R v Fleet [2018] ACTSC 50

1. Mr Fleet has pleaded guilty to one count of aggravated burglary. He has asked the Court to take into account a transferred charge of minor theft.

2. The maximum penalty for the aggravated burglary under s 312 of the Criminal Code 2002 (ACT) is imprisonment for 20 years, or a fine of $300,000, or both.

3. The maximum penalty for minor theft under s 321 of the Criminal Code is imprisonment for six months, or a fine of $7500, or both.

4. On 18 October 2016, Mr Fleet and his co-offender Mr McLaws drove to a residence in O'Connor which was fenced off in preparation for demolition. It was under the control of a building company that had not given permission to Mr Fleet or Mr McLaws to enter or remove any items from it. It was a house which was the subject of the "Mr Fluffy" buyback and demolition program. They cut one of the chain links of the padlocked chain that was used to secure the fencing around the property. They got into the backyard of the residence. Mr Fleet began to pull copper piping off the back wall of the residence.

Mr McLaws tried to open the back door. Mr McLaws then broke into the area underneath the house by removing an access door. While Mr Fleet continued to remove copper piping from the wall of the residence, Mr McLaws searched the underground area of the residence. While at the residence, Mr Fleet and Mr McLaws removed approximately

seven kilograms of copper pipe which they placed in one of the three bags that they had brought with them. Police had been called to the residence as a result of a report by a neighbour who had observed Mr Fleet and Mr McLaws as they approached the house. Two police officers arrived at the premises and ultimately arrested both Mr Fleet and Mr McLaws for burglary. Mr Fleet admitted that he owned a bag containing some battery-operated tools, a screw driver, drill bits, nail removal-pliers, an angle grinder and a small socket set. Mr McLaws admitted that he owned a bag containing a number of items suitable for removing items such as copper pipe from premises.

5. The offender was first before the Court on 17 January 2017 and charged with aggravated burglary, going equipped for theft and minor theft. He entered a plea of guilty to the charge of aggravated burglary and the charge of going equipped for theft. On

5 June 2017, he was given leave to withdraw the plea. He then entered pleas of not guilty and was committed to the Supreme Court. On 16 August 2017, he pleaded guilty to the aggravated burglary charge in full satisfaction of the indictment. The minor theft was agreed to be taken into account on the sentence for aggravated burglary. The plea of guilty was in the face of a strong prosecution case. I consider that a 10 per cent discount on the sentence would be appropriate by reason of the plea of guilty.

6. The burglary is an aggravated burglary because the offender was in company. The property was not occupied. The offence occurred during the day. It was, however, planned. The offender was well prepared with equipment to enter the premises. It is in the low-range of objective seriousness for this offence.

7. Similarly, the minor theft is in the low-range of objective seriousness, having regard to the value of the items stolen and the fact that they were stolen from property which was going to be the subject of demolition and in relation to which there is no evidence that the copper would have otherwise been salvaged or recycled.

8. The offender is 44 years old. From the age of two to 14, he lived with his mother. He moved in with his father when he was 14. He continues to have supportive and stable relationships with his parents, stepmother and four siblings.

9. He has had three significant relationships, two of which produced children. He has children aged 13 and 18 years. All relationships were marred by drug use. Two of his ex-partners obtained domestic violence orders against him as a result of his behaviour.

10. He completed Year 12. He worked in the construction industry and a steel fixing business for seven years. He had a motor vehicle accident in 2007. As a result of his injuries, he is now on a disability pension. The offender said that his peer network was "pro-social", but there was only limited corroboration of this.

11. The offender has a history of using a variety of illicit drugs. He had a severe problem with alcohol when young. He used heroin up to 2003 and is currently prescribed opiate replacement therapy. His ongoing use of illicit drugs is his use of cannabis. He has completed an ACT Health program entitled "Controlling your cannabis information group", although his principal motivation in doing so appears to be not wanting to incur a custodial sentence rather than any recognition that his ongoing use of cannabis was problematic.

12. He minimised the significance of the offending conduct. He was collecting the scrap metal for extra cash. He was assessed as not suitable for community service because of his unfitness for work and his substance abuse issues. He was assessed by the author of the Pre-Sentence Report as being at a low to medium-risk of reoffending.

13. Mr Fleet has a significant criminal history. It is, however not as bad as that of his

14. In the ACT, he has a large number of driving offences [redacted for legal reasons]. This includes convictions for driving while disqualified for which he was given a period of

full-time detention in 2002. In 2004, he was given a suspended sentence for going equipped for theft. In 2006 and 2007, he had convictions for what appear to be minor contraventions of a protection order. He has a further conviction for driving whilst disqualified in 2012, for which he was given a suspended sentence. Prior to these offences, his most recent conviction was for an offence of damage property committed in 2014.

15. In New South Wales, he has convictions for dangerous driving in the year 2000, contravening an apprehended domestic violence order in the same year and what appears to be a suspended sentence imposed as a result of a failure to appear for a community service order in 2002. He has no convictions in New South Wales since 2002.

16. He has not spent any time in custody attributable to this offence. The offending conduct was at the low-end of the range of objective seriousness for this offence. Mr McLaws and Mr Fleet were equal participants. It was in the nature of subsistence level criminality. However, it was deliberate, in company and in full knowledge of the infringements on the entitlement of the owner.

17. The offender has a criminal history but it is less serious than Mr McLaws. Notwithstanding his ongoing drug use, there are more social factors which led him to be assessed as at a low to medium-risk of reoffending. It is concerning that notwithstanding that the offender stated that his peers were law-abiding, he still ended up in the company of his co-offender engaging in this conduct.

18. Having regard to the seriousness of the offence and the criminal history of the offender, I consider that no sentence other than a sentence of imprisonment is appropriate. Balancing the low objective seriousness with the need for specific and general deterrence, I consider that the appropriate starting point is a sentence of imprisonment of 11 months. That will be reduced to 10 months on account of the plea of guilty. As to how it should be served, I consider it appropriate to consider whether it should be served by way of an intensive correction order and will therefore direct an assessment of suitability for such an order. I note while this two-step process is disruptive and costly in terms of the time and resources of the parties and the Court, it is mandated by the terms of the legislation.

(1) the Court directs an intensive correction assessment under s 78 of the Crimes (Sentencing) Act 2005 (ACT);

(2) the proceedings are adjourned to 8 February 2018 at 10am;

(3) the offender's bail is varied by adding the following conditions:

• (a) He is to comply with any direction of an officer of ACT Corrective Services in relation to preparation of an intensive correction assessment.
• (b) He is to report to ACT Corrective Services, 249 London Circuit, by 4pm today.

[Sentence hearing resumed on 8 February 2018 following receipt of the intensive correction assessment]

20. When this matter was last before me I was also sentencing Mr Fleet's cooffender, Mr McLaws. Mr McLaws, who had a more significant criminal history was given a sentence of 11 months imprisonment to be suspended after serving five months imprisonment. I gave my reasons in relation to Mr Fleet, which concluded with my decision that a custodial sentence was appropriate and that, having regard to his plea of guilty, the custodial sentence would be for a period of 10 months.

21. I then, having heard submissions from counsel for Mr Fleet, adjourned the proceedings so as to allow an intensive correction assessment to be undertaken. That has now been undertaken and concludes that the offender was assessed as not suitable for an intensive correction order because of his active illicit substance use. Most relevant to that is that he admits to consuming cannabis on a daily basis, although he did indicate to the author of the intensive correction assessment that his consumption had substantially reduced.

22. In addition to testing positive for cannabis, urinalyses on 24 November 2017 and 6 December 2017 also tested positive for amphetamine and methamphetamine. Every urinalysis tested positive for cannabis. On 19 December, the result was "unable to provide a sample". It is not possible to reach any conclusion about that date having regard to the absence of any explanation of the circumstances as to why he might have been unable to provide a sample. Often an inability to provide a sample is consistent with a lack of willingness to provide a sample, but it is not possible to reach that conclusion on the material that is before me.

23. I do not consider that there is an appropriate basis for not accepting the assessment made by ACT Corrective Services in relation to his suitability for an intensive correction order. Counsel for the offender submitted that the benefit of the intensive correction assessment was that it identified the issues that were facing Mr Fleet. It indicated that he was assessed as being "treatment ready". It also indicated that he was not suitable for community service, one reason for which was the consequences of a leg injury that he has.

24. Counsel for the offender submitted, as I understood it, that a fully suspended sentence was the appropriate way in which to impose the custodial sentence and that it would be appropriate to place him on supervision so that he could address his drug use. He submitted that that approach, which would not require the offender to serve any time in fulltime detention, was both in his interests and in the interests of the community.

25. I do not accept the submission that that is the appropriate disposition of the matter, largely because I do not consider that it would provide adequate specific deterrence or punishment of the offending conduct. It must have been very clear to Mr Fleet that the intensive correction assessment provided an opportunity for him to demonstrate his capacity to address his underlying criminogenic factors. He does not appear to have been motivated enough or able to address his ongoing illicit substance use.

26. In those circumstances, having regard to his criminal history, I consider it necessary to impose a period of fulltime detention prior to the suspension of his sentence. I have had regard to the sentence that I imposed in relation to Mr McLaws. I take into account, in particular, that Mr Fleet has a less extensive criminal history and also that this will be his first time in fulltime custody, both of which are factors which must moderate the sentence imposed when compared with that imposed on Mr McLaws.

(1) the offender is convicted;

(2) he is sentenced to imprisonment for 10 months from 8 February 2018 until 7 December 2018;

(3) the sentence will be suspended after three months imprisonment from

8 February 2018 to 7 May 2018 upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months;

(4) the good behaviour order will also include the following conditions in addition to the core conditions:

• (a) a condition that he be on probation and subject to the supervision of the DirectorGeneral and obey all reasonable directions of the directorgeneral or such lesser period as determined by the DirectorGeneral;
• (b) that he supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a Corrections Officer; and
• (c) that he attention such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the DirectorGeneral.

(5) The above orders take into account the charge of minor theft (CC2016/11399).

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.