R v Howsan [2016] ACTSC 357

Firearms Act 1996 (ACT) s 249

Aboriginal Legal Service (NSW/ACT) Limited (Offender)

SCC 58A of 2016; SCC 58C of 2016; SCC 59 of 2016

1. Regen Howsan, you have pleaded guilty to one count of burglary and one count of theft which are charges CC2015/6789 and CC2015/6790 respectively. On 16 July 2015, you unlawfully entered premises in O'Connor, and stole a mobile phone and a handbag, with the contents, from within those premises. 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 $210,000.00 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 $150,000.00 or both.

2. In addition, you have entered pleas of guilty to two charges, which have been transferred to this Court from the Magistrates Court. Charge CC2015/6795 is a charge of possession of ammunition for a firearm while not authorised and this relates to two boxes of shotgun shells. That offence is contrary to s 249(1) of the Firearms Act 1996 (ACT), and carries a maximum penalty of a fine of $1,500.00. The second charge is charge CC2015/11445, a charge of possession of property reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to s 324(1) of the Criminal Code. This charge relates to a sum of $1,950.00 in cash. The maximum penalty for that offence is six months imprisonment, a fine of $7,500.00, or both.

3. Lastly, on 26 October 2016 you entered a plea of guilty to one charge of attempted burglary contrary to s 311 of the Criminal Code which is charge XO2016/30427. On 17 July 2015 you attempted to unlawfully enter residential premises in Kambah. The maximum penalty for that offence is 14 years imprisonment, a fine of $210,000.00 or both.

4. You were originally charged with the offences of burglary and theft, which are now before me, in the Magistrates Court on 20 July 2015. On the second occasion the matter was before the Magistrates Court on 10 August 2015, you entered pleas of not guilty. On 1 April 2016, these charges were committed to this Court and on 27 May 2016 an indictment was filed. On 31 August 2016, a new indictment was filed with two counts, which are the subject of charges CC2015/6789 and CC2015/6790. On 8 September 2016, pleas of guilty were entered to both counts on the indictment.

5. I will not go through the facts as they appear in the Statement of Facts except to note that the offences of burglary and theft occurred at approximately 11.00 pm, at a time when the resident of the premises was at home. You forced entry through a rear door and confronted the resident of the premises. You moved past her, into a bedroom where you took her phone from a bedside table in addition to a handbag and its contents. You then turned and left the premises. At some point during the burglary you dropped a wallet containing $1,950.00 and numerous identification cards in your name.

6. On 18 July 2015, police executed a search warrant at your premises. You were present and said that you were the only person who had been staying at the residence. Numerous items belonging to the occupant of the O'Connor address were located during the search. You were arrested on 18 July 2015 and you have remained in custody since that time. I note that you were on bail, with respect to an allegation of an offence of break and enter in New South Wales (NSW) at the time that you committed these offences. You were granted bail in NSW on or about 6 July 2015 and the present offences were committed on 16 July 2015.

7. With respect to the objective seriousness of these offences, the burglary offence involved forced entry. It was in residential premises, at night, when it may be expected the resident would be home. In fact, you confronted a female resident in the premises. I note that you were on bail for a similar offence, which is an aggravating circumstance. I would assess this as being in the midrange of offences of this type. With respect to the offence of theft, the property taken was a mobile phone and a handbag and its contents. I have not been provided with any estimate of the value of those items, but I would infer that they are not of particularly significant value. I would assess this offence as being in the lower range of such offences.

8. You have a lengthy criminal history, including numerous prior convictions for burglary and theft. It is notable that you also have a lengthy prior history of breaching court orders. You are not entitled to any leniency based upon your previous history. In fact, your previous criminal history speaks of the need to give weight to specific deterrence in sentencing.

9. A PreSentence Report was prepared for the sentence hearing. You are 21 years old and an indigenous man. Since you were remanded in custody on 19 July 2015 you have been subject to disciplinary action for fighting and possession of contraband, including methylamphetamines and a shiv. You commenced the First Step's Alcohol and Other Drugs Program in July 2016 but you were exited from that program after failing to attend two sessions.

10. You were born in Shoalhaven and you are one of two children to a relationship which ended when you were 12 years old. You remained with your mother following the separation and you described positive relationships with your parents. You told the author of the Report that you resided in your mother's Government rental property for three weeks prior to the current remand period and indicated that you would like to return to her house when you are released.

11. You advised that your partner of four years and your one year old son would relocate to Canberra when you were released. Corrective Service records indicated that your partner and child visit you regularly in the Alexander Maconochie Centre (AMC). They also indicate that you grandfather was contacted last year in relation to a PreSentence Report prepared for your mother and your grandfather attributed much of your behaviour to your mother's bad influence and poor parenting. You completed Year 10 through the Canberra Institute of Technology, after leaving the formal education system at 14 years of age. You have a limited employment history, and stated that you intend to obtain work as soon as possible after you are released from custody so that you can support your partner and child.

12. You were reliant on a Centrelink allowance prior to being remanded in custody. You admitted that you gambled approximately $50.00 a fortnight on poker machines. You reported that you had friends involved in criminal activity and that although you had some prosocial friends you did not have the opportunity to spend time with them due to their work commitments. You commenced alcohol consumption when you were 12 years old. You drank up to 22 standard drinks daily for two years, at which time you began to spend time in custody. You advised that you ceased excessive alcohol consumption when you were 19 years old and you now consume one to two beers at a time and no more than nine standard drinks in a fortnight.

13. You reported that you commenced cannabis use between the ages of 12 and 14 and commenced methylamphetamine use when you were 17 years old. You stated that your use of methylamphetamines increased from twice a week to four times a week two years later, only ceasing when you were in custody. Although you admitted to using up to two grams of methylamphetamines on a monthly basis prior to being remanded in custody, you denied that this was problematic. You also reported that you commenced using suboxone, without a prescription, when you were 19 years old and commenced methadone as a replacement during the current remand period.

14. You told the author of the Report that you have been clean of illicit substances for 10 months. I note in that regard that you have been in custody for 15 months. The author of the Report noted that urinalysis drug tests conducted on 6 January and 29 August this year detected no illicit substances. This was after you were disciplined, on 7 December last year for being in possession of methylamphetamines and drug use paraphernalia. You told the author of the Report that you have previously completed the Triple Farm Farm Residential Rehabilitation Program and you have applied to reenter the program as soon as possible. You reported that you have a bloodborn virus.

15. You told the author of the Report that you agreed with the Statement of Facts. You said that you did not know why you committed the offences but stated you had trouble supporting yourself and required extra money. You denied that you needed the money to purchase drugs.

16. I note the contents of the CADAS assessment, which was tendered at the sentence hearing. I note in particular that it says that you were exposed to drug use by your parents at an early age. The assessment outcome, as stated in the Report, is that you present as a young adult male with a history of problematic drug use. You reported that you have contracted Hepatitis C in custody and that you are seeking treatment for it. You reported having previously benefitted from residential alcohol and other drug treatment at Triple Care Farm and said that you would be willing to attend that program again. You said that you knew that you had made a mistake and wanted to be responsible for your son. You also stated that you feel reasonably confident that you can now sustain abstinence from drug use without longer term treatment.

17. You gave evidence at your sentence hearing. You spoke of your relationship with your partner and son and the responsibility you now have as a father. Apparently, your partner does not tolerate use of drugs. You spoke of exposure to drugs and alcohol in your home during your early life. You said that you have obtained your white card and you want to work in construction when you are released in order to support your family. You expressed shame for your offending and accepted that the victim would have felt scared and unsafe. You accepted that you need support in the community and said that you are open to the idea of a rehabilitation program. You said that you would be prepared to return to Triple Care Farm if necessary.

18. You said drugs were easily accessible in the AMC. I note that that may well be so, but you will inevitably be exposed to the temptation of using drugs when not in custody. Whether you use drugs depends on your commitment, not on whether you are in custody or in the community. You gave evidence of having recently ceased the use of methadone, and that you are feeling good. The explanation which you gave for not completing the First Steps Program, being that you had a problem with someone in the class, was not particularly convincing.

19. Your youth means that rehabilitation is still an important sentencing consideration but it is, of course, not the only sentencing consideration. Punishment and deterrence, both individual and general, are also important sentencing considerations. I am satisfied that there is some prospect that your desire to be a father to your son and support your family will motivate you to address drug addiction. As such, I think that you have reasonable prospects for rehabilitation. Your pleas of guilty were not entered at the earliest opportunity, but I accept that they demonstrate a degree of remorse and also had a utilitarian value. I will reduce by approximately 15 per cent the sentences that I would otherwise have imposed in order to recognise your pleas of guilty.

20. With respect to the charge of burglary (CC2015/6789), you will be convicted and sentenced to two years imprisonment, which I have reduced from two years and four months because of your plea of guilty, commencing on 18 July 2015 and expiring on 17 July 2017.

21. With regard to the offence of theft (CC2015/6790), you will be convicted and sentenced to seven months imprisonment, which I have reduced from nine months because of your plea of guilty, commencing on 18 May 2017 and expiring on 17 December 2017.

22. With regard to the offence of attempted burglary (XO2016/30427), you will be convicted and sentenced to 15 months, which I have reduced from 18 months because of your plea of guilty, commencing on 18 March 2017 and expiring on 17 June 2018.

23. With respect to the charge of possession of goods reasonably suspected of being stolen or otherwise unlawfully obtained (CC2015/11445), you will be convicted and sentenced to two months imprisonment, which I have reduced from three months because of your plea of guilty, commencing on 18 March 2017 and expiring on 17 June 2018.

24. With respect to the charge of possession of ammunition (CC2015/6795), you will be convicted and there will be a Good Behaviour Order for a period of six months from today, 16 November 2016. There will be no conditions attached to that Good Behaviour Order, other than the core conditions.

25. There will therefore be an aggregate sentence of three years imprisonment, commencing on 18 July 2015 and expiring on 17 July 2018. I set a nonparole period commencing on 18 July 2015 and expiring today, 16 November 2016, so that you are now eligible to apply for parole. I order that the sum of $1,950.00, which is the subject of the charge of possession of goods reasonably suspected of being stolen or otherwise unlawfully obtained, be forfeited to the Territory.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.