R v Hodge [2019] ACTSC 15

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Arson - Dishonestly take motor vehicle without consent - Fail to stop motor vehicle when requested by police

Crimes (Sentencing) Act 2005 (ACT) ss 7, 36, 66

Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5C

R v Hodge [2015] ACTSC 214

R v Hodge [2017] ACTSC 373

R v Wrigley [2015] ACTSC 114

1. In November 2018, the offender pleaded guilty to the following offences:

(a) Count 1 - On 5 October 2018, he dishonestly took a Lancer motor vehicle without consent, contrary to s 318(1) of the Criminal Code 2002 (ACT) (Criminal Code). The offence carries a maximum penalty of five years' imprisonment and/or a fine.

(b) Count 2 - On 15 October 2018, he dishonestly took a Holden motor vehicle without consent, contrary to s 318(1) of the Criminal Code.

(c) Count 3 - On 15 October 2018, he failed to stop a motor vehicle when requested to do so by police, contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (Road Transport Act). A first offence, carries a maximum penalty of 12 months' imprisonment and/or a fine. A mandatory minimum license disqualification period of three months applies.

(d) Count 4 - On 16 October 2018, he intentionally caused damage by fire to a Lancer motor vehicle, contrary to s 404(1) of the Criminal Code. The offence carries a maximum penalty of 15 years' imprisonment and/or a fine.

(e) Count 5 - On 18 October 2018, he failed to stop a motor vehicle when requested to do so by police, contrary to s 5C of the Road Transport Act. A repeat offence, the penalty is three years' imprisonment and/or a fine. A mandatory minimum license disqualification period of 12 months applies.

2. The pleas were entered in the Magistrates Court prior to the preparation of a brief of evidence.

3. Having regard to the timing of the pleas, it is appropriate that the offender receive a discount of approximately 25 per cent on the sentences that would otherwise have been imposed. I accept that, apart from the offence of 18 October 2018, the Crown case was a strong one. However, the usual discount recognising the high utilitarian value of the pleas should nevertheless apply. I deal with the offence of 18 October 2018 below at [10].

4. The offender was arrested on 19 October 2018. He spent four days in custody in relation to these offences before parole was cancelled by the Sentence Administration Board on 23 October 2018. I will recognise those four days by backdating the sentences that I impose by a period of four days from the date upon which they would otherwise have commenced.

5. On the afternoon of Friday, 5 October 2018, the offender was at the residence of an acquaintance who had the keys to her Lancer vehicle in her handbag. When she left the room, the offender removed the keys from her handbag and took the vehicle (Count 1).

6. At about 9:00 PM on Monday, 15 October 2018, the offender was at the residence of other acquaintances. Without permission, he took the keys to a Holden vehicle belonging to one of this acquaintances and drove away (Count 2). Immediately, the vehicle was reported to be stolen.

7. About 10:45 PM that night, police saw the offender driving the Holden vehicle in Reid and attempted to stop the vehicle by activating their emergency lights and siren. The offender failed to stop the vehicle (Count 3).

8. At 2:40 AM on Tuesday, 16 October 2018, the offender and an unknown woman went to the residential suburb of Isabella Plains, where the offender poured petrol from a fuel canister on and into the Lancer vehicle that had been taken on 5 October. He used a lighter to ignite a petrol trail leading to the vehicle. As a consequence, the Lancer vehicle exploded and was completely destroyed (Count 4). When police attended the scene, they observed that registration plates and vehicle identifier plate had been obliterated.

9. At about 8:35 PM on Thursday, 18 October 2018, police saw the stolen Holden vehicle in Yarralumla and attempted to conduct a traffic stop by activating their emergency lights and siren. The vehicle failed to stop (Count 5).

10. At that time, the police were unable to identify the driver. However, the offender later admitted that he had been driving the vehicle. Consequently he is entitled to a discount for assistance under s 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I allow a discount of approximately 35 per cent as a combined discount for plea of guilty and assistance to the authorities. However, because of the low starting point for the two sentences for failing to stop, this discount will result in no differentiation between the sentences.

11. In assessing the objective seriousness of offence of arson, a number of considerations are relevant. In R v Wrigley [2015] ACTSC 114 at [34], Refshauge J set out the principles that he had derived from the authorities as relevant to sentencing for arson. His Honour observed that aggravating circumstances included where the offence is committed at night, the use of an accelerant, where he offence is committed for the purpose of revenge or destruction of evidence, and the risk of injury to life, including that of firefighters.

12. Another matter of relevance is the value of the property destroyed. Unfortunately, in this case, the Court has very little information about the value of the vehicle destroyed since the prosecution has been unable to ascertain that value. However, because the property was a vehicle, it would likely be of only modest value compared, for example, to a substantial building.

13. In relation to motive, the offender told police that he had committed the offence for revenge, although that explanation is bizarre; there is no obvious reason for the offender to feel vengeful towards the owner of the vehicle, who was an acquaintance.

14. The offence was committed in company, although it is not clear what, if any, active role was played by the offender's female companion. The offender video recorded the incident on his mobile telephone. The recording shows the speed with which the vehicle was destroyed, and records that the offender's female companion found the incident to be amusing. However, one can't infer that the offender's motives were identical to those of his female companion.

15. An important consideration is that the incident occurred in a primarily residential area, at 2:40 AM. The Court has no information about the proximity of residences or sleeping residents to the location of the offence but I infer that both people and property were reasonably close.

16. The offence of arson was of substantial objective seriousness.

Taking and driving a motor vehicle without consent

17. Each offence of taking and driving a motor vehicle without consent was of moderate objective seriousness. The offences were unplanned and opportunistic. They involved taking vehicles without, at that stage, causing damage to them. Nevertheless, it is quite distasteful that the offender opportunistically took vehicles from people who were acquaintances and presumably considered themselves to be "friends".

18. The offences of failing to stop were of some objective seriousness. They were motivated by a desire to evade the police, either because the offender was aware that the parole authority had issued a warrant for his arrest, or because he was aware that he was driving a stolen vehicle.

19. The Court was not provided with a victim impact statement.

20. At the time of the offences, the offender was 30 years old.

21. His adult criminal history is unenviable. In 2006, he was sentenced for aggravated burglary. In 2007, he was sentenced for aggravated robbery (in company) committed in January 2006. In September 2006, he committed offences of riding in a vehicle without authority, receiving stolen property, and aiding and abetting a robbery. In 2007, he committed offences of aggravated robbery, aggravated burglary and driving a motor vehicle without consent. As a result, he was imprisoned from September 2007 to September 2011 with a nonparole period of two years.

22. After his release to parole, between 2009 and 2013, the offender spent a significant time in the community - the only significant time that he has spent in the community during his adult life.

23. However, in 2013, he committed numerous property offences including burglary and theft. As a result, he was sentenced to imprisonment and was eligible for parole in November 2014.

24. In January 2015, shortly after his release, he committed further offences. On 22 July 2015, I sentenced the offender for offences of aggravated robbery and assault occasioning actual bodily harm committed in January 2015: R v Hodge [2015] ACTSC 214. I imposed an effective sentence of two years and eight months' imprisonment from 17 June 2015 to 16 February 2018, with a nonparole period expiring on 26 January 2017. He was released to parole on 22 February 2017, and immediately relapsed into drug use. He committed further serious offences within a month.

25. On 25 July 2017, Mossop J sentenced the offender for three offences of aggravated burglary, one offence of theft and one offence of riding a motor vehicle without consent: R v Hodge [2017] ACTSC 373. The offences of aggravated burglary had been committed in the early hours of 18 March 2017 by the offender, his sister and her boyfriend at separate locations. The offenders had forced entry into commercial premises, but the break-ins had yielded little of value from any of the premises. When arrested, the offender made admissions, was polite and cooperative with police and expressed remorse.

26. Mossop J assessed the offences as of relatively low objective seriousness. However, his Honour noted the offender's poor criminal history, particularly in relation to matters of dishonesty. At the time of the offences before his Honour, the offender was on parole for an offence of dishonesty, namely aggravated robbery.

27. Mossop J imposed a total sentence of two years and five months' imprisonment. His Honour reset the nonparole period such that it expired on 31 July 2018. The total sentence was, at that stage, due to expire on 2 August 2020.

28. The offender was released to parole on 22 August 2018 and immediately resumed using illicit substances. From the outset, his attendance at supervision appointments was problematic and he was "dismissive" towards his supervising officer. When directed to do so, he failed to provide samples for urinalysis.

29. The offender was directed to appear before the Sentence Administration Board on 25 September 2018 but failed to appear. A warrant was issued for his arrest. The offences before the Court today occurred in October 2018.

30. The offender's parole was cancelled from 23 October 2018. As he had been arrested for these matters on 19 October 2018, he served a period of four days' imprisonment referrable only to the offences for which I am to sentence him today. It is clear that the offender was on conditional liberty at the time when he committed all the offences for which I am to sentence him.

31. As a consequence of the parole cancellation, the offender is currently serving sentences that are due to expire on 3 October 2020.

32. The offender is one of eight siblings, many of whom have been involved in the criminal justice system, and have used illicit substances. He shares a biological father with only one of his siblings. He has limited contact with his siblings.

33. The offender has a five-year-old son from a previous relationship with whom he enjoys regular telephone contact. The son resides interstate.

34. From early childhood, the offender was exposed to alcohol and other substance abuse, domestic violence, and physical and mental abuse including "bashings" perpetrated by his mother's numerous partners. At times during his childhood, he feared for his life.

35. The offender remains traumatised by a significant assault that occurred at the Belconnen Remand Centre in 2007; this incident has had a dramatic impact on his life.

36. The offender was placed in foster care when he was at about six years of age. The offender reported that he was returned to his mother's care at 12 years of age. During childhood, he had various foster placements, none of which was very successful.

37. Partly because of his numerous foster placements, the offender's schooling was unstable. He attended about six primary schools and three or four high schools. He displayed behavioural problems and had difficulty concentrating at school.

38. The offender left school at either 13 or 15 years of age (according to inconsistent accounts from different reports). He completed his Year 10 Certificate in a detention facility. Because of the periods spent in prison and problematic substance abuse, he has a limited work history. However, he did maintain a job for up to two years when he was aged in his mid20s and living in Queensland.

39. He was in a relationship from about 2010 to 2012, and during that time he committed no significant criminal offence. He said that that was because his level of drug usage was much lower at that time.

40. However, he relapsed into drug usage and criminality in 2013. As a consequence, in 2014 he was admitted to Adele House - a rehabilitation facility - but that attendance was not successful and he was discharged after only a brief period.

41. At 13 or 14 years of age the offender started to consume alcohol and would drink to intoxication or even blackout on a daily basis. At 18 years of age he ceased using alcohol and began to abuse methamphetamine and heroin. He quickly developed a significant dependency. He has reported being drug-free between about 2010 and 2012, which is reasonably consistent with his criminal history.

42. The offender informed the author of the pre-sentence report that his immediate relapse following release in August 2018 was because he ceased methadone treatment and began associating with antisocial companions (presumably, drug users).

43. As a teenager, the offender experienced poor coping skills, depression, anxiety and attachment issues, which is hardly surprising given his domestic circumstances. There is a history of self-harming behaviour from 13 or 14 years of age.

44. He has been diagnosed with hyperkinetic disorder (in 2006), drug-induced psychosis (in 2006), adjustment disorder (in 2008), and borderline personality disorder (in 2015). Since 2012, he has been hospitalised on more than three occasions.

45. His engagement with mental health services has been only sporadic, but recently he has been seeking treatment in custody. Currently, he is medicated for his mental health conditions and receives methadone treatment for his substance addiction. He believes that his mental health condition has stabilised and he is committed to continuing with the prescribed medication.

46. The offender has insight into the relationship between his substance abuse, mental health problems and criminality, and he is aware that his antisocial associations contribute to his criminal behaviour. When in the community, the offender is influenced by his anti-social peers and has few pro-social supports for a more positive lifestyle.

47. The author of the pre-sentence report assessed the offender as at high risk of general re-offending.

48. In sentencing the offender, the Court is required to have regard to the sentencing considerations in s 33 of the Sentencing Act. As indicated above, I have had regard to the relevant considerations.

49. The Court is also required to apply the relevant sentencing purposes in s 7 of the Sentencing Act. All purposes are relevant in the present case. For obvious reasons, specific deterrence is a very important consideration. General deterrence is also important, particularly in relation to the arson offence; general deterrence is usually a prominent sentencing consideration in relation to arson matters. In this case, the other sentencing purposes of adequate punishment, accountability, denunciation, and recognition of harm are all important.

50. It goes without saying that rehabilitation is critical to the offender leading a fulfilling life. At the moment one can have little optimism in that regard. The evidence points to a bleak future. One can only hope that the offender gains maturity and, upon release, is afforded very strong supports in all aspects of his life. It is important that, when released into the community, he is subject to tight supervision on parole for a significant period. I consider that a supervision period of at least 12 months is required.

51. There is no debate that the only appropriate sentence for each offence is one of imprisonment.

52. The offender is convicted of all offences. I impose the following sentences:

(a) Count 1 - take motor vehicle without authority: 6 months' imprisonment reduced to 4 months and 2 weeks' imprisonment, from 19 October 2019 to 4 March 2020.

(b) Count 2 - take motor vehicle without authority: 6 months' imprisonment reduced to 4 months and 2 weeks' imprisonment, from 19 December 2019 to 3 May 2020.

(c) Count 3 - fail to stop motor vehicle for police: 3 months' imprisonment reduced to 2 months' imprisonment, from 19 February 2020 to 18 April 2020.

(d) Count 4 - arson: 2 years' imprisonment reduced to 18 months' imprisonment, from 19 April 2020 to 18 October 2021.

(e) Count 5 - fail to stop motor vehicle for police: 3 months' imprisonment reduced to 2 months' imprisonment, from 19 March 2020 to 18 May 2020.

53. The total sentence is two years' imprisonment, from 19 October 2019 to 18 October 2021.

54. I am required to set a nonparole period in accordance with s 66 of the Sentencing Act. In doing so, I take into account the pre-existing period of imprisonment of approximately three years, from October 2018 to October 2021. I also have regard to the lengthy prior period of incarceration followed by the very brief period in the community. As noted above, to enable rehabilitation, on parole the offender will need to be closely supervised for a significant period. Consequently, I fix a nonparole period expiring on 18 October 2020.

55. For Counts 3 and 5, I fix the following periods of driver disqualification:

(a) Count 3: 6 months' disqualification, from 31 January 2019 to 30 July 2019.

(b) Count 5: 18 months' disqualification, from 31 July 2019 to 30 January 2021.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.