R v Dawson [2022] ACTSC 64

[2022] ACTSC 64

Supreme Court of the ACT|2022-03-31|Before: McWilliam AJ

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Supreme Court of the ACT

Decision date

2022-03-31

Before

McWilliam AJ

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Judgment and punishment – sentence – attempted burglary –
burglary – damaging property – theft – aggravated burglary
– drive motor vehicle without consent –

Source

Original judgment source is linked above.

Catchwords

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment and punishment – sentence – attempted burglary –burglary – damaging property – theft – aggravated burglary– drive motor vehicle without consent –where offender alreadyserving custodial sentence – where DATO unavailable

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 Dawson

Citation: [2022] ACTSC 64

Hearing Dates: 10 February 2022 28 March 2022

Decision Date: 31 March 2022

Before: McWilliam AJ

Decision: See [95]

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted burglary – burglary – damaging property – theft – aggravated burglary – drive motor vehicle without consent – where offender already serving custodial sentence – where DATO unavailable

Legislation Cited: Criminal Code 2002 (ACT) ss 44, 45A, 308, 311, 312, 318, 403 Crimes (Sentencing) Act 2005 (ACT) ss 12A, 27, 33, 63

Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Blundell v The Queen [2019] ACTCA 34 Crawford v Laverty [2008] ACTSC 107 Dawson v The Queen [2019] ACTCA 9 Forster-Jones v The Queen [2020] ACTCA 31 High v Willis [2008] ACTSC 88 Hili v The Queen [2010] HCA 45; 242 CLR 520 Kelly v Ashby [2015] ACTSC 346 Millard v The Queen [2020] ACTCA 20 Muldrock v The Queen [2011] HCA 39 R v BI (No 4) [2017] ACTSC 71 R v Booth [2017] ACTSC 191 R v Bright [2017] ACTSC 328 R v Crawford (No 1) [2020] ACTSC 245 R v Forrest (No 2) [2017] ACTSC 83 R v Hancock [2021] ACTSC 52 R v Horne [2017] ACTSC 333 R v John [2017] ACTSC 144 R v Leighton [2016] ACTSC 354 R v Massey (No 1) [2020] ACTSC 256 R v Moore [2021] ACTSC 333 R v Pahl (No 2) [2017] ACTSC 155 R v Parker [2018] ACTSC 55 R v Parker [2020] ACTSC 38 R v Tran [1999] NSWCCA 109 R v Wallace [2007] NSWCCA 63 R v Williams-Savage [2021] ACTSC 271 Simonds v The Queen [2013] ACTCA 13 Taylor v R [2014] ACTCA 9 The Queen v Hawkins [2015] ACTSC 333 Thomas v R [2019] NSWCCA 265

At around 2am, two men broke into the house at 84 Barramundi Street in Throsby. One of those men was co-accused West. The Crown does not assert that the other person was the offender.
The house was occupied by the home-owners, Harjit Singh and his wife, Ravinder Kaur. Ms Ravinder Kaur’s mother, Jaswinder Kaur, was also in the house. At this time, Mr Singh and Ms Ravinder Kaur were sleeping in their bedroom, and Ms Jaswinder Kaur was sleeping in another bedroom.
At some point, both co-accused (not including the offender) entered the bedroom occupied by Ms Jaswinder Kaur. Ms Jaswinder Kaur was woken by some sounds, and she then saw that both co-accused were in her room. Ms Jaswinder Kaur noticed that both co-accused were wearing dark clothing and face coverings; they were carrying torches; and that one of the co-accused was armed with a curved knife. At one point, one of the co-accused started searching the drawers and wardrobe inside the bedroom.
The co-accused who was armed with the knife pointed the knife towards Ms Jaswinder Kaur and demanded that she give them her wallet, money or keys. This co-accused also looked underneath Ms Jaswinder Kaur’s pillow, and removed her blanket, to see if she was hiding anything that they could steal. Ms Jaswinder Kaur was terrified and stayed on her bed this whole time. She tried telling both co-accused that she did not have any money or a wallet. Both co-accused eventually left Ms Jaswinder Kaur’s bedroom and went to the kitchen and towards the direction of the bedroom that Mr Singh and Ms Ravinder Kaur were occupying.
Around this time, Mr Singh was also awoken by some noise coming from the kitchen. Mr Singh opened his bedroom door and saw both co-accused in the kitchen holding torches. Mr Singh shut and locked the bedroom door and told his wife to call Police. Ms Ravinder Kaur called Police and reported the break-in. Police arrived at the house later that morning and spoke with residents of the house. Mr Singh noticed that both co-accused appeared to have opened the cupboards and drawers inside the house, and that they had stolen a number of items from the house, including:

Later that morning, at around 4:00am, the offender, co-accused West and a third male drove to 22 Cooley Crescent, Casey.
The owners of this house were Rebecca Platten-Reynolds and Chris Reynolds, both of whom were asleep at this time. Inside the garage of the house was a red Peugeot with ACT Registration “AYAA72U” (the red Peugeot), which belonged to Mr Reynolds; and parked in the front of the garage was a cream Suzuki LY Vitara with ACT Registration “YDC00L” (the cream Suzuki Vitara), which belonged to Ms Platten-Reynolds.
At about 4:15am, Ms Platten-Reynolds and Mr Reynolds were awoken by the sound of their dog barking. Mr Reynolds went to their balcony and saw two males trying to steal their cars. Mr Reynolds ran downstairs and headed to the garage yelling to Ms Platten- Reynolds that someone was trying to steal their cars.
When Mr Reynolds reached the garage, he noticed that the garage door was open. One of the males, whom the Crown asserts was a co-accused, had entered the cream Suzuki Vitara and was driving back and forth out of the driveway, and was beeping the horn. Mr Reynolds also noted that the male driver was holding a pair of pliers. Mr Reynolds also noticed that behind the Suzuki Vitara was another car that was being driven by an unknown third person. At this time, the other male, whom the Crown alleges was the other co-accused, was inside the red Peugeot with the engine running.
When Ms Platten-Reynolds went to the garage, she also noticed the car behind the cream Suzuki Vitara, which she believed was a maroon or red-coloured SUV vehicle. Around this time, the male inside the red Peugeot got out of the vehicle, carrying some property in his arms. This male ran towards Ms Platten-Reynolds, brushed past her and fled on foot. The male was followed by the cream Suzuki Vitara and the other car being driven by the unknown third parson, and eventually got inside the cream Suzuki Vitara before both vehicles left, at which point Ms Platten-Reynolds contacted Police and reported the incident.
Ms Platten-Reynolds and Mr Reynolds noted that certain items for property had been stolen by the co-accused, including:

Separately with regard to attempted burglary, I respectfully adopt what Refshauge J stated in R v BI (No 4) [2017] ACTSC 71 in relation to an attempt to commit an offence at [40]:
The “conventional view” is that an attempt to commit an offence will likely attract a lesser sentence than would the offence had it been completed: FV v The Queen [2006] NSWCCA 237 at [60]; Taouk (1992) 65 A Crim R 387 at 390; Noble (1994) 73 A Crim R 379 at 381; R v Schofield [2003] NSWCCA 3; (2003) 138 A Crim R 19 at 33; [61]; McKeagg v The Queen at 55; [21], 60; [55]; Mokbel v The Queen [2011] VSCA 34; 211 A Crim R 37 at 47; [43]; Tai v Western Australia [2016] WASCA 234. 2. That may particularly apply where the attempt is inept, the attempt could not physically succeed, or is doomed to fail: Taouk at 390; R v Schofield at 57; [139]; Couloumbis v The Queen [2012] NSWCCA 264 at [37]- [39]; R v Haidar [2004] NSWCCA 350 at [36]; Potts v The Queen [2017] NSWCCA 10 at [15]. Some authorities, however, suggest that this may make no difference: R v Spaull [1999] VSCA 18 at [11]. 3. The “conventional view” will not invariably apply and, especially in the case of drug offences, it is often regarded that the attempt is as serious as the completed offence: R v Haidar at [31]-[35] and the case there cited; Tai v Western Australia at [31]. 4. Nevertheless, the attempt to commit a serious offence remains a serious offence: Taouk at 390-1. 5. There is no clear relationship between the seriousness of the intended consequences that would follow from the substantive offence if completed and the real prospects of achieving them though the relationship must be considered: Taouk at 391; R v McQueeney at [25]. 6. Thus, where the attempt is a grave one, carried out with sophistication where it is likely to succeed in effecting the substantive offence, the attempt may be punished as severely as a completed offence: Taouk at 391; R v Schofield at 57; [139]. 7. It is relevant that, if the attempt is not completed, the harm caused by the substantive offence, a very relevant factor on sentence, will not have been caused: Irusta [2000] NSWCCA 391; 117 A Crim R 6 at 16; [47]; R v Falls [2004] NSWCCA 335 at [19]; Potts v The Queen at [15]. 8. Other factors relevant to reducing the seriousness of the attempt to commit an offence may include where the conduct which constitutes the attempt only shows a change of the offender’s mind: R v Falls at [19]. 9. It is, however, not mitigating where the charge of attempting to commit the offence rather than committing it is because the substantive offence has not been completed through “good fortune”: “C” v Western Australia at [22]; or through the intervention of law enforcement agencies: R v Mihalo [2002] VSCA 217; 136 A Crim R 588 at 596; [40]; R v Mokbel at 47; [43]; Reid v Western Australia [2012] WASCA 23; 210 A Crim R 587 at 594; [45]. 10. In the end, as most of the authorities point out, the seriousness will, as in the case of most offences, depend on all the circumstances of the case. See also Dooling v Western Australia [2012] WASCA 95 at [8]; Lovett v Western Australia [2013] WASCA 78 at [15].
In the present case, the offender’s unsophisticated attempts to enter insecure residential homes were opportunistic, with the offender quickly moving on once it became apparent that access would require causing damage to property. However, the Crown submitted that the only reason the substantive offences were not completed was the “good fortune” of the doors being locked.
I accept that the offender’s attempted burglaries here are characterised in the manner submitted by the Crown. Nevertheless, the nature of the attempts suggests that the objective seriousness of the offender’s conduct was low, emphasising that this is not to take away from the very real impact the conduct may have had on the victims.

The duration of the driving offence was brief, but this was likely due to the stop-stick tyre deflation device being deployed by police. That resulted in damage to the front driver’s side tyre of the cream Suzuki Vitara in which the offender was riding. I have disregarded the damage itself, however, the use of the stolen vehicle as a tool to pursue further offending (seeking to evade police) elevates the objective seriousness: R v Booth [2017] ACTSC 191 at [11]; R v Bright [2017] ACTSC 328 at [13(b)]. These factors place the offending in the mid-range of objective seriousness. Subjective circumstances
A Pre-Sentence Report (PSR) was provided to the Court, dated 11 February 2022. The PSR author addressed the subjective circumstances of the offender in detail, highlighting his ongoing institutionalisation, unstable living circumstances and substance abuse.
He has an extensive criminal record, with an apparent history of offending behaviour similar to those offences currently before the court, as well as breach action and unsociable behaviour while in custody. His behaviour both in the community and in custody were recorded as unsatisfactory.
The offender was raised in Western Australia and is connected to the land of the Nyamal People, located in the Pilbara Region in Western Australia. He advised the PSR author that he had connections to land and people when in his homeland, but experienced significant disruption in his formative years due to constant movement to stay in contact with family.
He has no formal education beyond a year 10 level, and limited employment history, reporting some casual work at a mine as a dump truck driver at age 22, which ended after he tested positive for illicit substance use. He reported that Centrelink benefits are his primary source of income when in the community, and advised that he had debts in the community without specifying an outstanding amount or any creditors.
Illicit substance abuse is the primary factor underpinning the offender’s behaviour. While he denies ever having a problematic relationship with alcohol, he advised he commenced daily use of cannabis at age 15 until entering custody in 2017. He also reported experimenting with methamphetamine, heroin and MDMA at age 17, and became a regular user of methamphetamine when he gained access to an expendable income. He reported that the substance had become instantly problematic for him and obtaining it became his first priority in life.
He has repeatedly attempted residential rehabilitations, but due to continued drug use, was unable to complete any program, with the exception of the Solaris Therapeutic Community program at the AMC in 2020. He reported feeling that residential rehabilitation was not appropriate for him and expressed a preference for a day program.
The offender further reported that when in the community he uses approximately one “eight ball” (3.5 grams) of methamphetamine every two days, though he vacillates between methamphetamine and cannabis use depending on availability, a habit which results in a fifty-dollar daily expenditure on cannabis.
The PSR author formed the view that the offender demonstrated limited insight into the harmful effects of his substance abuse, and stated he enjoys the way he feels under the influence of methamphetamine, reporting “if [he] could continue to use the substance and do what he enjoys while under the influence of the substance without getting into trouble he would never stop.” He advised his last use of methamphetamine was approximately two months before the PSR report was provided.
From the evidence the offender subsequently gave before the Court, the offender’s comments are to be viewed as an expression of the level of the offender’s addiction, not of any lack of understanding into the consequences of his behaviour or a lack of desire to rehabilitate. He is clearly deeply unhappy with his current life course.
In relation to the present offences, the offender advised that his behaviour was opportunistic rather than premeditated and resulted from the impulse to obtain more drugs quickly in anticipation of his parole being cancelled. While he claimed to accept responsibility for his actions, the PSR author again considered that the offender displayed “extremely limited insight” on the impact his actions had on the victims and the community, stating only that they may have become less trusting or resented him.
The offender reported having no connection to the community in the ACT and was unable to provide contact details for any person to verify his information at this time. Prior to having his parole cancelled, the offender lived with a friend who provided him with access to illicit substances and pro-criminal influences.
The evidence before the Court was that the offender presently has an opportunity to access secure accommodation through the support of a member of the community, Ms Stewart, who is willing to assist in progressing the offender’s rehabilitation. She happened to come across the offender while he was on parole and in the course of performing her duties as a Justice of the Peace. She was impressed by him and considers the offender to be a “considerate man and a good and loyal friend”.
Ms Stewart confirmed on oath her intention to provide the offender with long-term accommodation and a room of his own, as well as assistance and encouragement to seek culturally-appropriate health, counselling and drug rehabilitation services, establish a connection with local indigenous communities, and manage his financial affairs with a goal of achieving financial independence. She has remained in contact with the offender on a near-daily basis throughout his time in custody. Ms Stewart shared her belief that the offender’s criminal behaviour was “a prime illustration of the failings of society towards our young indigenous [men]”, in particular, “their overrepresentation in prison” and is demonstrative of “falling into a ‘revolving door’ pattern of recidivism”.
Ms Stewart was herself an impressive witness. She is not naïve; rather, she has the insight to know that without help from someone such as herself, the offender will never lift himself out of his dire situation and will be likely to spend lengthy periods in prison as a result of repeating past behaviours for the rest of his life. Commendably, Ms Stewart has the will and the wherewithal to help this offender. That fact alone is what might colloquially be described as a game changer in Mr Dawson’s life, if he is able to take advantage of the help offered.
The offender is father to a seven-year-old son with a previous partner, though he reported having limited contact with his son since his partner left him when the child was 12 months old, due to the offender’s illicit substance abuse. From the evidence he gave in the witness box and evidence given by Ms Stewart, it was apparent that the loss of contact with his son was a source of considerable loss and disappointment, and perhaps shame. Ms Stewart’s view – which I accept in light of her knowledge of, and interactions with, the offender – is that the sudden loss of his family has had a profound and lasting effect on the offender.
Finally, but importantly, the offender was on conditional liberty at the time of the offending, a relevant subjective factor, though not to the extent of imposing double punishment: Kelly v Ashby [2015] ACTSC 346 per Refshauge J at [61]. The grant of parole (conditional liberty) is precisely that – conditional. It requires the offender to be of good behaviour “simply and comprehensively” (R v Wallace [2007] NSWCCA 63 at [15]), and the betrayal of the opportunity for rehabilitation is regarded very seriously (R v Tran [1999] NSWCCA 109 at [15]). Victim impact statements
One Victim Impact Statement was provided to the Court by Ms Venkata Jonnalagadda, who was the occupant of one of the premises the subject of an attempted burglary charge (count 4).
Ms Jonnalagadda’s statement was brief, detailing the insecurity and fear she and her family felt as a result of the attempted burglary. She reported that her children suffered significantly, and required her and her partner to sleep in their beds for the week following the incident, as they were afraid to sleep alone. This had flow-on effects to the victim’s own sleep, which impacted her work hours and quality of work.
No other statement was provided. Generally, it is to be accepted that the other home invasion offences can have similar psychological effects on victims.

The offender has spent 11 months and 2 days in custody (336 days) as at the date of sentencing. However, all of that time is referable to the previous offending. Although this will have a consequence for any backdating of a term of imprisonment, it is a matter that has fed into my consideration in considering the circumstances of this particular offender and the impact of a further lengthy term of imprisonment upon him. It has been taken account in the manner in which I have determined to structure the sentence below, and in the fact that I there will be a partial overlap with the existing sentence from today (applying s 71 of the Sentencing Act). Current sentencing practice
Under s 33(1)(za) of the Sentencing Act, the Court must have regard to current sentencing practice and patterns when considering how an offender must be sentenced, though the court is not bound to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: Hili v The Queen [2010] HCA 45; 242 CLR 520.
The case that I have found to be of most assistance is the Court of Appeal’s judgment in Dawson v The Queen [2019] ACTCA 9 at [47] (Dawson). The offences were of a similar kind and gravity, with the subjective circumstances of the offender being almost identical, given that it is the same offender. However, there are differences on this occasion, such as the relevant prior criminal history now including the offences that were the subject of sentence in Dawson, and other matters to which I refer below.
I also consider R v Williams-Savage [2021] ACTSC 271 (Williams-Savage) to be of assistance. Without setting out the detail of the sentence in Williams-Savage (to which I have of course given careful consideration) for 15 different offences of the kinds similar to those in question here, Mossop J imposed at [49], a total period of imprisonment of 102 months, or eight years and six months, with a non-parole period of 48 months.
There is obviously a material difference in the facts, in that each of the premises invaded in that case were commercial rather than residential. However, in terms of approach, it is helpful in ensuring consistency in the application of relevant legal principles, rather than in numerical equivalence: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41].

The offender might be described as an “ideal” candidate for a Drug and Alcohol Treatment Order (DATO), considering the significant role of drug abuse in contributing to the offending, as well as the offender’s remorse and strong desire to finally come to grips with his addiction issues. This offender is exactly the type of person that the Drug and Alcohol Sentencing List is targeting, with the program attempting to intervene and divert such offenders away from a life where they are frequently engaging with prison.
However, the offender is ineligible for a DATO under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), for two reasons. First, a DATO is only available if the offender is ‘not subject to a sentencing order for another offence’: s 12A(1)(c). Here, the offender is currently serving a term of imprisonment for offences similar to those before the Court today: see Dawson at [47]. That sentence was imposed in December 2018, but the offender had been in custody since May 2017. The existing sentences being served are for a period of 6 years and 7 months, and 5 years and 5 months. The sentences will not be complete until 13 May 2023 – more than a year from now. Even if he is again released on parole before that date, the offender will still be categorised as being ‘subject to’ a sentencing order.
The second reason the offender is ineligible is because of the number of offences in question here and the likelihood that his term of imprisonment will exceed 4 years (which I have accepted for the purposes of dealing with the argument, although ultimately this hurdle will fall away for reasons given below). In order to be eligible under s 12A(1)(b) of the Sentencing Act, the sentence imposed on the offender must be between 1 and 4 years.
Senior Counsel for the offender contended for two possible alternative avenues of overcoming the offender’s ineligibility.
First, a lengthy adjournment was proposed to overcome the requirement of s 12A(1)(c) that the offender not be subject to any other sentencing order. The intention would be that the offender would not be sentenced for the present offences until he had served the full term of imprisonment (which as I have said, is not until May 2023). A suitability assessment for a DATO could be ordered in the meantime, a process that itself takes 2 months.
The second avenue raised, to address the length of the sentence to be imposed, is to divide the offences, with a view to crafting a sentence where the offender’s time in custody is attributed to a number of the less serious offences. This approach would have to be employed in combination with a deferral of the sentence. If the offender was found suitable for a DATO after he had served the sentences of imprisonment already imposed, the remaining sentences to be imposed would then fall within a four-year term and could be served by way of a DATO.
The hearing was adjourned to enable the parties an opportunity to fully consider what had been put forward and the parties have since provided significant assistance in further written submissions addressing the issues raised, and a further oral hearing.
Starting with the application to adjourn the sentence, an adjournment of the length of a year would be highly unusual, and to make such an order outside the context of a deferred sentence order pursuant to Sentencing Act s 27 (for which the offender is ineligible while he is serving another term of imprisonment: s 27(1)(c)) would be an exceptional exercise of the Court’s discretion. Such an adjournment is contrary to the principle of finality, would make it difficult to take proper account of totality considerations and would subject the offender to an level of uncertainty and unfairness hanging over his head for such a period of time that I do not consider it is in the interests of justice (even had I been satisfied that it were a lawful exercise of discretion in adopting a device to overcome a statutory limitation on eligibility).
Some of the same concerns arise with regard to the proposed splitting of offences. It was suggested that those offences for which the accused has pleaded guilty which could be carved out and a sentence imposed included: Damage to property (count 7), Theft (counts 8 and 10), and Riding in a motor vehicle without consent (count 11), and then adjourning the matter for sentencing in relation to the balance of the charges.
It is critical to identify the Court’s power to split sentencing proceedings. The Crown submitted that, absent an express power to do so, such an outcome is likely to be at the far fringes of judicial discretion. Comments have been made elsewhere to the effect that splitting sentence proceedings (as opposed to imposing different sentences within a single sentence or adopting a multifaceted sentencing structure) is at odds with the principles of totality and finality: see High v Willis [2008] ACTSC 88 at [27] – [37]; Crawford v Laverty [2008] ACTSC 107 at [50].
Further, as noted by Refshauge AJ in R v Crawford (No 1) [2020] ACTSC 245 at [104] (Crawford (No 1)), splitting a sentence to avoid the effects of s 12A of the Sentencing Act would be regarded as a “device” rather than a proper exercise of sentencing discretion. This is pertinent in the present matter, where the purpose of splitting the offender’s sentence is to bring about an adjournment to avoid the regime set by the Legislature, which expressly limits the DASL program to offenders not subject to a sentencing order for another offence. Any overarching rehabilitative objective, while desirable, is unlikely to justify a process which circumvents the clearly expressed legislative intention in this way.
Consideration has been given to examples where a sentence for an offender has been “split”. Counsel for the offender cited R v Moore [2021] ACTSC 333 (Moore), where Murrell CJ ordered a DATO assessment simultaneously with imposing a sentence for some of the offences, for which the intended primary sentence would be time served by the return date of the suitability assessment. The result was that the remaining outstanding sentences would fall below the four-year threshold in s 12A(1)(b) of the Sentencing Act by the end of the two-month DATO assessment period.
A similar approach was taken in R v Massey (No 1) [2020] ACTSC 256 at [90] – [97] (Massey (No 1)), where Refshauge J imposed one sentence to take into account pre-sentence custody, while adjourning the remaining sentences for the short period required to determine suitability for DASL.
However, as submitted by the Crown, the effect of this “splitting” was to separate those offences for which the appropriate sentence could immediately expire, such that a DATO would be available to the offender within the standard assessment timeline. This was a method to overcome a known problem concerning DATOs, being the interplay between taking into account pre-sentence custody under Sentencing Act s 63 and the requirement for a DATO to be “fully suspended” under s 12A, and the potential unfairness of time in custody not being taken into account for a person sentenced to a DATO as opposed to an ordinary suspended sentence: see R v Parker [2020] ACTSC 38 at [25] – [33] per Walker AJ; Crawford (No 1) at [109] – [111].
In the present case, none of the outstanding offences due to be sentenced are appropriate to impose in a way that can immediately expire, particularly not following the expiration of the existing sentence. By contrast to the offenders in Moore and Massey (No 1), the time Mr Dawson has spent in custody is referable to an existing sentence being served, and the length of time of the adjournment proposed is far in excess of the normal DATO assessment process.
Despite the offender’s counsel urging the Court to ‘be brave’ in crafting a solution that will prioritise rehabilitation notwithstanding that it would be an exceptional outcome to adjourn a sentence for a year, I cannot ignore practical realities. A third reason affecting the ability of the Court to deal with the offender in a way that would see him attempting to address the underlying cause of his offending rather than extending his already lengthy time in prison is that the program itself must have a spot available for the offender. The program is highly resource intensive, and is at maximum capacity, due to the limited number of rehabilitation beds and associated funding for the dedicated network of health, legal and social service professionals involved. Even if he was eligible, it will not be possible for the offender to be placed on the program at any time in the coming months.
Consequently, I do not consider split sentencing to be an appropriate avenue for enlivening the operation of s 12A. While the position may be different if two or more separate series were contained in separate indictments and joined for convenience only, or if the accused had pleaded guilty to only some charges and the time to trial for the remaining charges would be significant, neither scenario is at play here.
It was submitted on behalf of the offender that the unavailability of a DASL referral should inform sentencing so as to attract the most lenient possible sentence. Based on the offender’s present receptiveness to, and need for, rehabilitation, I accept the premise of this submission to the extent that the rehabilitative objective of sentencing should be a primary consideration in structuring the sentence.
Having said that, I emphasise that the other sentencing objectives such as general deterrence and denunciation must also be given due prominence in sentencing the offender, particularly having regard to the type of offending here.

Accordingly, I make the following orders:
In respect of count 1, attempted burglary (SCCAN2021/114), the offender is sentenced to 6 months’ imprisonment (reduced from seven and a half months on account of his plea of guilty), to commence on 31 March 2022 and end on 30 September 2022.
In respect of count 2, attempted burglary (SCCAN2021/115), the offender is sentenced to 6 months’ imprisonment (reduced from seven and a half months on account of his plea of guilty), to commence on 1 May 2022 and end on 31 October 2022.
In respect of count 3, attempted burglary (SCCAN2021/116), the offender is sentenced to 6 months’ imprisonment (reduced from seven and a half months on account of his plea of guilty), to commence on 1 June 2022 and end on 30 November 2022.
In respect of count 4, attempted burglary (SCCAN2021/117), the offender is sentenced to 6 months’ imprisonment (reduced from seven and a half months on account of his plea of guilty), to commence on 1 July 2022 and end on 31 December 2022.
In respect of count 5, burglary (SCCAN2022/8), the offender is sentenced to 8 months’ imprisonment (reduced from 10 months on account of his plea of guilty), to commence on 1 October 2022 and end on 31 May 2023.
In respect of count 6, damaging property (SCCAN2021/118), the offender is sentenced to 4 months’ imprisonment (reduced from 5 months on account of his plea of guilty), to commence on 1 November 2022 and end on 28 February 2023.
In respect of count 7, aggravated burglary (CC2021/4545), the offender is sentenced to 12 months’ imprisonment (reduced from 15 months on account of his plea of guilty), to commence on 1 June 2023 and end on 31 May 2024.
In respect of count 8, theft (SCCAN2021/119), the offender is sentenced to 9 months’ imprisonment (reduced from eleven and one quarter months on account of his plea of guilty), to commence on 1 October 2023 and end on 30 June 2024.
In respect of count 9, aggravated burglary (CC2021/4546), the offender is sentenced to 12 months’ imprisonment (reduced from 15 months on account of his plea of guilty), to commence on 1 July 2024 and end on 30 June 2025.
In respect of count 10, theft (SSCAN 2021/121) the offender is sentenced to 9 months’ imprisonment (reduced from eleven and one quarter months on account of his plea of guilty), to commence on 1 November 2024 and end on 31 July 2025.
In respect of count 11, ride motor vehicle without consent (SCCAN2021/122) the offender is sentenced to 6 months’ imprisonment (reduced from seven and a half months on account of his plea of guilty), to commence on 31 May 2025 and end on 30 November 2025.
The total sentence is 3 years and 8 months (reduced from 4 years and 7 months on account of his plea of guilty), to commence on 31 March 2022 and end on 30 November 2025.
A non-parole period of 18 months (recorded as 17 months and 30 days) is set from 31 March 2022 to conclude on 29 September 2023. I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam.

R v Dawson [2022] ACTSC 64

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