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[2015] ACTSC 333
Supreme Court of the ACT
2015-10-19
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - burglary - going equipped for theft - attempting to take a motor vehicle dishonestly without consent of its owner - theft - childhood disadvantage - drug and alcohol use - childhood use of drugs and alcohol - significant criminal history - youth of the offender
Crimes (Sentencing Act) (2005) (ACT), ss 7, 33, 63, Pt 4.4
Magistrates Court Act 1930 (ACT), s 88A, Pt 3.5
Criminal Code (2002) (ACT), ss 44, 308, 311, 315(1), 318, 324
AttorneyGeneral (SA) v Tichy (1982) 30 SASR 84
Douglas v The Queen (1995) 56 FCR 465
Fusimalohi v The Queen [2012] ACTCA 49
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Campbell [2010] ACTCA 20
R v Hayes [1984] 1 NSWLR 740
R v Henry (1999) 46 NSWLR 364
R v Mills [1998] 4 VR 235
R v Ogilvie [2015] ACTSC 296
Legal Aid ACT (Defendant)
1. There is no doubt that the present widespread use of illicit drugs is a serious problem throughout the community. The violence that is often perpetrated as a result is a serious problem for the community, as is the dishonesty committed by drug users to find the means to feed their habit.
2. This is not to ignore the very serious effects the drug use has on users who often have a potential for participation usefully in our community that their dependence and addiction denies them.
3. The accused, Christopher Hawkins, appears for sentence for charges of burglary, going equipped for theft, attempting to take a motor vehicle dishonestly and without consent of its owner, and theft.
4. He also signed a list of additional offences under Pt 4.4 of the Crimes (Sentencing Act) (2005) (ACT) and asked that I take into account the one charge of possessing stolen property there listed. I shall do so in the way required by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]- [50].
5. Burglary is an offence against s 311 of the Criminal Code (2002) (ACT) and attracts a maximum penalty of 1400 penalty units (that is, at the time, a fine of $169,000) and 14 years imprisonment.
6. Going equipped for theft is contrary to s 315(1) of the Criminal Code which provides for a maximum penalty of 300 penalty units (that is a fine of $45,000) and three years imprisonment.
7. Dishonestly taking someone's motor vehicle without their consent is an offence under s 318 of the Criminal Code, attracting a maximum penalty of 500 penalty units (that is a fine of $70,000) and five years imprisonment.
8. Under s 44 of the Criminal Code, a person who is convicted of attempting to commit a crime is, on conviction, punishable as if the attempted crime had been committed. Thus, Mr Hawkins is liable on this charge to the maximum penalty for this offence.
9. Theft is an offence under s 308 of the Criminal Code and is punishable by a maximum penalty of 1000 penalty units (that is a fine of $140,000) and ten years imprisonment.
10. Possessing property reasonably suspected of being stolen is an offence prohibited by s 324 of the Criminal Code and renders Mr Hawkins liable for a maximum penalty of 50 penalty units (that is a fine of $7000) or six months imprisonment.
11. Mr Hawkins was riding a bicycle on Allambie Street, Reid, at about 12.15 pm on Sunday, 27 July 2014. At the time, he had in his pocket a number of items, including a small folding knife, a 17centimetre knife, a flatblade screwdriver, a 6millimetre drill bit and an extendable magnet. The Crown alleges that Mr Hawkins intended to use these items in the course of a burglary and theft.
12. These are the facts supporting the offence of going equipped for theft. By his plea, Mr Hawkins acknowledged that it was his intent to use the items for theft or burglary.
13. He then approached the garage door of residential premises in Allambie Street, Reid, and forced the door open, sliding it vertically so that it allowed for entry into the garage. He entered the garage intending to steal items. These are the facts that support the offence of burglary.
14. In the garage, Mr Hawkins initially attempted to start a Holden Barina motor vehicle and drive it away. The motor vehicle belonged to one of the occupants of the premises. He used some of the tools stored in the garage in his attempt to start the motor vehicle. Amongst the tools he used was an orangehandled saw. In attempting to steal the motor vehicle, he caused damage to a rear window, the ignition block, the driver's door lock and door and the bonnet. These are the facts supporting the offence of attempting to take someone else's motor vehicle dishonestly without consent of that person.
15. Finding himself unable to start the motor vehicle, Mr Hawkins then left the orangehandled saw in the driver's foot well of the car, and taking with him a claw hammer, four screwdrivers of various lengths and a multitool, items belonging to the male occupant of the premises, he left the garage. At no time did he have permission to enter the garage or take any property from it. These are the facts supporting the offence of theft.
16. Mr Hawkins was observed in his activities by a local resident who called the police. They later arrived and commenced searching for him. Mr Hawkins, however, had left the scene, though he left behind the hammer, screwdrivers and multitool that he had stolen from the garage.
17. He was later seen riding a bicycle and was eventually stopped by police and arrested.
18. He was interviewed by police but denied any recollection of entering the garage in Allambie Street or attempting to take the motor vehicle.
19. The bike Mr Hawkins was riding had been taken between 6 and 9 July 2014. In his interview with police, he said that he knew that the bike had been stolen when he borrowed it. These were the facts supporting the offence on the list of additional offences.
20. Mr Hawkins appeared in the Magistrates Court on 28 July 2014. He was refused bail and has been remanded in custody since then. For reasons that are not entirely clear to me, the proceedings were adjourned on 10 occasions. On 16 October 2014, he pleaded not guilty. On 20 November 2014, the prosecution consented to summary jurisdiction but Mr Hawkins refused to consent. An application was made under s 88A of the Magistrates Court Act 1930 (ACT) to dispense with the relevant provisions of Pt 3.5 of that Act so as to commit Mr Hawkins for trial immediately, but that application was refused.
21. On 25 November 2014, Mr Hawkins was committed to this Court for trial.
22. On 2 March 2015, the trial was listed to commence on 6 July 2015.
23. On 1 July 2015, however, as a result of discussions between the Crown and defence counsel, the matter was directed to be listed for arraignment on 7 July 2015 when a new indictment would be presented and Mr Hawkins would plead guilty to the charges in it. He did so, and the matter was listed for sentence on 14 October 2015.
24. I received a helpful PreSentence Report and a very helpful report from the Court Alcohol and Drug Assessment Service (CADAS). From these reports and counsel's submissions, I make the following the findings:
25. Mr Hawkins is an Aboriginal man and is now 22 years old, about to turn 23. The offences were committed when he was 21.
26. He was born in Blacktown, Sydney, the second eldest of many siblings; the information I had was that there are between 10 and 12 siblings, including step siblings. His father was "in and out of gaol" during his childhood and his mother was, therefore, his primary parent. As one of the older children in the family, he was regularly called upon to look after many of the younger children. He felt that his parents were "both good parents who always tried to make sure that they [sic] children did not go without".
27. The family relocated to Canberra when he was 8 years old. ACT Child Protection Services became involved with the family and Mr Hawkins was subject to an ACT care order between the ages of 10 and 13 when he was placed into foster care. He explained that his mother had difficulty coping with raising so many children on her own as his father was in gaol for considerable periods of time. He also lived with his grandmother for a period of time before returning to live with the family.
28. He "did not like school" and, in fact, only completed year 10 while in a juvenile detention facility.
29. At an early age, he began to "hang around with older kids who got him started on drugs and crime".
30. Mr Hawkins currently enjoys good relationships with his parents and other siblings, but it seems unlikely that they are having a pro-social influence upon him. He was living with his mother before his remand in custody and is likely to reside with his mother on his release.
31. Mr Hawkins has had no employment. Indeed, he has been in custody nearly the whole time between July 2009 and today, apart from fiveandahalf months in the community.
32. Mr Hawkins commenced drinking alcohol at a very early age. There is some discrepancy on the information before me, but it was certainly well before he could make an informed choice himself to do so. It is said that alcohol became a significant problem for him between the ages of 10 and 12, a remarkably young age for that situation. Indeed, in his early teenage years, he was treated in hospital for "alcohol poisoning". He continued to drink alcohol "heavily" until he was 15, though he has said he was drinking to intoxication until he was 16.
33. He has reduced his consumption considerably and reported that his most recent drink was about 14 months before he was remanded in custody.
34. On 18 September 2015, an alcohol use screening tool was administered which assessed his consumption prior to his incarceration as being at a low risk of harm.
35. Mr Hawkins commenced smoking cannabis at age 10 and, by the time he was 13, he was smoking daily. His use continued to increase to the point where he was smoking between 7 and 10 grams a day. He has not, however, used cannabis since he has been in custody.
36. Mr Hawkins started using methylamphetamines by smoking when he was 19 and continued to use the drug until he was remanded in custody. By that time, he was using approximately a gram a day. He does not inject the drug.
37. He has also abused benzodiazepines and ecstasy and currently smokes 10 to 12 cigarettes a day. A drug screening tool administered 18 September 2015 assessed Mr Hawkins' drug use prior to his incarceration as at a severe level, requiring further assessment and treatment.
38. He has completed many different group programs and courses while in custody. He has previously completed the SMART recovery program and First Steps programs and has undergone these programs since he was incarcerated on this occasion.
39. He has had previous contact with Directions AOD Services. He said that the counselling was effective and that he learnt skills to assist him to address his difficulties with his alcohol and other drug use, though that, obviously, is yet to be tested in the community.
40. Mr Hawkins has a long and depressing criminal history. Commencing in 2003, he has been found guilty of 68 offences, of which 42 are dishonesty offences. There are also some offences of violence, including robbery on his record.
41. Perusal of his record does confirm that he has spent most of the time between July 2009 and the present in custody.
42. The pattern of crime and alcohol and drug abuse leads to the inevitable inference that the substantial motivator for his crime is drug abuse and, no doubt, antisocial peers.
43. Mr Hawkins has reasonably good physical health and has no history of contact with mental health services or having been prescribed any medications.
44. Mr Hawkins has indicated that he is keen to enter residential alcohol and other drug treatment within custody through the SOLARIS program. He has not been able to do so at present because of his remand status. There is no doubt that this is very desirable for him and I hope that he will act promptly on sentence to access the program so that the rehabilitation may progress before he is released into the community.
45. Mr Hawkins accepted responsibility for the offences and expressed some insight into the seriousness of his offending behaviour, acknowledging the impact of his actions on the victims.
46. He has been assessed as at a medium high risk of general reoffending, primarily due to his lack of employment, drug use, negative associations, lack of pro-social leisure activities, attitudes and orientation.
47. The author of the helpful PreSentence Report expressed the opinion that he would need to undertake ongoing illicit drug interventions to resolve the behavioural problems that will continue to undermine his capacity to lead a lifestyle free of crime in the community.
48. Dishonesty offences are a serious blight in our community. Street CJ has described the problems in the R v Hayes [1984] 1 NSWLR 740 at 742. People work hard for the property that they acquire and which, sometimes, has more than monetary value to them. Though it seems unlikely in this case, many stolen items have sentimental value which cannot be replaced just by purchasing similar, or even identical, items.
49. Inevitably, the loss of property also causes inconvenience, even if only the need to make claims on insurance or to replace them. Thus the car in this case, although not stolen, was damaged during Mr Hawkins' attempt to take it and that damage will cause inconvenience to the owner.
50. Often the items are insured against theft and the payment by insurance companies inevitably means that the premiums may rise, affecting the rest of the community.
51. The intrusion into homes in a burglary is particularly disturbing as victims feel violated and unsafe. This may have been less of a problem in this case for the garage, not the residence, was entered. It is, nevertheless, a violation of the privacy and security of the occupants.
52. The Court of Appeal set out in the R v Campbell the way in which such offences as on the list of additional offences should be taken into account. That is to say that they make the sentence more severe but not more severe than is available for the sentence on the offences to which Mr Hawkins has already pleaded guilty.
53. The purposes of sentencing are set out in s 7 in the Crimes (Sentencing) Act. In this case, general deterrence is clearly significant. Mr Hawkins has indicated a desire to address his drug addiction. His record, however, suggests that that should be encouraged through elements of specific deterrence in the sentence. Nevertheless, so far is appropriate, he ought to be encouraged in his desire for rehabilitation.
54. Mr Hawkins has sought help through rehabilitation and wishes to enter the Solaris program. That is important. As French CJ pointed out in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 537; [32], achieved rehabilitation is the surest guarantee of community protection from crime.
55. Unfortunately, I must remain very cautious about the prospect of rehabilitation for Mr Hawkins. Despite the repeated positive experiences he has had as described, they have clearly not yet proved effective and I consider that his rehabilitation is yet some time away.
56. Mr Hawkins' prior criminal record also means that he is denied the leniency that, for example, is available to a person with no or no significant record of prior offending. Nevertheless, it is important that he is not punished twice for his earlier offending. That the offences are, for the most part, of similar type to those he is now facing means the prior sentences have not been effective as deterrents, and this must then inform the sentence to be imposed.
57. Although I did not have a victim impact statement, I have indicated above the kind of effect that these offences have on the victim and I have no reason to suppose that they would not have the effect that the courts know ordinarily flow from such offending. It is important to acknowledge the harm done to them as well as to denounce the offence.
58. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out above.
59. It was submitted that the entry into the garage rather than into the residential part of the property made the offence somewhat less serious.
60. In R v Ogilvie [2015] ACTSC 296 at [28], I noted that the Court of Appeal, in a number of cases, had made a distinction between burglaries of commercial premises and burglaries of residential premises. It seems to me that one can make too many fine distinctions but it is important to ensure that there is a proper proportion between the act of offending and the sentence imposed. I am prepared to find, on the basis of the reasoning in those cases, that it would have been more serious had Mr Hawkins entered into the residential part of the premise than into the garage.
61. I also set out in R v Ogilvie at [40] the recent Court of Appeal cases that I there considered were relevant to current sentencing practice. I have informed myself again of the principles there set out, as well as the approach to sentencing practice disclosed, and I take that into account. See also Fusimalohi v The Queen [2012] ACTCA 49.
62. Mr R Davies, who appeared for Mr Hawkins, submitted that I should have regard to the very young age at which Mr Hawkins started to use drugs. As the Full Court of the Federal Court of Australia pointed out in Douglas v The Queen (1995) 56 FCR 465 at 470, the age of an offender when he or she becomes addicted and the degree of judgment opened to them at that age is relevant in evaluating the extent to which they should be punished for consequential criminal conduct.
63. See also R v Henry (1999) 46 NSWLR 364 at 397-8; [273].
64. Mr Hawkins age is also relevant in itself. He is still a relatively young man and neuroscience shows that the male brain is not fully mature and developed until mid twenties.
65. Following R v Mills [1998] 4 VR 235 at 241, I held in R v Ogilvie at [41], [44] that, even after offenders turn 18, their youth is to be taken into account. This is, of course, more so when the youthful offender is a first offender, but even later, particularly with the slow development of maturity, especially in young men, rehabilitation is usually more important than general deterrence.
66. This poses difficulties in this case because of the long and entrenched criminal behaviour of Mr Hawkins and the limited opportunities for rehabilitation.
67. Nevertheless, it is a factor to be taken into account.
68. I also take into account the childhood disadvantage suffered by Mr Hawkins. It is difficult to see how, in the circumstances under which he was brought up, he could realistically have avoided his descent into drugs and crime. That disadvantage remains with him (see Bugmy v The Queen (2013) 87 ALJR 1022 at 1032, [43]-[45]) and it does not diminish over time.
69. Mr Hawkins has been assessed as unsuitable to perform a community service work condition to a Good Behaviour Order or to serve a term of imprisonment by periodic detention because of his unaddressed substance dependency issues. I see no reason to disagree with those assessments, in all the circumstances.
70. In any event, having regard to the seriousness of the offending and particularly his criminal history, neither disposition would be appropriate. In my view, the only penalty suitable is a term of imprisonment to be served with a nonparole period.
71. There are multiple sentences to be imposed here. It is important, as stated in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, that the sentence on each offence should be a proper reflection of the culpability of the offender for it, and the seriousness of its commission. Separate sentences must be imposed for each offence, taking into account the severity which the list of additional offences warrants, adding to the offending especially, in this case, the burglary offence.
72. I have carefully considered the length of each of the sentences to ensure that, where there are overlapping common elements between any of the offences, Mr Hawkins is not punished twice. This is clearly relevant here, where the overlapping elements of the burglary offence with the theft and attempted to take the motor vehicle offences apply.
73. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. Here, again, there should be a significant concurrency for the offences were all part of the same enterprise, that is contemporaneous and connected. See AttorneyGeneral (SA) v Tichy (1982) 30 SASR 84.
74. I then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Hawkins' goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
75. I must also take into account the period during which Mr Hawkins has been in custody in relation to these offences. It was agreed between the Crown Prosecutor and Mr Davies that, at the date of the sentencing hearing, Mr Hawkins has been in custody for 443 days and that were I minded to proceed under s 63 of the Crimes Sentencing Act, to take this into account by directing that the sentence start on the day before today, then the start for the sentence would be 28 July 2014.
2. I sentence you to 20 months imprisonment to commence on 28 July 2014. Had you not pleaded guilty, I would have sentenced you to two years and two months imprisonment.
3. I convict you of going equipped for theft on 27 July 2014.
4. I sentence you to six months imprisonment to commence on 28 January 2016. That is to be cumulative as to four months on the sentence for burglary. Had you not pleaded guilty, I would have sentenced you to eight months imprisonment.
5. I convict you of attempting to take someone else's motor vehicle dishonestly without consent on 27 July 2014.
6. I sentence you to 12 months imprisonment to commence on 28 March 2016, that is to be cumulative as to eight months on the sentence for ongoing equipped for theft. Had you not pleaded guilty, I would have sentenced you to imprisonment for 16 months imprisonment.
8. I sentence you to 12 months imprisonment to commence on 28 March 2016. That is to be wholly concurrent on the sentence for attempting to take the motor vehicle. Had you not pleaded guilty, I would have sentenced you to 16 months imprisonment.
9. That is a total sentence of two years and eight months to start on 28 July 2014, and to end on 27 March 2017.
10. I set a nonparole period of one year and 10 months to start on 28 July 2014 and end on 27 May 2016.
I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.
R
Hawkins [2015] ACTSC 333
(1982) 30 SASR 84
(2013) 87 ALJR 1022
(1995) 56 FCR 465
(2011) 243 CLR 506
(1998) 194 CLR 610
(1999) 46 NSWLR 364