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[2017] ACTSC 144
Supreme Court of the ACT
2017-05-04
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - aggravated burglary - burglary - damaging property - theft - plea of guilty - rolled up counts - restorative justice - remorse demonstrated by offender - consideration of subjective circumstances - general deterrence - sentencing adjourned for offender to be assessed for suitability for an Intensive Corrections Order
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 78
Criminal Code 2002 (ACT), ss 45A, 308, 311, 312, 403
Fusimalohi v The Queen [2012] ACTCA 49
Halden (1983) 9 A Crim R 30
Muldrock v the Queen [2011] HCA 39; 244 CLR 120
R v Coombes (Unreported, Victorian Court of Criminal Appeal, Young CJ, Lush and Southwell JJ, 3 September 1979)
R v Forrest [2016] ACTSC 321; 11 ACTLR 311
R v Forrest (No 2) [2017] ACTSC 83
R v Jones [2004] VSCA 68
R v Kelly [2016] ACTSC 281
R v Kilic [2016] HCA 48; 339 ALR 229
R v McGrail [2016] ACTSC 142
R v McMahon [2014] ACTSC 280
R v Newham [2000] VSCA 138
R v Ngerengere (No 3) [2016] ACTSC 299
R v Roux (No 2) [2015] ACTSC 361
R v Wright (Unreported, Victorian Court of Criminal Appeal, Gowans, Nelson and Anderson JJ, 13 May 1974)
Saga v Reid [2010] ACTSC 59
Simonds v The Queen [2013] ACTCA 13
1. As I have remarked before in R v Kelly [2016] ACTSC 281 at [1], underground or basement car parks for apartment buildings have become a particular target for those who wish to commit burglary by entering private premises as trespassers and to steal property. See also R v Forrest (No 2) [2017] ACTSC 83 at [78].
2. Such offences are committed not only in the cars parked in the area, but also in storage cages provided within the apartment blocks for tenants or owners of the apartments.
3. This case is yet another example of the attacks on what is, despite often being called a "secure car park", clearly an area relatively vulnerable to burglars and thieves.
4. Now appearing before me for sentence is Hayley Maree John, who has pleaded guilty to offences committed in such circumstances, as well as further offences.
5. She is to be sentenced for offences of aggravated burglary, burglary, damaging property, and theft.
6. Aggravated burglary is an offence contrary to s 312 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 2000 penalty units (that is, at the time, a fine of $300 000) and imprisonment for 20 years.
7. Burglary is an offence against s 311 of the Criminal Code and is punishable by a maximum penalty of 1400 penalty units (that is, at the time, a fine of $210 000) and imprisonment for 14 years.
8. Theft is an offence prohibited by s 308 of the Criminal Code, which renders Ms John liable to a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
9. Damaging property is an offence forbidden by s 403 of the Criminal Code, for which the maximum penalty is 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
10. The High Court has said on many occasions that the maximum penalty set in the legislation is to be regarded as a yardstick against which the relative seriousness of an offence is to be assessed. See, for example, Muldrock v the Queen [2011] HCA 39; 244 CLR 120 at 133; [31]. By that yardstick, these are serious offences and should be so treated by the courts. They have the capacity to interfere seriously with the peace and good order of our community.
11. The events out of which these charges arose all occurred on 25 July 2015 in three separate incidents. In the first place, Ms John and her co-offender, Michael Paul Forrest, went to an apartment block in Macquarie, ACT, in the early hours of the morning and entered it as trespassers by forcing open a fire exit door. This was the count of aggravated burglary. The circumstances of aggravation were that Ms John was in company when committing the burglary offence.
12. They walked around the underground car park looking into vehicles and Mr Forrest managed to access nine vehicles by inserting a screwdriver between the window and the doorframe and levering the screwdriver until the window shattered.
13. Ms John admitted, by her plea of guilty, to being knowingly concerned in these nine acts of property damage. Under s 45A of the Criminal Code that deemed her to have committed those offences and to therefore be liable to the maximum penalties for them.
14. After discussion between Ms John's legal representatives and officers of the ACT Director of Public Prosecutions, the nine acts of property damage were included in what is known as a "rolled up charge" of one count of property damage. I discuss that below at [106]-[107].
15. Mr Forrest removed property from each of the vehicles and handed it to Ms John, who was following him. I saw some CCTV footage of her holding a large bag into which items were being placed.
16. What was stolen included $625 in cash and various other items such as sunglasses, clothing, books and tools. They also included things such as a wallet with numerous cards, house keys and garage remotes, which have little apparent monetary value, but the loss of which causes considerable inconvenience to those deprived of their use.
17. Again, Ms John admitted, by her plea of guilty, to being knowingly concerned in the thefts, thus rendering her liable to the maximum penalty for the offence of theft. The theft offences were also charged in a rolled up charge of one count of theft.
18. Ms John and Mr Forrest later left the car park, apparently using one of the remote control devices to open the security door, and then drove a Holden Commodore motor vehicle in which they had arrived at the apartments into the underground basement. Mr Forrest, who had been driving the car, got out wearing a motorcycle helmet, which appeared to have been stolen in one of the nine thefts, found a motorcycle, which one of the stolen keys fitted, and drove it away. It appears that Ms John then moved into the driver's seat of the vehicle and drove it out of the car park. Ms John is not to be sentenced for the taking of the motorcycle.
19. Later that morning, Mr Forrest and Ms John drove to the Gold Creek Village in Nicholls, ACT, arriving just before 8:00am. There were a number of vehicles in the car parks there, of which six were broken into by smashing a car window.
20. Some CCTV footage showed Mr Forrest breaking into one vehicle. He also broke into the other vehicles parked there.
21. Mr Forrest then stole items, including a backpack, a knife, a bag containing toiletries, various cards which included credit cards and membership cards, items such as invoices and rates notices, which gave the residential addresses of the owners of the cars, as well as other various items to the value of at least $500.
22. Again, Ms John pleaded guilty to one rolled up count of all the thefts on the basis that she was knowingly concerned in the thefts.
23. Between 10:30am and 11:30am that day, Mr Forrest and Ms John drove to a residence in Chisholm, ACT. Ms John went and knocked at the front door to see if anyone was home and, when no one answered, returned to the motor vehicle where Mr Forrest then entered the home through the front door by breaking the lock.
24. He then proceeded to steal items from each room of the home and brought them back to the Commodore where Ms John was waiting for him. The items stolen included jewellery, keys, some cash, electronic items including a laptop, cameras and an iPad, the owners' passports, and a travel wallet. The total value of the property stolen was $10 000, a considerable sum.
25. As a result of her participation in this conduct, Ms John was charged with burglary and theft as a knowing participant.
26. At about noon that day, police approached Mr Forrest and Ms John at a shopping centre in Calwell, ACT, and Mr Forrest was arrested on an outstanding warrant. Police also found Ms John to be in the possession of a wallet later identified as having been stolen from the residence in Chisholm. It contained a large amount of foreign currency.
27. The next day police executed a search warrant on the motor vehicle that had been driven by Mr Forrest during the commission of the offences and to the shopping centre, and found a large amount of the stolen property.
28. Ms John then went to Tuggeranong Police Station, where she participated in an interview that was recorded and in which she made a number of admissions about her presence during the burglary at Chisholm.
29. She also admitted being present when windows of cars were smashed and items stolen, presumably on the earlier occasions. She admitted being in the company of Mr Forrest.
30. Ms John participated in a second record of interview with police on 31 July 2015 and was shown CCTV footage from the apartment basement car park, admitting that she had been there when Mr Forrest broke into different cars. She admitted breaking into one car.
31. She said that she had told Mr Forrest that she did not want to be there and that they should go. They left but she said that Mr Forrest had a key which he wanted to check whether it was for a car. She said that they returned and he found that it fitted the ignition of a motorbike, which Mr Forrest then took and drove to someone else's house. The owners said they did not want it there, so he left it across the road in an alleyway. She confirmed to police that the people shown on the CCTV footage were Mr Forrest and herself.
32. It appears that, at the conclusion of the interview, Ms John was arrested and charged with aiding and abetting the burglary at the Chisholm residence. She appears to have been granted police bail to appear on 20 August 2015 when a further 32 charges were preferred.
33. It is to Ms John's credit that she made admissions to the police at that time and admitted not only her own involvement in the matters, but also that of Mr Forrest. Those are matters that assist the administration of justice which I am required and do take into account under the Crimes (Sentencing) Act 2005 (ACT).
34. She was granted bail in the ACT Magistrates Court and, after some adjournments, she contested the committal on the basis that she was not involved in the offences represented by some of the charges laid.
35. This was in some contradiction to the admissions that she had earlier made to police, although, of course, it may be that some of the offences that were laid and preferred against her were not ones, for all intents and purposes, in which she had actually been involved.
36. On 5 February 2016, she was committed to this Court for trial on 34 counts, including aggravated burglary, aiding and abetting a burglary, aiding and abetting damage to property, aiding and abetting theft, joint commission of damaging property, joint commission of taking someone else's motor vehicle without their consent, joint commission of theft, and knowingly concerned in the theft.
37. Initially, there was some delay in the proceedings, including defence non-compliance with the preparation of the matter for trial. In July 2016, Ms John instructed new solicitors and the matter then proceeded relatively smoothly. As will be noted below, she breached her bail on a number of occasions but bail was not revoked.
38. In September 2016, there were negotiations between her counsel and the Director of Public Prosecutions and, on 21 October 2016, the Crown filed a further indictment which contained six rolled up counts. Ms John pleaded guilty to each of those counts.
39. It is for these offences that I must sentence her.
40. I have set out the maximum penalties for the offences which show that they are, by and large serious offences, especially the offence of aggravated burglary.
41. Nevertheless, while there was some minor damage caused by the entry to the premises, the aggravated burglary was a relatively unremarkable example of the offence.
42. As has been made clear by the Court of Appeal in Simonds v The Queen [2013] ACTCA 13 at [54], the burglary of commercial premises is less serious than that of residential premises. These are, of course, residential premises but, as I indicated in R v Roux (No 2) [2015] ACTSC 361 at [74], the fact that they were premises separately located from the residences and did not involve an actual invasion into living premises, appears to me to make it somewhat less serious. See R v Forrest (No 2) at [77].
43. The offences of damaging property were also at the lower end of seriousness, involving the smashing of windows of cars. Such damage, of course, causes the owner significant inconvenience, though it does not necessarily prevent the cars from being driven. Unfortunately, I did not have any indication of the amount of damage actually caused, an important matter of relevance as pointed out in Halden (1983) 9 A Crim R 30 at 36, but I do not understand the damage to be serious. See my comments on these offences in R v Forrest (No 2) at [82].
44. So far as the thefts were concerned, there were, again, nine offences in the rolled up charge. Again, the amount of property stolen is relevant and there were quite a number of items stolen, although the total value was estimated only to be $675, not of great value.
45. Loss of some of the items, such as house keys, would cause considerable inconvenience, and the loss of cameras might involve the loss of photos or videos stored which could be of sentimental value, some of it irreplaceable. Much of the property stolen from the cars parked at Gold Creek was recovered. Most of the items stolen from the home in Chisholm were also recovered, certainly those at least that appeared to be the most valuable.
46. Again, they did not seem to me to be particularly serious versions of the offence, although the fact that there were nine offences was significant.
47. Ms John has herself experienced home invasions and theft by her former partner and these have had a serious effect on her. That she knew the trauma that victims of such offences experience does not seem to me to constitute a significant matter of aggravation, as offenders can be expected to be aware of such consequences; it may be mitigating were she to have no knowledge of some consequences which she could not have been expected to be aware, but that is not the case here.
48. I had a Pre-Sentence Report, two Restorative Justice Reports, three Court Alcohol and Drug Assessment (CADAS) Reports, a detailed chronology with commentary prepared by Ms John, a further document entitled "My Recovery Plan" from Ms John, two letters from her, and Ms John gave oral evidence on two occasions. From this material and counsel's submissions, I can make and do make the following findings.
49. Ms John was born in Queanbeyan, New South Wales, about 26 years ago, the middle child of her parents' three children. She was raised by her mother and stepfather. Unfortunately, her father had been violent towards her mother and this led to their separation when Ms John was four months old. She did not have further contact with her father until she was 16 years old.
50. Her mother re-partnered and her stepfather was "strict and harsh"; he was physically and mentally abusive to her. He kept her and her two brothers isolated as much as possible from other children. She says that she was the victim of childhood trauma when she was nine years old, but I have no further details of that.
51. Her mother and stepfather separated when she was 12 years old and she left the family home when she was 15 years old to live with her boyfriend.
52. Her relations with her mother have been good and she has been staying with her recently; her present accommodation is stable. Her mother was present in Court during the sentencing proceedings. The relationship had become strained with the onset of depression suffered by her mother. Ms John appears to have re-established a relationship with her father, who visited Canberra to help with her children. He recently took her children to Queensland, where he lives. Ms John plans to move to Queensland in an effort to regain full-time care of her children. She remains close to her older brother.
53. Ms John was educated in Queanbeyan but left the formal education system before she completed Year 9. She later completed Year 10 through home schooling while she was pregnant. She is currently engaged in a Legal Studies course online with a hope that she may become a criminal lawyer. According to a certificate admitted into evidence, she has completed 98 per cent of a course entitled "Legal Studies - The Adversary Trial System".
54. When she moved out of home, Ms John moved to live with her boyfriend with whom she then had a relationship that lasted about 10 years. The relationship was, however, marred by domestic violence and ended in late 2013. The relationship produced two children, now aged nine and seven. Her father, concerned at their care, visited Canberra in 2014 and suggested that the children would be better off in Queensland because of the difficulties Ms John was experiencing. Ms John agreed and they all moved to Queensland together, but she ended up having a fight with her father and he evicted her. She returned to Canberra but later went back to Queensland where a further disagreement with her father led to her moving again to Canberra. These offences arose out of her wish to go back to Queensland to regain custody of her children. She speaks with her children on a daily basis.
55. She has a current relationship which started about three months ago and is described by both Ms John and her partner in positive terms. They are not presently living together. Her partner is in employment and does not use illicit drugs. He has a seven year old son and wants to limit his son's exposure to Ms John while she is still using drugs.
56. Ms John completed an enrolled nurse qualification and a certificate in Aged Care. She has been employed as a cleaner, in hospitality, and in aged care. I had a reference from her employer where she was a personal carer in an aged care facility. Her employer described her as, "an exceptional, kind, dedicated, polite, hard working and caring, honest young lady". She managed to work well with the elderly residents, some of whom could be "difficult, demanding or rude at times", but she got on well with them, all of whom "loved" her.
57. She resigned in 2014 which was, as she described it, an exceptionally difficult year for her. She has not resumed employment since then, although more recently she has become employed by a long-term family friend, which employment is irregular but stable. She is also in receipt of benefits through Centrelink.
58. She had ended her relationship with her former partner in late 2013 and later he burgled and smashed up her home, taking things and being physically violent towards her. He did this on about five occasions. She became depressed and starting taking methylamphetamines to self-medicate. Prior to this time, her drug use had been quite limited. She started drinking alcohol when she was 14, but has all but given up. She has been smoking tobacco since she was 13 and currently consumes 10 to 15 cigarettes a day.
59. She had experimented with illicit drugs. When she was 15 years old, she used ecstasy every weekend, but only for two months. She started using cannabis about the same time, but only for about a year.
60. Her methylamphetamine use is the most problematic and serious drug use. It is of relevantly recent origin. She has undertaken no treatment for its use until now, despite its obvious destructive effects. She did not use methylamphetamine while working.
61. She also developed depression when she was 21 and was briefly medicated for it with prescription medicine. She made a suicide attempt in 2014 when her father took her children to Queensland, but has not since then had thoughts of self-harm. She has had no contact with mental health providers. Her methylamphetamine use was her response to depression and that has had, as she now realises, a significant deleterious effect.
62. She started losing close friends and her family became distant because of her depression and drug use. Her older brother and one friend were, apart from her children, her only support.
63. In 2014, she experienced a good deal of harm. Her elder brother, with whom she was close, was sent to prison for driving offences and this set her back. She decided, however, to work towards making him proud of her by becoming abstinent from the use of methylamphetamine and studying. She certainly has been studying but been unable to become abstinent from the use of methylamphetamine. After about two months of doing well, a former boyfriend and best friend was killed in a car collision.
64. She then had a difficult but bizarre experience as she was taken by five people and told that she had to rob someone because she was said to have been having a sexual relationship with the ex-boyfriend of one of the people. She did not commit the robbery, but it led to problems with her children, which I do not need to detail, save to say that it clearly exacerbated her depression. She did not report the matter to police.
65. It was in this context that she was considering going to Queensland with her father and the children, and it was at this time that her father returned to Queensland with her children but without her.
66. As I have noted above (at [61]), she attempted self-harm because of the loss of her children, but managed to become abstinent from drugs again and did in fact go to Queensland. That ended when she got into a disagreement with her father and she subsequently hitchhiked back to Canberra, taking six days to complete the journey.
67. She tried to resolve her issues with her house and companions but finally succumbed to a return to use of methylamphetamines.
68. In early 2015, she decided that she had to return to Queensland to visit her children and did so, but again had a fight with her father and came back to Canberra, though still determined to get custody of her children back.
69. It was then that Ms John met Mr Forrest. She was obviously vulnerable at the time and appears to have relapsed into drug use. In fact, they were using a lot of methylamphetamines together and he was trying to obtain money so that they could move to Queensland. She said that she was "so grateful towards [Mr Forrest] as he was helping me to get my kids that I would just do as ever he asked, even if I didn't want to". She does not blame him, however, and takes responsibility for her actions herself. It was, she understood, her choice to commit the crimes.
70. Ms John also wrote a letter to the Court in which she apologised "to the court and the community" for her past actions. She has repeated that apology in more recent letters. She participated in a restorative justice process, to which I will refer later.
71. She also acknowledged that her arrest had had a beneficial effect, for it triggered her realisation that "her life wasn't heading in the path she wanted". She recognised that she had to deal with the problems she faced and take back control of her life. She has made a number of efforts to do that, assisted by the Court, requiring her to address some of those issues, but it is a slow process and, as I pointed out in Saga v Reid [2010] ACTSC 59 at [89], it is a process that takes some time and inevitably has, along the road, setbacks.
72. Ms John has a criminal history. At the time of these offences being committed, it consisted of one traffic offence, though this is, of course, still a criminal offence. It was an offence of driving while her licence was suspended. Since she committed these offences, however, she has been convicted of further traffic offences. They include more serious traffic offences, including driving after her licence had expired and driving with an illicit drug in her blood. I do not, however, consider that, in all the circumstances, they affect any sentence I must impose to a significant degree. She has no offences of violence or dishonesty recorded against her. Her criminal record does not seem to me to be a record that denies her all leniency. It does not show a pattern of ongoing disobedience to the law more generally and especially in serious offending.
73. Ms John has participated in a restorative justice process. The first report of the Restorative Justice Unit shows that she was involved in an indirect process with one of the victims of the aggravated burglary and theft at the Macquarie apartments. Ms John gave an apology and heard clearly the description of the impact of the offending had on the victim. Ms John agreed to a commitment to seek further assistance to stop her using drugs.
74. Other victims of her thefts have agreed to take part in the process, but it had not been able to be completed in time for the first hearing of these proceedings. Both Ms John and the victims have agreed to proceed with the process in any event. It seems that it is continuing to progress and Ms John indicated in the evidence that she gave to me orally that she has still had contact with the Restorative Justice Unit.
75. In accordance with her agreement, Ms John approached the well-known and respected drug and alcohol rehabilitation agency, Directions, and arranged for one-on-one counselling. She accepts, also, that managing her drug addiction is essential for her to regain day-to-day care and responsibility for her children.
76. As she has not actually attended any counselling with Directions, I adjourned the proceedings to enable her to attend and to have a report that might provide a basis for any sentence that should be imposed.
77. A report from Directions was provided, as was a further report from the Restorative Justice Unit. They stated that she had attended on three occasions at Directions for one-on-one counselling, namely on 22 February and 15 and 29 March 2017. She had a further appointment made for 12 April 2017, which she failed to attend, as well as failing to attend a rescheduled appointment on 13 April 2017.
78. That was a worrying sign of a lapsing of commitment to rehabilitation, especially in light of her admission that she is not yet abstinent.
79. Accordingly, I adjourned further to seek from her, in conjunction with Directions, a plan for appropriate drug and mental health treatment and counselling for her. I also sought some supervision, including drug testing, from ACT Corrective Services.
80. I have a report from CADAS, an indirect report from Directions, but no report from ACT Corrective Services for reasons that I explain below.
81. The CADAS Report was generally positive and set out a treatment plan with appropriate elements of treatment, support and counselling. Unfortunately, as is regrettably so often the case, some elements depend upon a place becoming available in a rehabilitation facility as the pressure on drug rehabilitation resources mounts and demand outstrips supply.
82. Ms John had a further counselling session at Directions and is to be assessed for the Toora Day Program. She is enrolled in the ACT Health Alcohol and Drug Service "Controlling Your Ice" two-hour group session on 22 May 2017 and has enrolled in its "Mindfulness, Meditation and Stress Management" group for seven weeks from 3 May 2017. Unfortunately, however, she did not attend the first group meeting of that, partly because, she said, there were complications with her also attending the SMART Recovery program. She has expressed an interest in the SMART Recovery course at Directions, a program I described in R v McGrail [2016] ACTSC 142 at [78]- [80]. As I understand it, she has been attending that program.
83. These programs would provide an appropriate suite of treatments to address her drug addiction. I had an indirect report from Directions ACT from a telephone conversation that a clinician at ACT Health had with her counsellor. That report was generally positive. In it, it was said that, while Ms John had previously been unreliable in her attendance and commitment to treatment, the clinician feels that she has made an improvement more recently in that regard. She said that when Ms John first attended her initial session on 22 February 2017, she indicated that she would attend monthly, but she has now agreed to attend more regularly, fortnightly, and has recently kept those appointments. The counsellor further stated that while she would describe Ms John's progress in treatment to date as "slow", this is typical for the client group and she feels that it is adequate progress.
84. The counsellor also said that she was a specialist in alcohol and drug counselling, but that mental health and other problems often co-exist and Ms John's mood was low, which is consistent with the depression for which she has previously sought treatment. This would require longer term work and would need some assistance more generally, including from perhaps a psychologist at the Directions alcohol and drug service who is available.
85. Ms John expressed her shame and embarrassment at the offences she had committed. I am satisfied that she is remorseful for them. She acknowledged that her involvement with Mr Forrest and his criminality was not the appropriate way for her to return to Queensland, though there were difficulties with the alternatives. She suggested that, at the time, she was not thinking clearly.
86. Whilst on bail for these offences, Ms John breached her bail conditions on a number of occasions. One of the conditions which she consistently breached was a curfew condition. It is not alleged that she committed other offences. The subsequent traffic offences on her record may have been committed while she was on bail.
87. I had three character references about Ms John. One was from the leaders of her church where she attends, but which she left when things spiralled out of control in 2014. She has recently returned.
88. Ms John had assisted the church with its youth groups and other recreational activities. In early 2014, she told them of the difficulties she was experiencing and they offered support, but Ms John gradually reduced her attendance until she was not attending.
89. She has, I am told, resumed attendance and has accepted their support and assistance to get her life back in order. Their observations are that she seems to be "on the road to recovery". Her willingness to ask for their help is a good sign for that. She also showed some insight into her situation. Ms John is described by them as "always considerate of others" and "honest and loyal", though her honesty obviously has been put in some doubt with the offences she has committed.
90. A friend also provided a reference, though she had only known Ms John for about 18 months. She confirmed her commitment to going to Queensland for her children. She described her as "kind hearted", putting "others before herself" and that she is a "caring" and "great mother". She was also described as "a supportive friend".
91. The friend also described Ms John as making specific efforts in her rehabilitation; cutting down on her use of drugs, cleaning up her home, returning to church, contacting her family, and looking after her ex-partner's 17 year old daughter. She is described as having been an "asset to the community" but unable to overcome the "rough patch" she has experienced.
92. The third reference was from Ms John's mother. She felt that Ms John had matured in the last 15 months and confirmed her remorse. She did not believe that Ms John would reoffend. She describes her as "a very intelligent young lady" who has "a good heart" and has helped many people. Because, her mother said, she does not see the bad in people, this leads to her getting involved with "the wrong people who have used her kindness and good heart for their own advantage". Nevertheless, she stated that Ms John takes full responsibility for what she has done.
93. Ms John has also become employed again, as I indicated above at [57]. A family friend has offered her the position of receptionist in his automotive business. She has only been employed there for about four weeks, and only for two weeks when he wrote the reference for her. He said that she had organised and assisted him with promoting his business and has assisted him with the financial administration of his business.
94. He expressed the view that she had "come a long way" over the past couple of years. He suggested that she had been so intent on helping others that she had not looked after herself. He noted that the traumatic events I have described led to her becoming very depressed and that "her whole life came crashing down around her". She has, however, a goal of regaining custody of her children and to that end has put a lot of work into renovating her home.
95. I had a Victim Impact Statement from the victim of the burglary and theft at Chisholm. The offence has had clearly a significant effect on her, leading her to experiencing high levels of anxiety and to become nervous, feel "on guard" and no longer feel safe in her home. There was also a financial cost suffered from the offences, including the insurance excess, the cost of replacing the stolen passports, and the installation of further home security.
96. As noted above (at [73]-[74]), Ms John participated in a restorative justice process. I have described the basis of restorative justice in R v Forrest [2016] ACTSC 321; 11 ACTLR 311 at 312-3; [4]- [8].
97. It is clear from the analysis I there made that participation in such a process has the capacity to be a significant mitigating factor in sentencing. I discussed how it may be used in R v Forrest (No 2) at [154]-[160].
98. In particular, it shows evidence of remorse, acceptance of responsibility for the offending she committed, her commitment to her rehabilitation and that she had been held accountable for the harm done to some of the victims.
99. Her commitment to her rehabilitation, however, is rather patchy; though more recently she has renewed her commitment, but it still remains somewhat incipient rather than a fully blown complete commitment to her rehabilitation.
100. In Fusimalohi v The Queen [2012] ACTCA 49 at [15], Burns and Lander JJ held that "there is no single correct sentence for offences of burglary and aggravated burglary". There will, as their Honours stated, "always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender".
101. So much may be readily accepted. Nevertheless, as I pointed out in the same case at [50]-[51], a review of eight Court of Appeal decisions between 2002 and 2012 showed that sentences for the burglary of residential premises in this jurisdiction were generally of between one year and two years and six months' imprisonment. Of course, particular circumstances may justify a more lenient or more severe sentence than that. Clearly, sentences for aggravated burglary are likely to be more severe.
102. Ordinarily, sentences for the damage caused in the course of burglary and the theft committed as a consequence is likely to be largely, if not wholly, concurrent with the sentence for burglary: R v McMahon [2014] ACTSC 280 at [94].
103. Because of the wide range of offences and offenders dealt with for offences of theft and property damage, it is difficult to find decisions that are generally comparable. The ACT Sentencing Database shows that, of 286 sentences for the offence of theft, 60 per cent were sentences of full-time imprisonment with ranges of terms between six months or less and three years, although 75 per cent were 12 months or less. There were three sentences imposed of more than three years.
104. The ACT Sentencing Database shows a striking similarity for the offences of damaging property, but disclosing a slightly more lenient approach: 52 per cent of sentences of full-time imprisonment, with 49 per cent of terms of six months or less.
105. These are, of course, not the permissible range; that is set by the statutory maximum and moderated by sentencing principle. I also acknowledge the limitation of such statistics which, as pointed out in R v Kilic [2016] HCA 48; 339 ALR 229 at 236; [22], does not fix the boundaries within which future sentences must be passed, but does assist the Court in trying to meet the important sentencing value of consistency.
106. A rolled up charge probably owes its use to the method of laying such charges approved by a decision of the Victorian Court of Criminal Appeal in R v Coombes (Unreported, Victorian Court of Criminal Appeal, Young CJ, Lush and Southwell JJ, 3 September 1979) at 1, though it has some genesis in the notion of representative counts described in R v Wright (Unreported, Victorian Court of Criminal Appeal, Gowans, Nelson and Anderson JJ, 13 May 1974) at 1-2, for which, see R v Newham [2000] VSCA 138 at [2]. It has been carefully described in R v Jones [2004] VSCA 68 at [13], as follows:
rolled-up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence, (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity.
Mr Silbert [counsel for the Crown] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of a sentencing judge and works to the advantage of the prisoner.
107. I have discussed such charges and the appropriate approach to sentencing for them in R v Forrest (No 2). The approach may be summarised as follows:
108. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. The offences are such that general deterrence and punishment must play some significant part.
109. In this case, Ms John's criminal history and her efforts at reform mean, in my view, that specific deterrence does not play as large a part as may otherwise be the case.
110. Her remorse and efforts at managing her drug addiction also mean that I can emphasise the rehabilitation aspects of sentencing, for her prospects are good. She is still struggling and her efforts are not yet at the stage where I have every confidence that she will be rehabilitated, but she is certainly moving in the right direction and, with some assistance, in particular from CADAS with whom she seems to have a good rapport, will continue her progress. I also note that Ms John's efforts at participating in restorative justice mean that the need for a sentence that emphasises accountability and recognises the harm done to the victims are not so significant, as that sentencing purpose is addressed through that process. I do acknowledge that not all the victims by any means have participated in that process.
111. I acknowledge the pleas of guilty entered by Ms John, though not entered at the earliest stage. The matters were originally committed on 5 February 2016 for a trial and the pleas entered on 21 October 2016. There had, however, been ongoing negotiation since August 2016 to the knowledge of the Court and these were delayed in part through illness of the original prosecutor.
112. It also appears that Ms John has had to change her solicitor and, whatever the advice she had been getting, the progress of the matters was immeasurably enhanced by that.
113. I also note, as I have said above (at [28]-[33]), that Ms John's significant admissions when originally spoken to by police reinforces the view that I have come to that she is remorseful.
114. I have regard to the matters referred to in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons.
115. Ms John has spent two days in custody in relation to these offences.
116. My general assessment is that Ms John has experienced a very troubled period of her life, exacerbated by serious domestic violence, the loss of close supports, and mental health challenges. Combined with the loss of her children and her descent into illicit drug use, the judgement that her references show she had the capacity to exercise was compromised and led her to take serious steps, seriously criminal steps, in a misguided and unnecessary attempt to achieve a very important goal, namely, the recovery of day-to-day care of her children.
117. The seriousness of the crimes, however, means that no other sentence but a sentence of imprisonment is appropriate, but I do consider that the other factors moderate that.
118. I have given anxious thoughts to the alternatives. Most of them will prevent Ms John from moving to Queensland, at least in the near future, which is, of course, her wish. On the other hand, these were serious offences, though out-of-character, and the community expects that they be treated seriously. Ordinarily, sentences for the offences of which Ms John has admitted her guilt would involve some period of time to be served in full-time custody.
119. In this case, however, Ms John's subjective circumstances and the efforts she had made, although they have been by no means perfect, suggest that there may be some room for amelioration of that. In particular, as is an out-of-character episode limited to a relatively small period of her life, I consider that Ms John is redeemable and that if she is able to put, in particular, her drug use behind her, then she will be able to continue as a valuable member of the community, which both her former work and her referees suggest she has the capacity to be.
120. I consider that while she must be sentenced to imprisonment, it could be served by an Intensive Correction Order. I had considered making a suspended sentence and a Good Behaviour Order, but it seems to me Ms John performs better when there is a particular structure around her. While there are considerable risks in an Intensive Correction Order, I assess that she has the capacity to comply with that regime if she puts her mind to it.
121. I have described that option in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]- [27]. I do not need to repeat or summarise what I there said, save to acknowledge that while it is a sentence of some leniency, the authorities make it clear that it has significant deterrent and punitive aspects, although it also has many reformative and rehabilitative aspects which are what I hope will be achieved in this case. At this stage I consider that a term of imprisonment for three years and five months would be appropriate for the offences that Ms John has committed, but I will adjourn so that Ms John can be assessed for suitability for an Intensive Correction Order.
1. I convict you of aggravated burglary at Macquarie on 25 July 2015.
2. I convict you of damaging property on 25 July 2015, being nine motor vehicles.
3. I convict you of theft from nine motor vehicles on 25 July 2015.
4. I convict you of theft from six motor vehicles at Nicholls on 25 July 2015.
5. I convict you of burglary at Chisholm on 25 July 2015.
6. I convict you of theft from a residence at Chisholm on 25 July 2015.
7. The sentencing is adjourned to 11 July 2017 at 10:00am for the Director-General to assess your suitability under s 78 of the Crimes (Sentencing) Act 2005 for an Intensive Correction Order.
8. Bail is to continue with the additional condition that you report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, by 4:00pm 5 May 2017, to make arrangements for an assessment as to your suitability for an Intensive Correction Order.
123 Ms John, what I have said, in essence, is that these were serious offences. Ordinarily, people who commit aggravated burglary go to prison and that is viewed as an appropriate punishment. In your case, and this was a really rough patch in your life and was caused by things not entirely within your control, but nevertheless, like the rest of us in the community, you have to take the bad with the good and deal with it as best you can.
124. Your referees say that you have the capacity and the strength of character to be able to put this behind you. You are showing that to some extent, but the Crown is not entirely wrong, there is more yet to be done, and in particular you really need to be able to stop using methylamphetamines. That is now going to become much more significant because I am offering you, in effect, a sentence of imprisonment to be served in the community so that you do not have to go to gaol. But that will be under supervision, intensive supervision, and you have heard some of the suggestions that Ms Bradbury made about the way in which that is done.
125. I think you should continue with CADAS and I think you should continue with the other programs that you have commenced because that will certainly give you a head start in the Intensive Correction Order process.
126. But you need to really think carefully about whether what you tell me about what you want to do is what you really want to do and then put the effort into it. That means being careful about ensuring that you keep appointments and you attend at the programs that you commit to. I am not requiring any particular commitment. That will come with the Intensive Correction Order. But at the moment I suggest you sign up for the Toora program so that if you get a head start on that, you are so much better off and the risk of breaching the Intensive Correction Order, if I make it, is then much less.
127. I have not made a finding about whether you breached your bail or not. I accept what you said and you appeared to be honest and truthful in what you were saying, but it is very difficult not to accept the regime that I know Corrections put in place. You will have to go back there and this time you know the deal. You will need to make sure that your name is recorded and that you get the name of the receptionist so that you can confirm who you saw, and that it may be shown that you were there for assessment. That assessment will take about eight weeks and will be quite invasive, and they will talk to you, your mother, and other people to determine your suitability.
128. I have no doubt that if you really are committed to this you will be assessed as suitable, and I will be happy to make an Intensive Correction Order rather than sending you to gaol. But in order to proceed down this path, I have to say that if you are not suitable and if you do not put effort into it, then there is every likelihood, and I make no guarantees, but there is every likelihood that you will have to spend some time in prison. So the stakes are high for you. I think you have got the strength of character and the capacity to do that, but you really need to put an effort into it.
I certify that the preceding one hundred and twenty-eight [128] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
John [2017] ACTSC 144