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[2017] ACTSC 83
Supreme Court of the ACT
2017-03-06
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
1. Michael Paul Forrest be convicted of each of the offences to which he pleaded guilty on 5 August 2016 and 15 February 2017.
2. Michael Paul Forrest not be sentenced for these offences at this time and be released on bail under the Bail Act 1992 (ACT) from 7 March 2017 to appear in this Court at 9:30am on Tuesday 20 February 2018 to be sentenced for the offences of which he has been convicted on the following conditions:
(a) That he accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him including as to treatment for mental impairment and drug addiction.
(b) That he be released into the company of an employee of the Karralika Therapeutic Community and accompany that person to the Karralika Therapeutic Community for the purposes of treatment in the Community Rehabilitation Program.
(c) That he remain in the Program, except for approved absences or absences to attend Court, and obey all reasonable directions of the person in charge of the Program.
(d) That for any reason he is not admitted to the Karralika Therapeutic Community, or is discharged from that Program or leaves that Program, he report to the Officer-in-Charge of Tuggeranong Police Station within four hours to have his bail reviewed.
(e) That he authorise the person in charge of the Program to supply any information about his treatment and progress as may reasonably be required by the person supervising him.
(f) That he consent to the provision by his lawyer of the Report of Dr Danielle Clout, dated 7 December 2016, being provided to the Director of ACT Corrective Services and the person-in-charge of the Karralika Therapeutic Community.
3. It be indicated that if Michael Paul Forrest does not comply with this order and the bail conditions, that he be sentenced to a term of immediate imprisonment for a period of approximately six years.
4. It be indicated that if Michael Paul Forrest complies with this order and the bail conditions, that he be sentenced to imprisonment for approximately six years but that be then suspended with a Good Behaviour Order for some years, and possibly the inclusion of a community service condition.
5. Michael Paul Forrest be subject to the following additional conditions:
(a) If he breaches the conditions of the bail or the order, he is liable to be arrested and brought before the Court;
(b) The Deferred Sentence Order may at any time be reviewed. In addition to his Honour reviewing the Deferred Sentence Order on his own initiative, the Director-General, the ACT Director of Public Prosecutions, or Michael Paul Forrest himself, may apply to the Court to have the order reviewed.
(c) On a review of the Deferred Sentence Order, his Honour may:
(ii) warn Michael Paul Forrest about the need to comply with the conditions of the Deferred Sentence Order and his bail; or
(iii) amend the Deferred Sentence Order's conditions; or
(d) If bail is revoked, the Deferred Sentence Order for Michael Paul Forrest be automatically cancelled.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - repeat offender - aggravated robbery - burglary - aggravated burglary - theft - intentionally damaging property - dishonestly taking a motor vehicle without the owner's consent - dishonestly driving someone else's motor vehicle without the consent of the owner - dishonestly receiving stolen property knowing or believing it to be stolen - driving whilst disqualified - rolled-up counts - conditional liberty at the time of offending - totality of sentence - Verdins principles - Restorative Justice undertaken - plea of guilty - general deterrence - specific deterrence - Deferred Sentence Order - bailed to attend residential drug rehabilitation
Bail Act 1992 (ACT)
Criminal Code 2002 (ACT), ss 308, 310, 311, 312, 313, 318(1), 318(2), 403
Crimes (Sentence Administration) Act 2005 (ACT), ss 107, 110, 110(1)
Magistrates Court Act 1930 (ACT), s 90B
Supreme Court Act 1933 (ACT), s 60A, Pt 8
Ashdown v The Queen [2011] VSCA 408
Beniamini v Craig [2017] ACTSC 30
Bowen v The Queen [2011] VSCA 67
Cicciarello v The Queen [2009] NSWCCA 272
Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299
Davey v Childs [2011] ACTSC 129
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
Douglas v The Queen (1995) 56 FCR 465
Hogan v Hinch [2011] HCA 4; 243 CLR 506
Johnson v The Queen [2016] NZCA 144
Kaye v Siddiq [2013] ACTSC 62
Kutschera v The Queen [2015] NSWCCA 73
Liu v Western Australia [2012] WASCA 218
Ly v The Queen [2014] FCAFC 175; 227 FCR 304
Mill v The Queen [1988] HCA 70; 166 CLR 59
Oliver (1982) 7 A Crim R 174
R v Beary [2004] VSCA 229; 11 VR 151
R v Beniamini (No 2) [2017] ACTSC 32
R v CA [2014] ACTSC 332
R v Carmody (Unreported Supreme Court of the Australian Capital Territory, Penfold J, 31 July 2009)
R v Carmody [2016] ACTSC 382
R v Celani [2012] SASCFC 134; 62 MVR 367
R v Clotworthy (1998) 15 CRNZ 651
R v De Leeuw [2015] NSWCCA 183
R v Elphick (No 2) [2015] ACTSC 23
R v Eluga [2016] ACTSC 304
R v Forrest [2015] ACTSC 283
R v Forrest [2016] ACTSC 321; 11 ACTLR 311
R v Fusimalohi [2012] ACTCA 49
R v Hart (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 7 December 2012)
R v Hennessy (Unreported, Federal Court of Australia, Gallop, Sheppard and Nicholson JJ, 23 May 1996)
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Horne [2017] ACTSC 36
R v JM [2014] ACTSC 380
R v Jones [2004] VSCA 68
R v Kelly [2016] ACTSC 281
R v Kilic [2016] HCA 48; 339 ALR 229
R v Kristiansen [2015] ACTSC 159
R v Martin [2007] VSCA 291; 20 VR 14
R v McMahon [2014] ACTSC 280
R v McCurley [2016] ACTSC 219
R v Naqvi [2016] ACTSC 345
R v Payne [2004] SASC 160; 41 MVR 19
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
R v Richard [2011] NSWSC 866
R v Sami [2006] DCR 128
R v Samia [2009] VSCA 5
R v SAT [2006] QCA 70
R v Shafik-Eid [2009] VSCA 217
R v Spencer [2014] ACTSC 364
R v Strano (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 4 February 2013)
R v Thorn (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 7 September 2009)
R v Tran; ex parte Attorney-General of Queensland [2002] QCA 21
R v Verdins [2007] VSCA 102; 16 VR 269
R v Ware [2016] ACTSC 264
Saga v Reid [2010] ACTSC 59
Sampson v De Haan [2016] ACTSC 327
Talbot v The Queen (1992) 34 FCR 100
The Queen v Thorn [2010] ACTCA 10
Walker v The Queen [2011] VSCA 230
Wong v The Queen [2001] HCA 64; 207 CLR 584
Legal Aid ACT (Accused)
1. Between 13 and 25 July 2015, Michael Paul Forrest engaged in what might fairly be called a sustained rampage of criminality resulting in him being charged with 95 offences. He has also been charged with two offences arising out of events occurring between 9 and 12 September 2014.
2. Indeed, Mr Forrest's offending is quite complicated and the consequent sentencing proceedings will be complex.
3. On 23 June 2016, Mr Forrest was committed to this Court for trial on the 97 charges to which I have referred above (at [1]).
4. On 5 August 2016, however, as a result of discussions between the ACT Director of Public Prosecutions and Mr Forrest, he pleaded guilty to 37 offences, and on 29 September 2016, I referred him for restorative justice under the Crimes (Restorative Justice) Act 2004 (ACT): R v Forrest [2016] ACTSC 321; 11 ACTLR 311 (Forrest (2016)).
5. On 15 February 2017, I permitted the Crown, without objection by Mr Forrest, to amend the indictment by changing a date and an amount on two of the counts, and by adding a further count on the indictment to which Mr Forrest also pleaded guilty. He now stands to be sentenced for the 38 offences.
6. The offences may be summarised as follows: one count of aggravated robbery, one count of aggravated burglary, eight counts of burglary, 13 counts of theft, 11 counts of damaging property, one count of motor vehicle theft, two counts of receiving stolen property, and one count of driving someone else's motor vehicle without the consent of the owner.
7. Aggravated robbery is an offence against s 310 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 2500 penalty units (that is, at the time, a fine of $375 000) and 25 years imprisonment.
8. Aggravated burglary is an offence contrary to s 312 of the Criminal Code, for which the legislature has set for a maximum penalty of 2000 penalty units (that is, at the time, a fine of $300 000) and imprisonment for 20 years.
9. Burglary is an offence prohibited by s 311 of the Criminal Code, which renders Mr Forrest liable to a maximum penalty of 1400 penalty units (that is, at the time, a fine of $210 000) and 14 years imprisonment.
10. Theft is made an offence by s 308 of the Criminal Code and attracts a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
11. Intentionally damaging property is an offence contrary to s 403 of the Criminal Code for which the maximum penalty provided is 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
12. Dishonestly taking a motor vehicle belonging to someone else without the owner's consent (motor vehicle theft) is an offence prohibited by s 318(1) of the Criminal Code and attracts a maximum penalty of 500 penalty units (that is, at the time, a fine of $75 000) and imprisonment for five years.
13. Dishonestly receiving stolen property knowing or believing it to be stolen is made an offence by s 313 of the Criminal Code, which renders Mr Forrest liable to a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
14. Dishonestly driving someone else's motor vehicle without the consent of the owner is an offence against s 318(2) of the Criminal Code which provides for a maximum penalty of 500 penalty units (that is, at the time, a fine of $75 000) and imprisonment for five years.
15. All the offences are, by the yardstick of the maximum penalty prescribed by the legislature, serious offences: Oliver (1982) 7 A Crim R 174 at 177.
16. The offences were committed in a series of 16 incidents and it is convenient to describe them in a summary way according to those incidents. The incidents are generally set out chronologically in the indictment.
17. On 10 September 2014, Mr Forrest smashed the rear passenger side window of a motor vehicle parked in a secure underground car park of units in Deakin, ACT. This was the first count of damaging property. The cost of repairs to the vehicle was $350.
18. He then took items from the vehicle. The property taken was valued at $3637.09 and included a number of scientific items, tools and keys. This constituted the first count of theft.
19. On 13 July 2015, a Ford Falcon sedan was taken from a suburban street in Kambah, ACT, when the owner left it unlocked and with the keys in it for about 10 minutes. The vehicle was seen later when Mr Forrest and a woman got out of it and entered a sports store in Fyshwick. This constituted the count of dishonestly driving someone else's motor vehicle without the owner's consent.
20. Mr Forrest then entered the store and, shortly after, left a change room wearing a jumper of a kind sold in the store underneath the jumper he had worn when entering the store. The Acting Manager approached him and asked him to take off his jumper so that she could examine the jumper underneath. He did so and she noticed a hole where the security tag is usually attached. The Acting Manager accused him of attempting to steal the jumper, worth $59, however, Mr Forrest tried to leave the store but was blocked by the Acting Manager. He produced a knife that was hanging around his neck and aimed it at her to enable him to leave the store. This was the count of aggravated robbery.
21. Later, the stolen Ford Falcon sedan was found in Kambah, crudely spray painted red and black, though the original yellow could still also be seen. The vehicle was bearing different, stolen registration plates. This was the second count of damaging property.
22. On 15 July 2015, Mr Forrest smashed the side window of a car parked in the Mount Stromlo car park where the owner had left it while riding his mountain bike in the area. This was the third count of damaging property. Mr Forrest also stole various items from the car, including the owner's wallet, which contained his driver licence showing his address, and the keys to his home. This was the second count of theft.
23. Mr Forrest then went to the home of the car owner, presumably because he found the address from the stolen driver licence. He used the keys to unlock the front door. This was the first count of burglary. He entered the premises and stole various items, including a passport, electronic items, cash, watches, a backpack, a key, and a camera, the total value of which was approximately $4000. This was the third count of theft. Some of the stolen items were later recovered.
24. On 20 July 2015, Mr Forrest drove in a Volkswagen sedan to a dirt car park at the intersection of Hindmarsh Drive and Eucumbene Drive, Duffy, ACT, where he smashed the driver's side window of each of three parked cars. The cost of repairs to those vehicles is not known. These were represented in the fourth count of damaging property, which was a rolled-up count of the three incidents, as to which, see below (at [160]-[163]).
25. Mr Forrest proceeded to take property to the value of $500 from one of the cars whose windows he had smashed. For the reason set out below (at [28]), this was included in the fourth count of theft, also a rolled-up count.
26. He scattered items from the centre console of one of the other cars over the front seat and floor of that car.
27. Mr Forrest's theft from the car in the Duffy car park included bills showing the owner's address and keys to the house at that address. Mr Forrest left the car park and then went to those premises and entered them. This was the second count of burglary. He must have surmised that the premises would be empty because the owner had driven to the car park.
28. He then proceeded to steal property to the value of about $3740, including electronic items, cash, and a motor cycle. Some of the items were strewn in the front yard of the home and on the road. This was the fourth count of theft, which included this incident, as well as that involving the same owner's motor vehicle earlier.
29. Later, also on 20 July 2015, Mr Forrest entered a residence in Chapman, ACT, between 8:30am and 3:00pm when the owners were not there, they having locked and secured the premises before leaving. This was the third count of burglary.
30. Mr Forrest then stole property to the approximate value of $8000, including electronic items, which included a laptop later recovered, jewellery, cards, a bank passbook, alcohol, a knife (which was also later recovered), and other personal items. This was the fifth count of theft.
31. Police later sighted the Volkswagen sedan parked in the front yard of a house in Chisholm, ACT, and saw Mr Forrest get into it and drive away. Police attempted to intercept the car, but it was driven out of sight. Police then spoke to the resident of the house who told them that Mr Forrest had been staying there and consented to a police search. Police found a number of items stolen from earlier thefts.
32. Later, the Volkswagen was seen at a house in Wanniassa, ACT, and the owner of the premises told the police that Mr Forrest had been using it for some days. He had spray painted it blue over its original red paint.
33. A number of items were recovered from the vehicle which had been stolen in earlier thefts referred to above.
34. On 21 July 2015, Mr Forrest drove to the car park near the fire memorial area of the Stromlo Forest Park, ACT, left, but later returned, by which time three other cars had been driven and parked there. Mr Forrest smashed the driver's side window of each vehicle. I had no information about the cost of repairing the motor vehicles. Two of these incidents were included in the sixth count of damaging property, also a
35. Mr Forrest then proceeded to steal items of property from the vehicles. The property, which included wallets, cash, cards, keys, items of clothing, house keys, a phone, and a green resuscitation pack valued at $130. The loss of keys and cards, although of nominal monetary value, would, of course, cause considerable inconvenience to the owners. These thefts constituted the sixth, also rolled-up, count of theft.
36. On 22 July 2015, Mr Forrest and a co-offender entered the secure underground car park of an apartment block in Kingston, ACT, at about 4:30pm. This was the fourth count of burglary.
37. He then proceeded to smash a window in each of 10 motor vehicles parked there. The cost of repairs to the cars is not known. These incidents constituted the seventh count of damaging property, also a rolled-up count.
38. Mr Forrest then proceeded to steal items from six of the vehicles. The property taken, which was valued at $1953, included house keys, AFP equipment including internal training documents and manuals which were later recovered, compact discs, a portable keyboard, a torch and accessories which were recovered, an Apple iPad which was also recovered, a purse, a watch, and a pair of sunglasses. These thefts were the seventh count, also a rolled-up count, of theft.
39. At some time at 7:30pm on 23 July 2015 or possibly earlier, Mr Forrest entered the underground car park of a block of apartments at Mawson, ACT. This was the fifth count of burglary.
40. He then proceeded to smash a window in each of four cars parked there. The cost of repairs to the cars is not known. These incidents constituted the eighth count of damaging property, also a rolled-up count.
41. Mr Forrest then proceeded to take items from the cars. The property, valued at $5647, included cash, several pairs of sunglasses, one pair of which was later recovered, clothing, perfume, a nurses care kit, a blood pressure device, a stethoscope and a thermometer, a torch, a garage remote, some tennis related items, some car items in a bag, sets of keys, two compact disc cases, a camera, and a baby bag with nursing products. The loss of a number of these items would clearly cause significant inconvenience to the owner. These thefts were the eighth count of theft, also a
42. At some time early in the morning of 24 July 2015, Mr Forrest entered the secure underground car park to apartments at Phillip, ACT. This was the sixth count of burglary.
43. He then proceeded to smash a window in each of two cars parked there. The cost of repairs to the cars is unknown. This was a rolled-up count of damaging property, the ninth such count.
44. Mr Forrest then proceeded to take items from each car. The total value of the property taken was $720. The property included some cash, a wallet, cards including a driver licence, electronic items, clothing, and two bags, one of which was recovered. These thefts constituted the ninth count of theft, also a rolled-up count.
45. On 24 July 2015, an unknown person broke into an apartment in Phillip and stole various items. The total value of which was approximately $105 631 and included items of irreplaceable sentimental value.
46. When Mr Forrest was arrested on 25 July 2015, the Holden Commodore sedan in which he had been travelling was searched and a number of items from that theft were located. The property, valued at $3000, included jewellery, electronic items, house and car keys, a watch, a clarinet in a case, personal documents, a gym bag, and a watch. These items were, of course, all recovered and, presumably, returned to their owner. The possession of the personal documents was a serious invasion of the owner's privacy. These facts constituted the first count of dishonestly receiving stolen property.
47. Sometime late on 24 July 2015 or early on 25 July 2015, Mr Forrest entered a residence at Wright, ACT. This was the sixth count of burglary.
48. He damaged the internal door to the garage and searched various cupboards. He then took property valued at $3219. The items were an Apple iPad, 55.82 grams of gold, a bundle of house and car keys, and a white 1999 Toyota Camry sedan. This was the 10th count of theft.
49. Early in the morning of 25 July 2015, Mr Forrest and a co-offender, Hayley John, entered the downstairs car park of two adjacent blocks of apartments at Macquarie, ACT. This was the count of aggravated burglary.
50. He then proceeded to smash the windows in each of the 10 vehicles that were parked there. The cost of repairs to the vehicles is unknown. These incidents were the 10th count, a rolled-up count, of damaging property.
51. Mr Forrest then took property from each of the vehicles and handed it to Ms John who put it into a bag she carried. The property taken was valued at $675. It included clothing, some of which was recovered, a kettle, compact discs in a case, various sets of keys and garage remote controls, cash which was recovered, a camera which was recovered, some tools, some of which were recovered, some hockey equipment which was recovered, some other sporting equipment, a number of pairs of sunglasses, one of which was recovered, a motor cycle helmet, also recovered, and a working with vulnerable people card, which was recovered. This theft constituted the 11th count of theft, again a rolled-up count.
52. Mr Forrest and Ms John left the garage and then drove in again in a white Holden Commodore. Mr Forrest got out and Ms John then drove the car out of the garage. Mr Forrest walked over to a Kawasaki Motorcycle which he then drove out of the garage. This constituted the count of dishonestly taking someone else's motor vehicle without their consent.
53. The movements of Mr Forrest and Ms John in the underground car park was caught on closed circuit television (CCTV), presumably installed for security purposes. I viewed part of the CCTV footage.
54. Early on the morning of 25 July 2015, Mr Forrest smashed the windows of each of six vehicles in various car parks in the Gold Creek Village in Nicholls, ACT. These constituted the 11th count, a rolled-up count, of damaging property. The cost of repairs to the vehicles is not known.
55. Mr Forrest then proceeded to take items from each vehicle. The property taken was valued at $500. It included a backpack, a security token, a pocket knife, a bag containing toiletries, various cards, pairs of sunglasses, a set of binoculars, electronic items, an Australian government lanyard, a shopping bag with cleaning products, a car key, and a purse. All the items were recovered when Mr Forrest was arrested.
56. When he was arrested, Mr Forrest was searched and was found to be in possession of some items that had been stolen from a motor vehicle that had been parked in Kambah while the owner tended to her horses agisted there. This was the second count of dishonestly receiving stolen property.
57. Sometime after 10:30am on 25 July 2015, Mr Forrest entered a residence in Chisholm. This was the eighth count of burglary.
58. He then opened all the drawers and cupboards and scattered items throughout the house. He also damaged the rear French doors and removed or bent some fly screens.
59. He took a large number of items of property which were valued at about $10 000. The property was all recovered. It included jewellery, house keys, cash, electronic items, two cameras, men's cologne, passports, and a wallet. This was the 13th count of theft.
60. A summary charge of driving, on 21 July 2015, whilst disqualified was preferred against Mr Forrest. Under s 90B of the Magistrates Court Act 1930 (ACT), this charge was transferred to this Court to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).
61. Mr Forrest had, on 30 May 2014, been disqualified in the ACT Magistrates Court from holding or obtaining a driver licence for two years on his conviction for four offences of driving whilst disqualified and driving with a prescribed drug in his oral fluid.
62. The charge of driving whilst disqualified is laid under s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty, where, as was Mr Forrest, the offender is a repeat offender, 100 penalty units (at the time, a fine of $15 000) and imprisonment for one year. Upon conviction, an offender is also automatically disqualified from holding or obtaining a driver licence for, in the case of the repeat offender, 12 months or, if the Court orders it, a longer period.
63. At about midday on 25 July 2015, police attended at a bank branch in Calwell, ACT. It is not clear why they did so nor how they came to be there. Mr Forrest and Ms John had driven there in the white Holden Commodore sedan seen in CCTV footage at the apartments in Macquarie. It was parked in a nearby carwash and Ms John told police that there was a large amount of stolen property in it.
64. Mr Forrest was arrested. When searched he was in possession of some cash, a cash and bank card, the latter being the subject of the second count of dishonestly receiving stolen property, and a flick knife. He was wearing an Adidas jumper, in the pockets of which was assorted pieces of glass. He was also holding a wallet that had been stolen as part of the 13th count of theft.
65. Police subsequently obtained a search warrant for the vehicle and located the stolen property in it which was later identified as being the subject of various thefts referred to above.
66. It was appropriate, as I did above (at [1]), to describe the offending of Mr Forrest as a sustained rampage. The majority of the offences related to him preying on motor vehicles, damaging them to gain entry and to steal from them. In all, he damaged the windows of 39 cars and stole items from 32 of them. He also damaged another two cars by spray painting them.
67. I had no information about the cost of repairs of the damage to the cars for the most part. In the first count of damaging property, the cost of repairs for the car was $350 and this seems likely to be the order of the cost for the repair of the other cars, apart from those which were spray painted. It is not, therefore, a very large cost. As I pointed out in R v Carmody [2016] ACTSC 382 at [69], relevant factors in sentencing for the offence of damaging property are the circumstances in which the damage is caused and the amount of damage caused.
68. The damage was caused as part of the course of conduct involved in the burglaries, where relevant, and thefts as a means of achieving the objective of these offences, though they are, by virtue of the statutory maximum, serious offences.
69. There were no particular circumstances of aggravation associated with these offences.
70. The thefts, while serious offences as measured by the maximum penalties legislated for them, varied in the amount of property stolen.
71. The aggregate amount is helpful to determine the whole of the criminality committed by Mr Forrest and so is very relevant for compliance with the principle of totality, but it cannot affect the seriousness of an individual offence.
72. The total amount stolen, according to the Statement of Facts, was $42 910.09, a not inconsiderable sum; this does not however include the possession of stolen property from the 24 July 2015 Phillip apartment burglary. Some of the property was recovered; it seems that it was a reasonable amount. Regrettably, I was not told the value of the recovered property. There were a total of 39 persons from whom goods were stolen. In one case, the amount stolen from one victim was as much as $10 000, in another $8000, but in all other cases, the amount stolen from any one victim, especially in the rolled-up counts needed to be divided between the owners and seemed to be less than $4000, and sometimes, quite a small amount.
73. In addition to the value of the property stolen, the loss of many of the items would have caused great inconvenience and cost. For example, the loss of house keys would be a great inconvenience and would likely require the victim to engage and pay for a locksmith to change their locks, and inconvenient, perhaps, even to gain entry to their own home. Similarly, the cost and inconvenience of replacing passports is not inconsiderable. Again, the replacement of bank and credit cards causes inconvenience, especially as, in these low cash days when people rely on such cards for much of their purchasing, the delay in gaining a replacement card can be very frustrating. The loss of sporting equipment can also cause significant inconvenience as the participation in such leisure activities is an important part of health and social interaction.
74. Items such as jewellery and some personal papers have sentimental or personal value that cannot be restored, even by the purchase of replacements.
75. The taking of motor vehicles is a significant form of theft and the same principles apply. Some such offences are aggravated by damage done to the vehicle, though this did not happen here. It is also to be remembered that the purchase of a motor vehicle is, after purchase of a home, often the most expensive item that people buy and, for those who are not home owners, the most expensive. It is also, in a city such as Canberra which is so dependent on the car, the cause of considerable inconvenience to the owner.
76. In R v Horne [2017] ACTSC 36 at [18]- [22], I discussed some of these issues and addressed the offence of theft, but especially the offence of burglary. I said:
77. Many of the burglaries committed by Mr Forrest were in underground car parks associated with apartment blocks. These are neither commercial premises nor strictly residential premises where, for example, the burglar enters living areas likely to cause considerable distress and insecurity for the owners. On the other hand, they are closely associated with residences and occupants may well be accessing the car parks at various times, including late at night.
78. A matter of concern, however, is the number of burglaries and thefts committed in such areas in Canberra recently. See R v Kelly [2016] ACTSC 281 at [1] and the cases there cited, as well as R v CA [2014] ACTSC 332, R v Ware [2016] ACTSC 264, and R v Horne. While such car parks are usually said to be "secure" car parks, they clearly are relatively vulnerable because they are for the most part unattended and a number of residents, many of whom may not know all of the others, may, as a result, not be as suspicious of people in the car park whom they do not know.
79. In some of the burglaries and thefts from the cars, Mr Forrest scattered items around the house or the car as already noted. This somewhat aggravates those offences.
80. There was a certain pattern to some of the offences, in that Mr Forrest would damage a car to enter it and when taking items from it, locate the address and, if available, house keys of the owner and then go to that person's house, enter it as a trespasser, and steal items from it. While that does not seem to be a high level of planning or premeditation, it is certainly not opportunistic, though whether there are keys or house identification is, of course, a matter of opportunity.
81. That Mr Forrest entered the houses during the day, knowing the owner was not there because the owner's car was parked elsewhere, perhaps removes a possible aggravating feature of a burglary offence committed in daylight constituted by the fact that an occupant is likely to be at the house.
82. As I noted above (at [67]), it seems to me that, on the whole, the offences of damaging property were part of the associated thefts as they constituted the means of access to the property stolen. Also relevantly, there was a similar relationship with the burglaries and the thefts in the underground car parks. As with the relationship between burglaries and associated thefts, this would ordinarily lead to a significant degree of concurrency. See R v McMahon [2014] ACTSC 280 at [94].
83. The offence of dishonestly receiving stolen property is a serious offence. Indeed, as I pointed out in Saga v Reid [2010] ACTSC 59, receiving is a significant offence because without receivers, there would not be so many thieves. I do not think that Mr Forrest is, however, a professional receiver nor that he had a particular capacity to act as a receiver in any organised way. Nevertheless, the property the subject of the offences was reasonably valuable, $3000 in one case. There was no value for the items found in Mr Forrest's possession in the other case, though they were personal items the loss of which would cause some inconvenience value. All the property the subject of these offences was recovered.
84. Mr Forrest had been charged with certain similar offences for which he was committed to the ACT Supreme Court for sentence on 11 December 2014. He was granted bail on 22 January 2015. Those offences were not resolved until 22 September 2015 when he was sentenced for them by Robinson AJ in R v Forrest [2015] ACTSC 283 (Forrest (2015)).
85. He had also been sentenced to prison on 30 May 2014 for some driving offences, the term of imprisonment to commence on 15 February 2014, but which was suspended on 14 June 2014 with an 18 month Good Behaviour Order.
86. He was, thus, on conditional liberty, both on bail and subject to the Good Behaviour Order, at the time of committing these current offences.
87. Finally, the aggravated robbery was a very serious offence. It involved a weapon, namely a knife. The use of knives is regarded by the courts as a serious matter. As the Court pointed out in Ashdown v The Queen [2011] VSCA 408 at [20], the community abhors the use of knives. Such an offence requires a sentence of general deterrence: Liu v Western Australia [2012] WASCA 218 at [86].
88. The value of the property the subject of the charge was, however, not great.
89. That he was on conditional liberty is an aggravating feature of his offending, though it is said that it is strictly not a matter rendering the objective seriousness of the offences more grave: Sampson v De Haan [2016] ACTSC 327 at [92].
90. Apart from all of these matters, the offences, while serious, were relatively unremarkable examples of the offences.
91. I had a helpful Pre-Sentence Report, a Psychological Report from Dr Danielle Clout, a Pre-Release Report prepared for Mr Forrest's parole and Mr Forrest gave evidence. From this material and the submissions of counsel, I can make the following findings.
92. Mr Forrest was born about 24 years ago, the eldest of three children. He had a troubled relationship with his father, a disciplinarian who meted out abusive punishments. Recently, however, his relationship with his father has improved partly as a result of Mr Forrest addressing his drug behaviour. He has a positive relationship with his siblings.
93. He felt hurt that his mother turned a blind eye to his father's abuse of him but he is also
94. The abuse from his father led to him living with his grandmother for about half the time between when he was between the ages of six and 13. At age 13, he then moved in with her full-time.
95. He suffered sexual abuse for about four months from a relative when he was about seven years old. This has continued to cause him mental problems. He experiences flashbacks, nightmares, and intrusive thoughts, and in an attempt to try to block these out, his behaviour is subsequently affected, especially in winter months. It appears that his drug use to which I refer below, is, in part, a response to these psychological challenges.
96. He attended school until he commenced Year 10 but left part way through that year. He did not have a positive schooling. His problems were not addressed and he was classed as a problem child, being frequently suspended. He had difficulty in controlling his emotions and often behaved very badly.
97. Since leaving school he has completed what is described in the Pre-Sentence Report as "compulsory vocational training" but no other further formal education.
98. After school, he secured employment as a labourer in fencing, paving and landscaping, and enjoyed the work, abstaining from drugs at the time. While in custody at the Alexander Maconochie Centre, he has been working in the kitchen.
99. Mr Forrest has had three significant relationships. The most serious relationship began when he was only 17 and resulted in the birth of his son after about three years. Initially, the relations between him and his partner were good and he enjoyed parenthood, but his partner appears not to have been ready for the stability needed for the family responsibilities and the relationship deteriorated, with Mr Forrest leaving in early 2014.
100. He had formed a strong bond with his son, being his primary care-giver for his first six months. He initially had difficulty in access to his son when his relationship with his son's mother ended, as access was often denied. This seems to have been partly resolved and he now has fortnightly visits with his son. He is involved with the Shine for Kids Program at the Alexander Maconochie Centre where he and his son have about four hours together during which they engage in activities including games, assistance from care workers, and a barbeque lunch. His relationship with his son is said to be one of the key motivators for him to succeed with treatment and rehabilitation.
101. Mr Forrest has had a significant history of illicit substance abuse. As to alcohol, however, he did at age 14 engage in "social binge drinking", but this was gradually replaced by the use of cannabis and methylamphetamines (Ice). In the last four years, he has had minimal consumption of alcohol.
102. He started using cannabis at the quite young age of 12 and, by 14, was smoking it daily. The level of use decreased for a while, but after the break-up of his relationship, increased again up to 2 grams a day. Since he commenced with the Solaris Program at the Alexander Maconochie Centre in November 2015, he has not used cannabis. Reported drug screenings available to me have not detected cannabis use.
103. Mr Forrest started using Ice when he was 14 years of age and initially smoked small amounts occasionally. His usage increased dramatically when he was 15 as he was desperate to "block things out". It helped initially to do this but he gradually needed greater quantities to block out the past more effectively. He did manage to abstain between 2012 and 2014, but resumed use when his relationship broke down, and it continued during the period of these offences. Again, he has stopped since participating in the Solaris Program, though he has returned a positive urinalysis for amphetamine and methylamphetamine on one occasion, but also a negative result on another. He explained that the lapse coincided with his grandmother suffering a number of strokes and becoming quite ill. He admitted his use straight away.
104. Mr Forrest has sought drug rehabilitation. He entered the Triple Care Farm facility in 2015 in an attempt to abstain from illicit drug use. Triple Care Farm is operated by Mission Australia as a residential rehabilitation facility for young people between ages 16 to 24 with substance abuse problems, often also with co-morbid mental health issues. It is located in the Southern Highlands of NSW and operates on a "holistic" approach seeking not only to provide treatment but to address underlying issues such as homelessness and unemployment. The treatment is provided by one-on-one counselling with psychologists as well as in group sessions and educational workshops.
105. Unfortunately, Mr Forrest was doing well at the start of the Program, but, after six weeks, was discharged from the Program because he called one of the other participants a "dog", as that person kept telling the staff of all the infractions committed by other participants. Mr Forrest's behaviour was inconsistent with the facility's approach, where he was required to support rather than put down the other participants, and his approach was said to be more of a "gaol mentality".
106. He then spent four weeks in the community, working as a tyre fitter in Queanbeyan, before being admitted to the Arcadia House program. I have described that Program in R v Spencer [2014] ACTSC 364 at [24]- [28]. Again, he started the Program well but came late one day after about six weeks and appears to have responded badly to the initial negative response to his explanation.
107. Following his discharge he described himself as having gone "downhill". He initially returned to work but met up with some of his old friends. He separated from his partner who entered a relationship with a new man and he lost access to his son.
108. In custody, however, he has been more successful. In November 2015, he entered the Solaris Program, a Program I have described in R v JM [2014] ACTSC 380 at [26]. His participation was generally positive. He graduated in March 2016. He sought to
re-enter the Program in July 2016 but was discharged after about a fortnight for breach of rules. He re-entered the Program for a third time on 10 October 2016 and satisfactorily completed the Program on 2 March 2017.
109. Following Mr Forrest's first graduation from the Solaris Program, he became a mentor for other detainees, helping them to work through their issues and be more open about their problems with addiction issues. He had some positive feedback from this work.
110. He wishes to attend a residential rehabilitation program when released from custody and he, sensibly, feels the need for some support in the community. He has been assessed as suitable for the Karralika Therapeutic Community Program, which I have described in R v Kristiansen [2015] ACTSC 159 at [12]- [14]. His assessment was successful and he has been offered a bed in the Program from 7 March 2017.
111. Mr Forrest has also participated in the Collage program. He described the Program in this way:
MR FORREST: What you do is you start from - it's like a timeline, you start from when you were born and you go through all the stuff that's happened through childhood, what schools you went to, brothers and sisters, bad experiences, good experiences, right up to what you want to do when you get out of gaol.
MR DE BRUIN: Why was it so hard? --- I'm still learning to open up about that incident from when I was a kid and I just - I wasn't comfortable opening up in front of a room full of 15, 16 people.
HIS HONOUR: So it's a group program, it's not a one on one? --- Yeah.
112. Mr Forrest has a worrying criminal history. He has a total of 43 offences on his record. The majority (18) are traffic offences, but include five offences of driving whilst disqualified or suspended and two of drink-driving. The next most number of offences are dishonesty offences (13), including three offences of aggravated burglary and one of burglary. There are also a number of offences of violence on his record.
113. As I have noted above (at [85]-[86]), Mr Forrest was, at the time of committing the offences, subject to a Good Behaviour Order of 18 months, which commenced on 19 June 2014, and he was also on bail.
114. He was also sentenced by Robinson AJ on 22 September 2015 for offences that were committed in August and September 2014 noted above (at [84]). He was arrested for these offences and remanded in custody but granted bail on 22 January 2015. Thus, he was also on bail at the time of committing the current offences.
115. He was arrested for the current offences on 25 July 2015 and remanded in custody. On 22 September 2015, Robinson AJ sentenced Mr Forrest to 20 months imprisonment to commence on 11 April 2015, with a non parole period of 14 months, to commence on that day and to end on 10 June 2016: Forrest (2015).
116. The offences in Series 1 of the offences for which I must deal with Mr Forrest were committed on the same day as he committed two of the offences for which Robinson AJ sentenced Mr Forrest. That raises an issue of totality which must be dealt with in the sentence I must impose.
117. I had a reference from Mr Forrest's grandmother, in which she said that she had noticed "a great improvement in his attitude and demeanour". She noted that he understands the need to provide a good role model for his son and she felt that he was growing into a responsible young man.
118. Mr Forrest has been diagnosed with a number of mental health conditions. His early childhood experiences have left him with a Post-Traumatic Stress Disorder.
119. He has also been diagnosed with a Major Depressive Disorder. Unsurprisingly, he has been diagnosed with a Cannabis Use Disorder and a Stimulant Use Disorder. He may have an Attention Deficit Hyperactivity Disorder (ADHD); he seems to have many of the diagnostic criteria for the Disorder but has not had a formal diagnosis.
120. He is said to have had a diagnosis of Bipolar Disorder but Dr Clout suggested that this was inconsistent with his presentation and psychiatric history.
121. Dr Clout recommended that Mr Forrest will require long-term and intensive psychiatric treatment, which would first require a comprehensive assessment for any ongoing ADHD symptomology, and then inpatient psychiatric treatment, which may need to be followed by long-term individual psychological counselling. This, it was recommended, would be necessary to prevent any recidivism.
122. Mr J de Bruin, Mr Forrest's counsel, submitted that Mr Forrest's mental condition was relevant to sentencing. In his submission, the principles conveniently set out by the Victorian Court of Appeal in R v Verdins [2007] VSCA 102; 16 VR 269 at 276; [32], were applicable to this case.
123. In particular, Dr Clout's opinion was that Mr Forrest's mental impairments, which the Crown did not challenge, were relevant to the commission of the offences in the following ways:
1. The impairments he suffered were likely to have significantly impacted on his ability to exercise appropriate judgement at the time of the offending. Dr Clout related this in particular to his Post-Traumatic Stress Disorder and some of the symptoms of the ADHD which would impair his impulse control and his ability to exercise appropriate judgement. Dr Clout did refer, too, to the large amounts of Ice that Mr Forrest has consumed which she said "can be associated with irresponsibility, dangerous risk taking and impulsivity".
2. The impairments were likely to have adversely affected his ability to make calm and rational choices or to think clearly. This was, it appears, related to his feeling of distress but also the influence of Ice. He described his feelings prior to and during the offending as feelings of being "out of control" and disassociated from reality which, Dr Clout said, were consistent with symptoms of Post-Traumatic Stress Disorder and the common consequence of the Stimulant Use Disorder.
3. He was disinhibited with a heightened level of emotional distress which was said to be associated with both the Stimulant Use Disorder and symptoms of likely ADHD.
4. The influence of Ice was likely to have impaired his ability to appreciate the wrongfulness and seriousness of the conduct.
5. Mr Forrest's Post-Traumatic Stress Disorder and the presence of symptoms of ADHD may have obscured Mr Forrest's intent to commit the offences.
6. Dr Clout considered that Mr Forrest was experiencing severe mental health issues, including Post-Traumatic Stress Disorder, Cannabis Use Disorder, Stimulant Use Disorder, and symptoms of ADHD at the time of committing the offences. The symptoms and consequences of these disorders, it was her opinion, would likely have contributed causally to his behaviour and the commission of the offences.
124. In accordance with R v Verdins, this causal connection of his mental impairment with the commission of the offences would reduce Mr Forrest's culpability for the offending because of the effects it had on these various aspects of offending behaviour.
125. The Crown prosecutor, Ms T Skvortsova, however submitted that the principles were not engaged. The Crown prosecutor submitted that there were three reasons to reject or give little weight to Dr Clout's opinion.
126. The first was that the degree of thought or planning in the commission of the offences was inconsistent with Dr Clout's opinion. That seemed to be directed at Dr Clout's connection between Mr Forrest's mental impairments and the impulsivity which she finds as a consequence.
127. In the first place, however, the planned offences, such as those described above (at [80]-[81]), where Mr Forrest burgled houses the addresses of which he found when he stole items from cars, was not by any manner of means all the offences or the method of commission for all the offences.
128. Secondly, impulsivity was only one relevant consequence. Dr Clout also drew a connection between Mr Forrest's impairments and other relevant aspects of his culpability, such as his impaired judgement, his intent, and his ability to make calm and rational choices. These are all relevant to his culpability but are not inconsistent with any degree of planning that his method of committing the offences showed.
129. The second challenge was that the diagnosis of the Cannabis Use Disorder and of the Stimulant Use Disorder, was in reality, a diagnosis of drug addiction. I agree. That is relatively clear from the criteria for the disorders to which Dr Clout had referred in her Report.
130. It is a clear sentencing principle that, where drug addiction causes or contributes to offending behaviour, the addiction is generally of itself not a matter of mitigation. This was held by the Full Court of the Federal Court of Australia on appeal from this Court in Talbot v The Queen (1992) 34 FCR 100 at 105.
131. That general position, however, masks a degree of complexity about how the sentencing courts treat those with an addiction. For example, addiction may lead to a lesser sentence compared to that imposed for the same offence committed by a person not addicted as in Cicciarello v The Queen [2009] NSWCCA 272 at [17]- [18].
132. Indeed, in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 397-8; [273], Wood CJ at CL summarised some principles which show a more nuanced and, perhaps, more constructive approach to the issue.
133. In particular, the circumstances under which a person became an addict, such as by initial medical treatment (Talbot v The Queen at 105-6), or at a very young age before he or she could make an informed choice (Douglas v The Queen (1995) 56 FCR 465 at 470), are very relevant and may provide mitigation. These are, however, not part of the principles articulated by R v Verdins. In passing, I note that Mr Forrest did become an addict to cannabis at a very young age, though his addiction to Ice came later.
134. The third challenge was that Mr Forrest did not attribute his offending to his mental health. Thus, his evidence was:
• he was using the items he stole to trade for drugs to feed his drug habit;
• when he was committing the crimes, he was just looking for money to buy drugs;
• the drugs had the effect of pushing his family away and getting more involved with the use of Ice;
• when he used the drug, the reaction of his body and mind was, as he described it, just "out of it"; and
• he committed the offences purely to support his drug habit.
135. This evidence was used to submit that Mr Forrest's offending was not caused or contributed to by his mental impairment. Despite Dr Clout's diagnosis and expert opinion, which was not challenged, the Crown prosecutor submitted that Mr Forrest had not himself made the connection between his offending and his mental impairment, but attributed it to his use of drugs.
136. The Crown prosecutor did accept that the position was somewhat more complicated than that, but that the use of drugs was to block out the consequences of his problems, and that the purpose of the crimes was to purchase the drugs to enable this self medication.
137. She relied on the decision of the Victorian Court of Appeal in R v Shafik-Eid [2009] VSCA 217 at [26]- [27], where Lasry AJA, with whom Nettle and Redlich JJA agreed, said:
138. This decision, however, does not simply mean that the use of drugs cannot be mitigating circumstances, especially if the consequences of use, such as a drug induced psychosis, are not known to the offender. See R v Martin [2007] VSCA 291; 20 VR 14.
139. The question here, however, was the connection between the offending and Mr Forrest's mental health. Dr Clout, an expert who was not challenged, asserted that there was a "likely" connection. Mr Forrest gave evidence of events that confirmed the facts on which Dr Clout relied. Mr Forrest was not an expert and was not entitled to express an opinion on his medical diagnosis, though he could describe his symptoms.
140. This was not a case, such as in Bowen v The Queen [2011] VSCA 67 at [29] or, indeed, R v Shafik-Eid, or Walker v The Queen [2011] VSCA 230 at [9], where the evidence did not, in truth, make the relevant link between the offending and the mental impairment. Here it did. Mr Forrest's evidence did not undermine that. It may be that he committed the offences to obtain drugs, but his willingness and readiness to do so was compromised by his judgement which was, according to Dr Clout, directly related to his mental impairments. This was not simply a case where Mr Forrest's drug habit was caused by the mental impairment, though that was also the case, and it was the drug addiction which caused the offending. Here there was also a direct link made between the impairment and the offending.
141. That there was also a craving to feed his drug habit was relevant and moderates the mitigation otherwise available, but it does not negate it. I take into account the mitigation to which he is entitled as a result of his mental impairment.
142. I had three Victim Impact Statements made by persons the subject of Mr Forrest's crimes. Although the Court is aware of the effect of crime on the victim, it is always helpful to hear their voices and the range of harms, some unexpected, that have been suffered. They make clear that it is not only the victims of personal violence who suffer from criminal conduct. This is important for that statutory purpose of sentencing, namely to recognise the harm done to a victim.
143. It is, however, important to recognise that some victims cannot always distinguish the harm suffered from other crimes than those for which a particular accused is responsible. It is incumbent on the Court to have regard only to the harm that is the consequence of an offence for which the particular accused is to be sentenced.
144. The first Statement came from the victim whose very valuable property was stolen in a burglary to her apartment and a small portion of it was found in Mr Forrest's possession. They were precious possessions that had been handed down to the victim from her deceased parents, making the loss the more poignant and irreplaceable.
145. The second Statement was made by the victim of the burglary and theft at Chisholm. She was left with high levels of anxiety and became very nervous because of the crimes, feeling constantly on guard and not safe in her home. She became suspicious of people and lost much of her trusting and caring nature. The crimes also had a financial impact because of the excess payable on the insurance claim, in paying for replacements of items, such as the passports, and in the cost of additional home security. It took her time to attend to the repairs of the damage done during the commission of the crimes.
146. The third Statement was from the victims of the burglary, damaging property, and theft at Chapman. They were shocked at the destruction of property in the house and the theft of possessions that were held dear and included limited editions of pieces now too costly or difficult to replace. Some items taken had considerable sentimental value, including items such as personal letters, university qualifications, and travel memorabilia. It is obviously distressing to lose such things, but, as expressed by the victim, it was worse because the loss was of items of no value to the thief, making the theft wanton. There was also significant financial loss caused by the need for repair and restoration of damaged items and replacement of stolen items. The emotional toll was substantial.
147. A number of the victims who did not provide a Victim Impact Statement nevertheless participated in the restorative justice process with Mr Forrest. I have noted that above (at [4]).
148. In this case, the process was an indirect one; that is, there was no victim-offender conference at which there was a face-to-face encounter with questions and discussion moderated by a facilitator. Instead, the victim and offender communicated in writing. Mr Forrest was asked questions about why he committed the offences, were the victims specifically targeted, was he "scoping out their places" and the like. He responded and also wrote a letter of apology to each of them, assuring them that nothing like this would happen again by him, and the victims responded.
149. The process itself satisfied some of the victims, others took it further to make agreements with Mr Forrest. Those agreements included an undertaking by Mr Forrest to engage in rehabilitation to address his drug addiction. There was, as has become known, a wish by victims to ensure rehabilitation takes place so that the offending is not repeated.
150. The process for a number of victims had not been completed by the time of sentencing but both Mr Forrest and the victims are proposing to continue the process.
151. While it was not specific in some instances, I was able, from the Report from the Restorative Justice Unit, to find that at least eight victims participated in the process and they expressed satisfaction with the process.
152. Mr Forrest found the process quite confronting and initially found it difficult to respond to the people against whom he had committed the crimes. He had not expected his offending to have had such a wide impact and, as he expressed it, the process "opened [his] eyes a bit". He found that it also helped him understand the flow-on effect of his offending, that it was not even just a matter of himself and the victim, but that his crimes could have a wider impact on families, people with businesses and others in the community.
153. The legislature has made this opportunity available and s 33(1)(y) of the Crimes (Sentencing) Act 2005 (ACT) requires the Court to take into account the acceptance of responsibility of an offender to take part in restorative justice. The courts have, on a number of occasions, expressed support for the process. See, for example, the comments of Fryberg J in R v SAT [2006] QCA 70 at 8.
154. The participation of an offender in restorative justice is, independently of statute, now recognised as relevant to sentencing. See, for example, R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 379; [74]- [75]; Kutschera v The Queen [2015] NSWCCA 73 at [30]- [31], [37]. While restorative justice processes have become relatively widely used for juvenile offences, there is an increasing recognition that adult and more serious offenders may appropriately participate: R v Tran; ex parte Attorney-General of Queensland [2002] QCA 21 at [11]; R v Payne [2004] SASC 160; 41 MVR 19 at 34; [57].
155. There does not, however, seem to be a developed jurisprudence of how the restorative justice process is to be taken into account in sentencing. Clearly, the courts recognise that credit should be given for such participation: R v Celani [2012] SASCFC 134; 62 MVR 367 at 371; [18].
156. The participation in such a process is likely to be indicative of remorse: R v McCurley [2016] ACTSC 219 at [13]. Even the willingness to do so where, for reasons unassociated with the offender, the process cannot take place may be such an indication: Davey v Childs [2011] ACTSC 129 at [42]. It may, however, not necessarily be so: Johnson v The Queen [2016] NZCA 144 at [27]. Clearly, it is also evidence of acceptance of responsibility for the offence, for this is a requirement for eligibility: Forrest (2016) at [23], [25]. This is an important factor in sentencing: Forrest (2016) at [61].
157. It may, perhaps, go further than that. New Zealand has had longer experience of restorative justice programs, where the jurisprudence may provide some guidance. Thus, in R v Sami [2006] DCR 128 at [26], Judge McElrea explained:
Where a defendant such as Mr Sami takes part in a conference with a direct face-to-face meeting with the victim (and is willing to answer her questions and to be accountable to her in a very direct way) the Court in my view can accept, as a mitigating factor, that he has already been held accountable in that face-to-face way for harm done, and he has been held accountable in a way which is likely to promote a sense of responsibility for harm and some persona acknowledgement of that harm. The conference has also provided for the interests of the victim by making things easier for her and her family to put this incident behind them and to move on in their lives.
158. In the case of Mr Forrest, the process did not involve a direct, face-to-face conference, but much of the effect was equally obtained by the process adopted.
159. The effect of participation on sentencing is not easy to discern. In New Zealand, there has been a two-stage sentencing process which does permit some indication of what effect participation in a restorative justice process has. Thus, in R v Clotworthy (1998) 15 CRNZ 651, the offender was convicted of an offence of causing grievous bodily harm. He undertook a restorative justice process and agreed with a victim to pay $15 000 compensation. The New Zealand Court of Appeal reduced the compensation to $5000 but considered that his participation in the restorative conference together with the payment justified a two year discount on a five year sentence. This, of course, is no precedent and is merely a snapshot of the effect of a restorative justice process: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; [57].
160. I will take Mr Forrest's participation in the restorative justice process as evidence of remorse, of acceptance of responsibility for his offending, of a commitment to his rehabilitation, evidence of which is also shown by his participation twice in the Solaris Program and his efforts to enter the Karralika Program, and also that he has been held accountable for the harm done to some of the victims. These matters justify a reasonably significant mitigation in sentence and, in particular, justify a reduced non parole period to permit ongoing rehabilitation in the community.
161. As noted in describing the facts of the various offences, a number of the counts are what are known as rolled-up counts. As described in R v Jones [2004] VSCA 68 at [13], a rolled-up count is a collection of counts bundled into a single count. It is different from a representative count. It can only be followed as a procedure with the consent of the accused. Similarly, it can only be used for the purposes of a plea of guilty, else the count would be duplicated.
162. While this is a common approach in other jurisdictions, especially Victoria, it is not regularly used in this Territory. It was, it appears, used as early as 1995: R v Hennessy (Unreported, Federal Court of Australia, Gallop, Sheppard and Nicholson JJ, 23 May 1996) at 7. In 2013, it was doubted that it was an appropriate way to proceed in Kaye v Siddiq [2013] ACTSC 62 at [21], though his Honour, it appears to have, with respect, been wrong to hold that the prosecution could not, on the plea of guilty, have used a rolled-up charge. In any event, it was made clear in R v Naqvi [2016] ACTSC 345, that the approach was available in the Territory.
163. The rolled-up charge, though comprehending a number of offences, is for sentencing purposes, the one offence: R v Beary [2004] VSCA 229; 11 VR 151 at 157; [14]. The maximum penalty for the offence applies but only one sentence can be imposed. The sentence is not invariably the sum of the individual sentences that could have been imposed had the individual offences been separately charged, though it may be: R v Samia [2009] VSCA 5 at [12]. It, therefore, not only considerably simplifies the task of a sentencing judge, but it provides a considerable benefit to the offender: R v Jones at [13].
164. Nevertheless, the criminality encompassed in a rolled-up count is greater than that of an individual count: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [82]; Ly v The Queen [2014] FCAFC 175; 227 FCR 304 at 331; [125]; R v Richard [2011] NSWSC 866 at [65]. This may also have a bearing on accumulation and concurrency: R v De Leeuw [2015] NSWCCA 183 at [116].
165. I take these matters into account when considering the sentence to be imposed.
166. Mr Forrest was arrested for these offences on 25 July 2015. This was a Saturday. He was arrested after the Saturday Court conducted by the Magistrates Court had concluded. He was refused bail and appeared in Court on 27 July 2015, when he was remanded in custody. He remained in custody on these charges.
167. As I have noted above (at [114]), he was sentenced by Robinson AJ on 22 September 2015 to imprisonment for 20 months, with a non parole period of 14 months.
168. He was granted parole on 10 June 2016 but, of course, not released into the community because his bail had been refused on these charges. The sentence imposed by Robinson AJ expired on 21 December 2016.
169. It was submitted that I should not take into account the period between the grant of parole and the expiry of the sentence imposed by Robinson AJ. That, it was submitted, would be unfair to the community as it would constitute "double dipping".
170. I reject that submission. Mr Forrest would, from the date parole was granted, be at liberty, albeit conditional liberty. That was denied to him because he was remanded in custody for these offences. I see no reason in logic or fairness why that time should not be taken into account in any sentence that I must impose. Indeed, as I pointed out in R v Elphick (No 2) [2015] ACTSC 23 at [85]- [91], while there is a genuine discretion as to whether a sentence should be backdated, the discretion must be exercised judicially and for appropriate reason. Similarly, if the pre-sentence custody is not to be taken into account, proper reasons should be given.
171. When pre-sentence custody is to be taken into account, the periods of remand in respect of other offences is also to be included, though, of course, fairness may not require them to be given full, mathematical value. I see no reason why the denial of liberty to Mr Forrest in this case was not the custody referred to in s 63(2) of the Crimes (Sentencing) Act and so to be given full weight.
172. I addressed in R v Elphick (No 2) at [91] prior periods of imprisonment for other offences and noted that the principle of totality would require them also to be taken into account but in that context.
173. I note that in R v Eluga [2016] ACTSC 304 at [32], Penfold J would go, perhaps, a little further and regard such periods to be encompassed in the word "custody" in s 63 of the Crimes (Sentencing) Act, though her Honour also recognised that this, too, would be required by the principle of totality.
174. Mr Forrest has been held in custody on these offences directly from 25 July 2015 to 22 September 2015 and from 23 June 2016 to today. That is a total of 315 days. His period of the sentence imposed by Robinson AJ, which was served in full-time custody was 14 months from 11 April 2015, should be taken into account, not as to its full value, but in the context of the principle of totality.
175. I note that, in fact, that Robinson AJ backdated his sentence to commence on 11 April 2015. That would, ordinarily, require a consideration of not the full value of the earlier period of pre-sentence custody of Mr Forrest, but a careful inspection of what his Honour said was that this represented the period of custody on those offences from 17 September 2014 to 2 February 2015. There is, thus, no actual overlapping between the period his Honour took into account and the period I consider should be taken into account in mid 2015. Indeed, not to take this into account to the full would be patently unfair to Mr Forrest. Further, his Honour actually acknowledged this in Forrest (2015) at [26], though in error referred to the period from 28 August 2015 instead of 25 July 2015. His Honour may have been misinformed.
176. While a matter of totality rather than strictly pre-sentence custody, I mention the charges in Series 1. These were committed contemporaneously with those offences for which Robinson AJ was sentencing Mr Forrest. Applying the principles in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, I should consider the appropriate sentences as if Mr Forrest were being sentenced for all the offences at the same time. I note that his Honour imposed a series of sentences that were all concurrent. It seems to me that, while the amount stolen was significant, the damage was not substantial. The offences were not as serious as the most serious of the offences for which his Honour imposed sentences. Indeed, a number of those other offences had quite serious features.
177. In my view, it seems likely that the total criminality, were Mr Forrest to have been sentenced for the offences in Series 1 at the same time as Robinson AJ was sentencing him for the other offences, would not have greatly increased and that, while some few months may have been added to the total sentence, the sentences for these offences would have been largely concurrent with the sentences his Honour imposed.
178. As I have noted above (at [84]), Mr Forrest was, on 14 June 2014 subject to an 18 month Good Behaviour Order when four months of a seven month sentence of imprisonment was suspended. There were, in fact, two sentences of imprisonment, one of five months with one month suspended, and one of seven months with four months suspended, but both to be served concurrently.
179. If I am satisfied that the Good Behaviour Order has been breached, I must cancel the Good Behaviour Order: s 110 of the Crimes (Sentence Administration) Act 2005 (ACT). That includes, where the Supreme Court is sentencing the offender, a Good Behaviour Order made by the Magistrates Court: s 107(1) of that Act. I am so satisfied.
180. Under s 110(2) of the Crimes (Sentence Administration) Act, I then have a discretion as to whether to impose the sentence that was suspended or re-sentence Mr Forrest. I have recently set out in R v Beniamini (No 2) [2017] ACTSC 32 at [50]- [53], the principles applicable to the consideration of this discretion. These may be summarised as follows:
• there is no presumption in favour of the imposition of the suspended sentence;
• not to take action and, where appropriate, to impose the sentence that was suspended, may undermine the regime of suspending sentences;
• some of the matters that a court will take into account in deciding how to proceed include the proportion of the Good Behaviour Order served without breach, any rehabilitation attained by the offender during that time, the nature of the breach, especially whether it was constituted by further offending and, if so, whether similar to the original offence, and its seriousness and the proportionality between the imposition of the suspended portion of the sentence and the breaching offence, if any, as well as the offender's prospects of rehabilitation;
• the Crimes (Sentencing) Act applies to any re-sentencing;
• it is important also to have regard to the facts of the offences for which the suspended sentence was imposed.
182. The Crown prosecutor very properly and helpfully, supplied me with the police Statement of Facts for the earlier offences that had been used in the Magistrates Court.
183. In the first case, Mr Forrest had been disqualified from holding or obtaining a driver licence on 7 March 2013 for 12 months. On 5 January 2014, he was stopped by police while driving a Mitsubishi sedan in Griffith, ACT. He admitted that he had been disqualified from holding or obtaining a licence. He had also breached a bail condition not to be in the driver's seat of a motor vehicle and he was found to have an illicit drug in his oral fluid. He did not give to police any reason for driving. It is difficult not to see this as a contumacious example of the offence. See Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 307-9; [36]- [44].
184. In the second case, Mr Forrest was driving a Subaru station wagon in Reid, ACT, on 14 February 2014, when he was intercepted by police because the vehicle had no registration plates displayed. Mr Forrest, on this occasion, did not admit that he was a disqualified driver but, of course, checks by police soon discovered that he was. He was arrested. The Statement of Facts did not reveal any reason Mr Forrest had for driving. This was also an example of contumacious offending.
185. He was, at the same time, convicted of two other offences of driving whilst disqualified on 25 October 2013 and 10 December 2013, though the sentences of imprisonment imposed had not been suspended.
186. Mr Forrest committed the first series of breaching offences within 10 months, and his first offence within seven months, of his entry into the Good Behaviour Orders. Included in the offences for which I must sentence Mr Forrest is a further offence of driving whilst disqualified, as well as the other offences which are much more serious than these. Prior to the breach, Mr Forrest achieved no significant rehabilitation and, indeed, had continued to offend.
187. In my view, there is no reason why the suspended portion of the sentences should not be imposed, though, of course, also be subject to the principle of totality.
188. Multiple offending, such as that with which Mr Forrest has been charged, is a very complex exercise as the length of these reasons show.
189. While there is much about sentencing practice available for each individual offence, in a case such as this, there are not many comparable cases for the whole criminality to which it is appropriate to have regard.
190. So far as the offences of burglary and aggravated burglary are concerned, I have regard to decisions of the Court of Appeal such as R v Fusimalohi [2012] ACTCA 49. I also note the consideration of sentencing statistics in R v Horne at [51]-[52].
191. The offence of aggravated robbery was not a particularly serious version of the offence, though the use of a weapon made it more serious. I have regard to decisions such as R v Hart (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 7 December 2012), especially at 5, and R v Strano (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 4 February 2013). I have read and considered the relevant sentencing remarks.
192. For sentencing practice for a series of multiple offences, I have had regard to R v Carmody (Unreported Supreme Court of the Australian Capital Territory, Penfold J, 31 July 2009), where Mr Carmody was sentenced to 32 offences, including aggravated burglary, burglary, receiving stolen property, thefts, riding in, driving or taking someone else's motor vehicle without the consent of the owner, and damaging property. Mr Carmody also asked to have 32 offences taken into account under Pt 4.4 of the Crimes (Sentencing) Act. Mr Carmody was sentenced to a total period of three years and eight months imprisonment immediately suspended after 14 months pre-sentence custody with a 30 month Good Behaviour Order.
193. I also have regard to R v Thorn (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 7 September 2009), though the details of Mr Thorne's offending is almost impossible to discern from the sentencing remarks, as was regrettably common at that time and has, indeed, been the case in some decisions more recently. That makes it very difficult to assess how comparable the decisions are. Fortunately, there are some more helpful details in the consideration given by the Court of Appeal in The Queen v Thorn [2010] ACTCA 10. In that case, Mr Thorn was sentenced for 36 offences, including aggravated burglary, burglary, theft, attempted theft, riding in someone else's motor vehicle without their consent, receiving, or obtaining property by deception, and assault occasioning actual bodily harm. Two scheduled offences were also taken into account. Mr Thorn was sentenced to four years and six months imprisonment suspended after two years with a Good Behaviour Order for five years.
194. I have not described each of these decisions in detail. That is necessary to determine comparability: R v Kilic [2016] HCA 48; 339 ALR 229 at 235-6; [22]. There were, clearly, various differences. I have read the sentencing remarks and, in the case of Mr Thorn, the decision of the Court of Appeal. In my view, the total criminality here of Mr Forrest's offending is more serious. There are some similar subjective considerations.
195. I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. Clearly, for many of the offences and the whole of the offending, general deterrence is a prominent consideration. Given Mr Forrest's history of offending, specific deterrence plays some significant part.
196. On the other hand, the efforts that Mr Forrest has made to rehabilitate himself and to address the interests of victims are also important and need to be recognised and taken fully into account.
197. I have regard to the factors which I am required to consider under s 33 of the Crimes (Sentencing) Act. To the extent to which I am aware of them, they are set out earlier in these reasons. I have, in particular, considered the Pre-Sentence Report and the
198. I take into account Mr Forrest's plea of guilty. It was not entered at the earliest opportunity, but it clearly followed negotiations which led to the preferring of the
rolled-up counts, that would otherwise not have been able to be prosecuted as such. While Mr Forrest was committed for trial on 23 June 2016, it became clear to the Court by 14 July that the proceedings would proceed by pleas of guilty, though Mr Forrest was not arraigned until 5 August 2016, but by then no date for trial had been set. In my view, a reasonably significant discount is available for the pleas, though moderated in respect of the rolled-up counts for the reasons outlined earlier (at [163]).
199. Mr Forrest has a bed at the Karralika Therapeutic Community. It seems to me that he has, in the rehabilitation he has undertaken to date and his participation in the restorative justice process, earned the opportunity to pursue his rehabilitation further in the community. I will give him that opportunity through a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act.
200. It is early days yet and I am concerned that Dr Clout considers that he needs intensive psychological assistance. Regrettably, I have no information as to whether that is consistent with the program at Karralika, though I have been informed that he will have access to psychologists in the program. I hope that he can, while there, access some such treatment. On the other hand, his participation in the Solaris Program has shown that he can undertake a rehabilitation program satisfactorily.
201. He has now completed the sentence imposed by Robinson AJ and is not otherwise serving any sentence of imprisonment.
202. It is clear that his drug addiction and his mental health is a significant contribution to his offending behaviour and that the community will be better protected were he to be able to manage both these problems for him. See Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 537; [32].
203. I am satisfied that, with strict conditions, I may release him on bail to undertake this process.
204. I have given anxious thought to the fact that I retire in May 2017 and those few months will clearly not be sufficient for Mr Forrest to show the depth of rehabilitation necessary for a proper evaluation of the proper sentence. Whether I should deal with him subsequently under s 60A of the Supreme Court Act 1933 (ACT) or whether another judge should do so is a matter that needs to be addressed later.
205. I do consider, however, that it would not be a proper discharge of my duties in sentencing Mr Forrest to withhold what I regard as a proper approach to sentencing him simply because of my retirement and any adverse comments to which I might be subject as a result. That would not discharge the obligation under the oath of office I took when sworn in as a judge.
206. While by no means determinative, it is relevant that a significant majority of the victims who have participated in these proceedings have supported a rehabilitative approach.
207. I am required under s 118 of the Crimes (Sentencing) Act to indicate the penalties in general terms that I would impose if Mr Forrest complies with the Deferred Sentence Order and if he does not. I have discussed that issue in some detail in Beniamini v Craig [2017] ACTSC 30 at [198]- [200]. I shall continue to apply the approach I there outlined.
208. In my view, the total criminality of the offending, moderated by the principles of totality and recognising the pleas of guilty entered by Mr Forrest, the mitigating effect of his mental impairment on his offending, the rehabilitation he has achieved, and his participation in the restorative justice process, justifies a sentence of about six years imprisonment. That would, of course, be backdated to take into account the matters to which I have referred above. I also note that his period in the limited liberty of a residential rehabilitation facility would be taken into account: R v Elphick (No 2) at [86]-[90].
209. If Mr Forrest successfully completes the Karralika Program, I consider that he should be released then from custody with a substantial Good Behaviour Order. Were he not to complete the Program successfully, then he should complete the sentence of approximately six years imprisonment which would be imposed but, of course, with a non parole period of some significant length to show that the rehabilitation in the community has not been entirely successful.
1. I convict you of each of the offences to which you pleaded guilty on 5 August 2016 and 15 February 2017.
2. I have decided not to sentence you for these offences at this time.
3. I note that you are not serving nor liable to serve a sentence of imprisonment for an offence other than these offences.
4. I have carefully considered the Pre-Sentence Report and the Pre-Release Report and I note that the authors of neither report nor any other corrections officer gave evidence before me.
5. I consider that you should be given an opportunity to address your criminal behaviour and the factors, including drug addiction and mental impairment, that have contributed to your offending behaviour before I sentence you.
6. I am satisfied that I may release you on bail under the Bail Act 1992 (ACT).
7. Accordingly, I order you to appear in this Court at 9:30am on Tuesday 20 February 2018 to be sentenced for the offences of which I have convicted you.
8. I release you on bail from 7 March 2017 on the following conditions:
(a) That you accept supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising you including as to treatment for mental impairment and drug addiction.
(b) That you be released into the company of an employee of the Karralika Therapeutic Community and accompany that person to the Karralika Therapeutic Community for the purposes of treatment.
(c) That you remain in the Program, except for approved absences or absences to attend Court, and obey all reasonable directions of the person in charge of the Program.
(d) That for any reason you are not admitted to the Karralika Therapeutic Community, or are discharged from that Program or leave that Program, you report to the Officer-in-Charge of Tuggeranong Police Station within four hours to have your bail reviewed.
(e) That you authorise the person in charge of the Program to supply any information about your treatment and progress as may reasonably be required by the person supervising you.
(f) That you consent to the provision by your lawyer of the Report of Dr Danielle Clout, dated 7 December 2016, being provided to the Director of ACT Corrective Services and the person-in-charge of the Karralika Therapeutic Community.
9. I indicate that if you do not comply with this order and the bail conditions, I consider that you should be sentenced to a term of immediate imprisonment for a period of approximately six years. I indicate that if you comply with this order and the bail conditions, I consider that you should be sentenced to imprisonment for that period of approximately six years but that be then suspended with a Good Behaviour Order for some years, and possibly including a community service condition.
(a) If you breach the conditions of the bail or the order you are liable to be arrested and brought before the Court;
(b) I may review the Deferred Sentence Order at any time. In addition to me reviewing the Deferred Sentence Order on my own initiative, the Director-General, the ACT Director of Public Prosecutions, or yourself may apply to the Court to have the order reviewed.
(c) On a review of the deferred sentence order I may:
(ii) warn you about the need to comply with the conditions of the Deferred Sentence Order and your bail; or
(iii) amend the Deferred Sentence Order's conditions; or
(d) If your bail is revoked the Deferred Sentence Order is automatically cancelled.
211. I need you to understand, Mr Forrest, that you committed a great number of very serious crimes. You have already spent a considerable period of time in custody, but ordinarily for such offences, you would spend more time in custody. However, having carefully reviewed the matter, I am satisfied that your participation twice in the Solaris Program, your participation at some length in the Restorative Justice Program, and your other circumstances that I have set out, justifies me in giving you an opportunity to now address in the community your drug addiction and hopefully some of your psychological challenges, so that you can be an honourable citizen, a member of the community who can be trusted and who will not prey on other people and their property or their possessions for your own selfish purposes.
212. If you really do commit yourself to this and work hard at what Karralika will provide, and it is no easy task, a lot of people fail at Karralika, but if you succeed, then I think that the community is entitled to trust you to be back in it, albeit with supervision and conditions. If you do not, then, unfortunately, the only alternative left to the Court is to send you back to gaol, and there is a high likelihood that that will become a revolving door for you.
213. So this is an important opportunity for you. Do not waste it and do not make me look like a fool for giving you this opportunity. If things get tough, and they will, there are options for you. One of the things is that you are under supervision; your parole officer is someone who can assist you to identify how you might address some of the difficulties. You will have psychologists at Karralika who will assist you, and they will no doubt help you to get some of the assistance that Dr Clout says you clearly need, and you need to work hard at that too because that needs to be managed in order for you to come back as a useful member of our society, but in particular to be a role model for your son.
214. Your parole officer is there as someone that can assist you to identify resources or alternatives if things are getting tough and you need someone outside Karralika, but you need obviously to get authority from Karralika to go out of the Program and see your parole officer; that should not be a major problem.
215. The second alternative is you can come back to Court, usually via your lawyer and, although I probably will not be around, the Court may say that things are not progressing the way that they should be, so why don't we try something else, or the Court may say, "I am sorry, you have had your go. It did not work. You need to go back to prison and we will work it out from there."
216. If you run away, you will certainly go back to prison; there is no doubt about that. It might take a period of time but you will be found and you will be sent back to gaol, so there is no point in doing that. This is your real opportunity and whilst you have had a pretty terrible period of offending, you can put that behind you, and move on; there are others who have done that and I hope that this will be an opportunity for you to do the same.
217. You have asked for this opportunity and you asked for restorative justice. I hope you continue with the two or three victims that are still engaged in the process. That may not be possible in Karralika, but if it can be, then that would be a good thing to continue to pursue. Those victims with whom you previously engaged were keen for you to get rehabilitation and I hope they will be pleased and proud of you, that have now taken this opportunity. But they will only be proud of you, as I will, if you actually put hard work into it, and make sure to the best of your ability that you do succeed.
218. I wish you luck. I genuinely hope that you succeed. Bear in mind that you are carrying on your shoulders the burden of your mental challenges. Do not ignore those, take the opportunities of the psychologists to address those, because you might well deal with your drug addiction, but still be left with those other challenges that need to be addressed and which may otherwise be problematic for you when you return to the community.
I certify that the preceding two hundred and eighteen [218] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Forrest
(1995) 56 FCR 465
(1992) 34 FCR 100
(2001) 207 CLR 584
(1988) 166 CLR 59