R v Horan [2020] ACTSC 189

1. Kieran Horan, you appear before me today for sentence with respect to offences of burglary (CC 10563/19), theft (CC 10564/19) and damaging property (CC 10566/19). These offences occurred on a date between 26 December 2018 and 4 January 2019.

2. The short facts are that you broke into a house in Franklin, ACT, before stealing a number of items and also damaging a large number of items in the property.

The maximum penalty for the offence of burglary, contrary to s 311 of the

Criminal Code 2002 (ACT) (the Criminal Code) is 14 years' imprisonment, a fine of $224,000, or both. The maximum penalty for the offence of theft, contrary to s 308 of the Criminal Code is 10 years' imprisonment, a fine of $160,000, or both. The maximum penalty for the offence of damaging property, contrary to s 403 of the Criminal Code is 10 years' imprisonment, a fine of $160,000, or both.

3. On 21 November 2019, you pleaded guilty to the charges in the ACT Magistrates Court. These pleas were entered at the third mention of the matters after representations were accepted by the Crown. The representations concerned charges of riding and driving in a motor vehicle stolen during the burglary and in the days subsequent.

4. You have been in custody since 11 October 2019 in relation to this offence and also others. On 18 November 2019, you were sentenced to 39 days' imprisonment in the ACT Magistrates Court for an offence of failing to appear. This was backdated so as to commence on 11 October 2019 which, I understand, was the date you were first taken into custody, and to conclude on 18 November 2019. That was time served at the time of sentencing. As such, the time spent in custody since 19 November 2019 can be solely attributed to the instant offences.

5. The Prosecution case against you was not weak but it was not overwhelmingly strong. I accept that these pleas of guilty were early pleas of guilty and I propose to reduce by approximately 25 per cent the sentences which I would otherwise have imposed in order to reflect the utilitarian value of your pleas of guilty. I also accept that these pleas demonstrate a degree of remorse on your part.

6. You have a criminal history, but I accept the submission which has been made by your counsel that it was not a particularly significant criminal history prior to the commission of these offences. You have a history of similar-type offending [redacted] in Victoria [redacted].

7. A number of convictions appear on the record which is before me, having been recorded in New South Wales. I do take into account the fact that those were offences which occurred subsequent to the offences which are now before me.

8. Your criminal history is not such as to deprive you of any leniency with regard to sentencing with respect to the present matters. It is not such as to suggest an attitude of continued disobedience to the law, such as to require a strong element of individual deterrence in sentencing.

9. A Pre-Sentence Report was prepared for the sentence hearing today. I note that you are 20 years old. As such, you are still quite a young man and rehabilitation is still a very significant sentencing consideration. I note that ACT Corrective Services records indicate that your behaviour, while in custody since being remanded on

10. I take into account the family history which is set out in the Report without now repeating it. I accept the submission that this history demonstrates a level of neglect and abuse which undoubtedly continues to affect you to the present day. I note that you have limited contact with your father and you have no contact with your mother.

11. You have two step-children from a previous relationship which ended approximately eight months ago. You currently do not have contact with those children and apparently, according to the author of the Pre-Sentence Report, you said that not having any contact with those children is causing you significant distress.

12. You have made enquiries about accommodation at Ainslie Village once you are released from custody. You completed your education to Year 11, and you have subsequently been employed for periods up to nine months interspersed with periods of unemployment since leaving school. At the time of commission of these offences, you were in receipt of Centrelink payments.

13. You told the author of the Report that you intend to distance yourself from anti-social influences when you are released from custody. You stated it is difficult of course to distance yourself from anti-social influences whilst you are in custody.

14. You told the author of the Report that you were exposed to illicit substance use by your mother and began smoking cannabis at the age of nine years. You ceased use when you were [redacted] but you recommenced that use when you recommenced living with your father.

15. You told the author of the Report that you have continued using cannabis in the community, although you stated the prescription medication for mental health issues has reduced your need to self-medicate using cannabis. You told the author of the Report that you commenced methamphetamine use from the age of 13 years with intravenous use commencing at the age of 14 years.

16. Prior to being incarcerated in Goulburn, NSW, in June 2019 you were using methamphetamine daily, however, when last in the community you apparently restricted your use to three occasions. You told the author of the Report that you engaged in criminal activities to fund your addiction. You also stated that you commenced your heroin use at the age of 19 years for a period of six months. It is clear that you have a very longstanding and well-entrenched drug addiction.

17. I accept the submission that was made on your behalf that some leniency can be shown to you with regard to sentencing for the present matters based upon your drug addiction. Ordinarily, drug addiction, is not a reason to reduce sentences for criminal offending. However, some amelioration of that principle is permitted where drug addiction is commenced at an early age such that the offender should not be considered as responsible for the effects of drug addiction as they would be if they had commenced the use of drugs as an adult.

18. I note that you told the author of the Pre-Sentence Report that you have been diagnosed with several mental health conditions and that you are currently prescribed medication for depression. You reported that you are in good physical health.

19. You told the author of the Report that you are angry and annoyed with yourself for committing these offences which have led to you being in custody. You confirmed that illicit substance use contributed to the offences. It was the opinion of the author that you were a medium high-risk of general re-offending. The author of the Report identified your primary risk factors as illicit substance use, mental health issues, your attitude to offending and unemployment.

20. With regard to the objective seriousness of these offences, the offence of burglary was one committed at residential premises in which entry was forced. It occurred over the Christmas/New Year period at a time when the premises were more likely to be vacant and therefore vulnerable. It also involved the ransacking of the premises. Whilst I have taken that into account as part of the circumstances of the burglary, I give that limited weight because it is necessary to ensure that I do not double count when sentencing you with respect to the offence of damaging property.

21. Turning to the offence of theft, a significant monetary value of property was taken. Also, some of the property which was taken was also of considerable sentimental value. I note that the car was recovered but the damage to the car which the owners could not afford to repair is a constant reminder to the victims of these events.

22. The damage to the property, which you occasioned whilst you were searching for things to steal, was calculated to heighten the sense of violation created by the burglary. I also take into account that the value of the damage was not insignificant.

23. It is also important to bear in mind the effect on the victims of these offences.

The Victim Impact Statements which have been placed before the Court speak eloquently of that sense of violation and the continuing effect that the offences have had upon the victims and, particularly, the children. I would assess the offences as in the mid-range of such offences.

24. It is heartening to note that you have arranged for work when you are released from custody and that you have made enquiries about accommodation. It is also a positive factor that you wish to have a continuing connection to your step-children. It is also a significant matter that you have demonstrated remorse for these offences.

25. I accept the submission which was made by the Crown that in sentencing you it is important to give weight to considerations such as general deterrence, punishment and the need to demonstrate to the community that this behaviour is unacceptable.

26. Whilst rehabilitation is important, in my opinion the only appropriate sentences with respect to these matters are immediate terms of imprisonment. I will, however, take into account the requirements of rehabilitation and the other matters to which I have referred in setting the appropriate head sentences, but perhaps more importantly from your point of view, in setting the non-parole period.

27. I will set a lower than usual non-parole period so that the Sentence Administration Board can structure your return to the community, including undertaking rehabilitation for drug addiction if that is considered desirable at the time. It is quite clear that if you are to return to the community with the optimal chance of avoiding re-offending that you need to deal with drug addiction issues.

28. I would recommend to the Sentence Administration Board that it should monitor closely your progress within the Alexander Maconochie Centre and, in particular, steps that you take with regard to addressing drug addiction before contemplating any release on parole.

29. With regard to the offence of burglary (CAN 10563), I will record a conviction and you will be sentenced to 18 months' imprisonment, which I have reduced from two years in order to reflect your plea of guilty. That sentence will commence on 19 November 2019 and expire on 18 May 2021.

30. With respect to the offence of theft (CAN 10564/19), I record a conviction and you are sentenced to nine months' imprisonment, which I have reduced from 12 months because of your plea of guilty. That sentence will commence on 19 February 2021 and expire on 18 November 2021.

31. With respect to the offence of damaging property (CAN 10566/19), I record a conviction and you are sentenced to four months' imprisonment, which I have reduced from

six months because of your plea of guilty. That sentence will commence on

32. The aggregate sentence which I have imposed is therefore one of

two years and three months' imprisonment, commencing on 19 November 2019 and expiring on 18 February 2022.

33. I will set a non-parole period of 14 months, which is approximately 50 per cent of the head sentence, commencing on 19 November 2019 and expiring on 18 January 2021.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.