R v Dugdale [2017] ACTSC 203

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Burglary - damage property over $1,000 in value - obtain property by deception - ride or drive motor vehicle without consent - take motor vehicle without authority - theft - pleas of guilty.

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 19

R v CA (No 2) [2016] ACTSC 371; 316 FLR 49

R v Dugdale (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 13 February 2012)

R v Dugdale (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 May 2013)

R v Hawkins [2015] ACTSC 333

R v Harris [2007] NSWCCA 130; 171 A Crim R 267

R v Henry [1999] NSWCCA 111; 106 A Crim R 149

R v Reid [2016] ACTSC 24

Sampson v De Haan [2016] ACTSC 327

Office of the ACT Director of Public Prosecutions (Crown)

1. On 10 May 2017, the offender pleaded guilty to 45 offences. The 45 offences included burglary, damage to property, obtaining property by deception, driving a motor vehicle without consent, taking a motor vehicle without authority and theft.

2. Seven summary offences were also transferred from the Magistrates Court, pursuant to s 90B of the Magistrates Court Act 1930 (ACT). The offender is, therefore, to be sentenced for 52 offences.

3. The 52 offences are made up of 27 principal offences and 25 additional offences. The latter are to be taken into account when sentencing the offender for the principal offences (Crimes (Sentencing) Act 2005 (ACT), Part 4.4).

4. The maximum penalty for each of the above offences is as follows:

(a) Burglary: a fine of $210,000 and/or 14 years imprisonment.

(b) Damage to property: a fine of $150,000 and/or 10 years imprisonment

(c) Obtaining property by deception: a fine of $150,000 and/or 10 years imprisonment

(d) Driving a motor vehicle without consent: a fine of $75,000 and/or five years imprisonment

(e) Taking a motor vehicle without consent: a fine of $75,000 and/or five years imprisonment

(f) Theft: a fine of $150,000 and/or 10 years imprisonment

5. The offences were all committed between 1 February and 2 March 2017. This might be regarded as a crime spree, in which the offender abandoned all semblance of lawful behaviour and did his best to take property belonging to other people.

6. The offender was born in 1992 and is well known to the courts. He was born in the Australian Capital Territory and is of Aboriginal heritage. He has three siblings, some of whom have apparently influenced his criminal behaviour.

7. The offender left school after completing Year 9 and has been unemployed since that time. His main sources of income have been Centrelink benefits and crime. He smoked cannabis for a long time and also has a long history of methylamphetamine use. He has been described as having a severe level of dependence.

8. The offender reports little memory of the offences because he was heavily under the influence of drugs when the offences were committed. That fact does not excuse his conduct. However, his exposure to drugs at a relatively young age can be taken into account: R v Henry [1999] NSWCCA 111; 106 A Crim R 149.

9. The offender suffered a head injury in a car accident but does not seem to have received any treatment. He has also not been treated for depression and anxiety.

10. Due to the number of offences, I do not think it necessary to detail the specific facts of each offence. They are contained within the Statement of Facts, which is part of Exhibit A.

11. It is important, however, to have regard to the victim impact statements included in Exhibit A. Below are some excerpts from these statements, without providing the name of the victim.

We were shocked and violated that someone had entered our property and stolen my car and possessions. Until that day we had felt very safe living in Canberra. Sadly my children were home when this occurred and have since been scared and upset over what has happened... The worst feeling is that the hundreds of images of my family, stored on the camera, can't be replaced.

As a result of the crime we have suffered emotionally as we feel nervous about people around the house... we have suffered financially as we have had to build side passage gates... spend money on locks for some internal doors... We are also in the process of installing a security camera outside the house to video potential burglars which has cost a lot of money... We have also suffered physically as we are unable to do our regular tinnitus treatment because the tinnitus treatment device was stolen... We were also unable to check our blood pressure as our blood pressure monitor was stolen...

At the time, the main thing I felt was violated.

I will never forget the fear and paranoia I felt that night and continue to feel... The fear that the perpetrator would return while I was in the house continues to plague me. It has been months since the crime was committed but it continues to affect my life and my wellbeing... No one deserves to feel unsafe in his or her home and I continue to feel this way. You've stolen a lot more than my personal belongings; you've stolen my sense of security and my peace of mind and this is not something that can be monetarily recompensed.

12. I have had 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. Section 10 tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

13. No submission was made to suggest that full-time imprisonment was not the only option. In particular, it was not suggested that a suspended sentence or an intensive corrections order might be utilised.

14. The offender is entitled to a discount arising from his pleas of guilty. This will be in the order of 20%. It will also be necessary for there to be a significant degree of concurrency, because many of the offences were committed as part of a single criminal outing. In addition, the sheer number of offences means that accumulation could result in an overly long head sentence. It is important to keep principles of totality in mind.

15. At the same time, I acknowledge that the victims and the community are entitled to expect offenders to be punished for the specific crimes they commit. As noted in R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at paragraph [42]:

Nor is it an adequate reason for complete concurrency that a group of offences such as breaking, entering and stealing may be of the same type or committed as part of one criminal spree. As the Court has sought to point out, implementation of a decision to commit another offence will generally involve more loss and damage, and more victims. When it does, there is also a greater entitlement of the community to retribution.

16. The task which I will attempt to achieve is to reach a result that satisfies the relevant principles.

17. Other than the matters I have just discussed, and the offender's early introduction to drugs, there is little else to suggest the application of leniency. This has clearly been attempted before. Although the offender is relatively young, now aged 25, he is already effectively an experienced criminal with little prospect of rehabilitation.

18. When Refshauge J sentenced the offender in 2012 (R v Dugdale, Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 13 February 2012) he said:

I hope you will take this opportunity. It is a very generous opportunity, and I think you deserve the chance and if you take it then, hopefully, the criminal courts will not see you again.

19. The offender did not take the chance (a suspended sentence) and appeared back before the same judge for offences committed a few months later. On this occasion (R v Dugdale, Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 May 2013), his Honour strongly recommended that the offender participate in drug rehabilitation. His Honour spoke directly to the offender and said:

I do hope that we will not see you again. I am less confident than I was last time, because of what you did to me on this occasion. But I hope the opportunity... Will be taken by you and some supervision under parole mean ultimately that you can find something useful to do instead of burglarising people's houses.

20. It is obvious that the offender found nothing else useful to do.

21. With the exception of the burglary of the Evatt Primary School, all of the burglaries were of residential properties. In some cases, the residents were at home during the burglary. Some of the burglaries have additional offences to be taken into account. Some have features which might suggest they are more severe than others. However, as far as the victims are concerned, each burglary is very serious.

22. I think the only way to approach the residential burglaries, and their associated additional offences, especially having regard to the need to achieve a fair total sentence, is to treat them equally notwithstanding the differences. This is perhaps, to a degree, unfair to the victims and the community, as this involves effectively ignoring the number and detail of the additional offences. As will be seen below I will make one exception, but this only relates to an interim period in the accumulation schedule.

23. The general theme of my sentencing will be to overlap (accumulate) each of the 13 burglaries to arrive at a head sentence which reflects the overall criminality of the offender's month of criminal activity. There is a longer period before the end of the final burglary (CC 17/4274) to reflect the more serious factual background to the charge.

24. The other principal offences will have separate penalties but will fall within the head sentence. There is no other practical approach.

25. In looking at the different matters listed by the Crown, I have gained most assistance from this offender's previous sentences and from R v Hawkins [2015] ACTSC 333 and Sampson v De Haan [2016] ACTSC 327.

26. The offender has been in custody since 3 March 2017. This will be the starting date for the sentence of the first burglary offence.

27. After a deduction of approximately 20% for the plea of guilty, I intend to sentence the offender to a term of imprisonment of 2 years and 6 months for each burglary of a residence and a term of imprisonment of 2 years for the burglary of the school. Each of these sentences takes into account the additional offences associated with the burglary.

28. For the offence of obtaining property by deception (CC17/2789) committed on 13 February 2017, and taking into account the additional offences (CC 17/2788, 17/2790 and 17/2787) the offender will be sentenced to a term of imprisonment of one month.

29. For the offence of driving a motor vehicle without consent (CC 17/2785) committed on 13 February 2017, and taking into account the additional summary offence of driving while disqualified (CC/2786), the offender will be sentenced to a term of imprisonment of one month.

30. For the offence of take motor vehicle without consent (CC 17/4256) committed on 14 February 2017, the offender will be sentenced to one month imprisonment.

31. For the offence of obtaining property by deception (CC 17/4435) committed on 14 February 2017, and taking into account the two additional offences of obtain property by deception committed on the same day (CC 17/4433 and CC 17/4434), the offender will be sentenced to one month imprisonment.

32. For the offence of drive while disqualified (CC 17/4315) committed on 14 February 2017, the offender will be sentenced to one month imprisonment.

33. For the offence of driving a motor vehicle without consent (CC 17/4260) committed on 16 February 2017, and taking into account the additional three driving offences (CC 17/4261, 17/4262 and 17/4280) committed on the same day, the offender will be sentenced to one month imprisonment.

34. For the offence of theft (CC 17/4263), committed on 16 February 2017, the offender will be sentenced to 14 days imprisonment.

35. For the offence of driving a motor vehicle without consent (CC 17/4264), committed on 19 February 2017, the offender will be sentenced to a term of imprisonment of one month.

36. For the offence of damage property (CC 17/4265), committed on 24 February 2017, the offender will be sentenced to a term of imprisonment of one month.

37. For the offence of driving while disqualified (CC 17/3591), committed on 24 February 2017, the offender will be sentenced to a term of imprisonment of 14 days.

38. For the offence of taking a motor vehicle without consent (CC 17/3596), committed on 24 February 2017, the offender will be sentenced to a term of imprisonment of one month.

39. For the offence of riding in a motor vehicle without consent (CC 17/4272), committed on 1 March 2017, the offender will be sentenced to a term of imprisonment of one month.

40. For the offence of theft (CC 17/4273), committed on 2 March 2017, the offender will be sentenced to a term of imprisonment of one month.

41. For the offence of obtaining property by deception (CC 17/4436), committed on 2 March 2017, and taking into account the additional offence of obtaining property by deception (CC 17/4437), the offender will be sentenced to a term of imprisonment of 14 days.

(i) For the offence of burglary (CC 17/3583), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 March 2017 and end on 2 September 2019.

(ii) For the offence of burglary (CC 17/4252), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 April 2017 and end on 2 October 2019.

(iii) For the offence of obtain property by deception (CC 17/2789), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2017 and end on 2 April 2017.

(iv) For the offence of drive motor vehicle without consent (CC 17/2785), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2017 and end on 2 April 2017.

(v) For the offence of burglary (CC 17/4254), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 May 2017 and end on 2 November 2019.

(vi) For the offence of take motor vehicle without consent (CC 17/4256), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2017 and end on 2 April 2017.

(vii) For the offence of obtain property by deception (CC 17/4435), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2017 and end on 2 April 2017.

(viii) For the offence of drive disqualified (CC 17/4315), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2017 and end on 2 April 2017.

(ix) For the offence of burglary (CC 17/3584), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 June 2017 and end on 2 December 2019.

(x) For the offence of drive motor vehicle without consent (CC 17/4260), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2017 and end on 2 April 2017.

(xi) For the offence of theft (CC 17/4263), the offender is sentenced to a term of imprisonment of 14 days to commence on 3 March 2017 and end on 16 March 2017.

(xii) For the offence of burglary (CC 17/3586), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 July 2017 and end on 2 January 2020.

(xiii) For the offence of drive motor vehicle without consent (CC 17/4264), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2019 and end on 2 April 2019.

(xiv) For the offence of damage property (CC 17/4265), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2019 and end on 2 April 2019.

(xv) For the offence of burglary (CC 17/3588), the offender is sentenced to a term of imprisonment of 2 years to commence on 3 August 2017 and end on 2 August 2019.

(xvi) For the offence of burglary (CC 17/3592), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 September 2017 and end on 2 March 2020.

(xvii) For the offence of drive disqualified (CC 17/3591), the offender is sentenced to a term of imprisonment of 14 days to commence on 3 March 2019 and end on 16 March 2019.

(xviii) For the offence of burglary (CC 17/3594), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 October 2017 and end on 2 April 2020.

(xix) For the offence of take motor vehicle without consent (CC 17/3596), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2019 and end on 2 April 2019.

(xx) For the offence of burglary (CC 17/4266), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 November 2017 and end on 2 May 2020.

(xxi) For the offence of burglary (CC 17/4268), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 December 2017 and end on 2 June 2020.

(xxii) For the offence of burglary (CC 17/3581), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 January 2018 and end on 2 July 2020.

(xxiii) For the offence of burglary (CC 17/4270), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 February 2018 and end on 2 August 2020.

(xxiv) For the offence of ride motor vehicle without consent (CC 17/4272), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2019 and end on 2 April 2019.

(xxv) For the offence of theft (CC 17/4273), the offender is sentenced to a term of imprisonment of 1 month to commence on 3 March 2019 and end on 2 April 2019.

(xxvi) For the offence of burglary (CC 17/4274), the offender is sentenced to a term of imprisonment of 2 years and 6 months to commence on 3 September 2018 and end on 2 March 2021.

(xxvii) For the offence of obtain property by deception (CC 17/4436), the offender is sentenced to a term of imprisonment of 14 days to commence on 3 March 2019 and end on 16 March 2019.

(xxviii) The total sentence expires on 2 March 2021.

(xxix) I set a non-parole period of 2 years and 6 months to commence on 3 March 2017 and expire on 2 September 2019.

(xxx) In respect of matters (viii) and (xvii), the offender's licence is disqualified for a period of 12 months, to run concurrently, commencing on 3 August 2017.

43. The Crown has made a claim for reparation in respect of six amounts, five of which are conceded. An order will be made in respect of those five claims.

44. The one claim that is not conceded is for the sum of $5,249.50, to be paid to National Roads and Motorists' Association Insurance (the NRMA), which had paid that sum to a victim of one of the burglaries.

45. The opposition to the order was put on two bases. Firstly, it was argued that there was no technical entitlement to the order arising from s 19(1) of the Crime (Sentencing) Act 2005 (ACT) because the NRMA had not suffered the expense "as a direct result" of the offence. Secondly, it was submitted that I should exercise the discretion provided by s 19(3) against the making of an order.

46. The "direct result" issue has been the subject of decisions in this Court leading to different results. For example, compare the decisions in R v CA (No 2) [2016] ACTSC 371; 316 FLR 49 and R v Reid [2016] ACTSC 24. I have decided not to enter the debate because I think that, even if otherwise valid, the discretion should be exercised against making the order.

47. The reasons behind this exercise of the discretion are:

(a) The offender is being sent to prison for a substantial time. He will have no opportunity to make the repayments.

(b) His background is such, that upon release, the only presently predictable method of him raising the funds is by committing further burglaries.

(c) Although the above two factors may apply to the conceded orders, the payment to the NRMA is substantially larger.

(d) The payment to the individuals is directly to victims who suffered personally as a result of the offences. It is part of the very business of an insurance company to make payments of this type.

48. I make the following orders in respect of the application for reparation:

(i) A reparation order in the amount of $500 in favour of Lauren Needham.

(ii) A reparation order in the amount of $1,252 in favour of Luke Materne.

(iii) A reparation order in the amount of $500 in favour of Sarah Ellis.

(iv) A reparation order in the amount of $1,418.48 in favour of David Ireland.

(v) A reparation order in the amount of $650.49 in favour of Mackenzie Tibbetts.

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