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[2016] ACTSC 281
Supreme Court of the ACT
2016-08-22
Refshauge J
Original judgment source is linked above.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - breach of Good Behaviour Order - aggravated burglary - theft - intent to steal - consideration of breach - subjective circumstances - extensive criminal record - cancellation of Good Behaviour Order - cumulative custodial sentence
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33
Bugmy v The Queen (2013) 249 CLR 571
EG v The Queen [2012] ACTCA 17
Fusimalohi v The Queen [2012] ACTCA 49
Guy v Anderson [2013] ACTSC 5
Kelly v Ashby (2015) 73 MVR 360
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Rees v The Queen [2012] ACTCA 6
Rubino v The Queen [2015] ACTCA 22
R v Baldini (No 2) [2014] ACTSC 163
R v BB [2013] ACTSC 290
R v CA [2014] ACTSC 332
R v Celeski [2016] ACTSC 140
R v Curtis (No 2) [2016] ACTSC 34
R v Gray [2014] ACTSC 376
R v Hawkins [2015] ACTSC 333
R v Hyunh [2005] NSWCCA 220
R v JM [2014] ACTSC 380
R v McMahon [2014] ACTSC 280
R v Ngerengere [2015] ACTSC 224
R v O'Brien [2013] ACTSC 42
R v Robertson (No 2) [2016] ACTSC 65
R v Roux (No 2) [2015] ACTSC 361
Saga v Reid [2010] ACTSC 59
Williams v The Queen (2016) 75 MVR 482
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1. It seems from recent experience in this Court that underground or basement car parks for apartment buildings have become a particular target for those who wish to enter on private premises without authority and to steal property. See R v Celeski [2016] ACTSC 140; R v Roux (No 2) [2015] ACTSC 361; R v Ngerengere [2015] ACTSC 224; R v CA [2014] ACTSC 332; R v BB [2013] ACTSC 290; R v O'Brien [2013] ACTSC 42.
2. Such matters are a significant problem for our community and the courts must play their part in showing that such offending is unacceptable.
3. Appearing before me for sentence is Ian William Kelly, who has pleaded guilty to offences of aggravated burglary and theft committed on 21 January 2016.
4. Aggravated burglary is an offence contrary to s 312 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 20 penalty units (that is, at the time, a fine of $300 000) and 20 years imprisonment.
5. Theft is an offence against s 308 of the Criminal Code, for which the maximum penalty provided is 1000 penalty units (that is, at the time, a fine of $150 000) and 10 years imprisonment.
6. Judged by these severe penalties, the offences are to be regarded by the courts as very serious offences. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].
7. I take the following facts from the Crown's Statement of Facts, tendered without opposition and admitted into evidence.
8. At around midnight on 21 January 2016, Mr Kelly and a co-offender attended some apartments in Griffith, ACT, and used a large flat-bladed screwdriver to manipulate the locking mechanism of a secured door leading from a courtyard in the apartments to the foyer. They gained entry and their entry was captured by closed-circuit television.
9. They then proceeded to the underground car park where there were a number of locked storage containers.
10. They entered a storage container and took a road bicycle, a mountain bicycle, and an electric guitar and amplifier, with a total value of approximately $8350.
11. They then left the building and were again captured by closed-circuit television as they left, walking up the entry slope exit ramp.
12. Following a report of the incident, police viewed the closed-circuit television footage and identified Mr Kelly's co-offender by a tattoo on his left forearm. They then proceeded to obtain a search warrant for the co-offender's residence which was executed on 19 April 2016, when police seized items of clothing which matched those worn by the co-offender during the commission of the offences.
13. During the execution of the warrant, the co-offender made a number of admissions including that he had been in the company of his uncle, Mr Kelly.
14. Later that day, Mr Kelly was arrested and police seized his shoes and necklace with a pendant, which matched items observed in the closed-circuit television footage.
15. As noted above (at [6]), aggravated burglary is an extremely serious offence. It has the same serious consequences as burglary, but with the added circumstance of aggravation which, in this case was that Mr Kelly was in company when he committed the burglary.
16. In R v Hawkins [2015] ACTSC 333 at [48]- [51], I explained the gravity of offences of burglary and dishonesty, which are a serious blight on our community. People work hard for the property that they acquire and which, sometimes, has more than monetary value to them. In this case, the property may well have had particular value as recreational vehicles and instruments. The loss of property, in any event, also causes inconvenience, even if only the need to make claims on insurance or to replace them. Any payout by insurance companies also has an effect on the community by the inevitable rising of premiums.
17. Further, the intrusion into private places by trespass in a burglary or aggravated burglary is often disturbing to victims who feel violated. They also feel concerned about the safety of their property for the offence becomes a violation of privacy and security.
18. In this case, the property stolen was also of a considerable value, which is relevant to the seriousness of the offence of theft. See, for example, Rees v The Queen [2012] ACTCA 6 at [5]- [6]. See also R v Hyunh [2005] NSWCCA 220 at [12].
19. While the fact that Mr Kelly was in company means the offence is a very serious one, entry in company into residential premises is particularly serious especially where the occupants might encounter the burglars. This particular case is perhaps, not so serious a form of aggravation, because it was in a separate, basement garage. But of course, tenants are likely to visit the garage from time to time including at late hours.
20. Other than this, the offence was a relatively unremarkable version of the offence with no particular aggravating features, apart, perhaps, from the use of the screwdriver, though still a serious offence, committed while Mr Kelly was on conditional liberty and less than two months after his release.
21. Mr Kelly says that the offence occurred because he was responding to problems of his nephew who was, at the time, living with him. It appears that his nephew, his
co-offender, was a drug user and had accumulated a significant drug debt, which he was being pressed to repay. Mr Kelly thought that these offences would be a way in which he could do that. It was a stupid decision, leading to criminal acts of significant seriousness. Mr Kelly, of course, was not to obtain any benefit himself from the offending. This mitigates his culpability to a small degree.
22. He acknowledged the impact that his offending would have had on the victims and expressed regret for his decision to take property that did not belong to him. This insight and expression of remorse is important.
23. Mr Kelly was arrested on 19 April 2016 and remanded in custody. He has been in custody ever since.
24. He was, at the time of the offences, on conditional liberty under a Good Behaviour Order made when certain sentences of imprisonment were suspended.
25. Mr Kelly entered a plea of guilty in the Magistrates Court and was, on 12 May 2016, committed for sentence to this Court.
26. The victim of the offending has sought reparation in the sum of $8350. The
27. A helpful Pre-Sentence Report was admitted into evidence. I also previously heard and decided an appeal he took from a decision of the Magistrates Court: Kelly v Ashby (2015) 73 MVR 360. From these and the submissions of counsel, I can make the following findings.
28. Mr Kelly was born in Wagga Wagga about 51 years ago, one of 11 children in a blended family. He is of Aboriginal descent.
29. He described a traumatic and difficult childhood, including exposure to domestic violence and alcoholism. In particular, his father was a violent man who used abuse as a way of controlling the family. The effects of such disadvantage are relevant to sentence as a mitigating factor and full weight should be given to this, despite the passage of time: Bugmy v The Queen (2013) 249 CLR 571 at 592-6; [36]-[47].
30. A year after Mr Kelly's birth, the family relocated to Queensland. Mr Kelly's father's violence eventually resulted in his parents' separation when he was 11. Mr Kelly's father left the family home taking only the youngest child. Mr Kelly's father contacted Child Welfare Services which resulted in the placement of all children in the care of the State. Mr Kelly resided in care homes and foster care until 15 when he returned to live with his mother and siblings. He eventually left the family home when he was 24.
31. Mr Kelly had no further contact with his father before his father's death in 1990. His mother had re-partnered and he had a positive and supportive relationship with his step-father, who died in 2006. He remained in a supportive relationship with his mother and siblings despite his difficulties. His mother, however, was diagnosed with a terminal illness prior to his arrest and died while he was in custody. This has had a profound effect on him, exacerbating his depression.
32. Mr Kelly left mainstream education to gain employment but has been unemployed since 2011.
33. Unfortunately, Mr Kelly associates with people known to the criminal justice system but has expressed a wish to disassociate himself from negative peer influences, initially in order to support his mother through her illness.
34. He acknowledged that an excessive amount of idle time available to him contributed to his criminality. He has, more recently, briefly engaged with the Winnunga Nimmityjah Aboriginal Health Service during his most recent period in the community and hopes to re-engage on his release from custody.
35. Mr Kelly began using alcohol at age 15, but in a limited way until he was 27, when it escalated to binge drinking to intoxication every weekend for a number of years. He says he ceased all consumption of alcohol in 1996.
36. He started using cannabis when he was 16 and has maintained use of that substance for most of his life.
37. When he was about age 30, his illicit substance use escalated and he started using amphetamines and heroin, which have been the most problematic for him. He used heroin intravenously for about 10 years but says that he ceased its use in 2006. He has, however, continued to use cannabis and methylamphetamines, the latter drug he substituted for the heroin he was using. He does not consider his use of methylamphetamines as problematic. That may be so in the sense that he may not be addicted, but it is still an illegal drug and its use will cause him problems. He has, it appears, been participating in a pharmacotherapy program, which also appears to have reduced his use of methylamphetamines. He also participated in the Solaris Therapeutic Program while previously in custody. I have described the Program in R v JM [2014] ACTSC 380 at [26].
38. Mr Kelly has some medical problems. He suffers from coronary heart disease and, indeed, had a major coronary attack when he was in custody in 2008. He has since experienced fainting and chest pain. This will, of course, limit his activities.
39. Mr Kelly has suffered from depression for some time. As noted above (at [31]), his mother's death has exacerbated that. He has also been affected by the fact that his incarceration means he has little chance of managing or participating in the management of her estate. He has, in the past, experienced suicidal ideation. He has not engaged with mental health professionals, though he did not provide any explanation for that.
40. Mr Kelly has a long and serious criminal history. He has been found guilty of about 225 offences, over half of which are offences of dishonesty, mainly burglary or equivalent offences and theft, usually associated with the burglary, but also separate offences. He has spent many years in custody. He has also breached court orders, recognizances and bonds on 15 occasions. The other large proportion of offences are 38 traffic offences, including more serious such offences.
41. As I pointed out in Kelly v Ashby at 364-5, he cannot be punished again for the offences which appear on his record but it limits the leniency that can be accorded to him.
Mr Kelly appears to acknowledge the impact his poor decision making and illicit substance use has on his offending behaviour, however has yet to demonstrate an adequate level of commitment in addressing these areas of risk. Mr Kelly is assessed as a high risk of reoffending primarily due to his illicit substance use, mental health, anti-social peer associations, lack of meaningful activity and poor decision making.
43. Attention was drawn by the Crown to my decision in R v Roux (No 2), where I sentenced Mr Roux for burglaries and thefts in a basement car park. The offences there were, however, burglaries, rather than aggravated burglaries and I imposed sentences of 12 months, 18 months and 20 months for the burglaries.
44. In Fusimalohi v The Queen [2012] ACTCA 49 at [15], Burns and Lander JJ said:
there is no single, correct sentence for offences of burglary and aggravated burglary. There will 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.
45. In that context, however, I refer to the following decisions:
46. In Williams v The Queen (2016) 75 MVR 482, Mr Williams and a co-offender broke into retail premises in Fyshwick and stole property valued at $500. He had a drug addiction which he had tried to resolve by attending residential rehabilitation. He had an extensive criminal history. For the aggravated burglary, he was sentenced to two years and one month imprisonment, and for the associated theft five months imprisonment, cumulative as to two months. The Court of Appeal dismissed an appeal against the sentence which was challenged as manifestly excessive.
47. In R v Robertson (No 2) [2016] ACTSC 65, Mr Robertson participated in four aggravated burglaries which were planned and involved the significant destruction of property in order to gain the entry necessary for the trespass. Mr Robertson was 44 years old with a disturbed childhood, but gained and maintained employment after school. He was sentenced to three years imprisonment for each burglary. Because of very substantial rehabilitation, he was not required to spend other than pre-sentence custody in full-time imprisonment.
48. In Rubino v The Queen [2015] ACTCA 22, Mr Rubino, the co-offender with Mr Robertson, challenged sentences of four years and five months for each of the aggravated burglaries. He did not have the subjective circumstances of Mr Robertson and had made no particular efforts at rehabilitation. He had a "significant criminal history, including an offence of aggravated robbery". The appeal against the sentences on the basis that it was manifestly excessive was dismissed.
49. In R v Gray [2014] ACTSC 376, Mr Gray, then 24 years old, was sentenced for an aggravated burglary with three other young men on a residential property at Monash. He was sentenced to 15 months imprisonment for the aggravated burglary.
50. In R v Baldini (No 2) [2014] ACTSC 163, Mr Baldini entered the victim's home with two others to find drugs and then seriously assaulted the victim. Mr Baldini had good subjective circumstances and his only prior criminal record was for traffic offences. He was employed and, at the end of a deferred sentence order, had shown abstinence from illicit drugs. He was sentenced to two years imprisonment for the aggravated burglary.
51. Finally, in EG v The Queen [2012] ACTCA 17, Mr Aldridge was 20 years old with no adult offending. He had good prospects of rehabilitation. For the offence of aggravated burglary, the Court of Appeal re-sentenced him to 18 months imprisonment.
52. None of these cases are completely comparable but they give a range within which this Court, as supervised by the Court of Appeal, has imposed sentences for the offence of aggravated burglary. None of the sentences are, of course, precedents. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; [57].
53. While I have not analysed these decisions in detail, they give a helpful range of sentences. I have read the sentencing remarks and the appeal decisions which have assisted me to identify relevant principles.
54. The convictions that I must enter for the offences of aggravated burglary and theft will breach the Good Behaviour Order made on 23 November 2015, made when a sentence of imprisonment was suspended.
55. Where a Good Behaviour Order was made when a sentence of imprisonment was suspended, the Court, under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), if satisfied that the offender has breached any of the offender's good behaviour obligations, must cancel the Good Behaviour Order. The Court then has a wide discretion, either to impose the suspended sentence imposed for the offence or re-sentence the offender for the offence.
56. In Saga v Reid [2010] ACTSC 59 at [99]- [101], I adopted what had been said in other cases; namely, that the failure of courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender avoided being sentenced to full-time prison, is likely to bring such sentences into disrepute.
57. Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]- [87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. While that would have the effect of extending the period in which the offender is subject to a Good Behaviour Order, that may be modified to take account of the period of satisfactory compliance with the earlier order.
58. In R v Curtis (No 2) [2016] ACTSC 34 at [17]- [19] I said:
59. Even though in this case the offence committed by Mr Kelly that breached the Good Behaviour Order was a somewhat different offence to that for which the Good Behaviour Order was originally made, namely dishonestly taking someone else's vehicle without the owner's consent, they were both offences of dishonesty.
60. The breach was also committed quite soon after the Good Behaviour Order was made.
61. In all the circumstances, it seems to me that the sentence that was suspended should be imposed, subject to issues of totality.
62. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).
63. In this case, general deterrence and punishment must play a significant part because of the nature and objective seriousness of the offences. Given the proximity of the offending to Mr Kelly's release, specific deterrence, too, plays a part.
64. On the other hand, the efforts that Mr Kelly has made to address his substance abuse is important and, as the Crown acknowledges, weight should be given to the encouragement of Mr Kelly's rehabilitation.
65. I regard Mr Kelly's plea of guilty, which is acknowledged to have been at an early stage, as showing significant remorse. It was, however, said that the Crown case was strong. Mr Kelly, however, was not identified and the only evidence against him were statements made by his nephew.
66. Mr Kelly's prior criminal history denies him much leniency, but he clearly has been making efforts at rehabilitation and he has suffered particularly from the death of his mother and the fact that his incarceration will prevent him from attending to and participating in the winding up of her affairs.
67. The offence was a serious one, but the manner of its execution, the motive and the circumstances make it a less serious version of the offence.
68. It was, however, serious that Mr Kelly was conditionally at liberty when he committed the offence and, indeed, had only recently been released.
69. 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 remarks.
70. I note that Mr Kelly has been in custody since 19 April 2016. That period of custody must be taken into account. I see no reason not to back-date the sentence of imprisonment. I note, too, that he has been assessed as not suitable for a community service condition to a Good Behaviour Order.
71. As I have noted above (at [61]), I consider that the sentence, suspended when the Good Behaviour Order was made, should be imposed.
72. So far as the sentences for the current offences are concerned, I am satisfied that no other sentence than a sentence of imprisonment is appropriate.
73. As there are multiple sentences to be imposed, I have carefully considered the length of each sentence to be imposed for each of the offences to ensure that Mr Kelly is not punished twice.
74. I have then considered whether the sentences should be partly or wholly concurrent because, for example, where they are part of the same enterprise or otherwise. This is relevant here, for the aggravated burglary and the theft should have a degree of concurrency. See R v McMahon [2014] ACTSC 280 at [96].
75. I have then reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and hope for Mr Kelly to achieve his goals when he is released into the community.
76. I consider that he has good prospects of rehabilitation, given the steps he has already taken and the circumstances of this offending.
1. I am satisfied that you have breached the Good Behaviour Order made on 23 November 2015.
3. I impose the sentence that was suspended of nine months to commence on 19 April 2016.
4. I convict you of aggravated burglary committed on 21 January 2016.
5. I sentence you to two years and three months imprisonment to commence on 19 June 2016 that is to be cumulative as to two months on the sentence imposed as a result of the breach of the Good Behaviour Order. Had you not pleaded guilty, I would have sentenced you to three years imprisonment.
7. I sentence you to 15 months imprisonment to commence on 19 September 2018 that is to be cumulative as to four months on the sentence for aggravated burglary. Had you not pleaded guilty, I would have sentenced you to 20 months imprisonment.
8. That is a total sentence of two years and nine months.
9. I set a non parole period of 16 months to commence on 19 April 2016 and to end on 18 August 2017.
I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Kelly [2016] ACTSC 281
(2013) 249 CLR 571
(2015) 73 MVR 360
(2011) 244 CLR 120
(2016) 75 MVR 482
(2001) 207 CLR 584