R v Keir [2016] ACTSC 266

1. Darin Paul Keir be found to have breached the Good Behaviour Order made on 19 July 2013.
2. The Good Behaviour Order made is cancelled.
3. Darin Paul Keir be re-sentenced for common assault.
4. Darin Paul Keir be convicted for aggravated burglary.
5. Darin Paul Keir be sentenced to 18 months imprisonment, suspended for a period of two years.
6. Darin Paul Keir be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years, from 15 July 2016, with the following conditions:

(a) a probation condition that he be under supervision of the Director-General, or her delegate, for a period of two years, or such lesser period as the person supervising you deems to be appropriate and obey all reasonable directions to the person supervising you, including as to urinalysis;

(c) that he supply a sample of urine for urinalysis when reasonably requested by the person supervising you;

(d) that he report to ACT Corrective Services, at Eclipse House, so that you can make arrangements for supervision.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - re-sentence - breach of Good Behaviour Order - consideration of breach - committing further offence - offence of a different kind - aggravated burglary - cancellation of Good Behaviour Order - suspended sentence

Crimes (Sentencing Act) 2005 (ACT), ss 7, 33, 63, 63(1), (2), (4)

Crimes (Sentence Administration) Act 2005 (ACT), ss 107, 108

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

R v Palmer [2015] ACTSC 328

Sheen v The Queen [2011] NSWCCA 259

Wronski v Raue [2012] ACTSC 87

1. On 15 April 2016, Darin Paul Keir, was found guilty of an offence of aggravated burglary committed on 28 January 2014. He had also been charged with committing robbery in company, and, further and in the alternative, dishonestly taking someone else's motor vehicle without their consent. The jury acquitted him of those two charges.

2. The offence of aggravated burglary is contrary to s 312 of the Criminal Code 2002 (ACT) and renders Mr Keir liable to a maximum penalty of 2000 penalty units (that is, at the time, a fine of $280 000) and 20 years imprisonment. In this case, the circumstance of aggravation was that Mr Keir was in the company of two others when he committed the burglary.

3. In this case, the finding of guilt was made by a jury. It is, therefore, necessary for me to find the facts from the evidence given at the trial. The facts that I find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where Mr Keir relies on mitigatory facts, I need to find them on the balance of probabilities.

4. These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 12-14. I shall approach my task in this way.

5. In 2014, Jason Dopson lived in residential premises at Latham. At the time, also living there with him were his son, two daughters and a boyfriend, at the time, of one of his daughters.

6. Mr Dopson's son, Brent, knew Mr Keir, having met him in early 2013 when he went to purchase some illicit drugs, namely methylamphetamine, from him.

7. They met from time to time during 2013, but Brent Dopson ceased using methylamphetamine in about November 2013, and, as he had not socialised with Mr Keir as a friend, had little contact with him thereafter, though there was some evidence to suggest that Brent Dopson had purchased cannabis from Mr Keir from time to time.

8. On 28 January 2014, however, Brent Dopson was at the house of a friend of his sister's boyfriend when he saw Mr Keir in a car in the driveway of the house. Mr Keir was installing a radio in it. Mr Keir told Brent Dopson that Brent owed him some money for the purchase of drugs. Brent did not think he did, and told him that he did not remember owing him any money.

9. Brent Dopson said that the amount Mr Keir mentioned was $580, although he did say that the amount varied from time to time. The amount was said to be a debt for some cannabis that Mr Keir had sold him.

10. Brent Dopson told Mr Keir that he must have forgotten, but that he would get the money to him.

11. At the time, an associate of Mr Keir, Paul Palmer, who appears to have been intoxicated at the time, was also present. He spoke quite aggressively to Brent Dopson's sister's boyfriend, about Brent Dopson owing money, and later, Brent Dopson's sister and her boyfriend told Brent about this.

12. Later that day, Mr Keir, Mr Palmer and a man, who appears to have been Peter Saunders, came to Mr Dopson's house at Latham. They appear to have driven there in a motor vehicle that was towing a car trailer. They knocked at the door, and Mr Dopson went to the door. He did not recognise any of the people at the door.

13. The wooden front door was open, but the screen door was shut, though not locked. Mr Dopson went to lock the screen door, as he could see that the three men were "not friendly" and he did not want to let them in.

14. Mr Palmer, however, "ripped" the door out of Mr Dopson's hand and marched in, followed by Mr Keir and Mr Saunders. Mr Palmer picked up an axe handle, which was at the side of a fish tank in the lounge room. It was used by Mr Dopson and his family for moving rocks around in the large fish tank that was in the living room. Mr Palmer then started demanded money. He was talking loudly and aggressively and poking people with the axe handle. He said that, if they did not get the money that was owed, they would take a car.

15. During this time, Mr Keir and Mr Saunders were standing by pretty passively. At some stage, Mr Keir went into the kitchen, where Mr Palmer was having an aggressive conversation with Mr Dopson and some of the other members of the family. Mr Dopson told Mr Keir that, if they came back tomorrow, they could have the money claimed. Mr Keir then went to Mr Palmer, suggesting that they should come back the next day, but Mr Palmer suggested that as they were there now they should continue until they had some satisfaction. Mr Keir then started to leave. Mr Palmer then pushed Brent Dopson's sister's boyfriend out of the house with the axe handle, and threatened to take the car of Brent Dopson's sister. In order to avoid further trouble, she gave him the keys and he ultimately started the car and drove away. The car was said to be worth about $500, although when Mr Palmer was convicted of driving it dishonestly and without consent, it was said to be worth approximately $1500. See R v Palmer [2015] ACTSC 328 at [8].

16. Mr Keir and Mr Saunders drove off in the car in which they had arrived.

17. The jury was clearly satisfied beyond reasonable doubt that Mr Keir arrived at the Latham house with an intent to demand money, of the debt he claimed from Brent Dopson, by use of a threat of force or force itself. The jury was clearly satisfied beyond reasonable doubt that Mr Dopson did not invite Mr Keir and the other two men into his house but, indeed, made it clear that they were not welcome. This means that the jury was clearly satisfied beyond reasonable doubt, that when he entered the house, Mr Keir intended to demand payment of the debt by one of threats of force or force itself.

18. However, I am also satisfied that none of the men arrived with any weapons and that Mr Keir was not aware that Mr Palmer would use the weapon that he ultimately picked up from the house, namely the axe handle, and started waving it about, the use of which was outside the agreement that constituted the joint criminal enterprise.

19. I am also satisfied that, when Mr Dopson offered to pay Mr Keir the owed money the next day, Mr Keir encouraged the others to leave and to come back the next day.

20. The jury's verdict also means that Mr Keir had no part in the stealing of the car owned by Brent Dopson's sister.

21. Mr Keir has been found guilty of aggravated burglary but not the usual form of burglary, which is trespass with intent to steal. Here, the trespass was with intent to cause harm, or threaten to cause harm, to someone else.

22. Such an offence is a serious offence, as the maximum penalty provided for it shows. It constitutes a serious invasion of a person's home, where people are meant to feel safe.

23. In this case, it is somewhat more serious because of the element of personal violence involved although, as I have indicated, the level of actual threatened violence, in this case, exceeded that which was in Mr Keir's contemplation. Even then, there was no force, apart from the prodding with the axe handle by Mr Palmer, inflicted on various people.

24. Such an offence was a significant disturbance of the domestic quiet and repose of the Dopson family. Such victims are often left with a sense of unease, indeed, perhaps terror, for the future which the invasion of their home has caused. I did not have a victim impact statement from which I could make any specific findings, but there must have been some, at the very least, nervousness caused them by this offending.

25. While the offence was serious, it did not have a number of aggravating features. The amount of harm intended was not of a particularly serious level, no damage was caused in the trespass, and there was not a great deal of planning or premeditation involved in the execution of the aggravated burglary.

26. In the case of an aggravated burglary with an intent to steal, the amount of property stolen is usually regarded as a relevant factor in the sentence. Likewise, the amount of harm threatened or done in this offence is relevant to assessing the seriousness of the offence. See, for example, Sheen v The Queen [2011] NSWCCA 259 at [170]- [171]. In this case, there was no actual harm inflicted and the more serious harm, namely the threat with the axe handle by Mr Palmer, is not, I am satisfied, part of the joint criminal enterprise constituting the aggravated burglary into which Mr Keir joined.

27. I had a Pre-Sentence Report and Mr Keir's criminal record and I also heard oral testimony from his mother. From this evidence, I can make the following findings.

28. Mr Keir is now 36 years of age, having been born and raised in Canberra, the eldest of four children.

29. His father was stern and inflicted physical discipline on him. His parents separated when he was eight and, despite the presence of financial difficulty at times, he was well cared for by his mother. His mother continues to support him.

30. At some time, however, his mother re-married and moved interstate leaving him and his siblings to reside in the family home, though his mother remained in contact and visited at times. This lack of parental supervision resulted in regular episodes of drinking and fighting.

31. It also meant that Mr Keir enjoys a close relationship with his immediate and extended family members. He has been supported by them; his mother, however, has regularly visited him while he has been in custody.

32. Mr Keir has had one significant intimate relationship and is the father of two daughters from it. He is not currently in a relationship, but he is regularly visited at the Alexander Maconochie Centre by his children.

33. When the relationship with the children's mother ended, she left Canberra with somebody else. She was a user of methylamphetamine and is now in custody in New South Wales as a result of an armed robbery committed in that State. It appears Mr Keir has no contact with her. The evidence did not enable me to say what the residential or care circumstances of the children are.

34. The time in custody has also given Mr Keir an opportunity to recognise that he has not been a good father and has become more committed to providing appropriate parental support to his children and becoming part of their lives. His mother reported that recently he had taken a particular interest in their progress, reading their school reports and commenting appropriately with them.

35. Mr Keir has enrolled in a parenting course. He has not been able to commence it yet, and the reasons were unclear, but I accept that it is not for lack of commitment or because he has not tried to engage in it.

36. It appears that, when he completed Year 10 at school, Mr Keir undertook a carpentry apprenticeship and has spent the majority of his employment as a carpenter.

37. Mr Keir suffered an injury in a workplace accident. Treatment is not ongoing but the injury resulted in a delay in returning to work. Before his arrest, Mr Keir was unemployed. He is keen, however, to return to carpentry.

38. On 7 June 2016, Mr Keir commenced employment in the kitchen at the Alexander Maconochie Centre. He has enrolled in some education courses, but his attendance has been described as "sporadic", failing to attend on "numerous occasions."

39. Before his arrest, Mr Keir was living in private rental accommodation. When he leaves custody he proposes to reside with his sister and she was present in Court during the sentencing proceedings.

40. When he was about 22 years old, he joined an Outlaw motorcycle gang and this had a significant effect on him and his behaviour. It also had an effect on his employment. It led to him taking drugs more regularly and more seriously. His mother told me that he left the gang some eight or so years ago. It appears, however, that he may have some contact with some members, but this is not relevant to any sentence I must impose.

41. Mr Keir started drinking alcohol when he was 16 and would consistently drink to intoxication on a regular basis. He has had periods of abstinence but has generally maintained regular consumption of alcohol throughout his life.

42. He also commenced consuming cannabis at this age and his use quickly escalated to daily use whenever it was possible. By the age of 25, however, he began to recognise the ill effects of cannabis and told the author of the Pre-Sentence Report that he had ceased its use.

43. From about the age of 18, he started using other illicit substances, ecstasy, cocaine, amphetamine and methylamphetamine, but their use escalated, particularly after joining the outlaw motorcycle gang. He maintained this high use for about five years, and, with brief periods of abstinence, seems to have used illicit substances for most of his life, indeed, consuming methylamphetamine on a daily basis in the month prior to his arrest.

44. A screening tool administered to Mr Keir on 30 June 2016 indicated his use of alcohol in the preceding 12 months is considered to be at a high risk, requiring further assessment and intervention. Similarly, a drug use screening tool administered on the same date indicated that his use of illicit substances in the preceding 12 months was at a substantial level, again requiring further assessment and intervention.

45. I had no evidence before me to show that Mr Keir was taking any particular steps to address his drug or alcohol use. The lack of this information is regrettable, for the assessment suggested that without intervention, Mr Keir is likely to return to drug use when released into the community. I had no information suggesting that he had consumed illicit drugs while in custody.

46. Mr Keir told the author of the Pre-Sentence Report that he had "a mental and physical condition." A report from ACT Health described these as "a substance use disorder, major depression with anxiety symptoms." He has accessed the Corrections Psychological Support Service, but his engagement is quite limited. It does not seem to me that either his mental or physical health are particularly relevant to the sentence I must impose.

47. Mr Keir has expressed regret for his involvement in the offences and demonstrated insight into how the aggravated burglary may have impacted on Mr Dopson and his family. He acknowledged that he was unable to prevent the offending from escalating and that he had made poor decisions.

48. Mr Keir has a long and concerning criminal history. While he has been sentenced to a term of imprisonment before, it was wholly suspended.

49. I found his criminal record a little difficult to follow, but it appears that he has been found guilty of 45 offences. The majority of them are traffic offences, particularly offences of driving while affected by alcohol. He also has on his record nine offences for driving when not authorised to do so, such as while disqualified from holding or obtaining a licence or while his licence was suspended. This is consistent with his history of alcohol use.

50. He also has on his record 12 drug offences, which is consistent with his drug and alcohol history. With one exception, they are offences of possession. The one case was in 2004, when he was convicted of possession of a traffickable quantity of cannabis for sale or supply. This part of his criminal history is consistent with his drug history.

51. Mr Keir was arrested for this offence and spent 31 days in custody before being granted bail.

52. On 15 September, however, he was arrested for some other offences including a further charge of driving whilst disqualified from holding or obtaining a driver's licence. He was remanded in custody and has remained in custody since then.

53. Although the record is not quite clear, it appears that Mr Keir's bail on this charge, the charge before me now, was revoked on 16 September 2015 by Robinson AJ.

54. When the driving offence came before the Magistrates Court, on 24 September 2015, Mr Keir was sentenced to four months imprisonment from that date to 14 January 2016. I note, also, that, on 25 August 2011, Mr Keir was convicted of a charge of common assault and was released with a Good Behaviour Order for 18 months.

55. Given that his bail was revoked on 16 September 2015, I can take some account of the period during which he has been in custody, even though for some time, he was a sentenced prisoner. It seems to me that this is the effect of s 63(1), (2) and (4) of the Crimes (Sentencing Act) 2005 (ACT). By taking this period into account, I do not mean that it should be added mathematically to the amount by which I will backdate his sentence, as explained in Wronski v Raue [2012] ACTSC 87 at [17].

56. Also relevant is some prior offending of Mr Keir. On 1 February 2013, he drove a motor vehicle, with a prescribed concentration of alcohol in his blood or breath, and was convicted of that offence. That conviction constituted a breach of the Good Behaviour Order that had been made when, on 25 August 2011, Mr Keir had been convicted of the offence of common assault. On 19 July 2013 Mr Keir was re-sentenced, following the breach of the Good Behaviour Order, to a further Good Behaviour Order for a period of 12 months from that day. The commission of this offence constitutes a breach of a core condition of that Good Behaviour Order. Under s 107 of the Crimes (Sentence Administration) Act 2005 (ACT), I have power to deal with Mr Keir for that breach.

57. Since the Good Behaviour Order was not made when a sentence of imprisonment was suspended, I have wide powers, under s 108(2) of the Crimes (Sentence Administration) Act, to deal with the breach.

(b) give the offender a warning about the need to comply with the offender's good behaviour obligations;

(c) give the Director General directions about the defendant's supervision;

(e) if the offender has given security under the order -

(i) order payment of the security to be enforced; and

(ii) order the Good Behaviour Order to be cancelled on payment of the security (if the term of the order has not already ended);

59. If I cancel the Good Behaviour Order, I must resentence Mr Keir. Given that the Order has now expired, it does not seem to me that I can amend it. The other options are also either inappropriate for an expired Good Behaviour Order, or inappropriate for the action that I need to take. I consider that I should cancel the Order and re-sentence Mr Keir, because this is the second breach of orders made for the offence of common assault; the trust for Mr Keir to be in the community has been somewhat eroded. To confirm that he needs to comply, I consider that a condition for payment of an appropriate monetary penalty should be added.

60. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act and I should have regard to them. In this case, general deterrence is a significant factor because of the seriousness of the offence. Mr Keir's criminal history, involving both violence and drugs, shows that some level of specific deterrence is also appropriate.

61. The offence is, as submitted by the Crown, objectively serious, though this was not a case of a sophisticated agreement to conduct a home invasion. Little thought was used in the trespass, no damage was then done, and, even though the threats with a weapon made by Mr Palmer, whose conduct in that regard, I have found, was not part of the joint criminal enterprise for which Mr Keir must be held responsible, were aggressive and must have been very frightening for the other occupants of the house, no actual violence was inflicted.

62. I accept, however, the Crown's submission that this was more serious than, for example, an aggravated burglary to steal goods in unoccupied premises.

63. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons.

64. I was not provided with any particular comparable cases, which might assist in the range of sentences ordinarily applied for such an offence and which sets out the principles for sentencing and sentencing practice.

65. I do, however, have the sentencing remarks in relation to Mr Palmer. See R v Palmer. Mr Palmer, however, was charged both with the aggravated burglary, but also with aggravated robbery and taking the motor vehicle without consent. Further, Mr Palmer entered pleas of guilty on the morning of the trial, although he was not sentenced for any aggravated robbery.

66. Mr Palmer had a much more significant criminal history, including periods of imprisonment, with some more serious prior offending.

67. Mr Palmer was sentenced to two years and three months imprisonment, reduced from two years and six months because of his plea of guilty. A non parole period of 18 months was set.

68. I had Mr Palmer's prior criminal record and it confirms that he has, on it, significantly more offending, and of greater seriousness, than that of Mr Keir.

69. I also take into account that Mr Keir tried to make Mr Palmer withdraw from the house when he had an offer by Mr Dopson to give him the money the next day. He also declined to associate himself with the taking of the car. These do moderate, to a limited degree, Mr Keir's culpability.

70. Mr Keir has been assessed as not suitable for a community service work condition to a Good Behaviour Order due to his unaddressed illicit substance and alcohol use issues.

71. Mr Keir is assessed as at a medium to high risk of general re-offending primarily due to his unaddressed illicit substance and alcohol use together with his limited engagement with Mental Health Services, lack of employment or other meaningful activities, and anti-social peer associations.

72. While there is some expression of reform and rehabilitation, in the evidence of his mother, that must be approached with some reservations. Nevertheless, I am satisfied that he has some reasonable prospects of reform.

73. Taking account of all the circumstances, it is my view that no sentence other than a sentence of imprisonment is appropriate.

74. I am also prepared to take into account a portion of the period during which Mr Keir was in custody as a sentenced prisoner. The other periods of remand amount to 233 days which, on a strict backdating, would see the term of imprisonment commence on 13 December 2015. I am prepared, having taken account of the time since his bail was revoked, to commence the sentence at an earlier date. This is both because of my view of the meaning of s 63 of the Crimes (Sentencing) Act but also because of the need to respect the principle of totality, which requires some assessment to be taken of the total period of imprisonment.

75. Ordinarily, in a case such as this, I would consider directing a non parole period. In this case, however, the appropriate period is approximately the date of sentencing. To impose a non parole period would require Mr Keir to apply for parole, a process that takes at least a month, and sometimes more. In the circumstances, it does not seem to me that it is appropriate to require him to serve that further period.

1. I cancel the Good Behaviour Order made on 19 July 2013.

2. I re-sentence you for the offence of common assault.

3. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations, under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of 12 months from today with a condition that you pay to the Registrar of the Supreme Court a penalty of $300 within four months from today.

4. I convict you of aggravated burglary on 28 January 2014.

5. I sentence you to 18 months' imprisonment to commence on 15 October 2015.

6. I suspend that sentence today for a period of two years.

7. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations, under the Crimes (Sentence Administration) Act 2005 (ACT) with the following conditions:

(a) a probation condition that you accept supervision of the Director-General, or her delegate, for a period of two years, or such lesser period as the person supervising you deems to be appropriate and obey all reasonable directions to the person supervising you, including as to urinalysis;

(c) that you supply a sample of urine for urinalysis when reasonably requested by the person supervising you;

(d) that you report to ACT Corrective Services, at Eclipse House, by 4:30pm this afternoon, so that you can make arrangements for supervision.

77. Mr Keir, that is the formal orders that I make, but, to summarise it, I have said that you are under sentence of imprisonment for 18 months, which is the period that I say should be served for the aggravated burglary. I would have made about a nine months non parole period for that, in the circumstances, but you have already served that time, given that I have backdated it to take some account of the sentence period, but not all of it - because that would not be fair, in my view and so I am releasing you now. A release on a Good Behaviour Order is not quite as intense as supervision under parole, but I have made some significant conditions that will really put you on your metal if you are genuine about reform.

78. It is a two year Good Behaviour Order. If you commit any further offences punishable by imprisonment in that time, you can be brought back and re-sentenced - and that includes, and is likely to be, sending you to gaol, for that. There are other core conditions, and they will be explained to you. There is also a probation condition, that you accept supervision, for a period of two years. That is parole supervision - and if that is going well it can be a lesser period than that.

(1) Not to consume illicit drugs. That is the only way you are going to keep out of trouble, but the wood is on you. I know it is hard. You are out of prison. I do not know whether you have had any drugs in prison. If not, then here is your chance. Not to say, "Hey, I am out. Let's blurt on it", but to keep off it. The risk, I suspect, but what do I know? - is if you go back to too much alcohol, because then your brain will be addled, you will not be thinking straight and you will get back on the drugs; right?

(2) You are subject to urinalysis. So you will not miss out. If you use drugs you will be caught; all right?

80. If you come back, using drugs, then that is a breach of the Order, and the likelihood is that you will go back to gaol. I do not say "guarantee". I never guarantee those kind of things, but there is a high likelihood of that. So the wood is really on you. If you are genuine about putting the old life behind you then now is your chance. The Court will give you that chance, and support you in that chance, but with protections for the community, and that is what I have done.

81. I hope, at the end of the day, the criminal justice system will not see you. Now is the chance to get back with your kids; to do something useful, as a carpenter - goodness knows, we need good carpenters in this community - and to make a life of your own, be a role model to your kids, and support your mum - because she will get into her old age, as I am, and need your support at that stage.

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.