R v Elphick [2021] ACTSC 9

Supreme Court of the ACT|2021-02-04|Before: Murrell, CJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Sentence of seven years and seven months' imprisonment with a nonparole period of four years' imprisonment.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Aggravated burglary - Burglary - Drive motor vehicle without consent - Take motor vehicle without consent - Ride in motor vehicle without consent - Theft - Minor theft - Damage property - Possess false number plates - Obtain property by deception - Negligent driving - Drive while disqualified - Trespass - Offender on conditional liberty - Drug addiction and mental health

Criminal Code 2002 (ACT) ss 45A, 308, 311, 312, 318, 321, 326, 403

Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11(1)

Beath v McCurley [2018] ACTCA 48; 339 FLR 165

Smith v Stivala [2018] ACTSC 309; 341 FLR 359

1. The offender pleaded guilty to 100 offences, being 20 "series" of offending. Three additional offences are to be taken into account in relation to Series 20.

2. The offences occurred in a three-week period in December 2018/January 2019 and a two-week period in December 2019/January 2020.

(a) 11 counts of aggravated burglary with intent to steal or attempted aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code).

Each offence carries a maximum penalty of a fine of $320,000, 20 years' imprisonment or both.

(b) One count of burglary with intent to steal, contrary to s 311 of the Criminal Code.

The maximum penalty is a fine of $224,000, 14 years' imprisonment or both.

(c) 17 counts of taking (one by joint commission), driving, or riding in a motor vehicle without consent, contrary to s 318(1) or (2) of the Criminal Code.

Each offence carries a maximum penalty of a fine of $80,000, five years' imprisonment or both.

(d) Eight counts of dishonestly obtaining property by deception (one by joint commission), contrary to s 326 (and s 45A) of the Criminal Code.

Each offence carries a maximum penalty of a fine of $160,000, 10 years' imprisonment or both.

(e) Two counts of theft, contrary to s 308 of the Criminal Code.

Each offence carries a maximum penalty of a fine of $160,000, 10 years' imprisonment or both.

(f) Three counts of damaging property by joint commission, contrary to s 403 (and s 45A) of the Criminal Code.

Each offence carries a maximum penalty of a fine of $160,000, 10 years' imprisonment or both.

(g) 12 counts of driving while disqualified as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).

For a repeat offender, each offence carries a maximum penalty of a fine of $16,000, 12 months' imprisonment or both. There is also an automatic period of driver disqualification of 24 months.

(h) 16 counts of causing minor property damage (not exceeding $5,000), some by joint commission, contrary to s 116(3) of the Crimes Act 1900 (ACT) (and s 45A of the Criminal Code).

Each offence carries a maximum penalty of a fine of $8,000, two years' imprisonment, or both.

(i) 23 counts of minor theft (property valued at less than $5000), including by joint commission, contrary to s 321 (and s 45A) of the Criminal Code.

Each offence carries a maximum penalty of a fine of $8,000, six months' imprisonment, or both.

(j) One count of negligent driving not occasioning death or grievous bodily harm, contrary to s 6(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).

This offence carries a maximum penalty of a fine of $3,200.

(k) Five counts of possessing a device, plate or document calculated to deceive, contrary to s 20(c) of the Road Transport (Vehicle Registration) Act 1999 (ACT).

Each offence carries a maximum penalty of a fine of $8,000, 6 months' imprisonment, or both.

(l) One count of trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). This offence carries a maximum penalty of a fine of $2,100.

4. On 14 November 2018, Magistrate Boss sentenced the offender for a raft of dishonesty and driving offences committed in January 2017 and March/April 2018. He was sentenced to full-time imprisonment from October 2017 and concurrent intensive correction orders of up to six months' duration from 14 November 2018 (for offences of taking a motor vehicle without consent). The offender was disqualified from driving for two years (to November 2020).

5. On 17 January 2019, the offender was arrested and charged with driving and dishonesty offences that had occurred on 24 December 2018 and 16 January 2019 (in the same period as the offences in Series 1-9). Bail was refused until 16 October 2019, when the offender was sentenced by Magistrate Taylor to sentences of full-time imprisonment from 17 January 2019 to 16 October 2019, with a good behaviour order to commence at the expiry of the periods of full-time imprisonment.

6. Meanwhile, on 15 July 2019, the offender was charged for the offending in Series 1-9. A brief of evidence was prepared and served. On 16 October 2019, the offender was bailed to attend the Wayback rehabilitation program.

7. While the offender was at Wayback, he indicated a willingness to plead guilty to the offences in Series 1-9.

8. On 25 November 2019 (i.e. after six weeks), the offender left the Wayback program and a warrant was issued for his arrest. He had participated successfully in the program for five weeks.

9. On 3 January 2020, the offender was arrested and charged with some of the charges the subject of Series 10-20. Between 31 January 2020 and 13 July 2020, he was charged with further charges in those series.

10. On 26 August 2020, the offender pleaded guilty to all charges. In relation to Series 10-20, the pleas were entered before the brief of evidence had been served.

11. Having regard to the timing and utilitarian value of the pleas, although there was strong evidence in relation to most of the charges, I will allow a discount of approximately 25 per cent on the sentences that would otherwise have been imposed.

12. The offender has been in custody since 3 January 2020. Allowing some credit for the period spent at Wayback, the sentences will commence on 17 December 2019.

13. All offences were committed while the offender was on conditional liberty. The offences comprising Series 1-9 put the offender in breach of an intensive correction order that was imposed by Magistrate Boss on 14 November 2018 in relation to offences of taking a motor vehicle without consent. The offences comprising Series 10-20 put him in breach of bail in relation to the offences the subject of Series 1-9 and in breach of the good behaviour order imposed by Magistrate Taylor.

Series 1 - 29 December 2018 at Manuka and Kingston, with unidentified co-offender

14. At 6:30 AM on 29 December 2018, a black Honda Accord vehicle was reported missing from an address in Deakin. At approximately the same time, MH parked his silver Subaru Forrester in a carpark in Red Hill and went for a morning run.

15. A short time later, a witness saw the Honda vehicle driving at speed behind a blue Hyundai i30 vehicle. The vehicles entered the Red Hill carpark and stopped near the Subaru. The offender and another man exited the vehicles.

16. The men broke the rear passenger window of the Subaru and stole an iPod nano, a black Samsung Galaxy S7 mobile phone, and bank cards (CC2020/8407: damage property (minor); CC2020/8408: minor theft).

17. At 7:17 AM, the offender drove the Honda vehicle to the McDonalds fast food outlet in Manuka. He purchased food using one of MH's bank cards (CC2019/7820: obtain property by deception).

18. At 7:48 AM, the offender drove the Honda vehicle to BP Express in Kingston. He purchased a Neosurf pre-paid card and a packet of cigarettes using MH's bank card (CC2019/7821: obtain property by deception; CC2020/8406: drive motor vehicle without consent; CC2019/7822: drive while disqualified (repeat offender)).

Series 2 - 31 December 2018 at the Rolfe Dealership in Philip, with unidentified co-offender

19. At 2:56 AM on 31 December 2018, the offender and a co-offender attended the Rolfe Mitsubishi dealership in Phillip.

20. The men broke the glass front doors and ran to the office, where they stole a set of keys for a Mitsubishi vehicle and a dealer number plate (CC2019/7823: aggravated burglary; CC2020/8409: minor theft).

21. At 10:01 AM, the offender drove to the Coles Express service station in Philip in a white Nissan vehicle. The vehicle had been stolen from the carpark of the Royal Australian Mint in Deakin during the previous night. The offender filled the vehicle with petrol and drove away without paying (CC2019/7825: drive motor vehicle without consent; CC2019/7826: drive while disqualified (repeat offender)).

Series 3 - 3 January 2019 at Griffith with two unidentified co-offenders

22. At 7:34 PM on 3 January 2019, the offender drove to a Griffith residence in a grey Hyundai Elantra vehicle that had been stolen from a Franklin residence on the previous day. The vehicle carried stolen number plates (CC2019/7831: possess false number plates).

23. The offender was accompanied by male and female co-offenders. The offender and the male co-offender exited the vehicle and approached the garage door, which had been left slightly open. The female co-offender waited by the vehicle. The offender assisted the male co-offender to carry various items (including glasses and two garage remote devices, with a total value of approximately $770) from the garage to the vehicle. At the time, the resident was at home but was unaware that the offence was occurring (CC2019/7829: aggravated burglary; CC2020/8410: minor theft; CC2019/7827: drive motor vehicle without consent; CC2019/7828: drive while disqualified (repeat offender)).

24. In the early hours of 5 January 2019, the vehicle was set alight in Red Hill.

Series 4 - 4 January 2019 at Autoco, Hume, with an unidentified co-offender

25. At 1:12 AM on 4 January 2019, the offender and a female co-offender drove in a dark SUV to Autoco (a vehicle repairer) in Hume. Using a long, thin implement, the offender gained access to the building and searched through drawers and cupboards in the office. He then walked to the workshop area, opened a roller door and, using a set of keys stolen from the office, entered a blue Suzuki Swift that had been left at the premises to be repaired (CC2019/7834: aggravated burglary; CC2020/8411: minor theft; CC2019/7833: drive while disqualified (repeat offender)).

26. After some time, the female co-offender drove away in the dark SUV. The offender drove the blue Suzuki vehicle from the premises (CC2019/7836: take motor vehicle without consent).

Series 5 - 6 January 2019 at Azure Apartments, Kingston, with unidentified co-offender

27. At 2:15 AM on 6 January 2019, the offender and a male co-offender drove the blue Suzuki to the Azure Apartments in Kingston. The vehicle carried a stolen number plate (CC2019/7838: ride motor vehicle without consent).

28. Using a stolen garage remote device, the offenders gained access to the secure underground carpark. They smashed the rear passenger window of a white Nissan vehicle (repair cost $200) and stole sunglasses and a backpack (value $360) (CC2019/7839: aggravated burglary; CC2020/8412: damage property (minor); CC2020/8413: minor theft).

29. The offender then broke into a silver Toyota Camry, started it, and drove out of the carpark (CC2019/7842: take motor vehicle without consent; CC2019/7843: drive while disqualified (repeat offender)). The co-offender drove the blue Suzuki from the carpark.

30. At 4:37 AM, the offender drove the Toyota vehicle to a service station in Kambah. He used a bank card belonging to the owner of the vehicle to purchase several items (prepaid vouchers, lighters and drinks, with a total value of $147.70) (CC2019/7844: obtain property by deception).

31. Later, police later found the Toyota vehicle parked in Kingston.

Series 6 - 9 January 2019, Tuggeranong Parkway, Chifley, with co-offender

32. At 1 PM on 9 January 2019, a police officer observed a stolen white Volkswagen GTI driving on the Tuggeranong Parkway at Chifley, recognised the driver, and observed that the offender was the front seat passenger (CC2019/7848: ride motor vehicle without consent).

Series 7 - 13 January 2019 at Narrabundah residence

33. At about 9:45 AM on 13 January 2019, KQ left his Toyota Camry vehicle in the garage of his residence in Narrabundah.

34. Between 9:45 AM and 12 PM, the offender forced entry to the garage, causing extensive damage to the door frame and brickwork. He entered the house and stole a set of keys to the Toyota Camry vehicle, a purse containing $150, and an iPad (total value of approximately $1,000). The offender then used the keys to open the vehicle and drive away (CC2019/7845: burglary; CC2019/7847: take motor vehicle without consent; CC2020/8414: minor theft).

35. Although no one was home at the time, the offender should have realised that someone may be at home.

37. A victim impact statement states that the complainant was an elderly man who lived independently. He was psychologically vulnerable because he had recently suffered a theft from his home. The offence made him feel very vulnerable, anxious, and unsafe in his home. After the incident, he installed an alarm system and upgraded the locks on his house. Some of the stolen items had belonged to his late wife and were of sentimental value.

Series 8 - 14 January 2019 at the Belconnen Way Motor Inn, Hawker, with an unidentified co-offender

38. At about 5:09 AM on 14 January 2019, the offender drove the white Volkswagen in Series 6 to the Belconnen Way Motor Inn, Hawker and entered the visitor parking area. Two other vehicles arrived at the same time. (CC2019/7849: drive motor vehicle without consent; CC2019/7850: drive while disqualified (repeat offender)).

39. The offender and a male co-offender approached a Volkswagen Jetta vehicle. They removed the rear passenger wheel from the Jetta and swapped it with the front driver's wheel of the white Volkswagen (CC2020/8415: minor theft).

40. On 25 January 2019, police found the white Volkswagen in Kambah.

Series 9 - 15 January 2019 at Automart, Fyshwick with unidentified co-offender(s)

41. At 4:30 AM on 15 January 2019, the offender and unidentified co-offender(s) went to Braddon Automart, Fyshwick in a stolen Subaru Forrester (CC2019/7852: ride motor vehicle without consent).

42. They forced entry by smashing the front glass double doors and entered the premises. They searched through the office and removed sets of car keys from a cupboard in the office. They used the keys to open a silver Volkswagen Polo which they took and drove away. One of the offenders drove the Subaru from the scene (CC2019/7853: aggravated burglary).

43. During the burglary, the offenders left behind a yellow screwdriver. The offender was a contributor to DNA found on the handle.

44. At the time of the offences, the business owner was asleep in a rear room of the dealership. He was unaware that a burglary was occurring.

45. At about 1:30 PM, police located the Subaru in Queanbeyan. It carried the number plates of the Toyota Camry in Series 7. Inside the vehicle were car keys taken from Braddon Automart.

46. On 16 January 2019, police saw the offender driving the Volkswagen Polo from Series 9 in Yarralumla.

47. On 17 January 2019, the offender was arrested in Palmerston. Upon searching the offender, police found a black satchel, a Samsung mobile phone, and the garage remote used to access the apartment in Series 5.

48. The offender was charged and pleaded guilty to drive motor vehicle without consent and drive while disqualified (repeat offender). On 16 October 2019, he was sentenced for those offences by Magistrate Taylor.

Series 10 - 19 December 2020 at Crace with McGrory

49. At about 11:46 PM on 19 December 2019, the offender and Rodney McGrory drove to an apartment complex in Crace in a blue Mercedes vehicle. They entered the underground carpark and broke into several vehicles (CC2020/1403: aggravated burglary).

50. One of the offenders smashed the front passenger window of a blue Holden Cruze (repair cost about $200) and stole an iPod (value $200) (CC2020/8417: damage property (minor); CC2020/8418: minor theft).

51. One of the offenders entered an unlocked Nisan Tiida and stole a pair of sunglasses and a garage remote (value $500) (CC2020/8420: minor theft).

52. One of the offenders smashed the front passenger window of an Isuzu D-Max (repair cost about $200) and stole a Makita drill set and a Ramset hit gun (value $1,700) (CC2020/8424: minor theft; CC2020/8423: damage property (minor)).

53. One of the offenders removed number plates from a Suzuki Swift (value $50) (CC2020/8416: minor theft).

54. At about 12:06 AM, the offenders left the apartment complex with the stolen items.

Series 11 - 20 December 2019 at the Mantra Hotel, Turner, with McGrory

55. A few hours later, at about 2:51 AM on 20 December 2019, the offender and McGrory gained access to the Mantra Hotel, Turner through a fire door and walked to the secure underground carpark, where they broke into cars (CC2020/1410: aggravated burglary).

56. They smashed the driver's window of a white Toyota Hilux (repair cost about $200) and stole a wallet containing a bank card and a backpack containing clothing (value about $500) (CC2020/8426: damage property (minor); CC2020/8428: minor theft).

57. The offenders smashed the driver's window of a white Chrysler (repair cost about $200) and stole a Samsung Galaxy A20 mobile phone (value about $200) (CC2020/8429: damage property (minor); CC2020/8430: minor theft).

58. They forced down the driver's window of a white Volkswagen Polo and stole a Dell Latitude laptop (value about $350) (CC2020/8431: minor theft).

59. The offenders smashed the front passenger window of a black Mercedes 430 (repair cost about $200) (CC2020/8432: damage property (minor)).

60. At about 6:30 PM on 20 December 2019, the offender drove a blue Mercedes sedan to a 7-Eleven service station in Holt (CC2020/1417: drive motor vehicle without consent; CC2020/1418: drive while disqualified (repeat offender)). The number plate affixed to the vehicle had been stolen the night before from the apartment complex in Crace (CC2019/1419: possess false number plates).

61. Later, police identified the blue Mercedes as having been stolen from a house in Chapman on 19 December 2020.

62. The offender refuelled the vehicle and went inside the 7-Eleven store. He purchased the fuel and a packet of cigarettes using the bank card that he had stolen from the white Toyota Hilux at the Mantra Hotel earlier that morning. He then made a second transaction using the stolen bank card, purchasing a packet of tobacco and cigarette rolling papers.

63. The offender then drove the blue Mercedes to Woolworths Kippax. He used the stolen bank card in three separate transactions involving the purchase of tobacco and cigarettes.

64. The total value of the five transactions was $384 (CC2020/8433: obtain property by deception).

65. At about 10:25 PM, the blue Mercedes was involved in a car crash at the intersection of Melrose Drive and Hindmarsh Drive in Phillip. The occupants of the blue Mercedes fled the scene. Police searched the vehicle and found the Makita drill set, Ramset hit gun set and a wallet that had been stolen during the burglary at the Mantra Hotel earlier that day.

Series 13 - 22 December 2019 at Wanniassa, with McGrory

66. At about 2:03 PM on 22 December 2019, the offender was driving a white Holden Commodore with McGrory in the passenger seat. The vehicle had been stolen from Queanbeyan six days earlier (CC2020/1422: drive motor vehicle without consent; CC2020/1423: drive while disqualified (repeat offender)). The number plate affixed to the vehicle had been stolen (CC2019/1424: possess false number plates).

67. The vehicle was involved in an accident on Harbison Crescent, Wanniassa. The offender fled the scene. McGrory was arrested at the scene. He was taken to the Woden Police Station where he made full admissions to participating in burglaries. He identified the offender as his accomplice.

Series 14 - 23 December 2019 at Grace Removals, Hume with co-offender

68. At about 5:15 AM on 23 December 2019, the offender drove a silver Mazda BT50 utility vehicle to a 7-Eleven service station in Holt. The vehicle had been stolen from a house in Harrison earlier that day.

69. The offender refuelled the vehicle and drove away without paying for the fuel.

70. At about 3:34 PM, the offender drove the BT50 utility vehicle to Grace Removals in Hume. A co-offender was in the front passenger seat. The offender parked the vehicle and walked to the driver's door of a white Toyota Land Cruiser parked at the side of Grace Removals. He attempted to open the driver's door using a screwdriver. When this attempt was unsuccessful, he used his right forearm and elbow to smash the front driver's window, leaned into the car and stole a number of items including a wallet (containing a debit card and a credit card), jewellery and an envelope containing $5,000 AUD cash (CC2020/8300: damage property (minor); CC2020/593: theft). He re-entered the BT50 utility vehicle and drove away.

71. At about 3:47 PM that day, the offender drove the BT50 utility vehicle to a Caltex service station in Hume. He used the stolen credit card to pay for fuel and an ice cream. He walked from the store before returning and using the credit card a second time to buy two drinks, two ice creams, and a gift card (total value about $160). He drove away in the BT50 utility vehicle (CC2020/588: drive motor vehicle without consent; CC2020/589: drive while disqualified (repeat offender); CC2020/594: obtain property by deception).

72. On 24 December 2019, the BT50 utility vehicle was parked on the grass area next to Lennock Motors in Hume, set alight, and destroyed.

Series 15 - 25 December 2019 at Macquarie and Kingston, with co-offenders

73. At about 6:53 PM on 25 December 2019, the offender drove a black BMW 428i to a BP service station in Macquarie with a co-offender in the front passenger seat. The vehicle had been stolen from Lennock Motors in Hume during a burglary in the early hours of 24 December 2019. The number plates that were affixed to the vehicle had been stolen (CC2020/7360: possess false number plates).

74. The offender got out of the car and refuelled it. He entered the BP store with the co-offender and used a stolen bank card to pay for the fuel. He used another stolen bank card to buy two $50 pre-paid cards. The co-offender then used the second bank card to buy five Powerade drinks and a packet of cigarettes before both drove away in the black BMW (CC2020/598: obtain property by deception).

75. The bank cards belonged to EN, whose Red Hill house had been burgled at about 4 PM that day by four males who had been seen leaving the house and speeding away in a BMW vehicle.

76. At about 7:36 PM, the offender drove the black BMW to Trevilian Quay, Kingston with a different co-offender as a passenger. Two additional co-offenders were also in the car.

77. The offender and the primary co-offender got out of the car and walked to "The Pier" apartment building, while the remaining passengers stayed in the car.

78. The offender gained access to the building by using a small, thin implement to force the door frame of a side door, and he and the primary co-offender entered the building. They removed three packages from a parcel storage area used by residents. They walked to a service roller door, exited the building, and returned to the black BMW. The offender entered the driver's seat and drove away. (CC2020/7361: aggravated burglary; CC2020/596: drive motor vehicle without consent; CC2020/597: drive while disqualified (repeat offender))

79. At about 7:45 PM, the black BMW drove past the front of the "Dockside" apartment building in Eastlake Parade, Kingston. A short time later, the offender ran to an entry alcove and forced open letterboxes. He stole a set of keys containing a remote device for garage to the apartment building. He ran back to the black BMW and drove away.

Series 16 - 26 December 2019 at Kingston and Phillip, with three co-offenders

80. Several hours later, at about 3:47 AM on 26 December 2019, the offender drove the black BMW to a laneway adjacent to the "Dockside" apartment building in Kingston. The primary co-offender in Series 15 was seated in the front passenger seat. The stolen number plates were still affixed to the vehicle (CC2020/3792: possess false number plates).

81. The offender opened the secure roller door to the building's underground carpark using the garage remote device that he had stolen earlier. He drove the BMW into the underground carpark. A red Hyundai i30 hatchback containing two unidentified male co-offenders followed the BMW into the underground carpark. The four offenders began to break into parked cars. The offender was carrying a torch, consistent with a degree of planning (CC2020/3793: aggravated burglary).

82. One of the offenders smashed the driver's window of a black Jeep Cherokee (repair cost $3,264) and stole a pair of sunglasses (value $200) from inside the vehicle (CC2020/9048: damage property (minor); CC2020/9049: minor theft).

83. One of the offenders smashed the window of a white Audi Q7 (repair cost $985) and stole a set of keys and a garage remote device from inside the vehicle (value $150) (CC2020/9050: damage property (minor); CC2020/9051: minor theft).

84. One of the offenders smashed the front passenger window of a blue Mitsubishi ASX (repair cost $600) (CC2020/9052: damage property (minor)). Nothing was taken from inside the vehicle.

85. One of the offenders smashed the driver's window and front passenger window of a grey Volkswagen Tiguan (repair cost $6,424) and stole cash and coins to the value of about $210.50 from inside the vehicle (CC2020/3802: damage property, CC2020/9053: minor theft).

86. One of the offenders smashed the driver window of a grey Toyota RAV4 (repair cost $800) (CC2020/9054: damage property (minor)). Nothing was taken from inside the vehicle.

87. One of the offenders smashed the driver's and front passenger windows of a grey Honda CRV (repair cost $3,000) and stole a pair of Apple Pro AirPods, charging cables, two coin purses, and a pair of sunglasses from inside (value $1,140) (CC2020/9055: damage property (minor); CC2020/9056: minor theft).

88. One of the offenders gained access to an unlocked silver Subaru and stole a USB cable, a USB cigarette charging port, and a small card holder containing an expired bank card (value $100) (CC2020/9057: minor theft).

89. One of the offenders smashed the front passenger window of a white Mazda 3 sedan (repair cost $100) (CC2020/9058: damage property (minor)). Nothing was taken from inside the vehicle.

90. One of the offenders smashed the front passenger window of a black Audi A3 sedan (repair cost $1600) and stole a pair of sunglasses from inside the vehicle (value $600) (CC2020/9059: damage property (minor), CC2020/9060: minor theft).

91. One of the offenders smashed the driver window of a black Porsche 911 (repair cost $10,000) and stole a set of keys and a garage remote device from inside the vehicle (value $100) (CC2020/3811: damage property; CC2020/9062: minor theft).

92. One of the offenders smashed the driver's and front passenger windows of a green Toyota Prado belonging to KH and caused other damage to the vehicle (repair cost $17,820). They then stole a leather wallet containing $300 in cash and assorted cards, a purse contained assorted cards including an ANZ Visa bank card, a set of keys including a Nissan car key, a garage remote, a pair of Nike shoes and a pair of sunglasses from inside the vehicle. The stolen items belonged to the owner and his wife (total value $880 and $200) (CC2020/3813: damage property; CC2020/9063: minor theft; CC2020/9066: minor theft).

93. In a victim impact statement, KH, the complainant, stated that it was not feasible to repair the damage caused to the vehicle, occasioning stress and inconvenience to him and his partner, and undermining their faith in the security of their apartment building.

94. At about 4:14 AM, the offenders left the underground carpark in the black BMW and red Hyundai i30.

95. At about 4:24 AM, the offender drove the black BMW to the BP2Go service station in Phillip. The primary co-offender was in the front passenger seat. The offender purchased six milk drinks and pre-paid for fuel using the stolen ANZ Visa bank card. The co-offender refuelled the car using the pre-paid fuel voucher. In a second transaction, the offender used the stolen ANZ Visa bank card to purchase three $25 gift cards and four chocolate bars (total value of both transactions $185) (CC2020/3816: obtain property by deception).

96. The offender and primary co-offender entered the black BMW and drove from the service station. As the offender drove from the forecourt, his hands were not on the steering wheel, the driver's door was open, and the headlights were off. He entered the roadway without indicating his intention (CC2020/3791: drive motor vehicle without consent; CC2020/3790: drive while disqualified (repeat offender); CC2020/3817: negligent driving).

Series 17 - 26 December 2019 at Carways, Mitchell, with co-offender

97. At about 8:15 AM on 26 December 2019, the offender and primary co-offender in Series 15 - 16 travelled in the black BMW to Carways, a vehicle transportation business in Mitchell. They got out of the vehicle, squeezed through a gate, and walked to the rear holding yard towards a parked car hauler truck (CC2020/600: trespass).

98. There were two vehicles on the back of the car hauler truck: a red Hyundai Veloster and a white Isuzu MU-X vehicle. The offender climbed onto the passenger side of the truck and smashed the passenger window (CC2020/8301: damage property (minor)). He reached inside the car and stole the keys to the red Hyundai and the white Isuzu.

99. The offender then extended the wheel ramps of the car hauler. The co-offender entered the driver's seat of the white Isuzu and started to reverse the car off the car hauler but was unable to do so. The offender took over from the co-offender and reversed both the white Isuzu and the red Hyundai from the car hauler, parking them next to the truck. The offenders returned to the black BMW and drove away.

100. A short time later the offenders returned to Carways on foot. The offender entered the Hyundai and the co-offender entered the Isuzu. They drove the cars from the holding yard (CC2020/604: take motor vehicle without consent; CC2020/8302: take motor vehicle without consent; CC2020/603: drive while disqualified (repeat offender)).

Series 18 - 26 December 2019 at Canberra Toyota, Fyshwick, with co-offender

101. At about 10:04 PM on 26 December 2019, the offender and co-offender went to the Canberra Toyota dealership in Fyshwick. The premises were locked. The offenders jumped over the fence and looked through the windows of the building and through the windows of cars parked outside the office building. They then left the premises.

102. At 10:36 PM, the offender drove the co-offender to Canberra Toyota in the red Hyundai that he had taken from Carways earlier that day.

103. The offenders gained access to the building, entered, and searched a number of rooms. They seized a safe from the office and carried it to the red Hyundai. In addition, they stole $783.40 in cash, wristwatches, a petty cash tin, a cash register tray, six remote control gate operators, and four car keys from the office (total value $5,697) (CC2020/606: aggravated burglary, CC20/731: theft).

104. At about 10:50 PM, the offenders left the premises and drove away in the red Hyundai.

Series 19 - 28 December 2019 with unidentified co-offender

105. At about 1:26 PM on 28 December 2019, the offender and an unidentified male co-offender jumped over a back fence and entered the backyard of a property in Wright. The offender used a red mental screwdriver and attempted to pry open the back door of the house. The offenders pushed against the back door, trying to gain access to the house, and damaged the door (repair cost $533) (CC2020/8328: attempted aggravated burglary).

106. At the time, the owner was home and alerted the offenders via the audio system attached to his CCTV security system that they were being recorded and that police had been notified. The offenders jumped over the fence and ran away.

107. At about 10:35 AM on 1 January 2020, QL was at a property in Red Hill, loading bags into his car (which was parked in the driveway). As QL left the car and went back inside the house, he noticed a Toyota Corolla vehicle parked at the end of the driveway. QL saw a male approach his car and take a backpack containing numerous personal items (including a wallet containing a Westpac MasterCard) from the front seat of the car. The unidentified male then went back to the Corolla vehicle and sped away.

108. At about 10:47 AM, the offender went to the BP service station in Kingston and bought items using the stolen Westpac MasterCard (value $94) (CC2020/6452: obtain property by deception). At about 10:53 AM, he attempted a second transaction using the stolen card at the BWS Liquor Store in Kingston. However, by that stage, the card had been deactivated.

109. In sentencing the offender for the last offence of obtaining property by deception, the Court is asked to take into account the following three additional offences.

110. At about 12:58 AM on 2 January 2020, the offender drove the Corolla hatchback to the car park of Farrer Differential and Mechanical Services in Farrer. The number plate affixed to the vehicle did not belong to the vehicle, having been stolen several days earlier from a vehicle in Turner (CC2020/4555: possess false number plates).

111. The offender parked next to a blue Toyota vehicle. He shone a light through the driver's side window and the front windscreen. He then used a sharp instrument to apply pressure to the driver's side window, forcing it to break and shattering glass over the driver's side interior (repair cost $484). The offender rummaged inside the car and opened the boot before leaving a few minutes later, having found nothing of value (CC2020/4553: damage property (minor); CC2020/4554: drive while disqualified (repeat offender)).

112. At about 4:30 PM on 3 January 2020, police went to a house in Farrer. When they arrived, the offender escaped over the back fence. After a short foot pursuit, he was apprehended.

113. Having regard to the maximum available penalty, the most serious offences before the Court are the offences of aggravated burglary. Factors which may render such offences of greater or lesser seriousness, most of which are also relevant to a consideration of the offence of burglary, include the following.

(a) The time at which the offence was committed and whether it was likely that members of the public would witness it. Many of the subject offences were committed in the early hours of the morning at commercial premises, when it was unlikely that they would be witnessed by anyone. However, some offences were committed at residential premises at times when the occupant was, or was likely to have been, at home.

(b) For offences of aggravated burglary, whether only one or both circumstances of aggravation were present (in company and in possession of an offensive weapon) and, if the offender was in company, the number of co-offenders with whom he was in company. In relation to the subject aggravated burglaries, only one circumstance of aggravation was present (in company). The number of co-offenders varied. The role played by the offender is an important consideration; in the subject offences, the offender played an active and central role.

(c) Whether the offence occurred at commercial or residential premises. Generally, the invasion of residential property is more serious as involves an invasion of the sanctity of the home. A related consideration is whether the entry was to a garage or the residential house.

(d) The means of entry. Entry via a partially open door is less objectively serious than forced entry, particularly if the force causes damage. In the case of Series 7, there was entry to a garage, but it was forced entry and it caused considerable damage.

(e) The degree of planning. Most of the offences involved minimal planning, but those involving the use of previously stolen garage remote devices to access premises and the use of implements to gain entry involved a greater degree of planning. In the case of one offence, the offender was in possession of a torch.

(f) Whether the victim was vulnerable. In relation to Series 7, the victim was vulnerable (although not to the offender's knowledge).

(g) Whether any force, threat or gratuitous conduct was associated with the offence.

114. In relation to the offences of driving or riding in a vehicle without consent, factors informing the seriousness of an offence include the following.

(a) Whether the offender drove or rode in the vehicle. In relation to most offences, the offender was the driver.

(b) The duration of the driving or riding. Generally, there is evidence of driving or riding for a brief period only.

(c) The nature of the driving. In relation to most (but not all) offences, there is no evidence of dangerous or reckless driving. In Series 13, the offender was driving a vehicle that was involved in an accident.

115. In relation to the offences of damage property and theft, factors relevant to an assessment of the objective seriousness of the offences include the following.

(a) The motive for the damage or theft. In relation to the offences before the Court, the motive was not malicious, but to facilitate theft. The purpose of the thefts is unclear as, generally, property of little value was taken. However, the purpose of stealing car keys, garage remote devices, and bankcard or credit cards is apparent. I infer that thrill-seeking played a part in some offending.

(b) The extent and value of the damage or the property taken. In the case of most of the subject offences, the damage was limited, and the cost of repair was low. Similarly, the value of items that were stolen was low.

(c) In relation to the offences of theft, an additional consideration is whether the stolen item was of sentimental value. Except in relation to one offence, there is no evidence of sentimental value.

116. In relation to the offences of dishonestly obtaining property by deception, factors relevant to an assessment of the objective seriousness of the offences include the following.

(a) The degree of planning and sophistication associated with the offence. Most of the offences before the Court were largely opportunistic.

(b) The value of the property obtained. For the matters before the Court, the value was generally low.

117. The offender is 25 years old. At the time of the offences, he was 23 and 24 years old. He is Indigenous.

118. He has a lengthy criminal history for committing similar offences in NSW and the ACT.

119. In NSW, in May 2013, he was first sentenced to imprisonment as an adult; for driving while disqualified and larceny, he received a 12-month sentence commencing in August 2013, with a three-month nonparole period. For dishonesty and escape offences committed in 2014, he received an effective sentence of 12 months' imprisonment, with a six-month nonparole period expiring in November 2014. In 2015, for contravening a domestic violence order, the Wagga Wagga Local Court sentenced him to eight months' imprisonment with a five-month nonparole period expiring in November 2015. In 2017, for offences of driving a vehicle taken without consent and driving while disqualified in 2017, the Queanbeyan Local Court sentenced him to imprisonment for an effective period of 13 months, with an eight-month nonparole period expiring in September 2017. For similar offences committed in 2016, the Young Local Court imposed concurrent sentences of imprisonment.

120. In the ACT, in September 2016, the offender was sentenced to one months' imprisonment for offences of assault, damage property, and choking.

121. At the time of the Series 1-9 offences, the offender was subject to a six-month intensive correction order that had been imposed by Magistrate Boss on 14 November 2018 for similar offences committed in February and November 2018. At the time of those offences, he was subject to a good behaviour order relating to similar offences. Magistrate Boss sentenced the offender to four months' imprisonment and a six-month intensive correction order (from 14 November 2018 to 13 May 2019).

122. In October 2019, Magistrate Taylor imposed sentences of full-time imprisonment for offences that coincided temporally with the Series 1-9 offences. Her Honour also imposed a 12-month good behaviour order.

123. As noted above, after sentence, the offender was granted bail on the Series 1-9 charges to attend the Wayback rehabilitation program, but he left the program and committed the Series 10-20 offences while on bail and on the good behaviour order (i.e. subject to conditional liberty).

124. The offender has outstanding warrants in NSW for similar offences allegedly committed between 24 November 2019 and 2 January 2020 (the period of the Series 1-9 offences).

125. Since entering custody on 4 January 2020, the offender has been subject to disciplinary action for contravening directions of custodial staff and being in a prohibited area.

126. The offender was born in Cootamundra, NSW. When he was two or three years old, his parents separated. Thereafter, he lived with his mother. He is the second of seven siblings, some of whom are half siblings from his father's subsequent relationship.

127. The offender reported to Dr Clout, a psychologist, that, during his childhood, he had experienced low to moderate levels of physical neglect, moderate to severe levels of emotional neglect, and severe to extremely severe levels of emotional and physical abuse.

128. The offender completed Year 7 but displayed behavioural issues during his schooling. The offender's mother told Dr Clout that the offender had been diagnosed with attention-deficiency hyperactivity disorder (ADHD) when he was about nine years old.

129. After leaving school, the offender was employed sporadically by his father, but was last employed two and a half years ago.

130. The offender has two children with an ex-partner. His daughters were born when the offender was 16 and 17 years old. The children reside in NSW with their mother. He has continued contact and wishes to enhance his relationship with them.

131. The offender has been with his current partner for two and a half years. Upon release, he intends to undertake a residential rehabilitation program and then reside with her. Other than his partner, he has no pro-social relationships.

132. The offender commenced drinking alcohol at age 13, but from age 16, his drugs of choice were amphetamine and methamphetamine. Prior to entering custody on 4 January 2020, he was using heroin, alcohol, benzodiazepines, and methamphetamine. The offender told Dr Clout that, when he used "ice", he experienced psychotic symptoms.

133. In 2015, he was placed on the methadone program in the Alexander Maconochie Centre. Later, he reduced his dose. As at 18 November 2020, he was receiving Buvidal treatment every 21 days.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (376 paragraphs)

Parties

Legislation Cited (6)

Cited By (4)