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[2017] ACTSC 373
Supreme Court of the ACT
2017-07-25
Mossop J
Original judgment source is linked above.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - dishonestly riding in a motor vehicle without the consent of the owner - aggravated burglary - minor theft - plea of guilty at the earliest possible stage - turns on own facts
1. Bradley James Hodge has pleaded guilty to one count of dishonestly riding in a motor vehicle without the consent of the owner and three counts of aggravated burglary. There is also a transferred minor theft charge. The burglaries were aggravated by the fact that the offender was in company. The burglaries occurred at three different locations in the early hours of the same morning.
(a) dishonestly riding in a motor vehicle without the owner's consent contrary to s 318(2) of the Criminal Code 2002 (ACT): 5 years imprisonment;
(b) aggravated burglary contrary to s 312 of the Criminal Code: 20 years imprisonment or a fine of $300,000 or both.
(c) minor theft contrary to s 321 of the Criminal Code: 6 months imprisonment or a fine of $7500 or both.
3. The offender pleaded guilty to the charges at the second mention in the Magistrates Court. I treat that as a plea at the earliest reasonably possible stage.
4. The facts were agreed. In summary they are as follows.
5. On 15 March 2017 the offender drove in a motor vehicle which was driven by his sister, Samantha Campbell. The vehicle had been stolen on 8 March 2017 from Forbes Street in Turner. At the time that he rode with his sister he knew that the vehicle had been stolen and protested about this to his sister. However he continued to ride as a front-seat passenger to an address in Macquarie. He left his fingerprints on the vehicle. The vehicle was recovered by police that day.
6. The three aggravated burglaries all occurred on the morning of 18 March 2017. The first was a burglary of the post office located at Bentham Street in Yarralumla. The offender travelled there with his sister Ms Campbell and her boyfriend Rodney John Wray. About 3:05 am Mr Wray forced entry into the premises by using a chisel to fracture the glass in the door. Mr Wray entered into the premises followed by the offender. The offender failed to find any items to steal and left the premises. He was captured on CCTV.
7. At about 3:20 am the trio attended the Shell service-station in Curtin. Mr Wray affected entry into the premises using a chisel to crack the glass of the premises and kicking the remaining glass out, using the chisel to clear out any remnants. Mr Wray entered into the premises as did the offender. While on the premises the offender removed a quantity of "Oak" flavoured-milk, "Farmers Union" iced-coffee and "V" energy-drinks. The offender and Mr Wray exited the premises. He was captured on CCTV.
8. At 3:25 am the trio attended Sassy Hair, Brierly Street, Weston. Mr Wray forced entrance into the premises followed by the offender. Once inside the premises Mr Wray and the offender removed items including "Hairfunk" branded hair-straighteners and "Keune" brand liquid-hair products. They then exited the premises.
9. At about 4:00 am the trio were found at the BP service-station in Chisholm. The offender was arrested for the burglary of the Shell service-station. He admitted to the burglary. The next day, 19 March 2017, he was arrested in relation to the Yarralumla Post Office and Sassy Hair burglaries. He participated in a recorded interview. He made full admissions. He also made full admissions to riding in the stolen vehicle. He is recorded as having been polite and cooperative with police.
10. I assess the burglary offences as at the lower end of objective seriousness for this kind of offence. They involve burglaries of commercial premises as opposed to residential premises. However, they did occur at night and did involve some damage to the property. Although they involved some planning, it is not clear the extent of that planning. It can be said however that they were not particularly sophisticated burglaries.
11. The minor theft is at the low end of objectives seriousness because of the low value of the items stolen.
12. The ride without consent charge is at the low end of objective seriousness having regard to the fact that he was the passenger in the vehicle.
13. The offender was on parole when he committed these offences. He had been convicted of aggravated robbery in June 2015 and sentenced to imprisonment for two years and eight months. He became eligible for parole on 17 January 2017 and had been released on parole on 22 February 2017. He had commenced using illicit drugs almost immediately upon his release on parole.
14. The offender has an unfortunately poor criminal history as an adult particularly in relation to robbery, burglary and driving or riding in vehicles without consent.
15. In 2006 he was convicted of aggravated burglary and given a three-year suspended sentence of imprisonment.
16. In 2007 he was convicted of aggravated robbery and sentenced to three years' imprisonment, suspended after five and a half months. He was required to be resentenced as a consequence of further offending.
17. In 2007 he was convicted of aiding and abetting robbery, receiving stolen property and two charges of riding in a vehicle without authority.
18. In 2008 he was convicted of two counts of aggravated robbery, one count of aggravated burglary, theft, attempting to take a motor vehicle without consent, three counts of driving a motor vehicle without consent and failing to appear after a bail undertaking. He was given a total head sentence of almost four years with a nonparole period of two years.
19. In 2014 he was convicted of three counts of burglary, unlawful possession of stolen property, possession of property suspected of being the proceeds of crime and two counts of theft.
20. In 2015 he was convicted of aggravated robbery, assault occasioning actual bodily harm. He was sentenced to two years and eight months' imprisonment and eligible for parole after 18 and a half months on 27 January 2017.
21. The Pre-Sentence Report that is available indicates that the offender is presently aged 29 years old, and was that age at the time of the offences. As a child he was exposed, after his parents separated, to alcohol and substance abuse, as well as violence and physical and mental abuse perpetrated by the numerous subsequent partners of his mother.
22. He has a five-year-old son who resides in Victoria with his grandmother. He is not in a relationship with the child's mother.
23. He ceased formal education at the age of 15 years. He has had limited employment during his adult life due to his long and frequent periods of incarceration. He has a long history of drug abuse, commencing methamphetamine and heroin at the age of 18 years. He reported a period of abstinence from 26 years of age by reason of being in detention. Whilst in custody he has refused on one occasion to provide a urine sample; other urine samples have not detected illicit drugs. He has previously been formally diagnosed with a number of mental-health conditions which appear to be inadequately described in the Pre-Sentence Report. However, these conditions appear to be associated to a significant extent with his drug use.
24. He is assessed as being at a medium-to-high risk of general reoffending, his criminogenic risks being illicit substance abuse, antisocial associations, his mental health and his history of reoffending. He does not appear to have taken opportunities afforded to him whilst in custody, having been exited from an alcohol and drug program due to lack of attendance. He has expressed an interest in attending a longer term residential rehabilitation facility.
25. He was assessed by the Court Alcohol and Drug Assessment Service ('CADAS') on 29 May 2017.The report prepared as a consequence of that assessment adds to the material available from the Pre-Sentence Report. It records that he has a significant history of problematic poly-drug use, most particularly methamphetamine and heroin. The report suggested Karralika Therapeutic Community as possibly being appropriate but there being some barriers to being assessed as suitable. The report recorded alternative treatment options for his substance use as including alcohol and other drug counselling or education and treatment programs provided within the Alexander Maconochie Centre.
26. A psychologist report prepared by Camille Falkiner summarises the offender's psychiatric history. It provides greater detail on his personal history, illustrating the level of dysfunction in his family, the instability of his schooling, the difficulty that he has had in initiating and sustaining relationships. It also describes the difficulty he has had, during periods when he has been out of custody in sustaining employment
27. It records that he suffered from a serious sexual assault while remanded in custody when 18 or 19 years of age and that continues to affect him.
28. While in relation to each of the offences the Crown case was relatively strong, I consider that having regard to his early plea of guilty and the making of admissions in relation to the offences, I should apply a discount of 25 per cent to the significant sentences of imprisonment that I will impose.
29. Each of the sentencing considerations in s 7 of the Crimes (Sentencing) Act 2005 (ACT) appear to be relevant. Significant emphasis in the circumstances of these offences must be upon deterrence, both general and specific, the need to denounce the conduct, to punish the offender and to protect the community. Having regard to the offender's long history of drug use, rehabilitation is an issue which is clearly of significance but not one which in the circumstances could detract from the need for the imposition of significant period of full-time detention.
30. The situation of the offender is in many respects unfortunate. He has clearly had a difficult upbringing which has given him few opportunities. He commenced drug use at an early stage and has not managed to get free of that by the age of 29. He does not appear to have support from his family in leading a lawful life. Indeed, the reverse seems to be the case. It appears to be essential that in the long term he become free of illicitdrug use although it cannot be said that at present there can be a significant degree of optimism about his prospects.
31. In the circumstances it is clearly a case where having regard to the alternatives available a sentence of imprisonment on each charge is the only appropriate sentence. Further, having regard to his criminal history, it is one in which only a sentence served by way of full-time detention would be appropriate.
32. The offender was granted parole on 22 February 2017. He spent 61 days in custody attributable to these offences from 19 March 2017 until 8 May 2017. His parole was revoked on 9 May 2017. He spent a total of 76 days on parole. There are therefore 15 days during this period where he was out of detention, on parole.
33. On each charge of burglary I will impose a sentence of 18 months' imprisonment, reduced from 24 months on account of the plea of guilty. Because they were part of a series of burglaries committed within a short period I will make them largely concurrent. The second and third sentences will be cumulative upon the previous sentence to the extent of four months. This gives a total of 26 months' imprisonment.
34. In relation to the charge of dishonestly riding in a motor vehicle without the owner's consent, I will impose a sentence of imprisonment of three months reduced from four months on account of the plea of guilty.
35. For the minor theft that occurred at the Shell service-station, I impose a one-month imprisonment concurrent with the relevant burglary charge. I have set that period in the light of the early plea of guilty.
36. The total effective period of imprisonment is 29 months or two years and five months.
37. I will set the commencement date for this sentence to be 61 days prior to the conclusion of the existing sentence in order to take into account the period spent in custody attributable to his arrest on these charges. Therefore the sentence that I impose will commence on 3 March 2018 and end on 3 August 2020. I should indicate that the expiry date of his present sentence of imprisonment is 3 May 2018.
38. I must reset a nonparole period. The total sentence of imprisonment arising from the Chief Justice's sentence and that imposed today is five years and one month. The appropriate nonparole period is approximately 60 per cent of the period, namely three years and one month. Those two sentences have been made concurrent to take account of the period when the offender was on parole but remanded in custody for these offences. There is an additional 15 days when he was on parole during that period. It is therefore appropriate to add 15 days to what otherwise would be the nonparole period. Three years, one month and 15 days from 17 June 2015 is a period which ends on 31 July 2018. I therefore sentence the offender as follows:
I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Hodge [2017] ACTSC 373