwige, a letter of reference by Mr Cook's father, an email chain including advice from the Justice Housing Program that Mr Cook had been allocated a placement in accommodation with the program, a reference for Mr Cook in the form of a statement of employment at the Alexander Maconochie Centre and a certificate of achievement for the Thrive program completed in the Alexander Maconochie Centre. The consent form to the making of a Treatment Order signed by Mr Cook was also on the Court file.
Apart from as noted above, there was no challenge to the contents of any of this admitted material. Counsel for the Crown, Ms S Saikal-Skea, provided very helpful and thoughtful written submissions, and both counsel provided much assistance in their oral submissions, engaging with the Court in questions and debate which made clear the relevant issues and usefully elucidated the factual matters of importance. The Crown also provided for the Court’s assistance a summary table of comparable sentences for the offence of aggravated burglary. From this material, the following findings are made.

At 5:46 am on 16 October 2020, Mr Cook and an identified co-offender drove a motor vehicle into the car park at Swinger Hill Shopping Centre, Mawson, ACT. The motor vehicle had been stolen on 9 October 2020 from hotel premises in Dickson, ACT. There was no evidence before the Court to suggest that Mr Cook or his co-offender had stolen the motor vehicle. At the same time, another motor vehicle driven by an unidentified woman drove into the same car park and an unidentified male got out of the passenger seat and joined Mr Cook as the two approached the shops. Both Mr Cook and the unidentified male were wearing masks.
They went to a restaurant at the shops, forced open the door of the restaurant with a crowbar that they brought with them and entered the restaurant. Their arrival was captured on CCTV. This constituted the first charge of aggravated burglary, that Mr Cook was in company being the circumstance of aggravation.
In forcing the door, they damaged the blocker plate. A blocker plate is understood to be a latch guard intended to provide security to locks, protecting them from external attacks. Clearly they are, however, susceptible to attacks by a crowbar. No evidence was given of the value of the damage, but it can be accepted that a blocker plate would cost no more than $50 to $60 and possibly less. There may be some damage to the door requiring some repair with putty or the like. These were the circumstances relied on for the first charge of damaging property.
While in the restaurant, the two burglars rummaged around, though causing no further damage, and took a gold Apple iPhone 6 in a clear case belonging to the owner of the restaurant. No evidence was given of the value of the phone, but it may be accepted that, with the case, it would be unlikely to be valued at more than $250 or thereabouts and, depending on its age, possibly less. These facts found the first offence of theft.
About 11 minutes later, the two offenders left the restaurant and drove to a massage shop in the Isaacs Shopping Centre, about 2.2 kilometres away or a five-minute drive from the Swinger Hill Shopping Centre. They went to the massage shop there and tried, unsuccessfully, to force entry into the shop by using the crowbar, so they smashed the glass front door. They then entered the shop.
These facts led to the charging of Mr Cook with the second offence of aggravated burglary and the second offence of damaging property which was on the list of additional offences. As relevant information such as the size and nature of the glass, including the cost of installation, were not in the evidence, the Court cannot make an assessment of the costs of repair caused by the damage, other than to say it would have been of a relatively significant amount.
At the time the offenders entered the shop, there were two employees sleeping on the premises. They woke on hearing the glass breaking and, being frightened, fled through the back exit without coming into contact with the offenders.
The offenders then rummaged through the shop, located various items which they took with them, and left the shop. They caused no damage while they were rummaging through the shop. The items taken were a white and gold Huawei mobile phone, $200 in cash, assorted documents not otherwise identified but presumably of some value, probably of personal value or causing inconvenience by their loss, but the evidence was unclear, a laptop and a cabinet drawer, all belonging to the shop business. Apart from the cash, no value was given of the stolen items. These were the facts for the second charge of theft.
The offenders also took a hairdryer, a hair curler, Lamer brand skin products, a gold ring, a wallet and its contents and $600 in cash belonging, presumably, to an owner or employee of the business. Again, apart from the cash, no evidence was given of the value of the items stolen, though the loss of a wallet can cause much inconvenience and risk if it contains credit cards. These were the facts that founded the third charge of theft.
At about 3:30 pm that day, the stolen vehicle was driven by Mr Cook into the underground car park attached to the Canberra Outlet Centre. These were the facts leading to the charge of dishonestly driving in a motor vehicle without the owner's consent.
Police later attended the car park and identified the vehicle. A woman was seated in the front passenger seat and Mr Cook was found by police asleep in the driver's seat of the vehicle. The vehicle was extensively damaged on the right-hand side panels of the car, consistent with the damage shown on the vehicle captured on CCTV at the Swinger Hill Shopping Centre.
Mr Cook was told by one of the attending police officers to get out of the car, but he did not do so. The police officer then smashed the front driver's side window and forcefully removed him. The vehicle was searched and police located a crowbar, the gold Apple iPhone 6 earlier stolen, the cabinet drawer and the white and gold Huawei mobile phone, both also stolen. He was placed under arrest.
A check of Mr Cook's licence status showed that he was currently an unlicensed driver, leading to him being charged with driving unlicenced.
ACT Ambulance Service attended and drove Mr Cook to the Canberra Hospital where a sample of his blood was taken. It was later analysed and shown to contain delta-9-tetrahydrocannabinol, known as THC, being the main psychoactive ingredient of cannabis. This resulted in him being charged with driving with a prescribed drug in his blood.
Later that evening, he was cleared by the doctor to be taken into custody and was taken to the ACT Watch House and refused bail.

He appeared in Court the next day and was charged with five offences alleged to have been committed the previous day, including the charges of being an unlicensed driver and dishonestly riding in a motor vehicle without the owner's consent. The proceedings were adjourned and he was remanded in custody. He was granted bail on 8 December 2020, but after two breaches, bail was revoked on 12 July 2021. He has been in custody since then.
After a number of adjournments, he was charged with further offences on 26 November 2020, including the aggravated burglary at the restaurant at the Swinger Hill Shopping Centre, the theft of property from there, aggravated burglary at the massage shop in Isaacs Shopping Centre and the two thefts from there, as well as 16 other offences.
The proceedings were, again, adjourned. On 21 December 2020, he appeared in Court and was charged with two further offences, including driving with a prescribed drug in his blood. He pleaded not guilty to all the other offences and they were all further adjourned.
Ultimately, on 29 March 2021 he was committed for trial and the other summary offences were transferred to this Court, a total of 30 offences, not all of which related to the offences committed on 16 October 2020.
A further five of the offences for which he had been charged, relating to offences committed on other dates, remained before the Magistrates Court. Later he was sentenced to one month's imprisonment, immediately suspended, and fined on the other charges.
After the proceedings came into this Court from the committal and transfer of charges, they proceeded for trial. On 20 May 2021, an Indictment was filed containing nine counts. It is not clear, but it appears likely that some of the transferred charges would have also been preferred. He pleaded not guilty to all the charges.
The proceedings were ultimately listed for a Criminal Case Conference on 19 August 2021. At that conference, the Crown offered a resolution of the proceedings which was similar to the present resolution, namely, five offences on the indictment, two transferred charges, and three charges on a list of additional offences. That resolution was rejected.
On 17 November 2021, the trial was listed to commence on 23 November 2021, but Mr Cook then agreed to proceed by pleading guilty to the seven offences and seek that the further three offences be taken into account. Accordingly, a fresh Indictment was filed on that date. Mr Cook pleaded guilty to all those charges and signed the list of additional offences. He also pleaded guilty to the transferred charges.
On 3 December 2021, Mr Cook was first before the Court in the Drug and Alcohol Sentencing List. Suitability Assessments were directed to be prepared. The matters were listed for sentence and directions given for preparation for sentence.
It is clear that a large number of the charges on which he was committed or which were transferred to this Court have not been resolved. They are, the Court was informed, not to proceed. Accordingly, they should be dealt with by the filing of a Notice Declining to Proceed: see R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 at 113; [45], recently followed by R v Featherstone (No 2) [2019] ACTSC 258; 14 ACTLR 242 at 248; [16]. The Court was advised that this would be done in due course.
Mr Cook has now been in custody for 304 days. This pre-sentence custody should be taken into account, as set out in s 63 of the Sentencing Act.

In two of the offences for which Mr Cook must be sentenced, the following factors are relevant. Both the premises were commercial premises, the burglaries were committed in the early hours of the morning when the offenders could expect that there would be no occupants and certainly it would be highly unlikely that any occupant would be as vulnerable as children, elderly persons or persons with a disability would be. Though there were occupants at the massage shop, there was no confrontation between them and the offenders. They were, however, frightened by the incursion that came to their attention by the breaking of the glass door.
In both cases, damage was caused by the illegal entry to the premises, but there was no damage caused in the premises. The damage caused was, it would appear, more serious to the massage shop. There was no wanton or further damage to either premises once the offenders had gained entry.
There was some, but little, premeditation, the offenders having had to acquire or buy a crowbar and bring it with them and both offenders were masked.
The items taken were not of great value and the motivation later admitted by Mr Cook was to pay for his acquisition of drugs to meet his dependency.
While the offence at the massage shop was somewhat more serious, both of the offences were reasonably unremarkable versions of the offence.
Theft is made an offence by s 308 of the Criminal Code, which prescribes a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, thus, a less serious offence than the offence of aggravated burglary, but, nevertheless, a quite serious offence.
The value of the property stolen is a very important matter: R v Slattery [2021] ACTSC 154 at [38]. This is, however, not limited to the monetary value of the property, but also extends to the personal or sentimental value of the property and what might be called the inconvenience value. For example, the loss of a lot of information now stored on mobile phones and the ways in which many transactions are affected by messages on such phones can cause considerable and, in some cases, possibly irremediable inconvenience.
Similarly, the loss of credit cards, though not clearly the case in the third offence although perhaps likely with the theft of the wallet, can cause difficulties, at least inconvenience, and may lead to monetary loss.
None of the thefts here were of great seriousness, though again the value involved shows the thefts from the massage shop to be somewhat more serious.
Much, if not all, of the property stolen has been recovered, however, and this reduces the actual losses that the victims would otherwise suffer. It is also noted that ordinarily there will be a considerable concurrency between the sentences imposed for a theft offence and sentences imposed for the associated burglary or aggravated burglary offences.
The offence of driving with a prescribed drug in one’s blood is created by s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). Section 4F of that Act defines a repeat offender as one who has been convicted of such an offence before. In this case, Mr Cook was convicted on 18 February 2019 for an offence committed on 29 April 2017. Thus, he was liable to a maximum penalty of imprisonment for three months or a fine of $4,000 or both.
In addition, under s 64 of the Road Transport (General) Act 1999 (ACT), the Court on conviction can disqualify Mr Cook from holding or obtaining a driver licence for the period that the Court considers appropriate. While Mr Cook was not driving at the time of his arrest, he clearly had been driving, but there is no indication of how far or how long he had driven or whether there was any dangerous or erratic driving by him.
The offence of being an unlicensed driver is an offence against s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT), which provides for a maximum penalty of $3,200. In addition, the offender may be disqualified from holding or obtaining a driver licence for such period as the Court thinks appropriate: s 64 of the Road Transport (General) Act.
Of course, such an offence is an important sanction to retain the integrity of the driving licence regime, which is part of the provisions relating to road safety.
The offences listed in the schedule of additional offences under Part 4.4 of the Sentencing Act are to be taken into account, but the Court will not sentence Mr Cook for them, though once taken into account he cannot be further prosecuted for them.
The Court of Appeal has set out how such offences should be taken into account in R v Campbell [2010] ACTCA 20 at [46]–[50], followed in R v Omari [2022] ACTCA 4 at [106]. In essence, the Court takes the offences into account in the same way as it takes into account the other relevant matters. It is likely that doing so will mean that the personal deterrence and punishment will be given greater weight. The sentence may, therefore, be more severe than it would otherwise be, but the Court is not required to specify precisely how the sentence is affected. The application of these principles are constrained by other principles of sentencing such as the principle of totality.
For this purpose, it is appropriate to mention these offences briefly.
The two offences of damaging property on the List are crimes under s 403 of the Criminal Code, which provides for a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. The offences relate to the damage caused when Mr Cook gained entry to each of the premises where the aggravated burglaries were committed. The damage caused and its value are central issues here: Halden (1983) 9 A Crim R 30 at 36. Neither were particularly substantial amounts of damage. The evidence was thin. The damage at the massage shop was probably more expensive to repair than at the restaurant.
The offence of dishonestly driving in a motor vehicle without the owner's consent, the other offence on the list, is contrary to s 318(2) of the Criminal Code and attracts a maximum penalty of five years imprisonment or a fine of $80,000 or both. The relevant considerations are set out in R v Reid (No 1) [2021] ACTSC 334 at [26]–[29]. They have briefly been outlined above (at [52]) in relation to the offence of driving with a prescribed drug in Mr Cook’s blood, which did not show a particularly serious offence. In addition, however, while the vehicle was recovered it appears to be quite damaged, not in the condition in which the Court was asked to infer it was when stolen. This makes it a somewhat more serious offence.

Both the common law and s 33 of the Sentencing Act require the Court sentencing an offender to take into account the offender's personal circumstances.
Mr Cook was born 30 years ago of a large family. He appears to be a somewhat poor historian, though he may not have communicated as effectively as is desirable.
He was born in Queanbeyan and is unsure of his cultural heritage, for his father was adopted and his mother does not talk about it. His mother’s brother works at the Winnunga Nimmityjah Aboriginal Health Service.
He has several siblings of which he is the eldest, though his father left the family when he was about three or four years old. The family moved to Canberra when he was about six years old. By this time his mother had re-partnered, but her partner subjected her to severe domestic violence and he was very scared of his mother’s partner.
His home life was also marred by substance abuse. His mother failed to provide much support for her children. He told his grandparents of the home conditions and finally was moved to live with his father and his grandparents. He would visit his mother once a year until he was stopped by his grandfather and he has had little successful contact with her since then.
He went to primary school in Canberra, though he had difficulties until age eight. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Ritalin. He was not engaged at school and was mostly in what he described as “the naughty class”. He has, however, no issues with literacy. He was frequently suspended. When using Ritalin his behaviour improved, but by that time he had fallen in with a “bad crowd”.
He went to high school in Canberra, but left halfway through Year 9, then commenced full-time work as a labourer for about 18 months. He then worked as a removalist for about three to four years. He wants to complete a formal bricklaying course. He moved out of his grandparents' house when he turned 21 years old and moved in with his then girlfriend, but soon lost his job. His partner was diagnosed with cancer and he had to provide care for her. He has since had two different relationships, all of which have produced a total of four children.
His eldest children live with their mother and, when he is not in custody, he regularly sees his eldest son who is 13 years old. He wishes to reconnect with his son who is struggling at school.
His third child is in out-of-home care and he wishes to make contact. The youngest child is living with the cousins of his ex-partner, the child's mother, in kinship care.
Mr Cook has no physical health issues, though he had some incidents in the past. He has been described as not having a serious mental condition, but Ms Edwige refers to the childhood disadvantage comprised of the exposure to domestic violence, early exposure to substance misuse and interrupted schooling as having a serious effect on him. This resulted in the behavioural issues exhibited at school and caused complex developmental trauma, leading Mr Cook to cope with his trauma history through substance misuse and to gravitate to antisocial peer groups to find acceptance. He experiences, she reports, significant anxiety, never feels calm and is always in a state of hypervigilance. He has had thoughts of suicide while in custody, but has no current suicidal ideation.
At the time of his offending, he suffered a significant heroin dependency and committed the offences to obtain proceeds to fund his dependency.
Mr Cook started drinking alcohol at age 14, leading to substantial consumption, up to 25 standard drinks a day. He abstained in custody, which led to severe withdrawal symptoms.
He smokes tobacco, using, up to his arrest, about 50 grams each week, now reduced in custody to about 25 grams a week.
He first smoked cannabis when he was 13 years old. He swiftly moved to daily consumption, using about “an ounce a day”. At the time of his arrest, he was spending $50 a day on the drug.
He was introduced to heroin by a friend when he was 19 years old, but soon became dependent and his use escalated so that he was spending at least $150 to $200 a day. He said he used every day since becoming dependent, but a later report suggested that he did have a period of abstinence.
He has used unprescribed benzodiazepines initially to decrease his heroin use, but later used them actually to enhance the effect of heroin use.
He has occasionally used cocaine, MDMA/Ecstasy, fentanyl and unprescribed oxycodone.
Mr Cook has had very limited formal alcohol and other drug treatment. He was placed on a methadone maintenance program in 2017 and lasted between eight and 12 months, during which he said that he did not use heroin. He was later prescribed Buvidal, a long-acting buprenorphine, an opioid maintenance therapy, but ceased prior to entering a for-profit residential drug rehabilitation facility in Victoria in 2018. He only stayed for 30 days, however, of the three-month program.
He resumed use of buprenorphine as unprescribed medicine and when he entered custody he showed cannabis and opiates on the urinalysis on reception. He has, however, abstained from heroin and other drugs, as well as alcohol, since he has been in custody.
Mr Cook has a more modest criminal history than many seen in this Court. [Redacted for legal reasons]. As an adult, he has 19 offences on his record, one of which was of assault or obstructing police in Queensland in 2010. In the ACT, the offences are mostly traffic offences, including four offences of driving while his driver licence was suspended. Also recorded are two offences of failing to appear in accordance with a bail undertaking and one of using number plates calculated to deceive. He has, it appears, spent no time in custody until he was arrested for these offences. He does, as noted above (at [52]), have a prior offence of driving whilst he had a prohibited drug in his oral fluid or blood.
While in custody, he has been employed in the catering unit where he is described as able to follow directions and work independently, arriving on time and working well in the allocated tasks. He interacts well with the paid and detainee workers in the catering unit. He received no negative feedback from his supervisor while on probation. The manager of catering services of the Alexander Maconochie Centre is happy to have him working in the kitchen.
He has also successfully completed the Thrive program while in custody, as noted above (at [9]).
Mr Cook has the support of his father, who says that, on his release, he may stay with him and his “very supportive partner.” They will, Mr Cook Senior writes, help him stay on track and become the “hardworking, loving, generous and happy person he is.”
He has also been offered a place at the Justice Housing Program. The Justice Housing Program placement has been assessed as suitable for him on a Treatment Order. Unfortunately, at this stage his father’s address has not been assessed, although one expects that it will be assessed as suitable.

The difficult task of a judge sentencing an offender to a just and adequate sentence is made easier by identifying the purposes to be achieved by the sentence. These can, of course, pull in different directions, but must be synthesised ultimately into a single sentence.
In this Territory, this has been made easier by the statutory identification of the purposes of sentencing in s 7 of the Sentencing Act. These purposes have been considered.
The offences of aggravated burglary and theft are serious offences and they are real attacks on the victims in their daily activities, as well as disturbing the peace of the community. Thus, punishment is an important purpose and it also reinforces society’s norms. The protection of the community will also be enhanced if the sentence deters others from committing such offences.
That protection will also be enhanced if Mr Cook is himself deterred from committing such offences again. Given his circumstances, however, were he able to manage his drug dependency to become abstinent, he is more likely also to become crime free and that will most surely protect the community.
Nevertheless, the sentence must denounce the conduct involved and make Mr Cook accountable for his actions. Finally, the harm done to the victims, less in this case than in many others, needs also to be recognised.
It is clear, and not disputed by either counsel, that Mr Cook's personal circumstances, and in particular his severe childhood disadvantage, will reduce his moral culpability. See Bugmy v The Queen.
Similarly, his mental condition, which also stems largely from that disadvantage, will affect the way that the sentence should be imposed. This has been set out in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32]. In particular, it also reduces his moral culpability and moderates the role of general deterrence and to some extent the role of specific deterrence.
Mr Cook has shown insight into his offending and has shown signs of rehabilitation in custody. He has experienced some remorse, to an extent, confirmed by his plea of guilty. His criminal history is not particularly extensive and, while it does reduce the leniency available to him, care must be taken not to exaggerate the seriousness of offending, nor punish him twice.
Account is taken of the nature and circumstances of the offending that Mr Cook has committed and his subjective circumstances, which have been earlier described (see [61]–[84]). There is no Victim Impact Statement, but the Court has a general understanding of the general harm they have suffered.
All the other matters already referred to are taken into account. The offences set out in the List of Additional Offences are taken into account, as is required.
Having considered all these matters and all the alternatives, no other alternative than imprisonment is appropriate: s10 of the Sentencing Act.
There are, of course, seven offences. A sentence must be imposed on each and the length of each sentence has been carefully considered to ensure that it is just and adequate, but also to ensure that Mr Cook is not punished twice.
Consideration must also be given to whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is relevant here in two ways. The offences are really all part of the same course of conduct and this appears to require a moderation of the totality of the sentences. The thefts are also associated with the aggravated burglaries and the level of concurrency referred to above must take that also into account.
The length of the total term of the sentence arrived at has then been considered to ensure that the principle of totality is respected. The total sentence must adequately reflect the criminality of the offences committed, but no more than that, and the total sentence must not be excessive, but leave open the realistic prospects of reform and maintain the hope required for Mr Cook to take an effective part in the community, especially reconnection with his family, and to realise his aims when he is released.
This may result in what is seen as some leniency, in that some sentences are made concurrent, but, while the total criminality of Mr Cook is an important factor, his growing awareness of the need for rehabilitation is also important, as is the circumstance of his early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr Cook’s subjective circumstances, and the value of reform to both the community and himself.

Mr Cook has made a request that he be able to address the issues that have facilitated his offending, especially his longstanding drug use, through the making of a Treatment Order. Thus, the Court must then consider whether a Treatment Order should be made. In the first place, it is necessary to consider whether he is eligible for such an Order. That requires consideration of the requirements set out in s 12A of the Sentencing Act.
On his pleas of guilty, Mr Cook has been sentenced to imprisonment for the offence of aggravated burglary for 12 months. For all the offences for which he has been sentenced to a term of imprisonment, he has been sentenced to a total of two years imprisonment. These terms meet the first requirement for eligibility, being a term of imprisonment for the primary offence, the offence of aggravated burglary, of 12 months and a total term, including that for all offences, of two years, the eligibility being a sentence of 12 months or more and a total term of four years or less. The offences for which he has been sentenced are eligible offences.
It is noted that Mr Cook is not subject to any other Sentencing Order within the meaning of s 12A of the Sentencing Act.
The unchallenged Suitability Assessments, as well as the report of Ms Edwige, describe his long and serious drug dependency. That of the Alcohol and Drug Services Assessment assesses him as having a likely severe substance dependency, especially on heroin, at the time of his offending. Ms Edwige describes it as an opioid use disorder. Described as polite and obviously compliant when being assessed, as well as engaged, he reported that his use was relevant to his offending. None of these assessments were challenged, from which it more confidently can be found that he is dependent on illicit drugs, especially heroin, and that this contributed to his offending.
Mr Cook has been based in Canberra all his life, apart from the early period in Queanbeyan. If his father's residence, where he proposes to live, is assessed, as suitable for one subject to a Treatment Order, then he will remain in Canberra for the period of the sentence. Further, he has a placement at the Justice Housing Program, which is, by the nature of the program, suitable. Thus, the original recommendation in the Suitability Assessment that he was unsuitable for a Treatment Order because he had no residence that was suitable, is now no longer relevant. There is a place available for him at the Justice Housing Program immediately and it is hoped that his father's residence will be assessed as suitable, and he can reside there. Therefore, it is satisfactorily shown that he will remain in Canberra for at least the next two years.
Mr Cook has given informed consent to the making of a Treatment Order. He signed the relevant consent form, which shows that he has had such an Order explained to him in clear terms and that he has had a chance to make a balanced judgment about whether to consent to it or not. He has had the opportunity to ask any questions about the Order and his obligations under it and had any such questions answered.
Mr Cook is, accordingly, eligible for a Treatment Order to be made. The next question is whether he is suitable for such an order.
For that purpose, the comprehensive and expertly prepared Suitability Assessments have been carefully considered. While they recommended that he was not suitable, this was based on the problem of his accommodation and that has been resolved. Regard has also been had to the details of the facts and opinions in the Suitability Assessments on which his assessment is based and apart from that issue of accommodation, it is clear that he is now suitable.
Neither counsel opposed the making of the Order. Further, there are no indications of unsuitability, as listed in table 46K of the Sentencing Act, that need to be addressed.
A comprehensive Case Plan has been prepared by the Alcohol and Drug Services, which is consistent with the recommendation by ACT Corrective Services. It is appropriate and adequate. Arrangements can be made to deliver that programme.
Accordingly, the making of a Treatment Order is suitable for Mr Cook and the Court will make one.
The sentence imposed on Mr Cook commenced some time before today and any sentence of imprisonment must be fully suspended for a Treatment Order. That, of course, can only commence today. For the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], this does not prevent the making of a Treatment Order.

You are directed to appear in Court in person on Friday 18 March 2022 at 11.30 am.
You are directed to attend the Court Registry before you leave the Court precinct to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 for the period during which this Order is in force.
Mr Cook, that is a lot of words. You have been around the courts a bit, so you probably understand most of what I am saying and, of course, most of it is about who you are, what you did and where you have been, but I am required to explain the Order briefly to you.
In effect, I have said that these offences are serious offences and are not to be taken lightly, but, nevertheless, there are circumstances that mean that most serious sentencing is not required in this case. I have imposed a total sentence of two years, much of which you have already served because you have been in custody for a long period of time.
The balance of that period will not require you to spend any more time in prison, unless I cancel the Treatment Order. I have made a Treatment Order and that puts you under supervision both of the Court, but also of members of what we call the Treatment Order Team, and that is people from Health, people from Corrective Services, people from the Director of Public Prosecutions and you will have a new lawyer. Ms Musgrove has represented you expertly and very helpfully, but Legal Aid will take over from here and you will have a lawyer appointed from Legal Aid to assist you.
You will now be given a Treatment Plan with some contacts and some arrangements for you to access treatment, counselling and other things. You will have to attend, for instance, this Court every Friday for some months to come and you will have to undergo urinalysis every Monday, Wednesday and Friday at this Court. You will have to undertake some treatment, counselling and you will have to undertake case management.
These are all there to support you if you are genuine and committed about managing your dependency. You will always be dependent, that will not ever go away, but the force with which it is attached to you will diminish over time and you will learn in the treatment mechanisms to prevent relapse, to avoid going back into that scene, and in particular, hopefully, to avoid you committing any further offences.
Now, that will take strength from you. You will have to put your shoulder to the wheel. You have shown that you can work. You worked for a long time in the community, you worked in the AMC. You can do that. You will have to put some effort and strength into that.
One of the really important things is honesty. Be honest with your counsellors, be honest with your case managers, be honest with the Court. Also, however, be honest with yourself. It is very easy to say, “this is not so serious and it won’t matter if I just slip up a bit, that's okay.” Be honest with yourself and say, “this is not what I want.” This is not what you want to do and where you want to be.
If you want to reconnect with your family and to be a father to your kids, then you need to manage your drug use, because if you do not, you will be in and out of prison. You will be using drugs and that will not be the kind of role model that you want to give to your kids. So, there is that motivation too.
You have spent a long time in prison now, which, it appears, is the first time you have really been in prison. I hope you have by now found that this is not the place you want to be. You want to be out in the community where you can participate, you can continue to work, which obviously gave you some satisfaction. You can interact with your father and you can interact with your kids. You can get on with your life and make something of yourself, which you clearly can do if you want to.
So here is your opportunity. Work with the Team members. They are listed there and you will come and see me on Friday to check in and show how it all works. Interact with us. Open up. It will be difficult. There will be times of stress. There will be times when you might even fall off the perch. You might even use. I do not want you to use. If you are honest about it and confess that we can go easier on you, but you will have to be sanctioned because that is a no-no. No alcohol, no drugs.
Some alcohol use might be allowed later, but you might feel that you really do not want to get back there. It is a waste of money that you could save up for your kids and save up for you to get a house and live with your family again, a partner again, and so on. That is up to you, but certainly no drugs. If you take some, confess; but do not take them.
If things are getting tough for you, come and talk. Let me know what is going on. As a Judge, I have got quite extensive powers. I have not got absolute power, so I cannot solve everything, but it is amazing how I and the people that work with me can assist in solving many of those problems. If things are not going well, let us address them. It may be that we can amend the Order, we can fix something, and we can make it go right.
It will be supportive, but it will be tough. You have got to commit yourself to it and you have got to commit yourself for 14 months, from now until May next year. Hopefully that will be enough. If it is not, there are options and we can advise you of those options to continue the support because there are many agencies out there who can assist you.
Do not put your head in the sand. Do not run away, do not commit any further offences, do not get on the drugs. If any of that happens, come back. Come and talk to us, see what we can do. I am not saying there will not be occasions when what you have done is so bad that you will have to spend a short period in custody again, but if you run away, if you commit further offences, if you keep taking drugs, not the one-off but keep taking drugs, then the Court will have to cancel the Order and send you back to prison for the balance of the period, though street time does not necessarily count.
That is not a threat. I am not trying to frighten you. You need to understand what the circumstances are. I hope you understand that. If you do not, there are people in the Treatment Team who can explain it to you. You can get onto them and ask them any questions: “what do I do now? How do I deal with this?” et cetera, and then on Friday you can come and tell me what is happening. If there are any problems, we can deal with them.
I hope you will be able to access the Justice Housing house tonight. If you cannot, I am happy for you to live with your father tonight, but to get into Justice Housing tomorrow, because until your father's house is approved, there is going to be an issue.
If there is a problem, as I say, it is not in the Order, but you will have to report to me and you will tell me what happened and I will say, “well, it is a breach of the Order technically, but I am going to take no action because I approved that.” It is important, however, that if you are in a place that it is suitable. I am hoping, and I have every expectation, that your father's place will be suitable and if he and his partner can assist you to comply with all these obligations, then that is more likely, I hope, to make it work.
That is what we are here for; to make it work. You need to step up, you need to commit yourself, you need to be honest, and you need to partner with us in this program. It only leaves for me to say good luck, I hope it works, and I will see you on Friday.

R v Cook [2022] ACTSC 381

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