CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - particular offences - property offences - theft - aggravated burglary - in company - significant criminal history for offences of same type - plea of guilty - prospects for rehabilitation guarded - remorse - sentenced to terms of imprisonment.

Crimes (Sentence Administration) Act 2005 (ACT) s 151

R v Barrett [2014] ACTSC 78

R v Flynn (Unreported , Supreme Court of the Australian Capital Territory, Refshauge ACJ, 3 October 2013)

R v Howlett (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 31 May 2013)

R v Rubino (Unreported, Supreme Court of the Australian Capital Territory, Murell CJ, 16 December 2013)

Legal Aid ACT (Offender)

1. Christopher Crawford, you have entered pleas of guilty to three counts of aggravated burglary with intent to commit theft and three counts of theft. All of these offences occurred on 15 June 2015 and with each of the burglary offences the circumstance of aggravation was that you were in company. The maximum penalty for the offence of aggravated burglary is 20 years imprisonment, a fine of $300,000 or both. The maximum penalty for the offence of theft is 10 years imprisonment, a fine of $150,000 or both.

2. You were arrested for these offences on 7 August 2015 and you appeared before the Magistrates Court later that day. You were remanded in custody until 28 August last year. On that day you entered pleas of guilty to all of the charges. As such, I accept that your pleas are early pleas, although the case against you is very strong. Your pleas had utilitarian value and reflect a degree of remorse.

3. Between 1.30 am and 5.00 am on 15 June 2015 you, in the company of two other males, on three separate occasions, entered a building as a trespasser and stole property. On the first occasion you entered the Kingswim Swimming Centre in Calwell (the Kingswin Centre) by forcing open the rear door of the centre. The offence was recorded by closed circuit television. You were carrying a mallet and one of your

co-offenders carried a jemmy bar. You were also wearing a glove on your left hand. You used your gloved hand to open and search through the cash register drawer in the front reception area. The office and reception areas were ransacked and property strewn on the floors and drawers and cupboards were left open. A safe, cash box and cash in the amount of $1,149.90 was stolen from inside the centre. None of that property was recovered.

4. Forensic examination revealed tiny diamond shaped glove marks inside the office cupboard that you had opened. That examination also located tool marks above the latch of the rear door. The tool marks were leveraged indentation marks consistent with a flat bladed implement of approximately 25 millimetres in width being used.

5. At about 3.30 am on the same morning an aggravated burglary occurred at the Sound Advice store in Fyshwick. The office area inside the store was ransacked with property strewn on the floors. A quantity of electrical property, five sets of car keys and a small amount of cash was stolen. The total value of this stolen property was $5,096.00. Before leaving the store you left behind a black left hand glove you had been wearing. The glove had tiny diamond shaped markings on the outside which matched the markings located inside the office cupboard in the Kingswim Centre. DNA that was inside the glove matched your DNA profile. Tool marks below the latch of the front door frame matched those that were located at the Kingswim Centre.

6. A label printer, which was stolen during the burglary, was later located on

24 June 2015 inside the boot of an abandoned Audi A3 sedan. That vehicle had been reported as stolen on 11 June 2015. Apart from the label printer the other stolen property was not recovered.

7. At about 4.50 am on 15 June last year, the third aggravated burglary occurred at the Coffee Guru store in Bonner. Security cameras recorded you and two other males exiting an Audi sedan parked directly in front of the front door of the shop. The three of you matched the descriptions of the three males in the security footage from the Kingswim Centre. The front door of the shop was forced open by one of your

co-offenders using a jemmy bar. You and your cooffenders entered the store and you were observed searching behind the front counter. At 4.58 am you and your

co-offenders exited the store carrying a number of items. You all entered the parked Audi vehicle which then drove away.

8. The kitchen and front counter areas of the shop were ransacked during the burglary with property and food strewn on the floors. The store safe was forced open and the cash register opened and searched. Cash and a quantity of food items were stolen from the store. The total value of the stolen property was $187.20. None of that stolen property was recovered.

9. On 7 August 2015, a search warrant was executed on your residential premises. You were placed under arrest and subsequently participated in a recorded interview in which you denied having ever been inside the Kingswim Centre at Calwell, the Sound Advice store in Fyshwick or the Coffee Guru shop in Bonner. After being shown a photograph of the black glove found inside the Sound Advice store you denied any previous knowledge or contact with the glove. You said that you did not know how your DNA came to be located inside the glove.

10. You have a particularly lengthy and significant criminal history, including multiple convictions for burglary, aggravated robbery, theft and offences of violence. At the time that you committed the present offences you were on parole for an offence of recklessly inflicting grievous bodily harm for which you were sentenced to four years imprisonment commencing on 25 August 2011 with a non-parole period of two years and nine months. The Sentence Administration Board will ultimately be required to deal with your parole order under s 151 of the Crimes (Sentence Administration) Act 2005 (ACT). You are entitled to no leniency in sentencing for the present offences based upon your history.

11. I have had the benefit of a Pre-Sentence Report dated 21 January 2016, which was prepared for the current proceedings and an early Pre-Sentence Report dated 5 September 2012, which was prepared for sentence proceedings for the offence of recklessly inflicting grievous bodily harm.

12. You are currently 29 years old and reported a childhood marked by significant disadvantage, neglect and exposure to substance abuse and violence. You come from an Indigenous background, characterised by instability and your mother was reportedly an alcoholic. You were left with your grandmother from when you were eight years old for a period of five years. You were then briefly reunited with your mother before she brought you to Canberra.

13. In the 2012 Report you reported two prior long-term relationships, both of which appear to have been characterised by jealousy on your part and by mutual drug abuse. In the recent Report you reported being in a relationship for approximately two years and stated that you have been living with your partner and her three children for the last 12 months. You reported that this had been a generally positive relationship but your partner's diagnosis with cancer and subsequent treatment had been stressful in the months prior to your arrest.

14. Contact with your partner confirmed a supportive relationship remained, although the commission of these offences at a time when she was experiencing critical health issues has affected the relationship. Your partner indicated that she expects you to undertake and complete a 12 month rehabilitation program and that you would not immediately be returning to live with her and her children.

15. In the most recent Report you confirmed your links to the Ngunnawal people and expressed a hope to attain more cultural knowledge and strengthen your community connections as you believed that this could challenge your current lifestyle. The author of the Report noted your positive participation in NAIDOC events and in programs and services offered by Winnunga Nimmityjah Aboriginal Health Service.

16. You were expelled from school soon after commencing your secondary education but you have subsequently completed numeracy and literacy courses during periods in custody as a juvenile. You reported a history of employment, although your longest period of continuous employment was said to be six months.

17. You have a long history of alcohol and poly-drug abuse commencing at a young age, including a history of abuse of alcohol, cannabis, heroin and methamphetamine. You told the author of the most recent Report that you had mostly abstained from alcohol and substance abuse in the period leading up to these offences due to the influence of your partner. You stated that these offences occurred during a relapse. I note that the result of tests undertaken during the period when you were subject to a parole order confirmed that you were not using illicit substances at the times you were tested. A selfadministered drug use questionnaire which you completed on 22 October last year indicated a severe degree of issues relating to drug use.

18. The early Pre-Sentence Report indicated that you attempted to participate in a residential rehabilitation program in 2005 and again in 2011. On the first occasion you were suspended from the program after three weeks when it was alleged that you stole items from the Salvation Army store. You were told you could be reinstated into the program after 21 days if you were to provide three urinalysis samples each week that were free of illicit drugs. You did not provide those samples as directed and consequently you were not reinstated into the program. On the second occasion you lasted less than a month before discharging yourself after a dispute with staff.

19. Whilst in custody on this occasion you reportedly attempted to maintain contact with a number of residential rehabilitation facilities with a view to being assessed for entry. At the sentence hearing I was provided with a letter from Karralika dated 27 January this year confirming that you had been assessed for admission to their program and you were currently awaiting approval to go on a waiting list for that program. This approval was subject to supplying confirmation from Alexander Moconochie Centre (AMC) staff that you had completed a methadone reduction program whilst in custody. I note that I was subsequently advised by your counsel that you have now weened yourself off methadone.

20. You have a history of epilepsy which is well controlled when you are in custody but your compliance with treatment outside of the custodial environment is said to be poor. You have no confirmed diagnosis of mental illness although the recent Report notes that you have presented with indications of psychological distress and suicidal ideation in the past.

21. The most recent Pre-Sentence Report notes that you admitted to participating in these offences. You said that you were under the influence of methamphetamine at the time, which you had relapsed into using because you were not coping with your partner's ill health. You also suggested that the commission of these offences might have assisted you to ease the financial stress that you and your partner were feeling at that time. You expressed remorse for your actions and how they impacted upon your partner. You acknowledged the need to address issues which result in relapses into substance abuse and said you needed to attend a residential rehabilitation program.

22. A Court Alcohol and Drug Assessment Service (CADAS) Report dated 12 October last year, together with a Progress Report dated 28 January this year, were tendered at the sentence hearing. The CADAS Report notes your dysfunctional and disadvantaged childhood, together with the ongoing stressors in your life. It confirms your history of alcohol and drug abuse commencing at an early age. The author of the Report stated that you reported that you were being treated for depression and that you had experienced some suicidal thoughts when initially remanded in custody.

23. At the assessment on 7 October last year, you denied any current thoughts of

self-harm. It was noted that you had been on and off methadone since age 16 and that in October 2015 you were reducing your methadone. You told the author of the Report that you planned to cease methadone use as you were hoping to enter a residential rehabilitation program. The Report confirmed that you had contacted a number of facilities inquiring about assessment and admission. As I said, at the sentence hearing your counsel informed me that you have now ceased methadone use.

24. On the material before me I am satisfied that you are a 29 year old Indigenous man from a disadvantaged background who grew up in a dysfunctional family environment. Undoubtedly, the effects of your disadvantaged background continue to affect you to this day. It is hardly surprising, considering your background, that you commenced alcohol and drug abuse when you were still a child. I am satisfied that you were under the influence of an illicit drug, methamphetamine, when you committed these offences.

25. Ordinarily the fact that an offender is under the influence of an illicit drug at the time they commit an offence provides little, if any, mitigation of penalty. This principle is not applied with the same rigour where the offender suffers from a drug addiction stemming from drug use commenced at an early age because the offender cannot be said to have had the same degree of responsibility for commencing drug use as a child as opposed to commencing drug use as an adult.

26. It is difficult to assess the degree to which you are remorseful for these offences. I take into account that you have expressed remorse for your participation in these offences and, on balance, I accept that your early pleas of guilty demonstrate a degree of remorse. Having said that, I would assess you as at high risk of reoffending due to your criminal history, your long history of alcohol and drug abuse and your tendency to resort to alcohol and drug abuse to deal with stressors in your life.

27. I am satisfied that your risk of reoffending would be significantly reduced if you participated in appropriate drug and alcohol programs and counselling. Of course these measures will only be of benefit if you willingly engage in those programs with a view to addressing factors likely to lead you to reoffend. It is to be hoped that your relationship with your partner and children will provide you with the motivation to engage in appropriate programs, both in custody and when released, to try to break out of the cycle of drug abuse, reoffending and imprisonment in which you are currently engaged. It is encouraging that you were apparently drug free during the period that you were on parole until your recent relapse. At 29 years of age there is still hope for your rehabilitation, although as time passes, if you continue to reoffend, rehabilitation will become of less importance.

28. You are not yet a confirmed criminal but you are well on the path to becoming one and spending most of your life in prison. Your prospects for rehabilitation must be considered guarded, although it is again encouraging that you have demonstrated interest in undertaking drug and alcohol rehabilitation during your present period in custody. Your criminal history, however, speaks of the need for deterrence to play a significant role in sentencing you for these offences. Each of these offences were committed at commercial premises in the early hours of 15 June last year when the premises were unoccupied and vulnerable. On each occasion entry was forced into the premises and the premises were ransacked. I take into account that the value of the property stolen on each occasion was not particularly significant but that is simply a function of the nature of the property that was available to be stolen.

29. It is clear that there was an element of planning and premeditation with respect to these offences. You attempted to conceal your identity so as to avoid detection. It is also of some significance that these offences were committed some hours apart and at different locations in Canberra. It may be, as your counsel submitted, that the property which was stolen was not likely to be of sentimental value and as such, these offences may not have invoked the same feeling of violation that would accompany a burglary of residential premises. Nevertheless, such offences involve an intrusion into the businesses of members of the community and impact on the lives of the owners of businesses and their employees. Where such premises are covered by insurance, the losses occasioned through burglary are spread across the community.

30. I was taken to a number of authorities concerning sentencing for aggravated burglary where the circumstance of aggravation was being in company. In R v Barrett [2014] ACTSC 78 on 21 March 2014, I imposed a sentence of two years and nine months imprisonment on each of three counts of aggravated burglary on commercial premises. The offender had a lengthy criminal history and was in a stable relationship of many years standing. He came from a disadvantaged background. Whilst in custody awaiting sentence he had taken significant steps to deal with drug and alcohol issues and I assessed him to have good prospects of rehabilitation. I allowed a reduction of 20 per cent for his pleas of guilty.

31. In R v Rubino (Unreported, Supreme Court of the Australian Capital Territory, Murell CJ, 16 December 2013), Murrell CJ imposed sentences of four years and five months imprisonment for each of three offences of aggravated burglary. The offender was

26 years of age at the time of sentencing and in a permanent relationship with two young children. He had a significant criminal history. He also had a very long history of poly-substance abuse commencing at an early age. He had a diagnosis of bipolar disorder, although her Honour was not satisfied that this diagnosis lessened his moral culpability for his offending.

32. In the R v Howlett (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 31 May 2013), Higgins CJ imposed a sentence of three years and six months imprisonment for an offence of aggravated burglary, reduced from four years in light of the offender's plea of guilty. The offender was 32 years old and was introduced to substance abuse at an early age. The offender had a prior criminal history, although the extent of that history is not clear from the sentencing remarks.

33. In R v Flynn (Unreported , Supreme Court of the Australian Capital Territory, Refshauge ACJ, 3 October 2013), Refshauge ACJ also imposed a sentence of three years and six months imprisonment for an offence of aggravated burglary, reduced from four years in light of the offender's plea of guilty. The offender had a very significant criminal history, came from a disadvantaged background in which he had been encouraged to commit crimes as a child by his parents, and was introduced to substance abuse at an early age.

34. Having considered all of the evidence, in my opinion nothing less than immediate terms of imprisonment are appropriate for the present offences. Your counsel submitted that you have previously completed the Solaris Program within the AMC and there is nothing to suggest that you could not benefit by participation in therapeutic programs in custody. Nevertheless, I intend to impose a shorter than usual non-parole period with a view to you being directed to undertake a residential rehabilitation program by the Sentence Administration Board as part of your conditions of release on any parole order. I would recommend to the Sentence Administration Board that your conduct in custody be carefully considered before early release on parole to attend a residential rehabilitation program is contemplated. I particularly recommend that the Sentence Administration Board consider your history of participation in counselling and programs within the AMC directed towards rehabilitation from drug abuse.

35. All of the offences took place within a period of three and a half hours so that a significant degree of concurrency between the sentences is appropriate. For all intents and purposes each aggravated burglary and its associated theft offence will be treated as a single offence so that I will make concurrent the sentences for each aggravated burglary and the associated theft. Some degree of accumulation of the sentences for each of the aggravated burglaries is, however, appropriate.

36. On each charge of aggravated burglary I record a conviction and I impose a sentence of three years and two months imprisonment, which I have reduced from four years because of your pleas of guilty.

37. The first such sentence for the offence at the Kingswim Centre will commence on

7 August 2015 and expire on 6 October 2018. For the associated offence of theft, I record a conviction and I impose a sentence of eight months imprisonment to be served concurrently.

38. On the second charge of aggravated burglary, the offence at the Sound Advice store in Fyshwick, the sentence will commence on 7 January 2016 and expire on

6 March 2019. For the associated offence of theft, I record a conviction and I impose a sentence of eight months imprisonment to be served concurrently with the sentence for this aggravated burglary.

39. On the third charge of aggravated burglary, the offence at the Coffee Guru store in Bonner, the sentence will commence on 7 June 2016 and expire on 6 August 2019. For the associated offence of theft, I record a conviction and impose a sentence of eight months imprisonment to be served concurrently with the sentence for the aggravated burglary.

40. The aggregate head sentence which I have imposed is, therefore, one of four years imprisonment, commencing on 7 August 2015 and expiring on 6 August 2019. I would ordinarily have set a non-parole period of 32 months but I will reduce this to 23 months to enable the Sentence Administration Board to grant you early release into a residential rehabilitation program if the board considers it is appropriate to do so at the time that your non-parole period expires, particularly having regard to your progress in custody. There will, therefore, be a non-parole period of 23 months commencing on

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.