CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - theft - burglary - aggravated burglary - robbery - ride in a motor vehicle without consent - damage property - pleas of guilty and guilty verdict.

Criminal Code 2002 (ACT) ss 308, 310, 311, 312 and 318

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

Supreme Court Act 1933 (ACT) s 68B

Barrett v The Queen [2016] ACTCA 38

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Taylor v R [2014] ACTCA 9

R v Crawford [2016] ACTSC 44

R v Crawford (No 2) [2016] ACTSC 359

R v Hutchinson (ACTSC, 4 April 2013, Higgins CJ, unreported)

R v Monaghan (ACTSC, 11 December 2012, Refshauge J, unreported)

R v Miles [2015] ACTSC 162

SCC 27 of 2016 ; SCC 83 of 2016 ; SCC 153 of 2016

1. On 2 December 2016, the offender pleaded guilty to 21 of 29 counts in an indictment dated 29 August 2016. He pleaded not guilty to one count in the indictment and went to trial before me sitting without a jury. He was convicted on 6 December 2016 (R v Crawford (No 2) [2016] ACTSC 359).

2. The offender is now to be sentenced in respect of 24 counts, including the 21 for which he pleaded guilty on 2 December 2016, the one on which he was found guilty, and the two in respect of which he pleaded guilty on 6 December 2016.

3. The facts of the matter that went to trial can be found in the judgment cited above. The specific charge was:

That on 31 May 2015 at Canberra in the Australian Capital Territory, Peter Michael Crawford committed robbery in company with two unknown persons and at that time had an offensive weapon with him.

4. The facts of the other offences appear in the Statement of Facts (Exhibit A). The pre-sentence report indicates that, in respect of the offences to which the offender pleaded guilty, he agreed with the descriptions given and accepts responsibility for his actions. The offender continues to maintain his innocence in respect of the offence for which he was found guilty.

5. The offender was born in 1983. He did not have a normal childhood. He was removed from his mother's care because she was an alcoholic. He found school difficult. He spent seven of his formative years in a "boys' home". Most of his adult life has been spent in custody.

6. The offender is of Aboriginal background and is one of seven children. He does not have much contact with his family. The exception is an aunt, to whom he is quite close. The offender's aunt may be moving to Queensland in the near future. She would apparently be happy for the offender to join her, in the hope of taking him away from the Australian Capital Territory, where he is often in trouble with the law.

7. The offender's background squarely raises the considerations stated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. Paragraphs [37] and onwards are particularly relevant.

8. The offender's problems with drugs and alcohol are long-standing. The offender has abused alcohol and used a range of illegal drugs. This matter was initially listed for sentence on 3 March 2017. The offender made an application for an adjournment in order to be assessed for Foetal Alcohol Syndrome (FAS). I allowed that adjournment.

9. When the matter came back before me on 4 May 2017, another application was made for the same purpose. The evidence (Exhibit 1) established that, while efforts had been made to arrange the assessment, it had not yet been carried out. The Crown consented to a further adjournment, which I granted.

10. On 25 August 2017, I was informed that a FAS assessment could not be arranged. The matter was set down for sentence today.

11. Although testing has not been carried out, the offender did obtain a report from Dr Visser, a clinical psychologist (Exhibit 2). The offender's early exposure to alcohol forms a central part of Dr Visser's opinion. In discussing a diagnosis of Attention Deficit Hyperactive Disorder (ADHD), he stated:

Adult ADHD as an alternative diagnosis to ND-PAE (Neurobehavioural Disorder associated with Prenatal Alcohol Exposure) was unable to be ruled out. However, when the teratogenic effect of heavy foetal alcohol exposure is taken into account, a neurodevelopmental disorder such as ND-PAE provides a more comprehensive explanation of his symptoms. This condition shares many similar symptoms to ADHD in relation to impulse control, poor attention span, and difficulty with executive functioning but also includes behavioural and learning difficulties, both of which are prominent in his history. The effect of these symptoms has meant that Mr Crawford has a lower ability to see the consequences of his actions, does not place the same weight on those consequences, and does not learn as quickly as others from punishment.

12. I intend to take into account both the offender's deprived background and the likelihood of his mother's alcohol consumption during pregnancy having had an effect on him. This is despite the fact that a specific diagnosis of Foetal Alcohol Syndrome has not been made.

13. The offender has attempted to engage in programs to help him with his drug use. He completed the Solaris Therapeutic Community Program in May 2017. He is said to have been "well engaged in the program".

14. The offender's criminal record (Exhibit A) is extensive and covers many offences similar to the crimes for which he is to be sentenced.

15. The offences are almost exclusively ones of burglary, aggravated burglary, aggravated robbery and theft. There is one offence of riding in a motor vehicle without consent and one offence of damage property.

16. The theft offences are contrary to s 308 of the Criminal Code 2002 (ACT). Each offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.

17. The burglary offences are contrary to s 311 of the Criminal Code 2002 (ACT). Each offence carries a maximum penalty of a fine of $210,000 and/or 14 years imprisonment.

18. The aggravated burglary offences are contrary to s 312 of the Criminal Code 2002 (ACT). Each offence carries a maximum penalty of a fine of $300,000 and/or 20 years imprisonment.

19. The aggravated robbery offence is contrary to s 310 of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $375,000 and/or 25 years imprisonment.

20. The offence of dishonestly ride in a motor vehicle without consent is contrary to s 318(2) of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $75,000 and/or 5 years imprisonment.

21. The damage property offence is contrary to s 403 of the Criminal Code 2002 (ACT). The offence carries a maximum penalty of a fine of $150,000 and/or 10 years imprisonment.

22. A number of the offences were carried out in company with another person; namely, Mr Christopher Crawford, the offender's cousin. Mr Christopher Crawford was sentenced in respect of the offences in which he took part by Burns J on 26 February 2016 (R v Crawford [2016] ACTSC 44). His Honour's reasons for sentence are included in Exhibit A. Both parties agreed that, in respect of the sentences in which both the offender and Mr Christopher Crawford took part, there should be parity in sentencing.

(a) Using the count numbers applicable to the offender before me, both offenders were involved in counts 23, 24, 26, 27, 28 and 29.

(b) The six counts are made up of three counts of theft and three counts of aggravated burglary. For each of the counts of theft, Mr Christopher Crawford was sentenced to eight months imprisonment. For each of the counts of aggravated burglary, Mr Christopher Crawford was sentenced to three years and two months imprisonment.

(c) There was a degree of accumulation built into the sentence for Mr Christopher Crawford. His aggregate head sentence was one of four years imprisonment, with a non-parole period of 23 months.

24. The aggravated robbery offence (Count 9), for which the offender was found guilty, is by far the most serious offence. It is objectively serious. There were three robbers involved. One carried a machete and another had a metal baseball bat. Their actions included the making of threats against the club's employees.

25. As a result, the employees of the club were threatened and forced to take certain actions. One of the employees was so terrified that she could not enter the correct code into the combination mechanism of the safe. Her victim impact statement forms part of Exhibit A. I note here that I have also taken into account all of the victim impact statements, which detail the personal and financial effects on the respective victims.

26. There is no evidence to suggest that the offender played a greater or lesser part in the offences than his co-offenders. The fact that his co-offenders in the robbery have not been apprehended does not assist the offender.

27. The other offences included the following elements, reflecting their level of seriousness. Counts 1 and 2 involve a burglary and theft at a preschool on 11 March 2015. The preschool was ransacked and property worth a little over $2,000 was stolen.

28. Counts 3 and 4 follow a similar pattern. On 11 April 2015, an early learning centre was broken into and property valued at about $1,200 was stolen.

29. Count 5 relates to a burglary at a café on 8 May 2015. The offender and another person broke into the premises but do not seem to have stolen any property.

30. Counts 6, 7 and 8 concern an aggravated burglary and theft at a yacht club on 21 May 2015. Once again there was a break in and property, this time valued at about $600, was stolen.

31. Counts 10, 12 and 13 relate to a number of businesses in the ACT suburb of Barton. Considerable damage, to the value of about $240,000, was caused and some $1,950 in cash was stolen. The offender also drove a stolen vehicle during this enterprise.

32. Count 16 concerns a stolen vehicle that was used by the offender. Counts 17, 18 and 19 refer to the aggravated burglary, theft and damage to property in a sports club on 11 June 2015. The premises were ransacked, $1,950 was stolen from poker machines and $240,000 worth of damage was caused to the property.

33. Counts 21 and 22 involved the aggravated burglary and theft of commercial premises on 14 June 2015. On this occasion, retail premises were burgled and $350 in cash was stolen.

34. Counts 23 and 24 involved the aggravated burglary and theft of a swimming centre on 15 June 2015. The premises were burgled and property worth $1,149.40 was stolen.

35. Also on 15 June 2015, an aggravated burglary and theft occurred at commercial premises in Fyshwick. Property to the value of $5,096.00 was stolen. These offences make up counts 26 and 27.

36. Again on 15 June 2015, a coffee shop was broken into and a small number of items were taken. A stolen motor vehicle was again used. These offences make up counts 28 and 29.

37. 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 particularly 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.

38. In this case, imprisonment is inevitable. No argument was put to the contrary. No submission was made for the imposition of a suspended sentence or an Intensive Corrections Order. They are both plainly not appropriate.

39. The offender's drug use provides no excuse for the offences. However, because it is long-standing, I can take it into account, as described by Burns J when sentencing the offender's cousin:

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.

40. It is also necessary to have regard to s 33(1) (za) of the Crimes (Sentencing) Act 2005 (ACT). Some of the cases I have considered include: R v Monaghan (ACTSC, 11 December 2012, Refshauge J, unreported), R v Hutchison (ACTSC, 4 April 2013, Higgins CJ, unreported), Taylor v R [2014] ACTCA 9, Barrett v R [2016] ACTCA 38 and R v Miles [2015] ACTSC 162. I have also had regard to the authorities referred to by Burns J in his reasons for sentencing.

41. Having regard to the number of counts involved, it is difficult to achieve what might otherwise have been a proper degree of accumulation without it resulting in an overly long head sentence. The requirements of deterrence and consideration of the need for the victims, and the public, to see that the sentencing process gives due weight to the need for there to be punishment for separate offences, requires there to be some accumulation. For practical purposes, the accumulation formula adopted by Burns J, in respect of Christopher Crawford, cannot be followed.

42. In addition, I think it impractical and unrealistic to have very short periods of overlap. In an attempt to achieve a fair result, I have adopted this approach. All of the offences besides Counts 9 and 19 will receive concurrent sentences. There will be some accumulation for these two counts. The large amount of 'concurrency' is also a reflection of my taking into account the offender's background and his early subjugation to illicit drugs.

43. As I understand the Statement of Facts (Exhibit A), the offender has been in custody in respect of the subject offences for 678 days. Accordingly, the starting date for the majority of the sentences will be 17 October 2015.

44. Generally speaking, I take the same approach as Burns J in the classification of the different types of offences and will follow a similar pattern of sentencing. Count 19 deserves special mention because of the extent of the damage that was done during the commission of the offence.

45. As already mentioned, Count 9 was the most serious offence. It also attracts no discount for a guilty plea. Where there has been a plea, I apply the same discount as Burns J, of approximately 20%. After the discounts are applied, the sentences will be eight months for each theft offence, 12 months for each burglary offence, three years and two months for each aggravated burglary offence and two years for the offence of damage property.

46. After the same discount, Count 16, the offence of ride in a motor vehicle without consent, will attract a sentence of six months imprisonment.

47. Count 9, the offence of aggravated robbery, for which there is no discount, will attract a sentence of four years imprisonment.

(a) In respect of count 1, burglary (CC 5826/15), the offender is sentenced to 12 months imprisonment to commence on 17 October 2015 and end on 16 October 2016.

(b) In respect of count 2, theft (CC 5827/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(c) In respect count 3, burglary (CC 6150/15), the offender is sentenced to 12 months imprisonment to commence on 17 October 2015 and end on 16 October 2016.

(d) In respect of count 4, theft (CC 6151/15), the offender is sentenced to 8 months imprisonment, to commence on 17 October 2015 and end on 16 June 2016.

(e) In respect of count 5, burglary (CC 5831/15), the offender is sentenced to 12 months imprisonment, to commence on 17 October 2015 and end on 16 October 2016.

(f) In respect of count 6, aggravated burglary (CC 5832/15), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(g) In respect of count 7, theft (CC 5833/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(h) In respect of count 8, theft (CC 5834/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(i) In respect of count 9, aggravated robbery (CC 9303/15), the offender is sentenced to 4 years imprisonment to commence on 17 December 2015 and end on 16 December 2019.

(j) In respect of count 10, aggravated burglary (CC 5486/16), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(k) In respect of count 12, aggravated burglary (CC 5488/16), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(l) In respect of count 13, theft (CC 5489/16), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(m) In respect of count 16, ride in a motor vehicle without consent (CC 5838/15), the offender is sentenced to 6 months imprisonment to commence on 17 October 2015 and end on 16 April 2016.

(n) In respect of count 17, aggravated burglary (CC 5835/15), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(o) In respect of count 18, theft (CC 5836/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(p) In respect of count 19, damage property (CC 5837/15), the offender is sentenced to 2 years imprisonment to commence on 17 June 2017 and end on 16 June 2019.

(q) In respect of count 21, aggravated burglary (CC 5830/15), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(r) In respect of count 22, theft (CC 8892/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(s) In respect of count 23, aggravated burglary (CC 8889/15), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(t) In respect of count 24, theft (CC 8890/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(u) In respect of count 26, aggravated burglary (CC 6087/15), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(v) In respect of count 27, theft (CC 6088/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(w) In respect of count 28, aggravated burglary (CC 6089/15), the offender is sentenced to 3 years and 2 months imprisonment to commence on 17 October 2015 and end on 16 December 2018.

(x) In respect of count 29, theft (CC 6090/15), the offender is sentenced to 8 months imprisonment to commence on 17 October 2015 and end on 16 June 2016.

(y) The head sentence of 4 years and 2 months is to commence on 17 October 2015 and end on 16 December 2019.

(z) I set a non-parole period of 3 years commencing on 17 October 2015. The offender will be eligible for parole on 16 October 2018.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim