R v Foster

1. Stephen Foster comes before the Court to be sentenced. The sentencing exercise is an unusual one as it involves charges for offending that occurred in March and August 2020, and which were not the subject of sentence earlier due to Mr Foster’s engagement with a drug and alcohol treatment order (treatment order). The significance of delay and the totality principle in the sentencing exercise are such that, unusually, it is appropriate that fully suspended sentences are imposed for what are serious offences.

2. An additional aspect to the current sentencing exercise is a breach proceeding relating to a contended breach of a good behaviour order for a failure to engage with supervision. For the reasons that will become apparent, it is appropriate to adjourn the breach proceeding to a later date.

Procedural background

3. On 29 March 2021, Mr Foster was sentenced in relation to burglary and driving offences committed in June and October 2020: R v Foster [2021] ACTSC 229 (R v Foster). He was sentenced to a total term of 3 years and 10 months imprisonment and a treatment order was imposed. The treatment and supervision part of the order was for a period of two years, until 28 March 2023, and thereafter, Mr Foster was subject to a good behaviour order. That order expired on 31 December 2024.

4. While subject to the treatment order, in May 2021 and December 2021, Mr Foster was charged, respectively, for the offending in March and August 2020. On 3 June 2022, the matters were before the Supreme Court following a committal for sentence. On that date, the matters were adjourned to March 2023, to be determined following the conclusion of the treatment and supervision part of the treatment order: R v Foster (Supreme Court of the Australian Capital Territory, Refshauge AJ, 3 June 2022)

5. On 24 March 2023, Mr Foster graduated from the treatment and supervision part of the treatment order. He commenced under the good behaviour part of the order from 29 March 2023.

6. On 31 March 2023, the sentence proceeding relating to the March and August 2020 offending was further adjourned to be determined at the conclusion of the treatment order: R v Foster (Supreme Court of the Australian Capital Territory, Refshauge AJ, 31 March 2023).

7. Mr Foster has spent no time in custody solely attributable to the sentence offences. March 2020 offending

8. Between 5 and 12 March 2020, Mr Foster committed an offence of dishonestly obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 3376/2021). The offence carries a maximum penalty of 10 years imprisonment, 1000 penalty units, or both.

9. The offending involved Mr Foster depositing a stolen cheque that was written in his name for the sum of $ 9,860.50.00. Two signatures appeared on the cheque, one discernible as the initials for one of the people authorised for the cheque account, and the other indecipherable. The cheque was accepted and the money deposited into Mr Foster’s bank account. Following this, Mr Foster withdrew the deposited money over two transactions in March 2020.

10. The cheque that was used belonged to Tabcorp ACT Proprietary Limited, linked to a Commonwealth Bank account. The cheque formed part of a chequebook that was stolen by an unknown person between mid 2018 and February 2020 when financial documents of the company were packed up due to the permanent closure of the Greyhounds Racing Club facility. The chequebook was stolen by an unknown person and came to be in Mr Foster’s possession by unknown means.

11. On 4 February 2021, police offered Mr Foster an opportunity to participate in a record of interview, and he declined.

12. The Commonwealth Bank reimbursed Tabcorp ACT the value of the cheque. This does not mean this is a ‘victimless’ crime. The bank has experienced a not insignificant financial loss, and offending of this type has implications more broadly on other community members when financial institutions put in place measures to deter, prevent, and recuperate financial losses from such offending.

13. The Commonwealth Bank seeks compensation for the value of the financial loss occasioned by Mr Foster’s conduct: s 19 Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). However, Mr Foster has no financial means to make compensation and making such an order would be ultimately detrimental to his rehabilitation: RK v Mirik [2009] VSC 14; 21 VR 623 at [137]. Accordingly, I do not propose to make such an order.

14. Nonetheless, the offending involved a level of brazen disregard for the financial property of others, and a deterrent sentence is warranted. There was not significant sophistication, but a level of planning was involved. I am satisfied, having considered possible alternatives, that no penalty other than imprisonment is appropriate. I have also considered the authority of R v Hanson [2022] ACTSC 107, provided by the prosecution, as to current sentencing practice. As the prosecution acknowledged, this authority does not involve an analogous factual circumstance.

15. Mr Foster pleaded guilty at an early stage, at a mention in the Magistrates Court. The matters were committed for sentence to the Supreme Court. A reduction of 25 per cent recognising significant utilitarian value is appropriate.

August 2020 offending

16. Between 21 and 26 August 2020, Mr Foster committed two offences as follows: (a) burglary contrary to s 311 of the Criminal Code (CAN 11562/2021), carrying a maximum penalty of 14 years imprisonment, 1400 penalty units, or both; and (b) theft contrary to s 308 of the Criminal Code (CAN 11565/2021), carrying a maximum penalty of 10 years imprisonment, 1000 penalty units, or both.

17. Both of the offences are of a ‘rolled up’ nature, elevating the criminality involved.

18. The offending involved Mr Foster firstly entering a bike storage garage of a commercial office building at about 4:27pm on 22 August 2020 with intent to commit theft. Mr Foster gained entry to the building by opening a side door that was unlocked. On this occasion, he was wearing clothing that included a cap and gloves, and he was carrying a black duffel sports bag.

19. The closed circuit television footage shows Mr Foster was then wearing an orange high-visibility jumper. He was walking with a black bike and helmet and approached the door, before then walking upstairs within the building with the black bike.

20. At about 4:45pm, he walked downstairs wheeling a white bicycle and an additional bicycle tyre. He exited the building with these items. Ten minutes later, Mr Foster can be seen to be again inside the building, with the same white bicycle, and attempting to exit the building. He was unable to leave as the door remained locked from the inside.

21. At around 5:10pm police attended. Mr Foster consented to police searching his bag and items including gloves, a bike light torch, a spanner, a screwdriver, and a set of Allen keys were located in the bag. These items were seized by police. Mr Foster was arrested and released a short time later.

22. He returned to the same building on 24 August 2020 from about 7:36am and again entered with intention to commit theft. He entered the building at the same time a person was exiting. His clothing included a cap, and he was carrying a black satchel bag.

23. The white bicycle and the orange jumper were in the same position from when he was arrested two days earlier. Mr Foster left the premises with the white bicycle, which is of an unknown value.

24. At about 2:30pm, he again entered the same premises with intent to commit theft. He spent about one minute looking closely inside the building. He was wearing a yellow high-visibility jumper and carrying a black duffle bag. He entered the bike storage garage, appearing to gain entry by using his phone or an electronic pass. He stole a further bicycle, this one valued at $4,977.90.

25. Further, on 25 August 2020, at about 3:30pm, Mr Foster again entered the building with intent to commit theft. He again waited for a person to exit, and then gained entry. His clothing included a yellow high-visibility vest, and he was carrying a black duffle bag. From about 3:51pm, Mr Foster made multiple attempts to open the locked door from the inside.

26. At about 4pm, he had an interaction with a person in the garage area. This person observed Mr Foster to have what appeared to be bolt cutters under his vest and he approached and asked Mr Foster about it. Mr Foster manoeuvred past this person, taking his black duffle bag and a helmet, and walked towards the door. The person intervening said that he would call the police and Mr Foster moved towards him and said “let me out” in an aggressive tone. The person acquiesced and let Mr Foster out. Mr Foster is described in the facts as “hurriedly returning”, before placing the helmet he was holding by the doorpost and shortly thereafter running off.

27. The facts further provide that on 7 December 2022, Mr Foster was spoken to by police at the Alexander Maconochie Centre and he declined to participate in a record of interview.

28. There were five distinct unlawful entries to the office premises, and theft of property on two occasions. The second occasion of theft involves particular seriousness given the value of the item taken, in terms of both financial value and value to the owner. The taking of a bicycle, particularly of a high financial value, causes significant inconvenience and distress for the community members involved. The prevalence of such offending further elevates the role of general deterrence in the sentencing exercise.

29. Similarly, such is required in relation to the entry to building premises for the purposes of theft. Mr Foster’s conduct occurred at a time, and was of a duration, such that interaction with a member of the public was likely, with this occurring on one occasion. While fortunately Mr Foster did not react beyond verbal aggression, this response in itself would have been frightening for the person involved. Mr Foster demonstrated a complete disregard for the property of other community members, and to their entitlement for security in their workplace areas. His persistence in the offending increases the seriousness of it, albeit there was not sophistication in the offending nor damage caused by the entries. There was though premeditation and planning. His engagement with the police following the entry on the first day was not a sufficient deterrence to discontinue his offending.

30. In considering the appropriate sentence for these offences, the prosecution helpfully assisted with the authorities of R v Novakovic [2018] ACTSC 331 and R v Ware [2016] ACTSC 264. I have considered these, noting, as the prosecution acknowledged, the limitations that authorities said to be comparative can provide.

31. I am satisfied in relation to both of these offences, having considered possible alternatives, that no penalty other than imprisonment is warranted. In relation to these offences, Mr Foster also pleaded guilty at an early stage, at a mention in the Magistrates Court, and the matters were committed for sentence. Again, a reduction of 25 per cent recognising the significant utilitarian value is appropriate.

Subjective circumstances

32. Mr Foster is now 54 years of age. He was aged 48 and 49 years at the time of the offending.

33. His subjective circumstances are set out in detail in R v Foster at [65]-[86] and are unnecessary to repeat. These subjective circumstances include his history of substance dependency, and his criminal history. It is a criminal history indicative of and typical for a person with substance dependency. It is also a criminal history that limits the leniency that can be afforded to Mr Foster.

34. Since the previous sentence proceeding, Mr Foster’s subjective circumstances are both positive and negative. Positively, he completed the treatment and supervision part of the treatment order. He made significant progress with his rehabilitation.

35. The extent to which Mr Foster progressed and succeeded under the initial part of the treatment order is borne out in the graduation speech relating to Mr Foster: Refshauge AJ, ‘Speech of Acting Justice Refshauge on the occasion of the graduation of Stephen 1 Foster’ (Speech, Supreme Court of the Australian Capital Territory, 24 March 2023). It was recognised that Mr Foster committed himself to the treatment order. He had gained

1 https://www.courts.act.gov.au/\_\_data/assets/pdf\_file/0006/2198598/Graduation-Speech-Stephen-Foster-24- March-2023.pdf employment, moved towards stability in his housing, and was rebuilding family relationships.

36. The information currently before the Court includes that until around the end of 2023, Mr Foster’s engagement with Corrective Services was generally acceptable. Thereafter, while Mr Foster maintained communication with Corrective Services, he did not attend for supervision appointments. He did though maintain contact with his alcohol and drug counsellor.

37. However, in March 2024, Mr Foster experienced the tragic passing of his former partner and mother of his children. This had a significant impact on him and his family unit. The material describes Mr Foster as struggling with being overwhelmed and with grief.

38. His compliance with the supervision requirement of the good behaviour order deteriorated, and it is alleged that in August and September 2024 he committed offences of minor theft and of driving while disqualified.

Breach proceeding

39. The contended disengagement with the good behaviour order led to breach proceedings being firstly initiated by Corrective Services in April 2024. This was heard by the Supreme Court on 17 May 2024 and Mr Foster was formally warned pursuant to s 80ZB(1)(b) of the Sentencing Act as to his need to comply with supervision: R v Foster (Supreme Court of the Australian Capital Territory, Hopkins AJ, 17 May 2024). The Court also ordered that Mr Foster appear for a future review as to his ongoing compliance with supervision.

40. In the interim, the Court received progress reports from Corrective Services that Mr Foster’s engagement with supervision had improved. However, this was not maintained, and on 16 December 2024, Corrective Services initiated a further breach proceeding relating to the good behaviour order. This breach proceeding remains to be considered. The hearing and finalisation of this proceeding was delayed pending finalisation of the charges in the Magistrates Court. At this time, those charges remain to be finalised.

41. In circumstances where the good behaviour order has now expired, the typical necessity for efficient finalisation of the breach proceeding is diminished. It was sought on Mr Foster’s behalf that the current breach proceeding be further delayed pending the finalisation of the matters in the Magistrates Court. This will enable all contended aspects of the breach, that is, for lack of engagement with supervision and for further offending (if convicted), to be considered simultaneously. The prosecution was not heard against such a course. I agree that it is appropriate to proceed in this manner and the breach proceeding initiated on 16 December 2024 (SCC 291, 292 of 2022) will be adjourned to a later date.

Consideration

42. This leaves for finalisation the sentencing exercise with respect to the offences committed in March and August 2020. It is not in issue that the only appropriate sentences are ones of imprisonment. It is also uncontentious that the totality principle is of application as to the related conduct in the burglary and theft offences, and that all of the offending has aspects of commonality, being offending borne out of Mr Foster’s substance dependency in the offending period.

43. The seriousness of the offending, and the limits to leniency that can be afforded, are such that typically a sentence involving fulltime custody would be warranted for this offending. However, there are features in this matter that result in it being appropriate to adopt the unusual course of imposing fully suspended terms of imprisonment.

44. Firstly, the delay in the charging, being a period of some 10 months to 16 months after the offending, is of such a duration that consideration as to the role of delay in sentencing arises. This is particularly because of the circumstances in which that delay occurred and the delay that continued thereafter. The initial duration of the delay to charge Mr Foster is not in itself extremely inordinate, but, in circumstances where it was a delay in charging for offending of a similar nature and offending that occurred temporally to the offending the subject of sentence on the earlier occasion, the delay is significant. The delay has then been exacerbated by the matters not being finalised until the conclusion of the treatment order sentence.

45. This delay is such that what was said by Street CJ in R v Todd [1982] 2 NSWLR 517 at 519, and endorsed by the High Court in Mill v The Queen [1988] HCA 70; 166 CLR 59 at [14] (Mill v The Queen) is relevant: [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense and to what will happen to him when in due course he comes up for sentence on subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

46. Here, Mr Foster has had the experience of both the ‘state of uncertain suspense’ in relation to the outstanding charges for sentence, as well as having been able to demonstrate significant rehabilitative progress.

47. Secondly, the application of the totality principle in this matter is informative. That is, the offences currently the subject of sentence relate to offending that occurred at the time of offending the subject of a sentence for which Mr Foster has since served the sentence of 3 years and 10 months. The application of Mill v The Queen as to the totality principle in such a circumstance has been recently succinctly explained by the South Australian Court of Appeal in Kola v The King [2025] SASCA 38. It was said at [47] and [48] that: The principle of totality is not solely concerned with avoiding ‘double punishment’ for criminal conduct, such as is required where there is a degree of factual overlap between the elements or circumstances of multiple offences and where the sentence for one offence may ‘comprehend the criminality of the other’, or where the offending amounts to a single course of conduct. Whilst its effect may be more pronounced in such cases, the required approach applies, and may call for concurrency, or alternatively moderation of the proposed sentence, in other cases, particularly where the offending is proximate in time but encompasses dissimilar offending, or, though spanning a significant period of time, is of a similar nature. That is because the rationale of the totality principle is broader than the avoidance of double punishment in respect of conduct which forms an element of multiple offences. The principle also reflects that the purposes of sentencing, including specific deterrence, rehabilitation and denunciation for a subsequent or second penalty may be achieved, at least to some extent, by an original or first penalty even for disparate offending, with the result that the cumulation of otherwise appropriate individual sentences is not necessary to achieve the purposes of sentencing, and is consequently disproportionate. (Citations omitted, emphasis added.)

48. The prosecution did not press that a fulltime period of imprisonment was warranted in such unusual circumstances. However, the prosecution submitted that it was appropriate that the good behaviour order include a probation condition, reflective of a need for continued supervision. On behalf of Mr Foster it was submitted that whether to impose further supervision was a matter for the Court. It was submitted that Mr Foster has in the past benefited from counselling services, but that he has onerous ongoing family obligations that limit his capacity to engage with programs and services.

49. After careful consideration, I conclude that a supervision condition is not appropriate. It appears to me that to impose supervision at this time would fail to give effect to the aspects of delay and totality that are significant in the sentencing exercise. It would in my view be disproportionate and crushing to expect Mr Foster to engage with further supervision from this time.

50. That is not to say that if supervision was clearly warranted it would not be ordered. But the extent to which Mr Foster requires supervision at this stage is a matter that is being addressed through the Magistrates Court proceeding. With the oversight available through the proceedings in that Court, Mr Foster is demonstrating an ability to not engage in further offending and to continue towards an outcome of rehabilitation. A further order for supervision will not be imposed.

Orders

51. For those reasons the following orders are made:

In matters SCC 64, 85 of 2022: (1) On the charge of dishonestly obtain property by deception (CAN 3376/2021), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 11 June 2025 and end on 10 September 2025. (2) On the charge of burglary (CAN 11562/2021), the offender is convicted and sentenced to 18 months imprisonment, reduced from 24 months on account of the plea of guilty, to commence on 11 August 2025 and end on 10 February 2027. (3) On the charge of theft (CAN 11565/2021), the offender is convicted and sentenced to 3 months imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 11 January 2027 and end on 10 April 2027. (4) The total period of imprisonment of 22 months, commencing on 11 June 2025 and ending on 10 April 2027, is to be fully suspended. (5) Stephen Foster is required to sign an undertaking to comply with the offender’s good behaviour obligations pursuant to s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 22 months, from 11 June 2025 to 10 April 2027.

In matters SCC 291, 292 of 2020: (6) The breach proceeding filed 16 December 2024 be adjourned for mention on 2 October 2025 at 11:15am.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 12 June 2025