R v Eluga [2017] ACTSC 140

Crimes Act 1900 (ACT), s 116(3)

Criminal Code 2002 (ACT), ss 308, 309, 311, 321, 326

Crimes (Sentencing) Act 2005 (ACT), ss 19, 20

Magistrates Court Act 1930 (ACT), s 90B

R v Eluga [2016] ACTSC 304

R v Eluga (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 13 December 2013

Legal Aid ACT (Offender)

SCC 185 of 2012; SCC 84 of 2016; SCC 85 of 2016; SCC 20 of 2017; SCC 21 of 2017

1. Peter Eluga has pleaded guilty to 22 offences, as follows:

(a) six thefts, arising under s 308 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 10 years imprisonment;

(b) three minor thefts, arising under s 321 of the Criminal Code and carrying a maximum penalty including 6 months imprisonment;

(c) nine offences of burglary with intent to steal, arising under s 311 of the Criminal Code and carrying a maximum penalty including 14 years imprisonment;

(d) one robbery, arising under s 309 of the Criminal Code and carrying a maximum penalty including 14 years imprisonment;

(e) two offences of destroy or damage property not exceeding $5,000, arising under s 116(3) of the Crimes Act 1900 (ACT) with a maximum penalty including 2 years imprisonment; and

(f) one offence of obtaining property by deception, arising under s 326 of the Criminal Code and carrying a maximum penalty including 10 years imprisonment.

2. The minor theft and damage property offences are before me for sentencing under s 90B of the Magistrates Court Act 1930 (ACT) and s 68D of the Supreme Court Act 1933 (ACT), and for the purposes of s 68D(2) of the Supreme Court Act, I note that I consider it would be in the interests of justice to deal with those offences in these proceedings.

3. I shall refer to all the offences just mentioned as the new offences.

4. The new offences were committed in January, September and October 2016.

5. First, in the early morning of 12 January 2016, Mr Eluga used a metal bar to force entry into a health food store in Griffith, where he searched the cupboards and drawers, punched a door causing a large crack and hole, and set off the security alarm system. He detached the alarm system from the roof, and left the premises. A staff member who was in the building at the time saw Mr Eluga as he left the building and called out to him, but he did not reply. The value of the damage caused is not specified, but it did not exceed the $5,000 which is the statutory threshold for the damage property offence charged. Mr Eluga was linked to the burglary in due course by DNA evidence taken from the scene.

6. Late in the evening of 18 January 2016, Mr Eluga committed 9 offences at various stores in the Cusack Centre in Kingston.

7. In each case, he gained entry to the premises by smashing a glass front door, and stole cash, being:

(a) from a dance studio, around $4,225;

(b) from a yoga studio, around $603;

(c) from a boutique clothing store, around $900, which was taken from a safe that was damaged in order to get access to its contents (that damage is the subject of a separate charge); and

(d) finally, from a laundromat, around $100 cash.

8. Mr Eluga was identified from CCTV footage of the break-ins at the dance studio, yoga studio and clothing store, and was linked to the laundromat break-in, which he claims not to remember, by DNA evidence.

9. Next, during the afternoon of 29 September 2016, Mr Eluga approached a woman driving towards a boom gate to exit a Civic car park. When she opened her door, Mr Eluga held the door open and asked the victim for her bag. She resisted, and tried to close the door. Mr Eluga told her he needed $100 for heroin, and she gave him the $15 she had in her bag. Mr Eluga kept trying to get her bag, until he was apparently scared off by the approach of a passer-by. He was subsequently identified through CCTV footage.

10. During the afternoon of 12 October 2016, Mr Eluga broke into a house at Griffith, where he was found by the occupants, a father and his 16-year-old son, when they returned home. Mr Eluga, who had broken in through the back door, first shouted at the victims, and then tried to leave by the front door, but could not open the locked screen door. He dropped a bag containing goods belonging to the occupants, walked past the father, who was shielding himself with a piece of wood, and into the kitchen where the 16year-old threw a bottle of iced coffee at Mr Eluga's head. Mr Eluga ran out the back door and jumped over the fence. The items found to be missing from the house included house and car keys, 2 mobile phones, a watch and some cash to a total value of just under $800. Mr Eluga was linked to these events by DNA evidence taken from a metal implement left in the house; he later admitted the offences, and told police that he wanted to apologise to the victims.

11. On 17 October 2016, Mr Eluga entered a café at the Manuka shops and took a backpack belonging to a staff member, the contents of which included a wallet containing $100 in cash and a Mastercard. Within the next few hours, Mr Eluga used the Mastercard in 10 transactions at 3 different nearby stores to obtain cigarettes, alcohol and groceries to a total value of almost $500. Mr Eluga was identified from CCTV footage of the various Mastercard transactions.

12. Overnight between 18 and 19 October 2016 Mr Eluga broke into a jewellery shop in a building in Manuka via the locked male toilets in the building, a manhole, and a gyprock wall through which he was able to enter the jewellery store's upstairs office. He took jewellery and jeweller's tools to a total value of $10,000.

13. A few hours later, Mr Eluga used a pole to break into a children's clothing store in Manuka, damaging the front door; he stole $500 cash from the register and left the store. Mr Eluga was linked to both the Manuka burglaries by CCTV footage from the premises concerned.

14. Finally, in the early hours of 20 October 2016, Mr Eluga broke into a church in Narrabundah by using a metal pole to smash open a wooden side door. He took a tin containing $100 cash from a fridge in the bar area. From an office area, he took about 30 commemorative medals and coins valued at $5,000, and from a cabinet in another room he took a gold-plated chalice valued at $2,000.

15. Later on 20 October, Mr Eluga was arrested after he tried to sell jewellery suspected of being stolen in the Manuka burglary to another jewellery store in Manuka. When police arrested him, he had a small amount of Ice with him, as well as the jewellery and some of the coins from the church. The next day, the AFP searched Mr Eluga's flat and seized several pieces of clothing relevant in identifying him in CCTV footage, and some other items stolen from the church.

16. Mr Eluga was remanded in custody on 20 October 2016, and has been in custody ever since.

17. Mr Eluga was charged with the various offences on several different occasions between November last year and January this year. Pleas of guilty were entered in relation to all the new offences in the Magistrates Court, no later than the third mention of the matter in that Court (for the January offences, pleas of guilty were entered on the first or second mention).

18. At the time of the September and October 2016 offences, Mr Eluga was on conditional liberty, being subject to good behaviour orders made by me on 18 August last year in relation to offences for which I had initially sentenced Mr Eluga in 2013 and in relation to sentences for new offences committed in January 2016 (the details of all those earlier offences are set out in previous sentencing remarks (R v Eluga [2016] ACTSC 304; R v Eluga (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 13 December 2013) and need not be repeated today).

19. The September and October 2016 offences breached the good behaviour orders concerned, and in this sentencing process I must cancel those good behaviour orders and deal with the original sentences again.

20. I note in passing that the AFP was aware of Mr Eluga's involvement in the January 2016 offences by the time I sentenced him in August 2016, but for some reason the relevant charges were not laid until January this year.

21. The children's clothing store seeks reparations of almost $7,000 for repairs and for the cash stolen from the register.

22. As well as the agreed Statement of Facts, the following material is in evidence before me:

(a) a criminal history;

(b) sentencing remarks made when I sentenced Mr Eluga on 28 July last year;

(c) pre-sentence reports dated 11 May this year and 29 November last year;

(d) CADAS reports dated 11 April this year and 12 October last year; and

(e) a compensation schedule;

23. The defence tendered a letter from the Benelong's Haven rehabilitation facility near Kempsey in New South Wales, advising that Mr Eluga could be admitted there on 18 May this year.

24. Oral evidence was given by Mr Eluga, who said that he had previously worked as a concreter and a carpenter and that, after his August 2016 release from custody, he was receiving help from the Construction, Forestry, Mining and Energy Union (CFMEU), of which he had previously been a member. The CFMEU had organised a place for him in a drug detox program, and then with the Foundation House Program to start in November 2016. In the meantime, he had been staying with his sister who suffers from schizophrenia, but he had had to leave after an argument with her. His parole officer had then organised a flat for him in Griffith, and he had committed most of the new offences while he was living there.

25. While in custody, Mr Eluga has made approaches to 2 other rehabilitation programs, one at Benelong's Haven as already mentioned, and the other being Karralika in the ACT. Mr Eluga said in his evidence that he was keen to attend the Benelong's Haven Program, and that one of his sisters had agreed to drive him there. He said that he had completed a therapeutic community program in prison some 15 years ago, but had not managed to complete a rehabilitation program in the community.

26. In considering the objective seriousness of the offences, I have had regard to the following matters.

27. First, as noted, Mr Eluga was on conditional liberty at the time of the September and October 2016 offences, having been released from custody when the sentences on the old offences were suspended with effect from 17 August 2016 - all the September and October offences are aggravated by that fact.

28. As well as indicating his wish to apologise to the victims of the residential burglary, Mr Eluga is described by the pre-sentence report author as expressing "appropriate empathy" for his victims.

29. I have concluded that all the new offences are of relatively low-range seriousness, while noting of course that in some cases they are low-level examples of serious offences, but I have treated several of them as tending towards mid-range seriousness. These are:

(a) the 4 burglaries in the Cusack Centre on 18 October last year, which were aggravated by the damage caused in gaining entry, none of which was the subject of separate charges, and also by apparent pre-meditation, in that Mr Eluga had been observed in the vicinity of the Cusack Centre several hours before the burglary;

(b) the burglary of the residential premises which was aggravated by the damage to the back door, the fact that Mr Eluga remained in the house until a time when occupants were quite likely to come home, as in fact they did, and also by the confrontation with the occupants when they did return;

(c) the last 3 burglaries, which also tend towards mid-range seriousness due to the level of property damage not otherwise charged; and

(d) finally, the thefts from the jewellery store and the church, which involved relatively high-value goods, while noting that quite a lot of the items stolen were in fact recovered.

30. I have also had regard in this sentencing to Mr Eluga's subjective circumstances.

31. Mr Eluga is now 46. In sentencing him in July last year, I described his background as follows:

1. ... He has an extensive criminal history in the ACT that includes at least 23 burglaries, 28 thefts, an armed robbery and several other dishonesty offences, and a history in New South Wales involving relatively fewer offences but of a similar nature.

32. Of course, that history now includes 3 further dishonesty offences for which I sentenced Mr Eluga on that occasion.

1. Mr Eluga had an untroubled early childhood and maintains good relationships with his mother and some siblings.
2. However, he has been deeply damaged by sexual abuse at school from the age of about 9, and then later, at age 14, when he spent time in an institution. ... He has abused cannabis, heroin and alcohol, starting with alcohol when he was 13, and more recently has also taken to using methamphetamine. It seems that [some of the old] offences were committed in a context of substantial drug and alcohol abuse costing him around $500 a week.
3. Mr Eluga received financial compensation for his sexual abuse but has spent it all, including on drugs and gambling.
4. In my last sentencing remarks, in 2013, I noted that:

Mr Eluga has a history of making successful attempts at rehabilitation, only to relapse into drug use in response to a personal challenge, such as being asked to relive his sexual abuse during counselling or being prevented from seeing his children. He clearly has some way to go in achieving the resilience necessary to sustain abstinence from illicit drugs.

1. Mr Eluga told the CADAS reporter that his most recent relapse into drug use had come after he was contacted by investigators on behalf of the Royal Commission into Institutional Reponses to Child Sexual Abuse. He has not yet provided evidence to the investigators, and, sadly, he did not take up the Commission's offer of telephone counselling. Mr Eluga has previously indicated that he has found counselling in itself to present personal challenges leading to stress, and it is hard to see how he is ever going to overcome the damage that has been done to him.
2. Mr Eluga told the pre-sentence report author that he had committed the new offences in the hope of being arrested because he was "sick of this" - it seems that he had been feeling inadequately supported while in the community, especially in relation to drug and alcohol rehabilitation.
3. Mr Eluga has expressed a wish to enter residential rehabilitation, although his current plans seem to involve more in the nature of part-time rehabilitation while maintaining activities in the community. ...
4. A forensic mental health report was prepared by Dr Barker. He concluded that Mr Eluga does not appear to suffer from a mental illness. ...

34. Mr Eluga's current offending seems to be largely if not entirely related to his use of illicit drugs, significantly, these days, Ice. He offends to fund that drug use, but also at times under the influence of that drug. It is clear that any genuine rehabilitation will require Mr Eluga to stop his drug use - it is far less clear how such a result would be achieved.

35. As noted last time I sentenced Mr Eluga, he has a history of rehabilitation attempts that, at best, result in only temporary abstinence followed by relapsing and reoffending. Last time, I suggested to him that it was important for him to deal with the psychological problems caused by his childhood sexual abuse; I have not changed my view that Mr Eluga is not likely to achieve lasting rehabilitation from his substance abuse until he does so, but I have still not seen any evidence of a willingness to confront that trauma.

36. The pre-sentence report author provided the following assessment of Mr Eluga:

Mr Eluga was assessed at high risk of general reoffending. He has multiple criminogenic risk factors and few protective factors. His risk factors include substance abuse issues, mental health issues, financial stressors and unemployment, antisocial peers and associates, a lack of prosocial activities, a lack of familial support and anti-social values and attitudes. Mr Eluga identified his substance abuse as his primary risk, and given the way this substance abuse had led, at least in part, to his other risks, particularly his poor familial relationships, unemployment and antisocial peers, it is commendable that Mr Eluga has sought, and gained, entry to a rehabilitation program. It is recommended that Mr Eluga complete a residential rehabilitation program to address his substance abuse. It is also recommended Mr Eluga continue to address his issues related to his childhood trauma to assist his abstinence from further substance abuse. Should Mr Eluga sufficiently address his criminogenic risks, his risk of reoffending may reduce.

37. That is, the pre-sentence report author recommends that Mr Eluga complete a residential rehabilitation program, commends him for having gained entry to one, and notes that if he "sufficiently address[es] his criminogenic risks, his risk of re-offending may reduce". This is hardly a vote of confidence.

38. Mr Eluga's current wish is to attend a rehabilitation program in northern New South Wales. However, given:

(a) the series of previous, ultimately unsuccessful, rehabilitation attempts followed by further offending;

(b) the fact that Mr Eluga is now accumulating sentences far more quickly than he can serve them; and

(c) the complete absence of anything in the evidence before me suggesting that this time his approach to rehabilitation would be different;

I consider that Mr Eluga needs to serve a significant further period in custody before being released on parole, at which point he might well be ready for another attempt at residential rehabilitation.

39. General deterrence is always relevant for these kinds of offences. As I noted last time I sentenced Mr Eluga, it is clear that he needs continuing personal deterrence, although far less clear that any particular punishment is likely to have any deterrent effect.

40. As already mentioned, all the pleas of guilty to the new offences came fairly early and those pleas of guilty will be recognised with a sentencing discount.

41. Mr Eluga, please stand. I record convictions on:

(a) 6 thefts;

(b) 3 minor thefts;

(c) 9 burglaries;

(d) one robbery;

(e) 2 damage property offences; and

(f) one offence of obtaining property by deception.

42. Under ss 19 and 20 of the Crimes (Sentencing) Act 2005 (ACT), I order that you pay amounts totalling $7,160 to the complainant, Beakie Pty Limited trading as Wear Wolfie (that was the children's clothing shop that was broken into in Manuka).

43. Next, noting that most of the new offences were committed in breach of the 3 good behaviour orders made on 28 July last year that took effect on 17 August last year, I now cancel those good behaviour orders and impose the suspended sentences. In due course, I will set out the new dates attached to those imposed sentences.

44. Now, I have a table which will be handed out to each of the Counsel. The first thing that is shown is the new dates for the old offences and I will just go through those quickly.

45. For CC2012/4911, a burglary at the Ainslie Arts Centre, your sentence of 19 months this time is to run from 20 August 2015, so it is backdated to take account of time served before you were released last time, and of course time served since you have been in custody, and it ended on 19 March this year.

46. For CC2012/4913, the burglary at Metro Car Care in 2012, there is another 19-month sentence, that will run this time from 20 December 2015 to 19 July this year, so that is nearly finished.

47. For CC2012/4914, a burglary at Narrabundah, there was a 22-month sentence which will now run from 20 April 2016 to 19 February 2018.

48. For CC2012/4847, a theft for which Mr Eluga was sentenced to 8 months imprisonment, ran from 20 April 2016 to 19 December 2016, so that is also completed, as is an ex officio damage property charge committed on 17 April 2012. That 8month sentence also ran from 20 April 2016 to 19 December 2016, and is also completed.

49. For the 3 offences dealt with last year that were committed in January last year, the sentences are:

(a) for CC2016/1603, a theft, 3 months imprisonment which will now be served from 20 December this year to 19 March next year;

(b) for CC2016/1851, obtain property by deception, 3 months imprisonment to be served from 20 January 2018 to 19 April 2018; and

(c) for CC2016/1852, unlawfully possess stolen property, one month from 20 January 2018 to 19 February 2018.

50. So now I move on, Mr Eluga, to the most recent set of offences.

(a) For CC2017/69, a burglary committed on 12 January 2016, the sentence is 15 months reduced from 20 months for your plea of guilty, starting on 20 January 2018 and ending on 19 April 2019.

(b) For CC2017/70, an associated destroy or damage property, the sentence is 3 months imprisonment reduced from 4 months, to be served from 20 January 2018 to 19 April 2018.

(c) For CC2016/9989, a burglary on 18 January 2016, the sentence is 18 months reduced from 24 months, to be accumulated so as to add 3 months to the total sentence. That will be served from 20 January 2018 until 19 July 2019. For the associated theft, CC2016/9984, the sentence is 9 months reduced from 12 months, to run from 20 January 2018 until 19 October 2018.

(d) For CC2016/9990, another burglary, the sentence for that is 18 months reduced from 24 months, to add a further 3 months to the total sentence, so that will be served from 20 April 2018 until 19 October 2019, and for the associated minor theft, a sentence of 3 months reduced from 4 months will be served from 20 April 2018 until 19 July 2018.

(e) For CC2016/9991, also a burglary, there is an 18-month sentence reduced from 24 months and to be served so as to add a further 3 months to the total sentence; that will be served from 20 July 2018 to 19 January 2020.

(f) For the associated offences, CC2016/9988, destroy/damage property, there is a 3-month sentence reduced from 4 months, to be served from 20 July 2018 until 19 October 2018, and for CC2016/9986, minor theft, 3 months imprisonment reduced from 4 months, to be served from 20 July 2018 until 19 October 2018.

(g) For the last of the 18 January burglaries, CC2016/9985, there is also an 18month sentence reduced from 24 months, again to add 3 months. That will be served from 20 October 2018 to 19 April 2020. For CC2016/9987, the minor theft associated with that burglary, there is a sentence of 2 months reduced from 3 months, to be served from 20 October 2018 to 19 December 2018.

(h) For CC2016/11190, the robbery in Civic committed on 29 September 2016, Mr Eluga, you are sentenced to 18 months reduced from 24 months and to add 3 months to the total sentence, so that will be served from 20 January 2019 to 19 July 2020.

(i) Next, for CC2016/12943, a burglary on 12 October 2016, the sentence is 18 months reduced from 24 months and to add 3 months to the total sentence, so that will run from 20 April 2019 to 19 October 2020. The associated theft, CC2016/13093, carries a sentence of 3 months imprisonment reduced from 4 months to be served from 20 April 2019 to 19 July 2019.

(j) For the theft of the backpack on 17 October, CC2016/12945, the sentence is 3 months reduced from 4 months, to add one month to the total sentence, and it will be served from 20 August 2020 to 19 November 2020.

(k) For CC2016/13118, obtain property by deception, which involved the credit cards taken from the backpack, the sentence is also 3 months reduced from 4 months, and served so as to add one further month to the total sentence, so that will be served from 20 September 2020 to 19 December 2020.

(l) For the next burglary, CC2016/13095 on 18 October 2016, the sentence is 18 months reduced from 24 months and served so as to add a further 3 months to the sentence, to be served from 20 September 2019 to 19 March 2021, and for the associated theft, CC2016/12948, the sentence is 6 months imprisonment reduced from 8 months, to be served from 20 September 2019 to 19 March 2020.

(m) For the next burglary, CC2016/12949 on 18 October, the sentence is 15 months reduced from 20 months and to add 2 months to the total sentence, so that will run from 20 February 2020 to 19 May 2021. For the theft associated with that burglary, CC2016/13096, there is 3 months imprisonment reduced from 4 months, to be served from 20 February 2020 to 19 May 2020.

(n) For the final burglary on 19 October, CC2016/13097, the sentence is 18 months reduced from 24 months, served to add an extra 3 months to the total sentence. That will run from 20 February 2020 to 19 August 2021. For the associated theft, CC2016/12952, there is 6 months imprisonment reduced from 8 months, to be served from 20 February 2020 to 19 August 2020.

51. Thus, in each case the sentences for thefts or damage property offences associated with particular burglaries are served concurrently with the burglary sentences.

52. Now, that gives a total sentence, including the previous batch of sentences which have been imposed this time, of 6 years, running from 20 August 2015 to 19 August 2021. The non-parole period that I set is 45 months, which will run from 20 August 2015 period to 19 May 2019.

53. The effect of the backdating and the non-parole period is that you will be eligible for parole, Mr Eluga, at the earliest, in about 23 months, namely 19 May 2019.

54. I know this must seem like a long time before you are next eligible for release, Mr Eluga, and it is. But you need to understand that over the last few years, you have committed a large number of reasonably serious offences. The current sentences, for instance, cover 12 burglaries, one robbery and an assortment of theft, property damage and other dishonesty offences; you have not served any substantial proportion of the sentences for those offences, and nor have you shown any progress in rehabilitating yourself, despite being given several chances to do so.

55. I recommend that in this next period in custody you consider seriously having another go at therapeutic community rehabilitation, and also consider seeking some one-to-one counselling in relation to your childhood sexual abuse. Otherwise, I suspect it is just going to be a constant cycle of prison, more offending and more prison until you simply get too old for it, and that is not much to look forward to.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.