CRIMINAL LAW - Sentence - aggravated burglary - theft - property damage - obtain property by deception - plea of guilty - parity

Crimes Act 1900 (ACT) s 116(3)

Crimes (Sentencing) Act 2005 (ACT), s 19

Criminal Code ACT 2002 (ACT) ss 308, 312, 318, 326

Prohibited Weapons Act 1996 (ACT) s 5; Schedule 1

Green v The Queen [2011] HCA 49; 244 CLR 462

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Legal Aid ACT (Offender)

1. Michael Paul Forrest, the offender, has pleaded guilty to a total of seven offences and stands for sentence on those offences. Five of those offences were committed in company on the evening spanning 23 and 24 August 2014. The remaining two offences occurred on 4 December 2014, also in company, but with a different co-offender.

2. The offender declined to have the offences finalised in the Magistrates Court. That is not relevant for the purposes of sentencing.

S 5 Prohibited Weapons Act

S 116(3) Crimes Act

4. The first five offences occurred in a period of about 3 hours on the evening spanning 23 and 24 August 2014. At that time the offender was in company with Tony Lucas. Mr Lucas elected to have his matters dealt with and finalised in the Magistrates Court.

5. On Saturday, 23 August 2014 at about 10.55 pm Mr Lucas smashed the window of a vehicle parked in Phillip and stole from that vehicle a wallet and its contents, including an ACT drivers licence, credit cards and debit cards in the name of David Cashin. He also stole house keys and a garage remote-control to Mr Cashin's home address in McKellar. The offender was present throughout and provided assistance to carrying out the theft.

6. Using a mobile telephone application, Mr Lucas and the offender looked up Mr Cashin's address in McKellar and made their way to it, arriving a short time later.

7. The offender and Mr Lucas entered through the garage, using the remote control previously stolen. They then entered the house through an internal door. They stole a laptop, iPad and prescription glasses from the residence. Mr Cashin's wife was at home, asleep. She was woken by lights that had been switched on by the offender and Mr Lucas. The agreed statement of facts does not further mention Mr Cashin's wife.

8. At about 1.32 am on 24 August 2014, the offender and Mr Lucas were detected travelling southbound on the Tuggeranong Parkway at 173km/h. They stopped at a Caltex Service Station in Kambah. There, the offender used Mr Cashin's Commonwealth Bank Visa card to purchase a packet of Smiths Crinkle Cut Original Chips valued at $3.40. Mr Lucas dishonestly obtained different property from that service station using another of Mr Cashin's credit cards.

9. The car in which the offender and Mr Lucas were riding on that night was owned by Thrifty Car Rentals. The vehicle had previously been hired out by its owner. However, at the end of that hire period the vehicle was not returned. It was subsequently reported as having been stolen approximately two weeks before the above offences.

10. The other two offences to which the offender has pleaded guilty occurred on 4 December 2014. The offender along with Zachary Edmonds, agreed to damage a Ford Territory sedan located at an address in Nicholls. That vehicle was owned by Kathryn Dempsey.

11. At about 9.40 pm the offender and Mr Edmonds arrived at the address where the vehicle was parked. Mr Edmonds acted as a lookout. The offender then used a knife to slash the side walls of three tyres of the vehicle to causing them to deflate completely.

12. The offender was detained by a neighbour of Ms Dempsey who had heard the tyres deflating. Police arrived at the location and placed the offender and Mr Dempsey under arrest. The offender was found in position of a sharp edged throwing star knife which is a prohibited weapon as defined by Schedule 1 of the Prohibited Weapons Act 1996 (ACT) ('Prohibited Weapons Act'). The offender was not the holder of any permit which would authorise the possession of such a weapon.

13. As a result of these events, the offender was charged with possess a prohibited weapon contrary to s 5 of the Prohibited Weapons Act and the property damage to the vehicle pursuant to s 116(3) of the Crimes Act 1900 (ACT) ('Crimes Act').

14. On arrest, the offender agreed to participate in a taped record of interview. He told police that he had been asked by a male named "Ian" to slash the tyres on the vehicle and had been provided with the address. He also told police that he had been attended the address for the purpose of slashing the tyres and he had a knife in his possession for that reason. He further told police that he had previously purchased the star knife as a gift for a relative.

15. I will sentence the offender for these last two offences on the basis he was carrying out a contract, presumably for some consideration although there is no specific evidence to that effect, for an imprecisely identified person and that contract required the offender to intentionally commit the offence of damage to property.

16. The Crown conceded a 25% discount for the pleas of guilty should be allowed, taking into account the negotiations,

17. The offender is a 22 year old man who has an extensive criminal history. Much of the evidence relating to his circumstances is contained in the Updated Pre-Sentence Report dated 26 March 2015.

18. Under the heading of "Opinion" the Authors of the Report write:

Mr Forrest is a 22 year old man who has a substantial criminal history and reported illicit substance abuse. It would appear he is yet to make a concerted effort to address his illicit substance abuse and he has not taken advantage of the opportunities afforded to him by the court.

Mr Forrest continues to demonstrate antisocial values and a propensity for violence. Furthermore, Mr Forrest has demonstrated limited insight into his offending behaviour and a poor attitude towards this service. These behaviours raised concerns regarding his capacity to successfully complete and residential or group-based drug rehabilitation program in the community and/or a period of supervision.

Mr Forrest has been assessed as a moderate to high risk of general reoffending. His risk of reoffending may be reduced if he addresses his illicit drug use, mental health issues and antisocial attitudes.

19. Counsel for the offender urged upon me the relative youth of the offender, his role as a father to a young son and the fact that the offender had made several attempts, albeit unsuccessfully, to complete rehabilitation programs to address his substance abuse issues. Counsel was unable to press this submission vigorously because, when the offender had been admitted to bail after some months in custody for these offences, he was again apprehended and charged on 25 July 2015 in relation to an allegation of aggravated robbery. it is alleged that he had a knife with him. Although these fresh charges are not a factor to be considered on sentencing, his extensive criminal history does not lend itself to leniency.

20. The offender, on both occasions, was accompanied by a co-offender. In relation to the first five charges that the co-offender was Mr Lucas. In relation to the remaining two charges it was Mr Edmonds.

21. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Dawson and Gaudron JJ summarised the principles to be derived from the various judgements in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, as follows:

The parity principle upon which the argument in his court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike, but that if there are relevant differences due allowance should be made for them. In this case the co-offenders, different sentences may reflect different culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or another of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen recognises that, as between co-offenders, there should not be a marked disparity which gives rise to a "justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

22. I cannot see any reason not to sentence the offender consistently with the sentences imposed upon Mr Lucas. Both the objective facts and subjective circumstances of the offenders are of such similarity that there is little of any relevance to distinguish them.

23. Although Mr Lucas was not charged with identical offences, I am satisfied that the disposition of the offender's proceedings in this Court should largely follow the outcome of the sentences imposed upon Mr Lucas in the Magistrates Court. I conclude this because of the principle of parity and note that it can be applied to sentences imposed upon persons who are co-offenders by virtue of having engaged in the same criminal enterprise, regardless of the charges that have been actually laid against them: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [30].

24. Therefore, I intend to impose a sentence for the five offences which is comparable to that imposed on Mr Lucas. I note in that regard that Mr Lucas was sentenced b Magistrate Boss on 27 February 2015 and received a total head sentence before reduction of 21 months. He was to serve 12 months before having the balance suspended on entry into a good behaviour order.

25. In relation to the offences of damage to property, namely a vehicle, I was not provided with details of Mr Edmonds' full participation in the crime, his subjective circumstances or his criminal history so as I might determine whether a question of parity was involved. I do know that he received a good behaviour order on sentence. In the circumstances I intend to impose a period of imprisonment upon the offender, to be served concurrently with the sentence imposed for the offence of possess prohibited weapon.

26. I will give credit for the time spent on remand for these offences from 17 September 2014 to 2 February 2015. This equals 139 days, or four months and 17 days. As the offender has been in custody since 28 August 2015 the sentences will be backdated to start on 11 April 2015. If and when the offender is sentenced on the aggravated robbery charge laid on 25 July 2015 then this judgement can be taken into account in the reckoning of time served.

27. No other punishment is available in the circumstances other than full time imprisonment. I also intend to make two reparation orders pursuant to s 19 of the Crimes (Sentencing) Act 2005 (ACT) ('Sentencing Act') the first being 50% of the loss suffered by Mr Cashin's insurer AAI Ltd, and second the loss suffered by Kathryn Dempsey as a result of the slashing of the tyres on her vehicle. Those figures are, respectively, $2,826.73 and $420.00.

28. I will partly accumulate the sentence for the offences of possess prohibited weapon and property damage to a vehicle upon the sentence for the five offences committed on the evening of 23/24 August 2014.

(a) For the offence of theft from a vehicle on 23/24 August 2014 in contravention of s 308 of the Criminal Code the offender is convicted. I sentence him to imprisonment for a term of four months reduced from six months. The sentence will commence on 11 April 2015.

(b) For the offence of aggravated burglary on 23/24 August 2014 in contravention of s 312 of the Criminal Code, the offender is convicted. I sentence him to imprisonment for a term of 16 months reduced from 21 months. The sentence will commence on 11 April 2015 and expire on 10 August 2016.

(c) For the offence of theft from a house on 23/24 August 2014 in contravention of s 308 of the Criminal Code, the offender is convicted. I sentence him to imprisonment for a term of six months reduced from eight months. The sentence will commence on 11 April 2015 and expire on 10 October 2015.

(d) For the offence of dishonestly obtain property on 23/24 August 2014 in contravention of s 326 of the Criminal Code, the offender is convicted. I sentence him to imprisonment for a term of one month. The sentence will commence on 11 April 2015.

(e) For the offence of dishonestly ride in a motor vehicle on 23/24 August 2014 in contravention of s 326 of the Criminal Code, the offender is convicted. I sentence him to imprisonment for a term of two months reduced from three months. The sentence will commence on 11 April 2015.

(f) For the offence of possess a prohibited weapon in contravention of s 5 of the Prohibited Weapons Act the offender is convicted. I sentence him to imprisonment for four months reduced from six months. The sentence will commence on 11 June 2016 and end on 10 October 2016.

(g) For the offence of property damage to a car in contravention of s 116(3) of the Crimes Act the offender is convicted. I sentence him to imprisonment for four months reduced from six months. The sentence will commence on 11 August 2016 and end on 10 December 2016.

29. In conclusion, the sentence of imprisonment will commence on 11 April 2015 and finish on 10 December 2016, a total period of 20 months.

30. I set a non-parole period of 14 months commencing on 11 April 2015 and expiring on 10 June 2016.

31. Pursuant to s 19(3) of the Sentencing Act, I make a reparation order requiring the offender to make reparation in the sum of $2,826.73 to AAI Ltd. The moneys are to be paid to the registrar for payment out to AAI Ltd.

32. I make a further reparation order pursuant to s 19(3) of the Sentencing Act requiring the offender to make reparation in the sum of $420.00 to K Dempsey. The moneys are to be paid to the registrar for payment out to the victim.

I certify that the preceding Thirty-Two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.